Updated: 1 September 2021
- "SAAS Fee" means the monthly fee (excluding any taxes and duties), being an amount agreed in writing by You and Us, for Your use of the Service.
- "Confidential Information" of a party includes any and all information of any type contained in or comprising advice, reports, accounts, manuals, contracts, techniques, operations, processes, software, applications, names, logos, marks, copyright subject matter, patentable subject matter which is obtained directly or indirectly from the party either before or after the date of this Agreement.
- "Data" means any data entered by You, or with Your authority, into the Service.
- "Intellectual Property Right" means any patent, trademark, service mark, copyright and related rights and all other intellectual property rights
- "Invited User" means any individual who is authorised by both the Subscriber and Orgtomic to use the Service, including the Subscriber’s employees, contractors and agents.
- "Orgtomic" means ORGTOMIC SDN. BHD. a company registered in Malaysia.
- “Personal Information" shall include without limitation all information or opinions about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
- "Our" means Orgtomic. "Us" and "We" have the same meaning.
- "Service" means the online recruitment management services system made available (as may be changed or updated from time to time by Orgtomic) via the Website.
- "Subscriber" means the company, natural person or other legal entity that accepts the terms of this Agreement and/or purchases the Service.
- "Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service,
- "Website" means the internet site located at the domain www.Orgtomic.com.
- "You" means the Subscriber, and where the context permits, an Invited User. "Your" has the same meaning.
1. Use of Software
Subject to You paying the Access Fee in accordance with clause 2.1, the restrictions set out in clause 2 and the other terms and conditions of this Agreement, Orgtomic grants You the non-exclusive, non-transferable right to access and use the Service via the Website. You acknowledge and agree (subject to any applicable written agreement between the Subscriber and the Invited Users and any other applicable laws) that:
- the Subscriber determines who is an Invited User and what level of user role access to the Service that Invited User has;
- the Subscriber is responsible for all Invited User’s use of the Service and as such must ensure that the Invited Users use the Service and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Invited User's breach of this Agreement;
- the Subscriber controls each Invited User's level of access to the Service at all times and can revoke or change an Invited User's access, or level of access, at any time and for any reason;
- it is the Subscriber’s responsibility to ensure that each Invited User is issued with a unique login by Orgtomic for their usage of the Service and that each Invited User creates a secure password for their unique login, which is kept confidential. The Subscriber must not allow multiple Invited Users to share a single login and password for the Service;
2. YOUR OBLIGATIONS
You agree that as a condition of Your use of the Service, You will comply with the following obligations:
The Access Fee will be deducted monthly by credit card or be paid by You monthly on receipt of an invoice from Us. If You provide credit card details to Orgtomic, You hereby authorize Orgtomic to bill such credit card in accordance with this clause. Orgtomic will continue deducting the Access Fees monthly until this Agreement is terminated in accordance with its Termination provisions.
If Orgtomic has not received payment within 14 days after any particular due date, and without prejudice to any other rights and remedies of Orgtomic: we may, without liability to You, disable Your password, account and access to all or part of the Service and Orgtomic shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid.
Orgtomic shall be entitled to increase the Access Fee upon 60 days' prior notice to You.
2. General Obligations:
- Only use the Service and Website for Your own lawful internal business purposes, and in accordance with these Terms and any additional conditions posted on the Website from time to time;
- use the Service and Website on behalf of others or in order to provide services to others but if You do so You warrant that You are authorised to do so and that all persons for whom or to whom services are provided will comply with and accept the terms of this Agreement;
- ensure that Your network and systems comply with the relevant specifications provided by Orgtomic from time to time;
- co-operate with Orgtomic in all matters relating to the Service;
- carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Your provision of such assistance as agreed by the parties, Orgtomic may adjust any agreed timetable or delivery schedule as reasonably necessary;
- comply with all applicable laws and regulations with respect to its activities under this Agreement; and
- obtain and maintain all necessary licences, permissions and consents which may be required before You use the Service
3. Access Obligations:
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You indemnify Orgtomic against any claims, loss or damage of any kind relating to any breach, misuse or unauthorized use of your computer systems, security systems or passwords, or any unauthorized disclosure of data or Confidential Information occurring via any system controlled by You.
As a condition of these Terms, when accessing and using the Service, You must not:
- attempt to undermine the security or integrity of Orgtomic's computing systems or networks or, where the Service are hosted by a third party, that third party's computing systems and networks;
- use, or misuse, the Service in any way which may impair the functionality of the Service or Website
- attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Service are hosted;
- transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use);
- access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful or, threatening
- access all or any part of the Service in order to build a product or service which competes with the Service;
- license, sell, rent, lease or otherwise commercially exploit, or otherwise make the Service available to any third party except the Invited Users.
You shall defend, indemnify and hold harmless Orgtomic against: all claims, actions, proceedings, losses, expenses, costs (including without limitation court costs and reasonable legal fees), damages and any other liabilities arising out of or in connection with Your use of the Service. You shall also indemnify Orgtomic against all claims, actions, proceedings, losses, expenses, costs (including without limitation court costs and reasonable legal fees), damages and any other liabilities arising from any breach of any of these Terms or any obligation You may have to Orgtomic, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
5. Service Rules
You agree not to engage in any of the following prohibited activities
- copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping";
- using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to the Orgtomic servers than a human can reasonably produce in the same period of time
- transmitting spam, chain letters, or other unsolicited email;
- taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- uploading invalid data, viruses, worms, or other software agents through the Service;
- collecting or harvesting any Personal Information from the Service, except as expressly permitted by the features of the Service;
- using the Service for any commercial solicitation purposes, meaning you must not use the Service to sell products or services of any description.
In general You shall use all reasonable endeavors to prevent any Prohibited Activities and in the event of any such Prohibited Activities promptly notify Orgtomic.
If You or any of Your Invited Users engage in a Prohibited Activity, Orgtomic may, in its absolute discretion, without liability or prejudice to its other rights to You, permanently or temporarily terminate or suspend Your access to the Service, without notice to You.
3. ORGTOMIC OBLIGATIONS
- Orgtomic undertakes that the Service will be performed with reasonable skill and care.
- Orgtomic shall use commercially reasonable endeavors to make the Service available 24 hours a day, seven days a week, except for planned maintenance ; and unscheduled maintenance performed outside normal business hours, provided that Orgtomic has used reasonable endeavors to give You at least 3 hours notice in advance.
a) Orgtomic shall without limiting its other rights or remedies have the right to suspend performance of the Service until You remedy the Default, and to rely on the Default to relieve it from the performance of any of its obligations to the extent the Default prevents or delays Orgtomic's performance of any of its obligations;
b) Orgtomic shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Your failure or delay to perform any of its obligations as set out in this clause 3.5; and
c) you shall reimburse Orgtomic on written demand for any costs or losses sustained or incurred by Orgtomic arising directly or indirectly from the Default.
This Agreement shall not prevent Orgtomic from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
4. CONFIDENTIALITY AND PRIVACY
- Confidentiality - Unless the relevant party has the prior written consent of the other or unless required to do so by law:
b) Each party shall take all reasonable steps to ensure that the other's Confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
d) The provisions of clause 4.1) shall not apply to any information which becomes public knowledge other than by a breach of this clause;
If You are a citizen or resident of the United Kingdom or the European Union, and Orgtomic processes any Personal Information (or “Personal Data”, as this term is defined in the General Data Protection Regulation (EU) 2016/679) on Your behalf when performing its obligations under this Agreement, the parties record their intention that You shall be the data controller and Orgtomic shall be a data processor and in any such case:
a) you acknowledge and agree that the Personal Information may be transferred or stored outside the EEA or the country where You and any Invited Users are located in order to carry out the Service and Orgtomic’s other obligations under this Agreement;
5. INTELLECTUAL PROPERTY
- General: Title to, and all Intellectual Property Rights in or arising out of or in connection with the Service, the Website and any documentation relating to the Service remain the property of Orgtomic. Except as expressly stated herein, this Agreement does not grant You any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Website, the Service or any associated documentation.
2. Ownership of Data:Title to, and all Intellectual Property Rights in, the Data remain Your property and You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data.
3. Requesting a copy of Data on termination of use of Service:
Orgtomic adheres to its best practice policies and procedures to prevent data loss or unauthorized access or disclosure, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of, or unauthorized access to or disclosure of Data.
Orgtomic expressly excludes liability for any loss, destruction, alteration or unauthorized access to or disclosure of Data no matter how caused. If, on termination of Your use of the Service, You would like a copy of your Data, Orgtomic will, on request in writing by You, provide You a copy of your Data, in SQL backup format. You must make a request for a copy of your Data within 30 days of termination of Your use of the Service.
6. WARRANTIES AND ACKNOWLEDGMENTS
- Authority - You warrant that where You are using the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by accessing and using the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
- Orgtomic has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You.
- The provision of, access to, and use of, the Service is on an "as is" basis and at Your own risk.
- It is Your sole responsibility to determine that the Service meets the needs of Your business and are suitable for the purposes for which they are used.
- You assume sole responsibility for results obtained from the use of the Service and the Documentation by You, and for conclusions drawn from such use
- You remain solely responsible for complying with all law applicable to You.
3. No warranties
- All implied conditions, warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded in so far as is permitted by law, including (without limitation) warranties of merchant ability, fitness for purpose, title and non-infringement.
4. Consumer guarantees:
- You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service, the Website or these Terms.
7. LIMITATION OF LIABILITY
- Nothing in this Agreement is intended to exclude or limit Orgtomic’s liability for any liability which cannot be limited or excluded by applicable law.
- If Orgtomic incurs any liability to you under or as a result of any such non-excludable provisions, then Orgtomic’s liability is limited to (at Orgtomic’s election) the re-supply of the Service, or the payment of the cost or re-supplying the Service.
- Subject only to clauses 7.1 and 7.2:
a) Orgtomic excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under on in connection with the Terms for any loss of any kind (including loss or corruption of software, information or Data); any loss of profits; any loss of sales or business; any loss of agreements or contracts; any loss of anticipated savings; any loss of damage or goodwill; any indirect or consequential loss; and any cost, damage or other liability resulting, directly or indirectly, from any use of, or reliance on, the Service or Website;
b) if Orgtomic incurs any liability to you, whether in contract, tort (including negligence) or otherwise, then Orgtomic’s liability is limited to (at Orgtomic’s election) the re-supply of the Service, or the payment of the cost or re-supplying the Service;
4. In no event shall Orgtomic, its employees, agents and subcontractors be liable to You to the extent that the alleged infringement is based on:
a) a modification of the Service by anyone other than Orgtomic; or
b) Your use of the Service in a manner contrary to the instructions given to You by Orgtomic; or
c) Your use of the Service after notice of the alleged or actual infringement from Orgtomic or any appropriate authority.
5) The foregoing represents Your sole and exclusive rights and remedies, and Orgtomic's (including Orgtomic's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
On termination of Your use of the Service, Orgtomic will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
- You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed over any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
then Orgtomic may take any or all of the following actions, in its absolute discretion:
- Terminate this Agreement with immediate effect and Your use of the Service and the Website;
- Permanently or temporarily, as determined by Orgtomic, suspend Your use of the Service and the Website;
- Suspend or terminate access to all or any Data;
Expiry or termination:
On termination of this Agreement for any reason all licences granted under this Agreement shall immediately terminate and You shall immediately cease all use of the Service and any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
- This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
- This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of Malaysia, except in relation to data protection laws of the United Kingdom and European Union, which will apply if You are a citizen of those jurisdictions.
- Each party irrevocably agrees that the courts of Malaysia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
- If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. If the foregoing is not possible or enforceable, the relevant provision will be treated as severed from this Agreement and the remainder of this Agreement will continue to be binding on the parties.