TERMS OF SERVICE
1. ACCEPTANCE OF TERMS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS AND THE PRIVACY POLICY (TOGETHER, THE TERMS”) CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING TO AND/OR USING THE XBACE PLATFORM (AS DEFINED HEREINAFTER), YOU AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU MUST IMMEDIATELY DISCONTINUE YOUR ACCESS OF AND/OR USE OF THE XBACE PLATFORM.
These Terms constitute a legally binding agreement (“Agreement”) between you and Xbace Sdn Bhd [Company Registration No.202001023506 (1379826-K)]. For the purpose of these Terms, any reference to “we” “us”, “our”, “Xbace” and/ or any similar term shall be construed as reference to Xbace Sdn Bhd.
These Terms govern your access to and/or use of our websites through which we make our services available (collectively, “Site“), our mobile, tablet and other smart device applications, and application program interfaces (collectively, “Application”) and all associated services (collectively, “Xbace Services“). The Site, Application and Xbace Services together are hereinafter collectively referred to as the “Xbace Platform”.
2. AMENDMENTS OF TERMS
We may amend the Terms from time to time. You should visit the Xbace Platform regularly to check when the Terms were last updated (as displayed at the end of this document) and to review the current Terms. We will do our best to notify you of any amendments to the Terms that we consider likely to materially affect your rights and obligations before the date they become effective.
The continued access to or use of the Xbace Platform, after any amendment to these Terms, constitutes your acceptance of the Terms, as modified by such amendment. If you do not accept the Terms, or any amendment to them, you must immediately stop accessing to and/ or using Xbace Platform.
3. OPENING OF XBACE ACCOUNT
You must open an account (“Xbace Account”) to access to and use the Xbace Platform. By opening a Xbace Account, you will become a registered user (“Member” or “you”) , being a registered user, you expressly warrant and represent that:-
(a) You are at least 18 years of age and have the power, right and/or the capacity to execute, deliver and perform the terms of this Agreement;
(b) You are not an undischarged bankrupt and are not subject to any bankruptcy proceedings and no receiving or adjudication order or bankruptcy order has been made nor has any bankruptcy petition been presented against you;
(c) You are not in default under any agreement to which you are a party to or by which you may be bound and no litigation, arbitration, administration or winding-up proceedings are presently current or pending or threatened where default, litigation,
arbitration or administrative proceedings, as the case may be, might affect or impair your ability to perform your obligations under this Agreement;
(d) You are not listed on any United Nations Security Council’s list of prohibited or restricted parties, nor are you subject to any of the provisions in the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 and its related subsidiary legislations;
(e) You shall, upon opening the Xbace Account, provide accurate, correct, latest, complete, comprehensive information to us and shall keep your information up-to-date at all times;
(f) You shall not open, or attempt to open, a Xbace Account under any name except your own or use your Xbace Account to carry out transactions on behalf of a third party;
(g) You shall not have more than one Xbace Account or use or access any Xbace Account other than your own or assist any other person in obtaining unauthorised access to and/or use of any Xbace Account;
(h) You shall not use your Xbace Account for or in relation to any illegal activity, any prohibited activity, in violation of any laws, statues, regulations.
By opening a Xbace Account you accept and agree that we may, without further notice and in our sole discretion, terminate, suspend, revoke or restrict your account if you use or if we suspect you may be using, the Xbace Platform in a manner that is inconsistent with the letter or spirit of these Terms.
4. XBACE PLATFORM AND XBACE SPACES
We are the provider of Xbace Platform. Xbace Platform is an online platform that allows you to enjoy Xbace-branded acoustic pod (“Xbace Spaces”), Xbace Space is one type of Xbace Services. The use of the Xbace Spaces does not in any manner constitute us in granting you a lease or tenancy of any form thereof, but is rather a limited, revocable, non-exclusive, nontransferable contractual entitlement on these Terms. In our sole discretion and without limiting any of our other rights hereunder, we may terminate, suspend, revoke or restrict your access to or use of the Xbace Spaces at any time, without any prior notice and without giving any reason. Please note that we do not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any locations that the Xbace Spaces are available or located or placed (“Space Partner Locations”), these Space Partner Locations are owned by certain third parties (“Space Partner”).
5. THIRD PARTY SERVICE PROVIDERS
The access to or use of certain features of the Xbace Platform may require you to accept separate and/ or additional terms and conditions, before you can access to or use the relevant features. We append below, amongst others, some of the pertinent instances that may cause you end up with accepting and or agreeing to separate and/or additional terms and conditions:-
(a) Our Applications listed on, amongst others, Google Play Store, Apple iTunes App Store, Huawei AppGallery, if you access or download your Application from the Google Play Store or Apple iTunes App Store, or Huawei AppGallery, you would require to agree and accept the relevant terms and conditions imposed by the respective service providers.
(b) Our Xbace Spaces are located in Space Partner Locations owned by Space Partner. When you utilise the Xbace Spaces in a Space Partner Location you would subject to terms and conditions imposed by the Space Partner.
(c) All payments will be made through the use of third-party payment gateway or service method provided by other service providers, when you make your payment you would subject to terms and conditions imposed by the third party payment service providers. We are not the agent for the above third parties. When you use any of the products and services provided by the third party, you are entering into a contract directly with the relevant third party. We do not become a party to the said contract. We therefore do not endorse and guarantee the conduct or performance or services of any third party and the existence, quality, quality, safety, suitability, the accuracy of the description or legality of any services and products provided by the relevant third party.
6. POSITIVE AND NEGATIVE COVENANTS
In connection with your use of the Xbace Platform, Xbace Space, Space Partner Locations, you undertake that:
(a) You shall only use the Xbace Platform in compliance with all applicable laws and regulations in Malaysia. You hereby agree that we have the right to monitor, disable, suspend, revoke, restrict your access to or use of the Xbace Platform to ensure your compliance with these Terms, applicable law and regulations or the order or requirement of a court, law enforcement or other administrative agency or governmental body;
(b) You shall follow all additional regulations regarding the Xbace Spaces, Space Partner Locations, as may be communicated through the Xbace Platform, posted signs, or otherwise;
(c) You are responsible for keeping the Xbace Spaces in a clean and tidy condition, for the avoidance of doubt you are required to take your trash with you, return the chair and stool to its original position when you leave the Xbace Spaces;
(d) You are responsible for your own acts and omissions during your use of the Xbace Spaces;
(e) You are responsible to ensure that you have retrieved all of your personal items prior to leaving Xbace Spaces after use. We or the Space Partner shall not be responsible for any loss or damage to any personal property you bring into and/or may leave behind in Xbace Spaces;
(f) You shall be held liable (and do hereby authorize us to charge you) for the repair cost for all damage to the Xbace Spaces and items therein resulting from your use thereof;
(g) You shall be held liable (and do hereby authorize us to charge you) for any items which are taken from the Xbace Spaces in connection with your use thereof;
(h) You shall only use your Xbace Account password for the Xbace Platform for your own personal use and shall not resell or transfer or assign or share it to any third party;
(i) You shall keep secure and confidential your Xbace Account password or any identification we provide you which allows access to the Xbace Spaces. You shall not allow or authorize any other person to access the Xbace Spaces using your access password;
(j) You shall provide us and/or the Space Partner with whatever proof of identity we/they may request from you at any time;
(k) You shall only use an access point or wireless internet connection which you are authorized to use while using the Xbace Spaces. Additionally, when using the internet within the Xbace Spaces, you shall only use it for lawful purposes, and without restricting
the foregoing, you shall not use it for purposes of criminal acts, consumer fraud or any other illegal purposes;
(l) You shall wear appropriate clothing while using the Xbace Spaces;
(m) You hereby acknowledge that there is a capacity limit as to the number of persons permitted in a Xbace Space at any given time, and that such limit shall be posted on the Xbace Platform. You hereby agree to strictly adhere and abide to such capacity limit;
(n) You hereby consent us to the use of cameras or closed-circuit televisions and/or sensors to monitor the movement of people going in and out the Xbace Spaces, which (without limitation) shall be used by us to optimize the Xbace Spaces and for managing the use,
security and safety of the Xbace Spaces; or
(o) You shall provide us with such information and take such actions as requested by us with respect to any investigation conducted by us or our representative regarding the use or abuse of the Xbace Platform.
You further undertake that:
(a) You shall not use the Xbace Platform for any illegal, unethical, immoral or inappropriate purposes, including but not limited to drug use, alcohol abuse, gambling or prostitution, pornography, sexual activity, violent or threatening behaviour, or any other purpose
reasonably likely to reflect negatively on us or any Space Partner;
(b) You shall not breach or circumvent any applicable laws or regulations, agreements with third parties, third party rights or our Terms and Policies;
(c) You shall not smoke, vape in the Xbace Spaces;
(d) You shall not light or allow any inflammable, candles, incense sticks or naked flames in the Xbace Spaces;
(e) You shall not bring or keep any animals in the Xbace Spaces, except for service or assistance animals, which shall at all times be harnessed, leashed, or tethered, or controlled through voice, signal, or other effective controls;
(f) You shall not make excessive noise in the Xbace Spaces, nor create any nuisance, harassment, annoyance, inconvenience, noise nor conduct any other activity which would in our or any Space Partner’s opinion cause disturbance to other members, guests, visitors, invitees, persons or other tenants, leases in any building containing a Xbace Space;
(g) You shall not use the Xbace Platform for any purposes that are not expressly intended and/ or permitted by these Terms or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
(h) You shall not use the Xbace Spaces for sending or storing any unlawful material or for illegal or fraudulent purposes;
(i) You will not install, remove or modify any fixtures, equipment, machinery or appliances in the Xbace Spaces;
(j) You shall not do anything which may be considered under applicable community standards to be immoral, deceptive, scandalous or obscene or to injure, tarnish, damage or negatively affect the reputation and goodwill associated with Xbace Platform;
(k) You shall not impair the proper operation of any network you access while using the Xbace Spaces;
(l) You shall not try to harm the Xbace Platform in any way whatsoever; or
(m) You shall not copy, modify, disassemble, decompile, reverse engineer or distribute the Xbace Platform in any manner whatsoever without written permission from us.
7. FEES AND PAYMENTS
The fees applicable to the use of Xbace Spaces can be viewed on Xbace Platform. We reserve the right to change our fees at any time and will update our Xbace Platform page accordingly. We also have the right to correct pricing errors or mistakes even if we have already issued an invoice or received payment. In certain circumstances, and at our sole discretion, we may make promotional offers with different features and different rates to our selected customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract.
(a) Service fees you will be charged a fee for the use of Xbace Spaces;
(b) Processing fees you will be charged a fee for the use of credit card for your payment & make payment through any third-party payment gateways or services provided by third party service providers;
Our Fees are due and payable upon the booking stage namely prior to the commencement of your use of the Xbace Spaces and Our Fees once paid and collected by us are non-refundable in whatsoever circumstances.
The service fees and processing fees (“Total Fees”) are due and payable upon the booking stage namely prior to the commencement of your use of the Xbace Spaces and the Total Fees once paid and collected by us are non-refundable in whatsoever circumstances.
Taxes. Unless otherwise stated, Total Fees do not include federal, state, local and foreign taxes and duties and other similar assessments (“Taxes”). You are responsible for all Taxes associated with your purchase and you will be charged for a rate for your purchase based on the statutory rate imposed by the government of Malaysia.
By proceeding with any transaction, you accept and agree to the Total Fees and Taxes. Such fees and taxes will also be displayed in your transaction history upon completion of the transaction.
Damage Fees. Please note that if we or Space Partners are of the opinion that repair or cleaning is required for Xbace Spaces and/or Space Partner Locations, resulting from your violation of these Terms or your use of the Xbace Spaces and/or Space Partner Locations in excess of normal “wear and tear”, we reserve the right to charge damage fees to your Xbace Account for the cost of such repair and/or cleaning at our absolute discretion and any such amounts are non-refundable. We may also pursue any other remedies available to us in which you shall be responsible for cost to be incurred.
You acknowledge and agree that all payments made by you may involve the use of third-party payment gateways or services provided by third party service providers. You hereby irrevocably and unconditionally authorise us or our affiliates, to release your customary billing information such as name, address to third party payment service providers for the purposes of payment. You also authorize us or our affiliates, and our third-party payment processor(s), to charge your payment method for the Total Fees, Taxes and Damage Fees set out herein.
8. NO REFUND POLICY
Our Fees once paid and collected by us are non-refundable in whatsoever circumstances. You acknowledge and agree that this no refund policy shall apply at all times regardless of your decision to terminate your usage or our decision to terminate your usage, or the Space Partner’s decision to terminate your usage or any third party’s decision to terminate your usage or any disruption caused to our Xbace Platform either planned, accidental or intentional, or any reason whatsoever.
9. DURATION AND TERMINATION
This Agreement shall be effective from the date of you successfully open a Xbace Account with us until such time your Xbace Account is terminated in accordance with the provisions below.
You or we may terminate your Xbace Account at any time.
You hereby agree that we reserve the right to restrict, suspend, revoke or terminate your Xbace Account without any prior notice given to you, where:
(a) we suspect your Xbace Account to be the subject of an operational or other error, in which case we may be required to suspend or revoke access to your account until such time as the error is rectified;
(b) we suspect your Xbace Account has been or is being used in relation to any unlawful, fraudulent or any prohibited activities, or in breach of these Terms;
(c) we suspect you or your Xbace Account is or has been associated with, or poses a high risk of, money laundering, financing of terrorism, fraud, or any other financial crime;
(d) we suspect you of taking any action that Xbace considers to be a circumvention of our controls, including but not limited to opening multiple Xbace Accounts;
(e) we suspect your involvement in any attempt to gain unauthorised access to any Xbace Account;
(f) your Xbace Account is or appears to be the subject of any legal, regulatory or government process and/or we, in our sole discretion, consider there to be a heightened risk of legal or regulatory non-compliance associated with your Xbace Account;
(g) we are compelled to do so by a prima facie valid subpoena, court order, or other binding order of a government or regulatory authority; or
(h) your name appears on a government or international body sanctions list. You accept and agree that we are under no obligation to disclose to you the fact of or reason for any decision to restrict, suspend, revoke or terminate your Xbace Account, and shall have
no liability to you in connection with the restriction, suspension, revocation or termination of your Xbace Account.
You accept and acknowledge that, once your Xbace Account is closed:
(a) you will have no further access to it;
(b) we reserve the right (but has no obligation) to delete all of your information and account data stored on our servers, and also reserves the right to retain any information that is required for legal or operational reasons.
You accept and agree that we shall not be liable to you or any third party in relation to the closure of your Xbace Account, the termination of access to your Xbace Account, or for the deletion of your information or Xbace Account data.
10. DISCLAIMERS
The Xbace Platform, Xbace Spaces, your Xbace Account and any related products or services are offered on a strictly “as-is” and “where-available” basis and we expressly disclaim, and you waive, all warranties of any kind, whether express or implied. you agree that you have had whatever opportunity you deem necessary to investigate our services, laws, rules, or regulations that may be applicable to your utilisation of Xbace Account, Xbace Platform, Xbace Spaces, Space Partner Locations and that you are not relying upon any statement of law or fact made by us. Without limiting the generality of the foregoing, the Xbace Platform, your Xbace Account, Space Partner Location and any related products or services are offered without any warranty as to merchantability or fitness for any particular purpose.
11. LIMITATION OF LIABILITY
You agree that, in no event shall we and any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives and/ or any other party involved in creating, producing, or delivering the Xbace Platform, Xbace Spaces shall
be liable to you for any direct, indirect, incidental, special, consequential, exemplary or punitive damages or any other damages of any kind, including but not limited to loss of profits, loss of revenue, loss of business, loss of opportunity, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress in contract, tort or otherwise, arising out of or in any way connected with (i) these Terms, (ii) from the use of or inability to use or unavailability of the Xbace Platform or Xbace Spaces or Xbace Account, (iii) from any communications, interactions or meetings with other persons with whom you communicate, interact or meet with as a result of your use of the Xbace Platform or Xbace Spaces or Xbace Account, or (iv) from your use of a Space Partner Location via the Xbace
Platform or Xbace Spaces or Xbace Account, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event shall any of our and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives and/ or any other party’s aggregate liability, arising out of or in connection with these terms and your use of the Xbace Platform or Xbace Spaces or Xbace Account including, but not limited to, from your utilisation of any Xbace Spaces, Xbace Account, Space Partner Locations via the Xbace Platform, or from the use of or inability to use the Xbace Platform or Xbace Spaces or Xbace Account, exceed an amount equivalent to Ringgit Malaysia Three Hundred (RM300.00) only.
The above limitations of liability shall apply to the fullest extent permitted by law in Malaysia.
12. INDEMNITY
You hereby irrevocably and unconditionally agree and undertake to fully indemnify us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives and to hold us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives fully and effectively indemnified against any damages, losses, liabilities, duties, fees, costs ( including but not limited to legal costs on a solicitor-client basis), debts, obligations, litigation, arbitrations, acts, suits, proceedings, compromises, write-offs, arrangements, settlements, counterclaims, consequences, claims, charges, expenses, actions or demands of every description, whether present or future, actual or contingent, ascertained or unascertained or disputed and whether owed, suffered, incurred, paid or sustained by or assessed, charged, made or instituted
against us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives or any party severally or jointly and as principal or surety or other howsoever, by any person or persons, whether in contract, in tort or in statute or otherwise, arising from or in connection with:-
(a) your breach of any of the provisions/ clauses in this Agreement, our policies, directive, guidelines, or any laws, regulations or any third-party rights;
(b) the non-payment, inadequacy or insufficiency of sum paid by you to any person for the use of the Xbace Platform or Xbace Spaces or Xbace Account or Space Partner Location;
(c) any transaction effected or deemed to have been effected arising from any contracts, undertakings, arrangements, engagements and obligations of, and rights, benefits and licences enjoyed by you which have been entered into or undertaken in connection with
the use of the Xbace Platform or Xbace Spaces or Xbace Account or Space Partner Location or otherwise;
(d) any irregularities, obligations, duties, liabilities accruing to or incurred by the you;
(e) anything done or omitted to be done by you, whether in contract or in tort or under statute for any remedy including, without limitation, for breach of whatsoever contract, undertakings, arrangements, engagements and obligations of, and rights, benefits and
licences in whatsoever nature, in relation to the use of Xbace Platform or Xbace Spaces or Xbace Account or Space Partner Location or otherwise;
(f) your improper use of the Xbace Platform or Xbace Spaces or Xbace Account; or
(g) your interaction with any member of Xbace or utilisation of a Space Partner Location.
You further covenant and undertake to pay us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives by way of indemnity, at any time immediately upon first demand by us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives, all amounts which may from time to time be demanded from us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives in relation to the matters set out in this Clause.
Demands under this Clause may be made by us and/or any of our affiliates including our directors, shareholders, officers, members, employees, agents or representatives from time to time.
13. ENTIRE AGREEMENT
This Agreement, sets out the entire agreement and understanding between you and Xbace in respect of the subject matter of this Agreementand supersedes all prior oral or written communications, representations or agreements in relation to the subject matter of this Agreement, which shall cease to have any further force or effect. It is agreed that:
(a) neither party has entered into this Agreement in reliance upon any representation, warranty or undertaking of the other (or any of its representatives or professional advisers) which is not expressly set out in this Agreement;
(b) a party shall have no claim or remedy in respect of misrepresentation (whether negligent or otherwise) or untrue statements made by the other party (or any of its representative or professional advisers);
(c) this clause shall not exclude any liability for, or remedy in respect of, fraudulent misrepresentation.
14. GOVERNING LAW AND JURISDICTION
This Agreement and the relationship between you and Xbace shall be governed by, and interpreted in accordance with, the laws of Malaysia. In respect of any legal action or proceedings arising out of or in connection with this Agreement, you and Xbace irrevocably
submit to the jurisdiction of the courts of Malaysia.
15. GENERAL PROVISIONS
Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic and commercial objectives of the invalid or unenforceable provision.
Assignment. You may not assign or transfer any of your rights or obligations under these Terms without our prior written approval. You give us your approval to assign or transfer these Terms in whole or in part to any third party.
Successor. This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
Force Majeure. We shall not be liable for any delays, failure in performance or interruption of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, pandemic, epidemic, governmental intervention (including quarantine or isolation orders), civil disturbance, war, strike or other labour dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control.
Survival. All provisions of these Terms that by their nature extend beyond the expiry or termination of these Terms, including but not limited to, sections relating to the suspension, revocation or termination of your Xbace Account, use of the Xbace Platform, disputes with Xbace and general provisions, shall survive the termination of these Terms.
Headings. Headings to clauses in this Agreement are for the purpose of information and
identification only and shall not be construed as forming part of this Agreement.
Last Updated on 07-03-23
