1. Formation of Agreement
This Master Services Agreement (this “Agreement”) is entered into by and between (a) the applicable KitaHQ entity identified in Section 2.2 (the “Company”) and (b) the entity that executes an Ordering Document that expressly references this Agreement (the “Customer”). This Agreement governs the terms under which the Company provides, and the Customer purchases, a subscription to access and use the Company’s cloud-hosted software and related services (collectively, the “Services”). The Company and the Customer are each a “Party” and together the “Parties”. The Parties are legally bound by this Agreement upon mutual execution of an Ordering Document, effective on the date of the last Party’s signature (the “Effective Date”).
2. Contracting Entity; Governing Law and Forum
2.1 Determination. The Company acting as the contracting entity under this Agreement is determined by the Customer’s principal place of business and is identified in each Ordering Document (which may be styled as an Order Form, Statement of Work, or similar instrument).
2.2 Contracting-Entity Designations; Governing Law and Forum
- Singapore (or any jurisdiction other than Malaysia or Indonesia). If the Customer’s principal place of business is in Singapore or in any country except Malaysia or Indonesia, the contracting entity is Momentum Spark Pte. Ltd. (UEN 202039810Z), whose registered office is at 531A Upper Cross Street, #04-95, Hong Lim Complex, Singapore 051531. This Agreement is governed by the laws of Singapore, and the courts of Singapore have exclusive jurisdiction.
- Malaysia. If the Customer’s principal place of business is in Malaysia, the contracting entity is KitaHQ Sdn. Bhd. (Company No. 202401044179 / 1590025-U), having its registered office at Unit No. 2001, Level 20, Menara Centara, No. 360 Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur, Malaysia. This Agreement is governed by the laws of Malaysia, and the courts of Kuala Lumpur have exclusive jurisdiction.
- Indonesia. If the Customer’s principal place of business is in Indonesia, the contracting entity is PT Kita Lulus Internasional, located at Ruko Permata Regency Blok D No. 37, Jalan Haji Kelik, Kecamatan Kembangan, Jakarta Barat, Daerah Khusus Ibukota Jakarta, Indonesia. This Agreement is governed by the laws of Indonesia, and the courts of Central Jakarta have exclusive jurisdiction.
Forum selections apply to the extent permitted by applicable law and do not restrict either Party’s right to seek injunctive or other equitable relief in any competent jurisdiction.
2.3 Relocation. If, after the Effective Date, the Customer changes its principal place of business, the contracting-entity designation and governing-law / forum selection in the most-recently executed Ordering Document will remain in force unless the Parties agree in writing to an amendment.
3. Definitions
Capitalised terms not defined elsewhere have the meanings set out below.
- “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means ownership of more than 50 % of the voting interests of such entity.
- “Applicable Laws” means all statutes, regulations, and rules that apply to a Party’s activities.
- “Authorized User” means any individual the Customer authorises to access the Services on the Customer’s behalf.
- “Customer Data” means data that the Customer or its Authorized Users submit to the Services, including any personally identifiable information and data derived from such submissions.
- “Documentation” means the Company’s official user guides, knowledge-base articles, and technical specifications for the Services.
- “Fees” means all amounts payable by the Customer for the Services as stated in an Ordering Document.
- “Ordering Document” means an order form, statement of work, or similar document executed by both Parties that references this Agreement and specifies the Services, usage limits, and Fees.
- “Subscription Term” means the period during which the Customer is authorised to access the Services under an Ordering Document.
4. Licence and Performance Obligations
4.1 Licence Grant. Subject to this Agreement, the Company grants the Customer a non-exclusive, non-transferable, revocable licence during the Subscription Term to access and use the Services and related Documentation for the Customer’s internal business purposes.
4.2 Performance Standard. The Company will provide the Services in material conformity with the Documentation. If the Services deviate materially, the Company’s sole obligation for any failure to conform to the Documentation is, at its option, (i) to re-perform the affected Services or (ii) to credit or refund the pro-rated Fees actually paid for the non-conforming Services for the month in which the non-conformity occurred.
4.3 Updates. The Company may modify the Services or Documentation from time to time, provided such changes do not materially diminish overall functionality.
5. Fees and Taxes
5.1 Fees. The Customer will pay all Fees in accordance with the applicable Ordering Document. Fees are non-cancellable and non-refundable except as expressly stated herein.
5.2 Taxes. Fees are exclusive of all taxes. The Customer is responsible for all taxes imposed on its purchases, other than taxes based on the Company’s income.
5.3 Payment Terms. Unless otherwise stated in an Ordering Document, invoices are due net 15 days from the invoice date. Late payments accrue interest at 1 % per month (or the maximum legal rate, if lower). The Company may suspend Services for overdue amounts.
5.4 Fee Adjustments. The Company may adjust Fees for renewal Subscription Terms by providing at least 14 days’ written notice before the current term ends.
6. Customer Responsibilities
6.1 Acceptable Use. The Customer and its Authorized Users must use the Services in accordance with this Agreement, the Documentation, and Applicable Laws. The Customer will not and will not permit anyone else to:
(a) sublicense, sell, or lease the Services;
(b) reverse engineer or attempt to extract source code except as allowed by law;
(c) interfere with or disrupt the Services or the networks providing them; or
(d) upload malicious code or infringe third-party rights.
6.2 Security. The Customer is responsible for safeguarding its account credentials and will promptly notify the Company of any unauthorised use.
6.3 Compliance. The Customer is solely responsible for compliance with all laws relating to its business and its use of the Services.
7. Prohibited Conduct
The Customer will not (and will not enable any third party to):
(a) violate any law or third-party right;
(b) bypass or disable security features of the Services;
(c) introduce malware or interfere with other users;
(d) engage in fraud, misrepresentation, or unauthorised marketing outreach; or
(e) attempt any of the above.
8. Corporate Eligibility
The Customer represents that it is duly organised, validly existing, and in good standing under Applicable Laws, and that the individual executing the Ordering Document has authority to bind the Customer.
9. Intellectual-Property Rights
9.1 Customer Data. As between the Parties, the Customer retains all ownership of Customer Data. The Customer grants the Company a non-exclusive, worldwide, royalty-free licence to process Customer Data solely to provide and improve the Services.
9.2 Company IP. The Company retains all rights in the Services, Documentation, and related intellectual property. No rights are granted except as expressly stated.
9.3 Feedback. The Customer may provide feedback, which the Company may use without restriction or obligation.
10. Data Protection and Confidentiality
10.1 Data Protection. Each Party will comply with Applicable Data-Protection Laws. The Company will implement reasonable technical and organisational measures to protect Customer Data.
10.2 Confidentiality. Each Party will protect the other Party’s confidential information with the same care it uses for its own similar information (and at least reasonable care). Confidential information may be used only to perform under this Agreement and disclosed only as required by law or with prior written consent.
10.3 Data Retention. Upon termination or expiration of the Subscription Term, the Company will delete or anonymise Customer Data in accordance with its data-retention policy, unless otherwise required by law or agreed in writing.
11. Term, Renewal, Termination, Suspension
11.1 Term. This Agreement starts on the Effective Date and continues until all Subscription Terms have expired or been terminated.
11.2 Renewal. Each Subscription Term renews automatically for successive periods of equal length unless either Party gives at least 60 days’ written notice of non-renewal.
11.3 Termination for Breach. Either Party may terminate this Agreement or an Ordering Document for material breach if the breach is not cured within 30 days after written notice.
11.4 Suspension. The Company may suspend the Services (i) for undisputed overdue amounts remaining unpaid 15 days after written notice, or (ii) for any suspected violation of Section 6 or 7 that, in Company’s reasonable judgment, threatens the security or integrity of the Services, Customer Data, or the Company’s reputation.
11.5 Effect of Termination. Upon termination, all rights to access the Services cease immediately. Sections that by their nature survive (including payment, confidentiality, IP, liability, and governing-law provisions) will remain in effect.
12. Indemnification
12.1 Customer Indemnity. The Customer will defend and indemnify the Company and its Affiliates against third-party claims arising from (a) the Customer’s breach of Section 6 or 7, (b) Customer Data, or (c) the Customer’s gross negligence or wilful misconduct. The Company must provide prompt notice and reasonable cooperation and may participate at its own expense.
13. Limitation of Liability; Disclaimer
13.1 Cap. The Company’s aggregate liability under this Agreement will not exceed the Fees paid by the Customer in the 12 months preceding the event giving rise to liability.
13.2 Exclusion. Neither Party is liable for indirect, special, incidental, or consequential damages, or loss of profits, revenue, or data, even if advised of the possibility.
13.3 Disclaimer. Except as expressly stated, the Services are provided “as is.” The Company disclaims all implied warranties (merchantability, fitness for a particular purpose, non-infringement, and quiet enjoyment).
14. Miscellaneous
14.1 Entire Agreement. This Agreement and each Ordering Document constitute the entire agreement between the Parties on the subject matter and supersede all prior agreements.
14.2 Amendments. The Company may modify this Agreement or the Documentation by posting the updated version on its website (which constitutes written or electronic notice) or by otherwise providing at least 30 days’ notice; continued use of the Services after the effective date of the modification constitutes acceptance.
14.3 Waiver. Failure to enforce any provision is not a waiver of future enforcement.
14.4 Assignment. The Customer may not assign this Agreement without the Company’s prior written consent, except to a successor in a merger or sale of substantially all assets. The Company may assign to an Affiliate or successor on written notice.
14.5 Severability. If any provision is held unenforceable, the remainder of the Agreement will remain in full force, and the invalid provision will be replaced by an enforceable provision that most closely reflects the Parties’ original intent.
14.6 Force Majeure. Neither Party is liable for failure to perform due to events beyond its reasonable control (e.g., natural disaster, war, terrorism, labour stoppage, Internet failures, pandemics, or government action).
14.7 Independent Contractors. The Parties are independent contractors; nothing creates a partnership, agency, or joint venture.
14.8 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts and delivered electronically; each counterpart is deemed an original, and all counterparts together constitute one instrument.
