Terms & Conditions

TERMS AND CONDITIONS FOR THE PROVISION OF BRANDING, MARKETING, AND CONSULTING SERVICES

These Terms and Conditions, the Quotation (collectively, the “Agreement”) form the contractual structure for the provision of the Services by the Agency to the Client.

1. Definitions

1. “Agency” means Foxarathon Sdn. Bhd. (Company Registration No: 1274717-X).

2. “Commencement Date” means the date on which the Quotation is signed by the Client.

3. “Confidential Information” means any and all information relating to the trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, market opportunities, transactions, affairs and/or business of the parties and/or to their customers or suppliers in or on any medium or format.

4. “Deliverables” mean all documents, advice, information, outputs and materials produced, developed and/or supplied by the Agency in accordance with the Services, as may be set out in the Quotation and as may be updated by agreement between the parties from time to time.

5. “Fees” mean the fees for the Services and Deliverables as set out in the Quotation.

6. “Final Products” mean the final, approved Deliverables produced or prepared for the Client under this Agreement.

7. “Force Majeure” means any act of government or state, civil commotion, epidemic, pandemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations.

8. “Quotation” means the Agency’s quotation issued to the Client containing the specific terms relating to this Agreement.

9. “Services” mean the branding, marketing consulting, go-to-market strategy, growth strategy, digital marketing (including social media management, SEO, paid advertising and content marketing), media buying, website development services and/or any other services as outlined in the Quotation, and all other services supplied by the Agency to the Client under or in connection with this Agreement.

10. “Services End Date” means the date of completion of the Services as stated in the Timetable.

11. “Third-Party Costs” mean any costs incurred by the Agency for the Client’s account in providing the Services that are paid to a third party. 

12. "Timetable" means any timetable agreed between the parties from time to time and relating to the performance of the Services and/or delivery of any Deliverables.

2. Services and Deliverables

1. The Agency shall: 

1. provide the Services in accordance with the Quotation;

2. reserve the time slot specified in the Quotation for the Client and allocate the necessary resources to execute the Services;

3. submit to the Client for its approval before executing any Deliverables based upon the terms of the Quotation.

2. The Client shall:

1. provide the Agency with all necessary materials, information, assistance, access and approvals required for the timely execution of the Services;

2. ensure that all information provided to the Agency is complete and accurate. 

3. All services or works not expressly set out in the Quotation shall be deemed to be excluded from the scope of the Services. In the event the Client wishes to procure any services that are not included in the Quotation, the Agency shall be entitled to invoice the Client for such additional services at the Agency’s then standard hourly or project rates.

4. The Agency will render the Services based on industry practices. The performance of any marketing or branding exercise is influenced by external factors, including but limited to market conditions, platform policies and customer behaviour, which are outside the Agency’s control. The Client acknowledges that it would not be possible for the Agency to guarantee any specific outcomes (including sales revenue, leads, ROI, website traffic, social media performance, or other measurable results). The Agency is therefore not able to accept any liability for any failure of the Services to achieve any particular result for the Client. 

5. The Client shall approve or accept all Deliverables in accordance with the timeline outlined in the Timetable, failing which the Client shall be deemed to have approved or accepted a Deliverable upon the expiry of such timeline (and if no timeline is specified, the expiry of 2 months from the date the Deliverable was first provided to the Client).

6. The Client is solely responsible for the accuracy, completeness, legality, non-infringement and appropriateness of all contents, claims, representations and information included in the Final Products (the “Contents”). Whilst the Agency may provide creative input and design services as part of the Services, the Agency is not obliged to verify or endorse the Contents. The Agency is therefore not able to accept any liability for any inaccuracy, incompleteness, illegality, infringement or inappropriateness of the Contents. 

7. If the Client enters into arrangements with third party vendors, subcontractors or suppliers regarding the provision of any materials or services under this Agreement, the Client remains solely responsible for such vendors, subcontractors or suppliers. 

8. The Agency reserves the right to revise the Fees and/or to issue a new Quotation if the Client requests for any changes to the scope, requirement or specifications of the Services. For the avoidance of doubt, such changes shall be subject to the Agency’s agreement and the Agency shall be entitled to charge the Client for any work performed before the changes were requested.

3. Payment

1. Fees

1. The Client shall pay the Fees.

2. Unless otherwise agreed between the parties, all amounts payable by the Client will be invoiced based on the milestones as set out in their quotation and payable within 30 days after the invoice date. 

3. If any Fee (or a portion thereof) is payable by the Client in advance, the Agency is entitled to commence the Services after the receipt of such Fee. 

2. Third-Party Costs

1. Unless they are already included in the Fees, the Client acknowledges that all Third-Party Costs, including but not limited to costs for media buying, advertising, stock photography, licenses, subscriptions and external production, will be payable by the Client in addition to the Fees. If any Third-Party Costs are paid by the Agency on behalf of the Client, the Client shall forthwith reimburse the Agency in full upon receipt of the invoice.

2. All Third-Party Costs must be approved in writing by the Client before they are incurred.

3. For video productions, unless otherwise stated in the Quotation, the following costs are excluded and remain the full responsibility of the Client:

1. Talent fees (actors, models, voiceovers, influencers);

2. Venue rentals (studio spaces, locations, set designs); and

3. Permits and licenses fee (filming permits, intellectual property rights, music licensing, regulatory clearances).

3. Non-Payment

1. If the Client fails to make any payment as set out in this Clause 3, the Agency reserves the right to:

1. cancel the reserved time slot without prior notice;

2. suspend the performance of any of its obligations and/or withhold any Deliverables until all outstanding amounts are settled in full; and

3. charge interest on any overdue amounts at the rate of 1.5% per month (calculated and compounded daily) from the due date up to the date of actual payment.

2. The Client will bear all costs and expenses incurred by the Agency in recovering any unpaid sums, including but not limited to court fees and legal representation costs.

3. The Client hereby gives its consent to the Agency to disclose any information in relation to the Client’s default in payment of any amounts due under this Agreement to any registered credit reporting agency, to be included in the Client’s credit report. The Agency shall not be liable to the Client for any loss or damage suffered as a result of such disclosure.

4. The Final Products will only be released to the Client upon full settlement of all outstanding payments (including any Third-Party Costs) in connection with the relevant Services.

5. All payments made to the Agency, including any upfront payments, are strictly non-refundable unless otherwise agreed upon in writing.

6. Taxes

1. All sums in this Agreement are exclusive of Sales and Service Tax (“SST”) or any other similar taxes unless otherwise stated in the Quotation.

7. Any breach of this Clause 3 shall constitute a material breach of this Agreement by the Client.

4. Intellectual Property Rights

1. All Deliverables shall remain the property of the Agency until full settlement of all amounts payable by the Client in connection with the relevant Services. Upon full payment, the Client shall own the Final Products. This transfer of ownership does not include any working or raw files, drafts, editable designs, source materials, raw video footages, source codes or other preliminary materials (the “Working Files”) used in the creation of the Final Products. Unless otherwise agreed in writing, the Agency retains all rights to the Working Files, which shall not be provided, transferred or licensed to the Client.

2. Notwithstanding Clause 4.1 above, the Client acknowledges that the Agency often licenses materials from third parties for inclusion in the Final Products. In such circumstances, ownership of such licensed materials remains with the licensor, and the Client agrees that it remains bound by the terms of such licenses and that it does not obtain proprietary rights in such third party materials beyond the terms and conditions contained in the pertinent license. The Agency will keep the Client informed of any such limitations.

3. Notwithstanding any other provision of this Agreement, the Agency shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or developed by the Agency or its licensors, and regardless of whether incorporated in any Final Product (i) prior to the Commencement Date; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-site specific and unrelated to the “look and feel” of the Deliverables or other materials, in connection with the Services (or partially in connection with the Services) (collectively, the “Agency Materials”). Subject to fulfilment of the Client’s payment obligations hereunder, the Agency hereby grants the Client a royalty-free, non-exclusive, non-transferable license to use the Agency Materials actually incorporated into the Final Products pursuant to this Agreement as necessary for or in connection with the use of such Final Products, provided that the Client shall not have the right to publish or distribute any Agency Materials other than as part of such Final Products or to create derivative works of the Agency Materials.

4. The Client hereby grants the Agency the right to use any Final Products, including branding, marketing campaigns and digital materials, in its marketing materials or other oral, electronic, or written promotions, which shall include naming the Client as a client of the Agency.

5. Timetable

1. The Agency shall use commercially reasonable endeavours to deliver the Services according to the project timelines and milestones set forth in the Timetable. The Client acknowledges that such timelines and milestones are contingent upon the Agency receiving the full cooperation of the Client, to the extent that the same is required in order for the Agency to successfully complete the Services in a timely manner.

2. The Agency shall not be responsible for any delays or disruptions resulting from the Client’s act or omission, including but not limited to the Client’s failure to provide any approval based on the Timetable or to secure any necessary third-party services. Unless otherwise agreed in writing, such delays shall not automatically extend the Services End Date, and any extension shall be subject to additional compensation to be paid to the Agency. Furthermore, the Client will be liable for any costs that the Agency incurs arising out of the Client’s delays or disruptions, or any other act or omission that adversely affects the Agency’s ability to promptly and accurately provide the Services.

6. Limits on Liability

1. The Agency’s total aggregate liability to the Client (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) arising from or in connection with this Agreement is limited to the fees paid by the Client for the specific Service in respect of which the liability arose. 

2. The Agency shall not be liable to the Client (whether in contract, negligence, for breach of statutory duty or under indemnity or otherwise and notwithstanding any notice of the possibility such loss) for any indirect, incidental, special, anticipated, consequential, exemplary, punitive damages, including but not limited to loss of revenue, profits, business opportunities or data.

7. Term and Termination

1. This Agreement shall commence on the Commencement Date and, subject to the provisions for early termination set out in this Agreement, shall continue until the Services End Date (the “Term”), unless an extension is mutually agreed upon in writing by both parties.

2. Either party shall be entitled to terminate this Agreement immediately by serving written notice on the other party if the other party:

1. is in a material breach of any of its obligations under this Agreement which is not capable of remedy;

2. is in a material breach of any of its obligations under this Agreement which is not remedied within 30 days after receipt of a notice from the party not in breach specifying the breach and requiring its remedy; or

3. enters into liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a liquidator, receiver or manager appointed over all or part of its assets, or enters into an arrangement with its creditors or takes or suffers any similar action.

3. The Agency shall be entitled to terminate this Agreement immediately by serving written notice on the Client if the Client or its related company competes with the Agency.

4. Termination of this Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party:

1. which accrue before termination; or 

2. which are intended to continue to have effect beyond termination.

5. Upon termination of this Agreement (or the relevant elements of it):

1. the Agency is not obliged to retain a copy of any Deliverable. The Client will be solely responsible for ensuring that it has the necessary copies of all Deliverables during the Term of this Agreement and thereafter;

2. the Client shall collect any physical Deliverables (including but not limited to prototypes, samples and merchandise) within 14 calendar days from the date of termination. The Agency reserves the right to dispose of, repurpose, or impose a storage or handling fee for, any unclaimed Deliverables after this period, and the Agency shall not be liable to the Client for any loss, damage or claim arising therefrom.

8. Confidentiality

1. Each party shall, in respect of the Confidential Information for which it is the recipient:

1. keep the Confidential Information strictly confidential and not disclose any part of such Confidential Information to any person except as permitted by or as required for the performance of the recipient’s obligations under this Agreement; and

2. take all reasonable steps to prevent unauthorised access to the Confidential Information.

2. The parties may disclose the Confidential Information for which it is the recipient to, and allow its use in accordance with this Agreement by, its employees, officers, agents and sub-contractors who necessarily require it as a consequence of the performance of the recipient’s obligations under this Agreement.

3. The restrictions in Clause 8.1 do not apply to any information to the extent that it:

1. is or comes within the public domain other than through a breach of Clause 8.1; or

2. is in the recipient’s possession (with full right to disclose) before receipt from the other party; or 

3. is lawfully received from a third party (with full right to disclose); or

4. is independently developed by the recipient without access to or use of the Confidential Information of the disclosing party; or

5. is required to be disclosed by law or by a court of competent jurisdiction or by any regulatory body or in accordance with the rules of any recognised stock exchange.

9. General Provisions

1. The Agency shall not be held liable for any failure or delay in performing its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.

2. This Agreement and all matters arising out of or in connection with it shall be governed by, and construed in accordance with, the laws of Malaysia and submitted to the exclusive jurisdiction of the Malaysian courts.

3. Any amendments or variations to this Agreement must be agreed upon in writing and signed by both parties.

4. This Agreement sets out all the terms agreed between the parties relating to the subject matter of this Agreement and supersedes any previous agreement between the parties relating to the same subject matter.

5. The Agency shall be entitled to sub-contract any or all of its obligations under this Agreement to a third party (a “Subcontractor”). The Agency shall supervise such Subcontractors and endeavour to guard against any loss to the Client as the result of the failure of the Subcontractors to properly execute their commitments, but the Agency shall not be responsible for their failure, acts or omissions, except where such failure, acts or omissions are due to the Agency’s gross negligence or wilful misconduct.

6. These Terms and Conditions shall apply to all supplies by the Agency to the Client to the exclusion of any terms notified by the Client to the Agency (including without limitation set out in any supplier registration, procurement terms, purchase order, renewal or similar), unless those terms are expressly accepted by the Agency in writing by a duly authorised representative.

7. Any notices to be sent by one party to the other in connection with this Agreement shall be in writing and sent to the last known address of the other party by hand, post or electronic mail. Notices shall be deemed to have been duly given: if delivered by hand, upon delivery; if sent by post, 3 business days after the date of posting; if sent by electronic mail, 1 business day after the date of transmission.

8. If any part of this Agreement is found to be invalid or unenforceable by any court or other competent body, such invalidity or unenforceability shall not affect the other provisions which shall remain in full force and effect.

9. A waiver of any right or remedy under this Agreement shall only be effective if it is made in writing and signed on behalf of the waiving party. Any waiver of any right or remedy shall not be deemed a waiver of any subsequent right or remedy and shall not affect the enforceability of any other term of this Agreement.