Welcome to FlexPass!
By signing up, accessing or using FlexPass, whether via the mobile and/or any other available electronic medium, you agree to be bound by these Terms & Conditions (“Terms”). If you choose NOT to accept these Terms and Conditions or any of its revisions, please do not proceed and immediately discontinue your access and/or use of FlexPass. FlexPass reserves the right to revise the Terms and Conditions at any time. Notification of the changes will be posted online and you are responsible to regularly review information posted in FlexPass to obtain timely notice of such changes. Any usage of FlexPass after the said updates or revisions, will be deemed that you have read and agreed to the updated Terms and Conditions.
These Terms are a contract between the person or entity identified in the Partner Pages (defined below) and OnePass Tech Solutions Sdn. Bhd. (“FlexPass” or “we”). The person or entity identified in the Partner Pages (defined below) intending to sell Products (defined below) to the FlexPass Customers (defined below) (the “Partner”); and OnePass Tech Solutions SDN BHD, incorporated and registered in Malaysia under Companies ACT 2016 with SSM number 1339570-K whose registered office at Level 3A, Sunway Visio Tower, Lingkaran SV, Sunway Velocity, 55100 Kuala Lumpur, Kuala Lumpur, Malaysia.
THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND ACTION WAIVER THAT REQUIRE YOU, THE PERSON OR ENTITY IDENTIFIED IN THE PARTNER PAGES (DEFINED BELOW) TO ARBITRATE ALL DISPUTES YOU HAVE WITH FLEXPASS. PLEASE SEE CLAUSE 23 FOR MORE INFORMATION ABOUT THE ARBITRATION AGREEMENT AND ACTION WAIVER. YOU, THE PERSON OR ENTITY IDENTIFIED IN THE PARTNER PAGES (DEFINED BELOW) EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND FLEXPASS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN AN ACTION LAWSUIT OR WIDE ARBITRATION.
Partner Terms and Conditions
FlexPass owns and operates the Website (defined below) through which FlexPass Customers (defined below) may subscribe FlexCredits (defined below) to be redeemed against Products (defined below) offered by third party traders via the Website.
The Partner intends by entering into this agreement to list its Products on the Website and to sell its Products to FlexPass Customers. In return the Partner shall receive a Per Entry Price (defined below) from FlexPass.
The definitions and rules of interpretation in this clause apply in this agreement.
the calendar month immediately preceding the month in which the Invoice Deadline falls or any period otherwise agreed between the parties or stated in the invoice.
Per Entry Fee
The price payable by FlexPass to the Partner in respect of Products used by FlexPass Customers, as agreed by the parties from time to time.
Data Protection Legislation
(i) unless and until the PDPA is no longer directly applicable in the Malaysia, the Personal Data Protection Act 2010 and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in Malaysia and then (ii) any successor legislation to the Personal Data Protection Act 2010.
such person or persons as the Partner may contract with for the sale of Products in exchange for FlexCredits.
Intellectual Property Rights
all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
The 5th business day after the end of prior month.
All documents, papers, drawings, designs, transparencies, photos, videos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, relating to the Partner's brand, business or the Products.
Booking platform integrated with the Website.
The electronic credits issued by FlexPass to FlexPass Customers to visit our partner gyms and studios.
the pages in the Website that contain information on the Partner business name, Tax details, banking details as well as pages for the creation of activities and Products which list times and Per Entry Price within the Website.
Means all persons employed by the Partner to perform its obligations under this agreement together with the Partner's servants, agents, suppliers and approved sub-contractors used in the performance of its obligations under this agreement.
The goods and / or services listed in the Partner Pages and approved by FlexPass from time to time.
Shared Personal Data
Means Personal Data received by the receiving party from or on behalf of the disclosing party, or otherwise made available by the disclosing party under this agreement.
The date on which this agreement is terminated as agreed by the parties.
A confirmation from Partner to FlexPass (via the Website) that a Product has been sold by the Partner to a FlexPass Customer using FlexCredits (the requisite manner of such notification to be notified by FlexPass from time to time).
www.1flexplass.com such website or smart phone application as may be operated by FlexPass and notified to the Partner from time to time.
- "Data Controller" and "Personal Data" shall each have the meaning given to them by the Data Protection Legislation.
- Details marked as having been “accepted” by FlexPass within the Partner Pages from time to time form part of this agreement and shall have effect as if set out in full in the body of this agreement.
- Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
CHARGES TO THE FLEXPASS CUSTOMER
- The Partner shall make the Products available for sale to FlexPass Customers.
- The Partner agrees that FlexPass shall charge FlexPass Customers directly for a mutually agreed number of FlexCredits that the FlexPass Customers can redeem for Products from Partners.
- If the Partner sell any other products and / or services to FlexPass Customers other than the Product as defined and covered in this agreement, the Partner agrees that the transaction is between the two direct parties and FlexPass is not involved nor responsible for the transaction.
PAYMENT AND CHARGES
- In consideration of the provision of the Products by the Partner to the FlexPass Customer, FlexPass shall pay the Partner for Per Entry Price in accordance with this clause.
- The FlexPass Customer shall be validated as follows:
- the Partner shall check-in the FlexPass Customer on the Partner Pages at the time of arrival;
- the Partner shall check-in the FlexPass Customer on the Partner Pages within 24 hours of arrival
- The Partner shall check the date, time, and Product entered by the FlexPass Customer and displayed on the Website page as shown on the FlexPass Customer's phone or device.
- All Validations must be submitted and confirmed within 24 hours of each Product being supplied.
- The Partner cannot validate any person or persons including themselves who are employed by or affiliated with their business for an activity or product that they provide access to through the platform.
- The Partner must supply any relevant tax number if applicable in the future to FlexPass via Partner Pages as well as the details of which Products are subject to SST and the correct percentage. The Partner warrants that this tax number and information is accurate and that they will ensure the Partner Pages are updated if there are any changes to the information listed in this clause 3.5 as required.
- By the Invoice Deadline, FlexPass shall issue (via email to the Partner) a self-billed invoice in respect of the Products sold by the Partner to the FlexPass Customers during the Billing Period. Each invoice shall include the Partner name, address number of visits, amount and any relevant tax registration number (if applicable).
- The Partner agrees to accept each invoice and not to raise its own invoices for transactions covered by this agreement
- FlexPass shall within 10 business days of the Invoicing Deadline pay the Partner (by bank transfer) the Per Entry Price in respect of all Products sold by the Partner to FlexPass Customers during the Billing Period. The number of Products sold by the Partner to FlexPass Customers during the Billing Period shall be calculated by reference to all legitimate Validations received by FlexPass during the Billing Period.
- Without limiting any other rights or remedies it may have, FlexPass reserves the right to set off any amounts owed to it by the Partner against any amounts payable by it to the Partner including any Commission Fees.
- Cases where no show happens, FlexPass shall pay 50% of Partner Per Entry Price as agreed with the respective Partner.
- Cases where a late cancellation within 12 hours window, FlexPass shall pay 50% of Per Entry Price as agreed with the respective Partner. If there is a replacement of the particular cancelled slots within that 12 hours window, the payment for late cancellation shall be voided.
- FlexPass does not warrant or guarantee that services offered on or through the Internet will be uninterrupted or error-free or that its services will result in any revenue or profit for the Partner.
- FlexPass has the right to refund any FlexPass Customer, in FlexPass’s reasonable opinion, that has a valid complaint about the Partner’s Product, including, but not limited to, its supply or delivery. If FlexPass has already paid the Partner in respect of such refunded payment, FlexPass may recover the refunded amount from the Partner.
REVIEW OF PRODUCTS & PRICES
- The Partner may propose a variation to any of the Products or Per Entry Price at any time during the term of this agreement. It shall be at FlexPass’s discretion whether to accept such a proposal.
QUALITY OF SERVICES
The Partner warrants to FlexPass that:
- where the Products in question are services, the Partner shall act with reasonable care and skill and in accordance with generally recognized commercial practices and standards in the industry for similar services;
- where the Products in question are goods, the Partner shall ensure that they are of satisfactory quality and fit for purpose; and
- the Products shall conform to all descriptions and specifications listed on the Website or otherwise provided to FlexPass Customers by the Partner.
- the Partner agrees and consents to FlexPass (or any person acting on FlexPass’s behalf) attending any premises of the Partner for the purpose of inspecting the quality of the Products.
The Partner shall:
- co-operate with FlexPass in all matters relating to the Products;
- prepare its premises for the supply of the Products;
- comply with all applicable laws, including health and safety laws;
- provide the bank account used for the receipt of Partner’s monthly payment as set out in Clause 3 and acknowledge that it belongs to the Partner;
- has obtained (and shall obtain and maintain throughout the term of this Agreement) all necessary licenses, professional liability insurance, consents and permissions relevant to this Agreement and to the Partner Products;
- ensure that all data and information provided by the Partner to FlexPass shall (and the Partner’s behaviour shall at all times) be in compliance with all applicable laws and regulations and in accordance with any guidelines, standards and relevant codes of practice.
ensure that execution and performance of this agreement shall not violate any provision of its
- constitutional documents,
- any document binding upon it,
- any law, regulation or decree binding on it; and
- intellectual property rights of any third party;
- on FlexPass’s request, produce a valid insurance certificate for the current year's premium to demonstrate compliance with clause 6.1.5;
- ensure that no litigation, arbitration or any dispute, current or pending or, to its knowledge, threatened, which is likely to have a material adverse effect upon its ability to perform its obligations hereunder;
- ensure that all Personnel have the necessary skill and expertise to provide the Products;
- ensure that a copy of its latest terms and conditions of sale are clearly displayed at the Partner's premises and readily available when requested by either FlexPass or a FlexPass Customer; and
- report any Duplicate FlexPass Customer Account to FlexPass's service team via email within 48 hours of identifying it (the Partner understands that FlexPass is not liable to cover the cost of duplicate accounts or any losses suffered by the Partner arising from a duplicate account).
For any Products cancellation, requires to notify FlexPass's service team, at least 12 hours before Product start time, otherwise, in some cases where Products cancels in less than 12 hours to start time, Partners may:
- Directly cancel the Products if none of the FlexPass Customer books on the related Products,
- If at least one or more FlexPass Customer books on the related Products, related Partner will require to inform FlexPass and send out notification in the form of emails to FlexPass Customer.
- The Partner and its licensors shall retain ownership of all Intellectual Property Rights in its Materials
- The Partner grants to the FlexPass a fully paid-up, worldwide, non-exclusive, royalty-free license to use the Materials during the term of this agreement for the purpose of promoting the business, location and the Products in all forms of media including Google (AdWords, Places etc), Facebook, Instagram, other social media sites, local and national media and email campaigns.
- The Partner warrants that the receipt and use of Materials by FlexPass shall not infringe the rights, including any Intellectual Property Rights, of any third party.
- The Partner warrants that it owns all interest in and to the Partner IP, has licensing rights (including the right to sublicense to FlexPass) in the Third Party IP, and has the right to grant the license stated in this Agreement.
- The Partner shall not use any of FlexPass’s intellectual property rights or prepare any derivative work based thereon.
PROCESSING PERSONAL DATA
- FlexPass or an affiliated entity owns all personal data about FlexPass Customer.
- Where FlexPass (or an affiliated entity or other third party) makes personal data about Customer available to the Partner, both the Partner and FlexPass shall be Data Controllers in respect of any Personal Data shared between the parties under this agreement (the "Shared Personal Data").
- The Partner shall only process the Shared Personal Data for the purpose of:
- providing the Products to FlexPass Customers;
- complying with the Partner's obligations under the Data Protection Legislation; and
- Complying with the Partner's legal obligations.
- Both parties agree that the details of processing set out in this clause 8.3 are an accurate statement of each party’s responsibilities as a joint Data Controller of the Shared Personal Data for the provision of the Products to FlexPass Customers.
- Purpose and Duration - The Shared Personal Data is processed by the Partner for the provision of the Products to FlexPass Customers pursuant to this agreement. Shared Personal Data shall be processed by the Partner for the duration of this agreement and may be retained by the Partner for a period of 6 months after this agreement has been terminated.
- Categories of Data - Personal Data of FlexPass Customers provided by either party to the other party in order to provide the Products to the FlexPass Customers. In relation to some Products this could include Special Category Data.
- Data Subjects - Shall include any individual identified in any documents or information provided by one party to the other in conjunction with the provision of the Products.
- The parties shall ensure that any Shared Personal Data is collected and processed in accordance with the Data Protection Legislation.
- The disclosing party shall ensure that it is entitled to share the Shared Personal Data with the receiving party for the purposes of providing the Products, and that the disclosing party has complied with its responsibilities under the Data Protection Legislation to enable the receiving party to process the Shared Personal Data for the purpose of providing the Products;
- Each party shall be separately responsible for compliance with its obligations under the Data Protection Legislation, in its capacity as Data Controller, in respect of:
- the security of the Personal Data when it is under its control,
- any transfers of the Personal Data outside the Malaysia for which that party is responsible,
- any requests received from individuals in respect of their rights under the Data Protection Legislation exercised in respect of the Personal Data in that party's possession and/or control.
- Neither party shall, by its acts or omissions, cause the other party to breach its respective obligations under the Data Protection Legislation.
- The Partner shall indemnify and hold FlexPass and any of its employees or officers harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, FlexPass or any of its employees or officers as a result of or in connection with:
- any alleged or actual infringement, of any third party's Intellectual Property Rights or other rights arising out of the promotion or the use or supply of the Products or Materials;
- any breach of the Data Protection Legislation or the Partner's obligations under clause 8 of this agreement;
- any liability, loss, damage, injury, cost or expense sustained by a FlexPass Customer or any third party as a result of the supply or use of the Products or any other goods or services supplied by the Partner whether or not as a result of the Partner’s negligence;
- any refund which FlexPass at its discretion (to be exercised reasonably) grants to a FlexPass Customer as a result of any failure by the Partner to perform any of its obligations pursuant to a contract for the sale of Products to the FlexPass Customer.
- The provisions of this clause 10 shall survive termination of this agreement, however arising.
LIMITATION OF LIABILITY
- Nothing in this agreement shall limit or exclude FlexPass’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
- fraud or fraudulent misrepresentation.
- Subject to clause 10.1, FlexPass or its affiliates shall under no circumstances whatever be liable to the Partner for any special, indirect, incidental or consequential damage under any theory or liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
- any loss of profit
- any indirect loss; or
- any consequential loss arising under or in connection with this agreement.
- Except as set out in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
- Subject to clause 10, FlexPass’ liability to you is limited to RM500 or the amounts, if any, paid by you to FlexPass under this agreement in the three months immediately prior to the event first giving rise to the claim, whichever is lower. The foregoing limitations will apply to the maximum extent permitted by applicable law, regardless of whether FlexPass has been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.
- Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party including the Per User Prices, except as permitted by Clause 11.2.
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Clause 11; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
- Either party may remove a Product listed on the Website at any time without prior written notice.
- Either party may terminate this agreement for any reason by giving a written termination notice to expire not less than 30 days prior to the agreement renewal date as displayed in the Partner Pages.
- The Partner will not inform FlexPass customers of the decision to terminate the agreement, either verbally or in writing, until authorized to do so in advance of the Termination Date by FlexPass.
- For Products sold in advance to FlexPass Customers the Partner agrees that it shall honor any purchase of the Products by a FlexPass Customer in accordance with the terms of this agreement regardless of Termination Date.
- FlexPass agrees to pay the Per Entry Price to the Partner in respect of any sales made by the Partner pursuant to clause 2, in accordance with the other terms of this agreement.
- Without prejudice to any other rights or remedies which FlexPass may have, it may terminate this agreement immediately on giving written notice to the Partner if:
- the Partner is found to have deliberately or recklessly made a false or inaccurate Validation;
- the Partner is in breach of its obligations under either clause 8 of this agreement, or the Data Protection Legislation;
- the Partner commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 7 days of the Partner being notified of the breach;
- the Partner becomes insolvent, distress, or no longer able to operate normally according to the applicable Malaysia law
- the Partner suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- On termination of this agreement (however arising) the accrued rights and liabilities of the parties as at termination, and clauses 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive and continue in full force and effect.
- FlexPass reserves the right to vary this agreement following the giving of 60 days’ written notice to the Partner (the "Variation Notice Period”). In the event of such a variation, the Partner shall be deemed to have accepted any and all variations unless it notifies FlexPass to the contrary within the Variation Notice Period.
- All sums payable under this agreement are exclusive of sales tax (as appropriate).
- FlexPass shall account for the amount of SST for which it is liable, under the laws applicable to this agreement. The Partner shall account for the amount of SST for which it is liable, under the laws applicable to this agreement.
- If applicable SST laws change such that FlexPass becomes liable to account for SST which was previously liable to be accounted for (or was scheduled to be so liable to be accounted for by) to the Partner, the Partner agrees that FlexPass may unilaterally vary the financial provisions of this agreement to produce the result which would have been achieved had the change in SST laws not occurred.
- Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
- No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that right or remedy.
- If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
- This agreement and the information contained within the Partner Pages and approved by FlexPassfrom time to time together constitute the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
- Each party acknowledges that, in entering into this agreement, it does not rely on, and 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 its only remedies in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
- The Partner shall not, without the prior written consent of Flexpass, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
- FlexPassmay at any time, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
RIGHTS OF THIRD PARTIES
- No one other than a party to this agreement and their permitted assignees shall have any right to enforce any of its terms.
- Save for Validations, notice or other communication given to a party under or in connection with this agreement:
- shall be in writing in English or Malay languages;
- shall be signed by or on behalf of the party giving it;
- shall be sent to:
- In respect of Flexpass: the email address specified in the Contact Us page of the Website from time to time;
- In respect of the Partner: the email address specified in the My Account page of the Website from time to time.
- The provisions of this clause 20 shall not apply to the service of any process in any legal action or proceedings.
- If any dispute arises in connection with this agreement, the Partner and FlexPassshall, within 30 days of a written request from one party to the other, attempt in good faith to resolve the dispute via the telephone.
GOVERNING LAW AND JURISDICTION
- This agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of Malaysia.
- The parties irrevocably agree that the courts of Malaysia shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
- This Arbitration Agreement serves as purpose to facilitate the prompt and efficient resolution of any disputes that may arise between you and FlexPass. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
- Arbitration Agreement provides that all disputes between you and FlexPass shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).
- For the purpose of this Arbitration Agreement, “FlexPass” means FlexPass and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and FlexPass regarding any aspect of your relationship with FlexPass, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
- WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
- Pre-Arbitration Dispute Resolution where before initiating any Dispute, whether in court or arbitration, you must first give FlexPass an opportunity to resolve the Dispute by mailing written notification to FlexPass, That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If FlexPass does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
- If the Dispute is not resolved as provided above in the Pre-Arbitration Claim Resolution section, either you or FlexPass may initiate arbitration proceedings administered by the Asian International Arbitration Centre (“AIAC”) in accordance with the Arbitration Rules of the Asian International Arbitration Centre (“AIAC”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Malaysia.
- Arbitration Award where the arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by applicable law, , and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
- Location of Arbitration shall take place in Malaysia
- Payment of Arbitration Fees and Costs where FlexPass will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law.
- Any Disputes arising shall be submitted individually by you, The person or entity identified in the Partner Pages and will not be subject to any class action or representative status. The arbitrator may not consolidate more than one partner’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action). Neither you, nor any other Member of FlexPass and/or user of FlexPass services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding with respect to the matters set forth in the first sentence of this paragraph. You agree that this Class Action Waiver is material and essential to the arbitration of any dispute between you and FlexPass and is non-severable from the Arbitration Agreement. If any portion of this Class Action Waiver is limited, voided, or cannot be enforced, then the Arbitration Agreement shall be null and void. You understand that by agreeing to this Class Action Waiver, you may only pursue Dispute against FlexPass in an individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
- You understand and agree that, by entering into this Arbitration Agreement, you and FlexPass are each agreeing to Limitation of Procedural Rights of arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and FlexPass might otherwise have a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). By using the FlexPass Site or any Class, product or services, or otherwise accepting these Terms, you are entering into this Arbitration Agreement, and you give up those procedural rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
- If any clause within this Arbitration Agreement, other than the Class Action Waiver clause above, is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court of competent jurisdiction.
- This Arbitration Agreement shall survive the termination of your contract with FlexPass and your use of the FlexPass Website and services.
This agreement has been entered into on the date FlexPass first marks the Partner’s Product or Products as “accepted” within the Partner Pages.