a. “Products” shall mean software as a service in the type of human resource information system which owned and developed by FATIHA, viz Gadjian application, which can be accessed through website www.gadjian.com, along with mobile application which can be downloaded through Google Playstore and Apple Store with name Gadjian.
2.01 FATIHA warrants that it shall provide Product in professional manner and will use reasonable skill and care in accordance with generally recognized commercial practices and standards in the information technology industry. If the Application is not provided as warranted, FATIHA will, at its sole discretion, undertake improvement to the Services or give credit to END USER with the same amount that END USER has paid for the non-conforming Services. The foregoing state are FATIHA’s only obligations and END USER’s only exclusive remedies for any breach of the warranty in this Clause 2.01.
2.02 END USER acknowledges and understands that smoothness and continuity of Application FATIHA extremely rely on the accuracy and smoothness of internet network and Global Positioning System owned or located within END USER’s location. Herewith, END USER represents that there will not be any complaint, demands, or claims, towards FATIHA for the less-functioning or non-functioning of Product which are caused by the weak internet connection and Global Positioning System.
2.03 FATIHA does not provide other warranties and explicitly declines other warranties other than that have been stated in this Agreement, either stipulated or prevailed by law, trade common practice, or transaction method or others. FATIHA does not provide warranties for Product’s sale feasibility and fitness to particular purposes.
2.04 END USER agrees to indemnify FATIHA and its officers or employees for all loses, expenses, legal expenses, and obligations (at present and future times, contingency, or anything based on indemnification), suffered by FATIHA as a result or related with violation of this Agreement or any other documents conducted by END USER and/or for actions taken by FATIHA since the violation of this Agreement or any other documents takes place until being resolved.
2.05 Availability and reliability of Application are based on availability and quality of internet network in END USER’S location and is connected to END USER’s device. END USER acknowledges and agrees not to claim or demand FATIHA for any failure of service delivery due to unavailability or unreliability of internet network connected to device which END USER uses Product.
3. Product Utilization
3.01 END USER is only permitted to access and/or use Application for Company’s necessity and non-commercial purpose, which means Application may only be accessed and used directly by a company searching for products or services to support its human resources management. Accessing and using these Application other than for Company’s purposes or for commercial purpose are prohibited and are violations of this Agreement.
3.02 END USER is prohibited to use Application for matters or with manners as follows:
a. to harm, torture, discredit, slander, libel, threat, intimidate or disturb someone else or other business, or anything that violates privacy or whatsoever FATIHA deems to be full of hatred, inappropriate, disrespectful, improper, or discriminative;
b. with manners or purposes that are against the law, fraud, or commercial activity;
c. by violating or infringing others’ rights, including but not limited to patent rights, trademark, copyrights, trade secret, publicity, and other property rights;
d. to create, examine, renew, change or repair database, records, or directory of END USER or someone else;
e. to use automatic computer code, “screen scraping” system or process, robot, net crawler, spider, data processing, trawling or computer code; and/or
f. by violating this Agreement or other instructions that are available in Application.
3.03 Features that are available in Producthave been exclusively set by FATIHA. END USER cannot request for additional or modification of features or Services (custom). Addition or modification of features or services are sole discretion of FATIHA. FATIHA will accommodate advices and insights from END USER, but does not have obligation to fulfill END USER’s custom request.
3.04 END USER shall scrutinize Product carefully and understand the features and Services that are available. Every matters that are not provided or presented to END USER by FATIHA either through website, Application, presentation materials, and presentation of FATIHA’s officers or through this Agreement, are not FATIHA’s responsibilities and scopes of work. Hence, for every promises regarding the availability of or the possibility to be available of certain services which END USER attain from third party, END USER shall exempt FATIHA from any claim for dagames, lawsuit, or compensation.
3.05 System or Application failure do not constitute FATIHA’s responsibilities if such failure is caused by:
a. Product usage by END USER with manners that are not allowed in this Agreement;
b. general internet issues, Force Majeure events or other factors beyond FATIHA’s control;
c. failure or malfunction on END USER’s devices, including but not limited to hardware, software, network connection, or other infrastructures; or
d. failure or malfunction of system, actions or negligence of third party, preventive maintenance or reasonable or extraordinary emergency maintenance.
4. License Grant
4.01 FATIHA grants END USER a revocable, non-exclusive, non-transferable, limited right to install and use the Application on devices owned and controlled by END USER and its employees, and to access and use the Application on such device strictly in accordance with the terms and conditions of this License, the terms and condition written in the Application itself, and any service agreement associated with END USER’s device.
4.02 All rights not specifically granted under this License are hereby reserved by FATIHA. This License does not give END USER any title or ownership in the Application, and shall not be construed as a sale or transfer of any intellectual property or other rights.
5. Intelectual Property Rights
The END USER agrees that the copyright and all other intellectual property rights in the reports and data, concepts, utilities and/or deliverables developed by FATIHA as part of or in connection with the Services, including but not limited to all ideas, discoveries, innovations, inventions, computer programs, formulas, processes, techniques, know-how, data or improvements shall belong to and vest absolutely in FATIHA, shall be exclusive and unrestricted rights in respect thereof.
6.01 A Party may from time to time disclose (“Disclosing Party”) to the other Party (“Receiving Party”) certain Confidential Information (as hereinafter defined) of the Disclosing Party. Receiving Party shall protect the Confidential Information of the Disclosing Party from unauthorized use, dissemination or publication, and shall use the same degree of care which the Receiving Party ordinarily uses with respect to its own proprietary information, but not with less reasonable efforts.
6.02 The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents or affiliates or subsidiaries of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if such disclosure is required by law or by the order of a court of competent jurisdiction or a regulatory or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto.
6.03 For purposes of this Agreement, the term “Confidential Information” shall mean (a) a Party’s product plans and strategies, designs, costs, prices and names, non-published financial information, marketing plans, business opportunities, personnel, research, development, know-how and related non- technical business information; (b) any information designated by the Disclosing Party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days; and (c) the terms and conditions of this Agreement; provided, however that “Confidential Information” will not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (ii) is known and has been reduced to tangible form by the Receiving Party at the time of disclosure and is not subject to restriction; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (iv) is lawfully obtained from a third party who has the right to make such disclosure; or (v) is released for publication by the Disclosing Party in writing.
6.04 The Receiving Party shall return to the Disclosing Party, destroy or erase all Confidential Information of the Disclosing Party in tangible and/or electronic form: (a) upon the written request of the Disclosing Party; or (b) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the Receiving Party shall certify promptly and in writing that it has done so.
7. Limitation of Liability
7.01 In no event shall either Party be liable for indirect, consequential, incidental or special damages arising from any claim or action hereunder, or for loss of profits, revenues, contracts or END USER’s, loss of use, business interruption, loss of data, or failure to realize expected cost savings, even if having been advised of the possibility of such damages.
7.02 END USER and FATIHA acknowledge and agree that, in the event of a third party claim that the Application or END USER’s possession or use of Application infringes any third party’s intellectual property rights, END USER will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. END USER, however, shall promptly notify FATIHA in writing of such a claim.
8. Term and Termination
8.01 This Agreement will be valid for the period of Product usage by END USER.
8.02 Either Party may terminate this Agreement immediately upon giving notice in writing to the other Party if: (a) the other Party commits a breach of this Agreement and shall have failed to cure such breach within thirty (30) days of receipt of a request in writing from the notifying Party to do so; (b) the other Party ceases doing business for any reason or threatens to cease to conduct business to properly give effect to this Agreement; or (c) the other Party enters into bankruptcy, liquidation or other type of insolvency.
8.03 If END USER unilaterally terminates this Agreement not because of Article 8.02 of this Agreement and without obvious reason, then END USER shall be accused for “Breach of Agreement” and END USER shall fulfill all obligations to make all payment due to the term of this Agreement.
END USER may contact FATIHA for more information about Application, other FATIHA product or services at Bina Sentra Bidakara Lantai 1, Unit 106 A, Komplek Bidakara Kav.71-73, Jl. Jendral Gatot Subroto RT.08/RW.09, Kelurahan Menteng Dalam, Kecamatan Tebet, Kota Jakarta Selatan Telepon: (021) 3115-1775 Fax : (021) 3115-1775
10. General Terms
10.01 By downloading, installing or using Product, END USER accepts all provisions in this Agreement. END USER will have the rights to use Application or Product in accordance with Article 4 and 5 of this Agreement, if END USER complies with this Agreement.
10.02 Prevailing language. This Agreement is made in English and Indonesian language. In the event of any inconsistency or contradiction between the Indonesian and English texts, the Indonesian text shall govern and prevail.
10.03 Assignment. Neither Party may assign its rights or obligations hereunder without the other Party’s prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of this Agreement.
10.04 Force Majeure. Other than any payment obligations, neither Party shall be liable for any delay hereunder arising from circumstances beyond its reasonable control and not caused by the negligence of the non-performing Party provided that the non-performing Party gives prompt notice of such conditions to the other Party and makes all reasonable efforts to perform.
10.05 Force Majeure means an event beyond the control of FATIHA and END USER, which prevents a Party from complying with any of its obligations under this Agreement, including but not limited to:
a. act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);
b. war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, or embargo; and/or
c. riot, commotion, rebellion, revolution, strikes, military power, civil war, or acts or threats of terrorism.
10.06 Governing Law and Dispute Settlement. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Indonesia without giving effect to principles of conflicts of laws. Any disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and resolved by South Jakarta District Court. Nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court proceedings start.
10.07 The Parties hereby waive the applicability of Article 1266 and 1267 of Indonesia Civil Code which requires formal request to the court in case of contract termination.
10.08 Compliance with Applicable Laws and Regulations. Each Party shall ensure its compliance with all applicable laws, rules and regulations in connection with its activities under this Agreement, including to laws, rules and regulations governing anti- corruption and/or anti-bribery.
10.09 This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings, whether oral or written, between the Parties.
10.10 Amendment. This Agreement may not be supplemented, amended, or modified except by an instrument in writing signed by the Parties and expressed to be a supplement, amendment, or modification to this Agreement.
10.11 Partial Invalidity. If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law.
10.12 Waiver. Neither Parties was deemed to have any rights held by virtue of Agreement, unless the Parties has informed in writing to the other Parties that it had waive those rights. Neither delay nor failure to exercise its rights can be considered a waiver of any breach of contract or the consequences of events.
This Agreement can also be accessed on Gadjian www.gadjian.com. END USER is suggested to periodically access page and read the End User Agreement section on the website given this Agreement may be altered/amended (to the extent permitted by applicable laws and regulations) from time to time.