Important – please read these terms carefully. By using this Service, you agree that you have read, understood, accepted and agreed with the Terms and Conditions. You further agree to the representations made by yourself below. If you do not agree to or fall within the Terms and Conditions of the Service (as defined below) and wish to discontinue using the Service, please do not continue using this Application or Service.
The terms and conditions stated herein (collectively, the “Terms and Conditions” or this “Agreement”) constitute a legal agreement between you and DIDIAN REALTOR SDN BHD (Company No.: 1290426-P) and/or its group of companies (collectively, the “Company”). In order to use the Service (each as defined below) you must agree to the Terms and Conditions that are set out below. By using the mobile application supplied to you by the Company (the ”Application”), and downloading, installing or using any associated software supplied by the Company (“the Software”) which overall purpose is to enable licensed real estate negotiators or real estate agents to sell property on behalf of real estate developers (collectively, the “Service”), you hereby expressly acknowledge and agree to be bound by the Terms and Conditions, and any future amendments and additions to this Terms and Conditions as published from time to time at https://www.mydidian.com (the “Website”) or through the Application.
The Company offers an online platform, information and a proprietary method for real estate agents and real estate negotiators to establish contact and collect bookings from Buyers or Customers, but has no responsibility for any sales and marketing services provided to Buyers or Customers by you.
The Company reserves the right to modify, vary or change the terms and conditions of this Agreement or its policies relating to the Service at any time as it deems fit. Such modifications, variations or changes to the Terms and Conditions or policies relating to the Service shall be effective upon the posting of an updated version at the Website. You agree that it shall be your responsibility to review this Agreement regularly whereupon the continued use of the Service after any such changes, whether or not reviewed by you, shall constitute your consent and acceptance to such changes.
THE COMPANY HAS SECURED THE NECESSARY TECHNOLOGY, SOFTWARE AND APPLICATION TO CARRY OUT THE SERVICE AS DESCRIBED ABOVE BUT IT DOES NOT PROVIDE OR ENGAGE IN REAL ESTATE DEVELOPMENT SERVICES. THE SOFTWARE AND THE APPLICATION ARE INTENDED TO BE USED FOR FACILITATING YOU (AS A LICENSED REAL ESTATE AGENT OR NEGOTIATOR) TO OFFER YOUR SALES AND MARKETING SERVICES TO YOUR BUYER OR CUSTOMER. THE COMPANY IS NOT RESPONSIBLE OR LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY SERVICES YOU PROVIDED TO YOUR CUSTOMERS, AND FOR ANY ILLEGAL ACTION COMMITTED BY YOU. YOU SHALL, AT ALL TIMES, NOT CLAIM OR CAUSE ANY PERSON TO MISUNDERSTAND THAT YOU ARE THE AGENT, EMPLOYEE OR STAFF OF THE COMPANY, AND THE SERVICES PROVIDED BY YOU SHALL NOT, IN ANYWAY, BE DEEMED AS SERVICES OF THE COMPANY.
You are strictly forbidden to use the Service for such other purposes including but not limited to data mining of the Company’s information or information related to the Application, Software or the Service. A breach hereof constitutes a grave offence and may be treated as industrial espionage or sabotage, and the Company reserves the right to take such action as may be appropriate or permitted under the laws against you, and/or any person, whether natural or artificial, directing or instructing you, in the event you misuse the Service other than for the purpose for which it is intended to be used.
A) Representation and Warranties
By using the Service, you expressly represent,warrant, undertake, convenant and confirm with the Company that:-
- you are legally entitled to accept and agree to the Terms and Conditions and that you are at least eighteen (18) years old. Without limiting the generality of the foregoing, the Service is not available to persons under the age of eighteen (18) or such persons that are forbidden for any reason whatsoever to enter into a contractual relationship.
- you have the right, authority and capacity to use the Service and to abide by the Terms and Conditions.
- you will use the Service strictly in accordance with the terms and conditions herein.
- you shall not authorize others to use your identity or user status, and you may not assign or otherwise transfer your user account to any other person or entity.
- you shall comply with all applicable laws whether in your home nation or otherwise in the country, state and city in which you are present while using the Service (the “Alternate Country”).
- you shall permit the Company to perform maintenance, tests, experiments and to implement necessary security or other measures relating to your use of the Company’s Website, Service, Application or Software.
- you shall abstain from any conduct that could possibly damage the Company’s reputation or amount to being disreputable.
- You further represent and warrant that you may only access the Service using authorized and legal means. It is your responsibility to check and ensure that you download the correct Software for your device. The Company is not liable if you do not have a compatible handset or if you have downloaded the wrong version of the Software for your handset. The Company reserves the right to terminate this Agreement if you are found to be using the Service with an incompatible or unauthorized device or for purposes other than which the Application or Software is intended to be used.
- By using the Service, you also represent, warrant, undertake and agree that:
- you possess a valid real estate negotiator or agent’s license and are authorized to sell real estate and have all the appropriate licenses, approvals and authority to sell real estate to third parties in the jurisdiction in which you use the Service;
- you shall obey all local laws related to the operation of a real estate agency and will be solely responsible for any violations of such local laws;
- you will only use the Service for lawful purposes;
- you will only use the Service for the purpose for which it is intended to be used;
- you will not use the Application for sending or storing any unlawful material or for fraudulent purposes;
- you will not use the Application and/or the Software to cause nuisance, annoyance, inconvenience or make fake bookings;
- you will not use the Service, Application and/or Software for purposes other than obtaining the Service;
- you will not impair the proper operation of the network;
- you will not try to harm the Service, Application and/or the Software in any way whatsoever;
- you will not copy, or distribute the Software or other contents without written permission from the Company;
- you will only use the Software and/or the Application for your own use and will not resell it to a third party;
- you will keep secure and confidential your account password or any identification we provide you which allows access to the Service;
- you will provide us with whatever proof of identity we may reasonably request or require;
- you will provide accurate, current and complete information as required for the Service and undertake the responsibility to maintain and update your information in a timely manner to keep it accurate, current and complete at all times during the term of the Agreement. You agree that the Company may rely on your information as accurate, current and complete. You acknowledge that if your information is untrue, inaccurate, not current or incomplete in any respect, the Company has the right but not the obligation to terminate this Agreement and your use of the Service at any time with or without notice;
- you will only use an access point or data account (AP) which you are authorized to use;
- you shall not employ any means to defraud the Company or enrich yourself, through any means, whether fraudulent or otherwise, whether or not through any event, promotion or campaign launched by the Company to encourage new subscription or usage of the Service by new or existing users;
- you shall not impair or circumvent the proper operation of the network which the Service operates on;
- you agree that the Service is provided on a reasonable effort basis; and
B) Licence Grant and Restrictions
- The Company and its licensors, where applicable, hereby grants you a revocable, non-exclusive, non- transferable, non-assignable, personal, limited licence to use the Application and/or the Software, solely for your own personal purpose, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by the Company and its licensors.
- For the avoidance of doubt, you shall not do the following:-
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application and/or the Software in any way;
- modify or make derivative works based on the Application and/or the Software;
- create internet “links” to the Application or “frame” or “mirror” any Software on any other server or wireless or internet-based device;
- reverse engineer or access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Application and/or the Software, or (c) copy any ideas, features, functions or graphics of the Application and/or the Software;
- launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application and/or the Software;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Services or its contents;
- post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; or
- remove any copyright, trademark or other proprietary rights notices contained in the Service.
- You may use the Software and/or the Application only for your personal, purposes and shall not use the Software and/or the Application to:
- send spam or otherwise duplicative or unsolicited messages;
- send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious materials, including but not limited to materials harmful to children or violative of third party privacy rights;
- send materials containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
- interfere with or disrupt the integrity or performance of the Software and/or the Application or the data contained therein;
- attempt to gain unauthorized access to the Software and/or the Application or its related systems or networks; or
- impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity.
C) Payment by The Company
- Any payment of commission and/or remuneration by the Company including the timeline of such payment is subject to the full compliance of the conditions, requirements and procedures stipulated by the Company from time to time as well as in accordance with the law. The Company reserves the right to request for further documentation or steps to be taken by you and/or your Buyer or Customer prior to issuing the payment of commission and/or remuneration to you. You need to refer to your respective agencies for the terms of engagement entered into with the Company which include the payment terms.
- The Company retains the right to suspend the processing of any transaction where it reasonably believes it may be fraudulent, illegal or involves any criminal activity or where it reasonably believes the Buyer or Customer to be in breach of the Terms and Conditions between the Buyer or Customer and the Company. In such an event, you shall not hold the Company liable for any withholding of, delay in, suspension of or cancellation of, any payment to you or your affiliated Agency.
- You agree that you will cooperate in relation to any criminal investigation that is required and to assist the Company in complying with any internal investigations, instructions from the authorities or requirements of prevailing laws or regulations in place.
- You agree that this Agreement shall be subject to all prevailing statutory taxes, duties, fees, charges and/or costs, however denominated, as may be in force and in connection with any future taxes that may be introduced at any point of time. You further agree to use your best efforts to do everything necessary and required by the relevant laws to enable, assist and/or defend the Company to claim or verify any input tax credit, set off, rebate or refund in respect of any taxes paid or payable in connection with the Services supplied under this Agreement.
E) Intellectual Property Rights and Confidentiality
- You acknowledge that the copyright in all materials found in the Company’s Website, Service, Application and Software including the graphic, literary and artistic works, layout designs, look and feel of the Company’s website or mobile application are the sole intellectual property of the Company.
- You further acknowledge that your permission to use any of the copyrighted works found in the Company’ Website, Service, Application, Software or mobile application is limited to the rights expressly stated in this Agreement.
- You shall maintain in confidence all information and data relating to the Company, its services, products, business affairs, modus operandi, marketing and promotion plans or other operations and its associated companies which are disclosed to you by or on behalf of the Company (whether orally or in writing and whether before, on or after the date of this Agreement) or which are otherwise directly or indirectly acquired by you from the Company, or any of its affiliated companies, or created in the course of this Agreement whether or not it is expressly designated as ‘confidential’.
- You shall further ensure that you only use such confidential information in order to perform the Services, and shall not without the Company’s prior written consent, disclose such information to any third-party nor use it for any other purpose. You shall only disclose such information to such officers, employees and agents to fulfil their obligations under this Agreement or as required under the law.
F) Personal Data Protection
G) Third Party Interactions
- During use of the Service, you may, subject to the Company’s prior written consent, enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party providers, advertisers or sponsors showing their goods and/or services through the Service, Software and/or the Application. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. The Group does not endorse any applications or sites on the Internet that are linked through the Service, Application and/or the Software, and in no event shall the Company, its licensors or the Group be responsible for any content, products, services or other materials on or available from such sites or third party providers. The Company provides the Service to you pursuant to the Terms and Conditions.
- The Company may rely on third party advertising and marketing supplied through the Service and other mechanisms to subsidize the Service and/or to earn additional revenue. By agreeing to the Terms and Conditions you agree to receive such advertising and marketing. If you do not want to receive such advertising you should notify us in writing or in accordance with the procedure determined by the Company. You agree and allow the Company to compile and release information regarding you and your use of the Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take all precautions in all actions and interactions with any third party providers, advertisers and/or sponsors you interact with through the Service and/or advertising or marketing material supplied through the Service.
- By agreeing to this Agreement upon using the Service, you agree that you shall defend, indemnify and hold the Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this Agreement or any applicable law or regulation, including any local laws or ordinances, whether or not referenced herein; (b) your violation of any rights of any third party, including, but not limited to Buyers or Customers, as a result of your own interaction with any third party (c) your use (or misuse) of the Application and/or Software.
- You further agree to be responsible for and shall indemnify the Company in respect of any breach or threatened breach of any intellectual property rights and confidentiality obligations under part E) of this Agreement and undertake to take any and all such action as the Company may reasonably deem fit and necessary to prevent any threatened breach, or contain the effects of any breach or suspected breach, at your own costs.
I) Disclaimer of Warranties
- THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, APPLICATION AND/OR THE SOFTWARE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE, APPLICATION AND/OR THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE APPLICATION AND/OR THE SOFTWARE WILL BE CORRECTED, OR (F) THE APPLICATION OR THE SERVER(S) THAT MAKE THE APPLICATION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY EXCLUDED AND DISCLAIMED TO THE HIGHEST AND MAXIMUM EXTENT. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES THROUGH THE USE OF THE SERVICE, APPLICATION AND/OR THE SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICE, AND ANY THIRD PARTY SERVICES REMAINS SOLELY AND ABSOLUTELY WITH YOU AND YOU SHALL HAVE NO RECOURSE WHATSOEVER TO THE COMPANY.
J) Internet Delays
- THE SERVICE, APPLICATION AND/OR THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS INCLUDING THE DEVICE USED BY YOU BEING FAULTY, NOT CONNECTED, OUT OF RANGE, SWITCHED OFF OR NOT FUNCTIONING. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DAMAGES OR LOSSES RESULTING FROM SUCH PROBLEMS.
K) Limitation of Liability
- ANY CLAIMS AGAINST THE COMPANY BY YOU SHALL IN ANY EVENT BE LIMITED TO THE AGGREGATE AMOUNT OF ALL AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN UTILISING THE SERVICE DURING THE EVENT GIVING RISE TO SUCH CLAIMS. IN NO EVENT SHALL THE COMPANY AND/OR ITS LICENSORS BE LIABLE TO YOU OR ANYONE FOR ANY DIRECT, INDIRECT, PUNITIVE, ECONOMIC, FUTURE SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OR LOSSES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, EMOTIONAL DISTRESS AND LOSS OF DATA, GOODS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE).THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY OR CAUSED TO YOU OR TO ANY PERSON FOR WHOM YOU HAVE BOOKED THE SERVICE FOR, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, APPLICATION AND/OR THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, APPLICATION AND/OR THE SOFTWARE, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED TO BY THE SERVICE, APPLICATION AND/OR THE SOFTWARE, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY OR CAUSED TO YOU OR TO ANY PERSON FOR WHOM YOU HAVE USED THE SERVICE FOR, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, APPLICATION AND/OR THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, APPLICATION AND/OR THE SOFTWARE, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED TO BY THE SERVICE, APPLICATION AND/OR THE SOFTWARE, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE COMPANY DOES NOT AND WILL NOT ASSESS NOR MONITOR THE SUITABILITY, LEGALITY, ABILITY, MOVEMENT OR LOCATION OF ANY THIRD PARTY PROVIDERS INCLUDING, ADVERTISERS AND/OR SPONSORS AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY PROVIDERS INCLUDING, ADVERTISERS AND/OR SPONSORS.
- THE COMPANY WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN YOU AND SUCH THIRD PARTY. WE CANNOT AND WILL NOT PLAY ANY ROLE IN MANAGING PAYMENTS BETWEEN YOU AND THE THIRD PARTY PROVIDERS, INCLUDING THIRD PARTY ADVERTISERS AND/OR SPONSORS.
- RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES AND PRODUCTS OFFERED VIA THE SERVICE, SOFTWARE AND/OR THE APPLICATION (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH AND ON YOU. YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SERVICE, SOFTWARE AND/OR THE APPLICATION, OR IN ANY WAY RELATED TO THE THIRD PARTIES INCLUDING ADVERTISERS AND/OR SPONSORS INTRODUCED TO YOU BY THE SERVICE, SOFTWARE AND/OR THE APPLICATION.
- The Company may give notice by means of a general notice on the Application, electronic mail to your email address in the records of the Company, or by written communication sent by Registered mail or pre-paid post to your address in the record of the Company. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by Registered mail or pre-paid post) or 1 hour after sending (if sent by email). You may give notice to the Company (such notice shall be deemed given when received by the Company) by letter sent by courier or registered mail to the Company using the contact details as provided in the Application.
- The agreement as constituted by the terms and conditions as modified from time to time may not be assigned by you without the prior written approval of the Company but may be assigned without your consent by the Company. Any purported assignment by you in violation of this section shall be void.
N) Force Majeure
- Neither party is liable in any way for delay, failure in performance, loss or damage due to any of the following force majeure conditions: fire, strike, embargo, explosion, power blackout, earthquake, flood, war, labour disputes, civil or military authority, acts of God or the public enemy, inability to secure raw materials, acts or omissions of other carriers or suppliers, or other causes beyond its reasonable control, whether or not similar to the foregoing.