Term of Use

Schedule C
Terms of Use

 

This Terms of Use governs your use of and access to the API Services (defined below) provided by Empower Hub Sdn Bhd, and is an agreement between Empower Hub and you or the entity you represent (collectively referred to as “you”). This Terms of Use is in addition to any other agreements (“Brokerage Contract”) between you and your participating organisation (“Participating Organisation”). 

By accessing or using the API Services, you agree (on behalf of yourself or the entity you represent) to be bound by this Terms of Use. You represent to us that you are lawfully able to enter into this agreement, and if you are accepting this Terms of Use for a separate entity, you represent to us that you have the legal authority to bind that entity to this agreement.

 

1      Definitions and interpretation

 

1.1    Definitions

The following definitions and rules of interpretation shall apply to this Terms of Use
 

API

application programming interface or the intermediary allowing for communication between two software;

API Documentation

the document made available by Empower Hub online via:

  1. https://iq-cte.em2.asia/
  2. https://ws.em2.asia/

or such other web address notified by Empower Hub to you from time to time which sets out a description of the API Services and the instructions for use of the API Services;

API Services

the API provided by Empower Hub to you as more particularly described in the API Documentation;

Applicable Laws

all applicable laws, rules, regulations, guidelines, codes, orders, judgments or directives, whether present or future, including the Capital Markets Legislation;

Bursa Malaysia Exchange

the Bursa Malaysia stock exchange operated by Bursa Malaysia Securities;

Bursa Malaysia 

Bursa Malaysia Berhad;

Capital Markets Legislation

with respect to the Participating Organisation, all applicable laws, rules, regulations, guidelines, codes, orders, judgments or directives, whether present or future, which regulate dealings in Securities or the activities of the Participating Organisation relating to the Trading Terminals including:

  1. the Capital Markets and Services Act 2007;
  2. the Securities Commission Act 1993;
  3. the Securities Industry (Central Depositories Act) 1991; and
  4. the Rules of Bursa Malaysia;
Cybersecurity Mitigation Measures

the cybersecurity mitigation measures as prescribed in the API Documentation to be implemented by the by you;

Cybersecurity Requirements

any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, relating to security of network and information systems and security breach and incident reporting requirements;

Intellectual Property

trademarks, service marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, semi-conductor topography rights, database rights and all other similar rights in any part of the world (including Know-how) including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;

Know-how

confidential or proprietary technical and commercial information and techniques in any form including, without limitation, source code, formulae, system logs, reports, testing procedures, and instruction and manuals;

Losses

all losses, liabilities, costs (including, without limitation, legal costs on a full indemnity basis), charges, expenses, actions, proceedings, claims and demands;

Personal Data

has the meaning given to it in the Personal Data Protection Act;

Personal Data Protection Act

the Personal Data Protection Act 2010;

Rate Limits

the limits on the number of API calls, or CPU, bandwidth or time limits in respect of requests made to the API endpoints;

Securities

has the meaning given to it in the Capital Markets and Services Act 2007;

Taxation

all forms of taxes and taxation whether of Malaysia or elsewhere in the world, past, present and future (including, without limitation, capital gains tax, income tax, estate duty, profits tax, stamp duty, service tax, value added tax, purchase tax, custom and other import or export duties) and all other statutory, governmental or state impositions, duties and levies and all penalties, charges, costs and interest which is assessed, levied, imposed or collected by the inland revenue authority of Malaysia or other statutory or governmental authority, body or official whosoever (whether of Malaysia or elsewhere in the world);

User Input Data

your data input in or through the API Services; and

Virus

any thing or device (including any software, code, file or program) which may: 

  1. prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
  2. prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
  3. adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
Vulnerabilities

a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and “Vulnerability” means any one of them.

 

1.2    Interpretation

In this Terms of Use, unless the context otherwise requires:

  1. a reference to a statute or statutory provision shall include a reference to:
    1. that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated whether before or after the acceptance of this Terms of Use; and
    2. all subsidiary legislation made from time to time under that statute or statutory provision;
  2. references to one gender include all genders and references to the singular include the plural and vice versa;
  3. references to a “person” shall include any natural person, company, limited liability partnership, partnership, business trust or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
  4. headings are for convenience only and shall be ignored in construing this Terms of Use;
  5. a reference in this Terms of Use to “including”, “include” and other similar expressions shall not be construed restrictively but shall mean “including without prejudice to the generality of the foregoing” and “including, but without limitation”;
  6. a reference to “writing” or “written” includes email; and
  7. the phrase “dealing in Securities” shall have the meaning given to “dealing in securities” in the Capital Markets and Services Act 2007

 

2       Scope of API Services

 

1.3    Personal and non-commercial use

  1. In consideration of your agreement to the Brokerage Contract and to your obligations under this Terms of Use, Empower Hub grants to you a right to use the API Services for own personal and non-commercial purposes on an “as is”, “as available” and “with all faults” basis.
  2. Should you wish to use the API Services for any other purposes including commercial usage or making the API Services available to others through your own account, please reach out to us at [ [email protected] ].

 

1.4    Content and Securities of Bursa Malaysia

  1. You acknowledge that the API Services will enable you to:
    1. access the content of, and correspond with Bursa Malaysia; and
    2. purchase or sell Securities of third parties listed on Bursa Malaysia, and that you do so solely at your own risk.
  2. Empower Hub makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, Bursa Malaysia, or any transactions completed, and any contract entered into by you, with any third party for the purchase or sale of Securities.
  3. Any contract entered into and any transaction completed with Bursa Malaysia or any third party is between you and Bursa Malaysia or the relevant third party, and not Empower Hub.
  4. Empower Hub recommends that you refer to Bursa Malaysia or the relevant third party’s terms and conditions and privacy policy prior to concluding the relevant transaction.
  5. Empower Hub neither endorses nor approves Bursa Malaysia or the Securities of any third party nor the content of Bursa Malaysia or any third party made available via the API Services.

 

1.5    Limitations and failure of communication infrastructure

Empower Hub is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the API Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

1.6    Limitations and failure of communication infrastructure

All conditions, warranties, terms and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings or otherwise, including as to quality, performance, fitness or suitability for purpose, which may be applicable to the API Services are excluded to the fullest extent permitted by law. Without limiting the foregoing, Empower Hub neither represents nor warrants that:

  1. your use of the API Services will be uninterrupted or error-free;
  2. the API Services, API Documentation or the information obtained by you through the API Services will meet your requirements;
  3. the API Services will be free from Vulnerabilities; or
  4. the API Services will comply with any Cybersecurity Requirements.

 

1.7    Rate Limits

You acknowledge that Rate Limits may be applicable to your use of the API Services and Empower Hub reserves the right to implement and/or change or update its policy on Rate Limits without having to obtain your consent. Generally, information on our Rate Limits for the API Services will be available as agreed between your Participating Organisation and Empower Hub.

 

3      Issues on Securities

 

1.8    Responsibility of your Participating Organisation

  1. In providing the API Services, and for the purpose of Capital Markets Legislation, Empower Hub does not deal in Securities.
  2. The API Services is the provision of a software intermediary allowing for you, using your account with your Participating Organisation, to communicate directly with the Bursa Malaysia Exchange (bypassing your Participating Organisation’s trading terminal, if any).
  3. Please reach out to your Participating Organisation if you have any query relating to the following matters:
    1. the creation, management and security or authentication credentials of your account;
    2. the management of your funds and collateral for trading on the Bursa Malaysia Exchange; and
    3. the processing and security of your Personal Data.

 

1.9    Compliance with law

In addition, you represent, warrant and undertake to Empower Hub that your use of the API Services and the activities you perform in connection with or through the API Services are in compliance with all Applicable Laws.

 

4      Manner of use and security

 

1.10    Your general responsibility

You agree not to use API Services in any manner that may threaten its security or functionality, including introducing any Virus or Vulnerability into the API Services.

 

1.11    Cybersecurity requirements

You agree to implement the Cybersecurity Mitigation Measures on the servers, computers and other devices that you employ for the use of, or which interact with, the API Services.

 

5      Intellectual Property and related rights

 

1.12    Ownership

You acknowledge that all Intellectual Property rights relating to the API Services, and in existing and future versions (incorporating updates or revisions) of the API Documentation belong to Empower Hub or to a third party (having licensed the relevant Intellectual Property rights to Empower Hub). You shall have no rights in the API Documentation or to the API Services other than the right to use it in accordance with this Terms of Use.

 

1.13    Limited Licence

Your right to use the API Services is a limited licence wherein you shall not (attempt to) sub-licence, transfer, assign or novate the benefit or burden of this licence in whole or in part or allow this licence, the API Services or the API Documentation to become the subject of any charge, lien or encumbrance.

 

1.14    Reverse engineering

You shall not directly or indirectly (make attempts to) reverse assemble, reverse compile or back engineer the API Services or intercept any backend request from the API Services to Bursa Malaysia (or any other server or third party) for any reason whatsoever (including to debug, diagnose or resolve any issues with the API Services). You shall instead submit any issues uncovered to Empower Hub for review and resolution.

 

1.15    Modifications, integrations etc.

You shall not modify or alter the whole or any part of the API Services or combine or integrate or incorporate the whole or any part of the API Services in any system, software, technology or service apart for your own personal and non-commercial use.

 

6      User data

 

1.16    Ownership

Empower Hub shall own all right, title and interest in and to all of the User Input Data that is not Personal Data.

 

1.17    Treatment of Personal Data

  1. Except as Empower Hub may requests or otherwise consent to receive (for the performance of the API Services), please do not provide to Empower Hub any Personal Data.
  2. If Personal Data of End Users is provided by you or your Participating Organisation to Empower Hub, the privacy policy of Empower Hub relating to the privacy and security of Personal Data available at [insert web address] or such other website address as may be notified to you from time to time shall apply to the treatment of such Personal Data. Empower Hub may amend its privacy policy from time to time in its sole discretion.
  3. You acknowledge that your Personal Data is processed on the Participating Organisation’s behalf, that the Participating Organisation is the data user and that Empower Hub is the data processor for the purposes of the Personal Data Protection Act.

 

7      Indemnity

 

1.18    General Indemnity

You undertake to indemnify, make good and pay on demand to Empower Hub a sum equal to any and all Losses which Empower Hub may sustain, suffer or incur by reason of or in connection with any breach of any representation, warranty or undertaking given by you under this Terms of Use.

 

1.19    Indemnity for regulatory violations

Without prejudice to the generality of Clause 7.1 (General indemnity), you further undertake to indemnify, make good and pay on demand to Empower Hub a sum equal to any and all Losses which Empower Hub may sustain, incur or suffer by reason of or in connection with any claims, assertions, fines or compounds by a Regulatory Body relating to any alleged violations of Applicable Laws in connection with your use of the API Services and the activities you perform in connection with or through the API Services.

 

1.20    Separate cause of action

Each of the indemnities in this Terms of Use:

  1. constitutes a separate and independent obligation from the other obligations in this Terms of Use;
  2. shall give rise to a separate and independent cause of action;
  3. shall apply irrespective of any indulgence granted by Empower Hub to you; and
  4. shall continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Terms of Use or any other judgment or order.

 

1.21   Taxation

Any payment made in accordance with the provisions of this Clause 7 (Indemnity) shall include any amount necessary to ensure that, after any Taxation of the payment, Empower Hub is left with the same amount it would have had if the payment was not subject to Taxation.

 

8      Limitation of liability

 

1.22    Exclusion of liability

In addition to Clause 2.1 (Personal and non-commercial use) and Clause 2.4 (Exclusion of implied terms, representations and warranties), Empower Hub shall not have liability for any Losses which may be suffered by you arising from or in connection with your use of the API Services whether the same are suffered directly or indirectly, or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise, howsoever.

 

1.23    No reliance on representations

You agree that, in using the API Services, you have not relied on any representations (whether written or oral) of any kind or of any person.

 

1.24    Force majeure

  1. Without limiting the generality of Clause 8.1 (Exclusion of liability), under no circumstances shall Empower Hub be held liable for any delay or failure or disruption of the API Services (including the creation or fulfilment of contracts for Securities) resulting directly or indirectly:
    1. an act of God including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
    2. epidemic or pandemic;
    3. hacking or cyberattacks;
    4. act of any sovereign including but not limited to war, invasion, act of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction, embargo or similar action (including imposing an export or import restriction on services, quota or prohibition, or failing to grant a necessary licence or consent);
    5. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
    6. law, judgment, order, decree, embargo, blockade, labour dispute (including strike, lockout or boycott);
    7. interruption or failure of utility service or internet connectivity (including downtime of the relevant submarine communication cables, failure of telecommunications infrastructure or systems); and
    8. any other matter or cause beyond the reasonable control of Empower Hub.
  2. In addition, Empower Hub shall be entitled to suspend the provision of all or any part of the API Services on the occurrence of any of the foregoing events.

 

9      Termination or suspension

 

1.25    Scenarios for termination of suspension

Empower Hub may, in its sole discretion, terminate or suspend your use of all or any part of the API Services without notice 

  1. if you breach or threaten to breach any of the terms of this Terms of Use; or
  2. if it determines that your usage may interfere with the API Services or otherwise be detrimental to Empower Hub, as may be determined in Empower Hub’s sole discretion.

 

1.26    Effect of termination

The termination of your use of all or any part of the API Services shall not affect any other right or remedy available to Empower Hub, and any of Empower Hub’s accrued rights or your liabilities for any antecedent breaches under this Terms of Use (including Empower Hub’s right to seek an indemnity for Losses pursuant to Clause 7 (Indemnity)).

 

10      Other provisions

 

1.27    Entire agreement

This Terms of Use supersedes all prior terms of use, agreements, promises, representations, warranties, arrangements, understandings, implications and undertakings between Empower Hub and you, whether oral or written, and shall constitute the entire agreement between the parties relating to the Service and the Licence granted under this Terms of Use.

 

1.28    Joint and several liability

Where you represent another entity in respect of your use of the API Services, the liability of each of the entity and you under or pursuant to any of the provisions of this Agreement shall be joint and several.

 

1.29    Successors and assigns

  1. This Terms of Use shall be binding on, and continue for the benefit of, the parties and their respective successors and permitted assigns and references to Empower Hub or you shall include Empower Hub or your respective successor or permitted assign.
  2. Empower Hub shall have the right to assign this Terms of Use (including all its rights, titles, benefits, interests, and obligations and duties in this Terms of Use to any person or entity (including any affiliates of Empower Hub). You may not assign the benefit of this Terms of Use.

 

1.30    Release, indulgence, waiver

  1. A waiver of any right of Empower Hub will only be effective if it is in writing and shall apply only to the person to which the waiver is addressed and the circumstances for which it is given.
  2. Empower Hub’s waiver of a right in relation to you, or action taken or lack thereof against you shall not affect its rights against any other person.
  3. No failure of Empower Hub to exercise or delay in exercising any right or remedy provided under this Terms of Use or by law constitutes a waiver of such right or remedy or shall prevent any future exercise in whole or in part.
  4. No single or partial exercise of any right or remedy by Empower Hub under this Terms of Use shall preclude or restrict the further exercise of any such right or remedy.

 

1.31    Severance

  1. If any of the terms contained in this Terms of Use are found to be illegal, void or unenforceable, the unenforceable provision shall be modified to the maximum extent possible in order to give effect to the intention of the term as intended for by Empower Hub.
  2. If the term cannot be so modified, it shall be severed from this Terms of Use and such invalidity shall not be deemed to affect the validity of the remaining terms which shall continue in full force and effect and be valid and binding on the parties.

 

1.32    Governing Law

  This Terms of Use shall be governed by and construed in accordance with the laws of Malaysia.

 

1.33    Jurisdiction

The termination of your use of all or any part of the API Services shall not affect any other right or remedy available to Empower Hub, and any of Empower Hub’s accrued rights or your liabilities for any antecedent breaches under this Terms of Use (including Empower Hub’s right to seek an indemnity for Losses pursuant to Clause 7 (Indemnity)).

 

1.34    Elective arbitration

  1. Notwithstanding Clause 10.7 (Jurisdiction), Empower Hub shall have the option, in its sole and absolute discretion, to elect by notice to you that any dispute, controversy or claim arising out of or relating to this Terms of Use, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Asian International Arbitration Centre.
  2. The seat of arbitration and the place of arbitration shall be Malaysia and the language to be used in the arbitration proceedings shall be English.