The terms and conditions set out herein (“User Agreement”) is effective as of [insert date].
Your use of and access to www.ezyspark.com (“Site”) operated by ezyspark Sdn Bhd (Company No. 1257034-V) (“Our”, “We”, “ezyspark” or “Company”) shall constitute your agreement to accept, comply and be bound by the applicable terms and conditions of this User Agreement between you and ezyspark, Therefore, please read the User Agreement thoroughly and carefully. If you disagree with the User Agreement, please discontinue using and/or accessing the Site immediately.
This User Agreement refers to the following additional important terms, which also apply to your use of our Site:
· If you register for an Account (as defined below) as a Trainer (as defined below), our Service Fees Agreement will apply to the Trainer. See further under paragraph 8A below.
The Company may in its sole discretion amend this User Agreement from time to time by posting an updated version on the Site. Unless stated otherwise, any changes take effect immediately. In respect of any amendments that are deemed substantial resulting in: (a) your rights being reduced, or (b) your responsibilities being increased, or (c) an increase of fees chargeable by ezyspark, a reasonable notice will be provided by ezyspark on the Site or via other media as ezyspark deems appropriate including email.
You are responsible to ensure that you read, understand and be familiar with the latest User Agreement. Your continue use of and access to the Site following any amendment of the User Agreement signifies your agreement to be bound by the revised User Agreement.
means a registered account which you may be required to create if you wish to access and use the full facilities and features provided by the Company on the Site, subject to the account type as a Client or as a Trainer;
“Agreed Training Fees”
means the fees (inclusive of Deposit) for an Engagement agreed between a Trainer and a Client;
means any act enacted by the Parliament of Malaysia, enactment, ordinance or other lawful authority and having legislative effect for the time being in force in Malaysia, including any proclamation, rule, regulation, order, notification, by-law or other instrument made thereto;
“Balance Agreed Training Fees”
means the Agreed Training Fees minus the Deposit;
means the party who registers an account as a client to request for, seek recommendation in respect of the Training Services required or having the intention of hiring or confirms the engagement of the Trainer(s) for hire recommended within the Site;
means a confirmation made by both Trainer and Client through ezyspark upon activating any milestones agreed between the Trainer and Client and/or as set forth under an Engagement;
means a sum payable by the Client which is equivalent to 50% of the Agreed Training Fees pursuant to an Engagement;
means the engagement for Training Services to be performed by a Trainer based on the confirmed quotation;
means the actual date(s) of which the training programme to take place or to be performed by the Trainer;
means the services offered by the Company and/or made available on the Site, including but not limited to:
(i) hosting and maintaining the Site;
(ii) offering the Site as a platform for Trainer(s) to publish, promote and market their Training Services;
(iii) reviewing and maintaining the Trainer’s profile and gathering and processing database based on information provided by the Trainer;
(iv) offering information in respect of the Trainer(s), the Training Services, or any other information as may be required by the Client;
(v) matching the Client’s requests with suitable Trainer(s);
(vi) facilitating Trainers to render quotations to Clients;
(vii) facilitating Clients and Trainers to establish or schedule contact with each other;
(viii) facilitating the formation of Service Contracts;
(ix) run campaigns and promotional activities on the Site and/or other means as the Company deems necessary;
(x) publishing ratings, user reviews and testimonials of Trainers and Clients;
(xi) allowing users to use the Site to generate invoice and pay amounts owed under the Service Contracts ; and
(xii) others ancillary or related services as the Company deems appropriate.
“Intellectual Property Rights”
means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to any business names, computer software, confidential information, copyright, designs, domain names, inventions, know-how, patents, trademarks, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right;
means content (either in text, image, video, sound or data) on any part of the Site, including profile, the posting, information or testimonials, comments, opinions or reviews regarding the Site, the Training Services, or the Users;
means the online platform including online platform and any other electronic media or virtual applications owned and operated by the Company from time to time and any ancillary facilities or features such as emails, SMS, newsletters, notifications or other means for providing ezyspark Services;
means any individual(in his or her own personal capacity) who (i) registers an account as a freelance trainer on the Site, offering or selling his/her Training Services to the Client through the Site;
means any type of training programme as may be requested by the Clients or as may be offered by the Trainers respectively within the Site;
means any persons who access, visit, browse and use the features provided on the Site;
means a unique name and/or password allocated to you as a Client or Trainer, as the case maybe, to allow you to access and use the Site through the Client’s login page or the Trainer’s login page respectively;
We offer and provide ezyspark Services for the benefit of both the Clients and the Trainers. In rendering ezyspark Services, the Company is neither an agent of the Trainers nor hired by the Clients. The Company is not itself a training services provider and therefore does not offer, provide, engage in the Training Services. The Company is merely a platform providing Clients and Trainers with the options to access to one another and facilitate communications between Clients and Trainers within the features of the Site.
As Client, ezyspark Services enable you to post requests for the Training Services you seek, set the deliverables scope and requirements, make online bookings to engage the Trainer(s) and make payment through the Site.
As Trainer, you will be receiving a request notification inviting you to submit a quotation for the deliverables and all other requirements of the Client. You may determine prices for the Training Services you provide.
Both Client and Trainer being the Users of the Site are responsible for evaluating and determining the suitability of any prospective Engagement(s) on their own. Training Services are provided by Trainers directly to Clients based on the Agreed Training Fees, deliverables and all other requirements in the confirmed quotation sent through the Site.
You acknowledge and agree that the Company is not a party to any of the Engagement(s) and none of the Engagement creates any partnership, joint venture, agency, service, contractual relationship between the Company, the Client and the Trainer.
Once Deposit is made by the Client through the Site, the Engagement is deemed confirmed and accepted by the Client until and unless either the Client or the Trainer terminates the Engagement through the Site.
Any other terms, conditions agreements, contracts, covenants and/or undertakings (whether verbal or in writing, communicated outside the Site) in connection with the Training Services between the Trainer and the Client are exclusively between the Trainer and the Client, of which the Company are not a party or privy to such terms, conditions, agreements, contracts, covenants and/or undertakings.
(a) deliver work of an Engagement within the delivery times and in accordance with agreed upfront through the Site and are not permitted to sub-contract the Training Services to any third party unless the Client consents to the changes;
(b) bear his own travel and accommodation, expenses and related costs incurred arising from the delivery of the Training Services;
(c) prepare training materials to be used for the Training Services, if required;
(d) communicate or consult with the Client on any pre-training preparation, provide periodical updates on the status leading up to the delivery date, if required.
The Trainers will be penalized for unsatisfactory delivery or non-delivery of Training Services by the Trainers.
(a) provide the Trainer with information, reasonable support and co-operation to enable the Trainers to perform the Training Services;
(b) grant the Trainer limited, non-exclusive and revocable right to use the Client’s Materials as appropriate.
The Company will not be responsible or liable for any acts or omissions in connection with or arising from any Training Services provided by the Trainer to the Client or any participants invited by the Client who attends the Training Services.
Whilst the Trainer would have undergone limited verification process via the Site in respect of his/her identity, qualification and credentials in the respective field based on information provided by the Trainer, the Company is under no obligation to ensure, warrant or guarantee (i) the quality of the Training Services provided by the Trainers; (ii) the representation and warranties of the Trainer given to the Client at any point in time, whether through the Site or any means of communication that may be communicated between the Trainer and the Client directly; or (iii) the learning outcome of the Training Services.
By using the Site or registering an Account with ezyspark, you represent, warrant and undertake that:
(a) You are 18 years and above. If you are below 18 years of age, you have parental consent (including the use of your personal data);
(b) You have the right, authority and capacity to accept and abide by the terms and conditions under this User Agreement and to use the ezyspark Services;
(c) You will provide true, current and complete information in your dealings with us (including when setting up an Account and your profile), and must promptly update any information as required so that the information remains true, current and complete;
(d) Your participation and use of the Site and ezyspark Services do not violate any Applicable Laws;
(e) You will only use ezyspark Services for lawful purpose and for the purpose it is intended to be used;
(f) You will not solicit, recruit or contact via any medium, any Trainer or Client for employment or contracting for a business (whether affiliated or unaffiliated with ezyspark) without prior written consent from ezyspark;
(g) You will not post, upload to, transmit, create or publish through the Site any message, data, reviews and.or testimonials or any other information that is false, misleading, libelous, defamatory, obscene, pornographic, indecent, harassing or advocates harassment of another person, threatening, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable.
By using the Site, each of the Trainers hereby represents, warrants and undertakes that:
(a) The Trainer shall possess the ability to deliver and complete the Training Services under his/her Engagement with the Client to the best effort possible and in professional manner; and
(b) The Trainer shall be qualified and have sufficient knowledge, skills and experience in rendering the Training Services for the industry/ field which he/she has chosen or posted on the Site.
The Company grants you a non-exclusive, revocable license to use the Site as set forth in this User Agreement, provided that:
(a) You will not act in a way, or use or introduce anything (including any virus, worm, Trojan House, time bomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Site or any underlying IT system of the Company, or otherwise attempt to damage or interfere with the Site and the Company’s underlying IT system;
(b) You will neither collect or harvest any information or personally identifiable data (including but not limited to names and Account information) from the Site or the Company’s database, nor to use the communication systems provided by the Site for any commercial solicitation purposes;
(c) You will not alter or modify any part of the Site or the underlying system of the Company;
(d) You will not copy, disseminate or make derivative works of the Site in any medium or establish a link to our Site unless with prior written consent from the Company; and
(e) You will not misuse or abuse the Site which otherwise will result in revocation of your license to access the Site.
You may generally use and browse the Site without registering or providing your personal details. If you wish to use and benefit from the full facilities and features of ezyspark Services, you may be required to create an Account either as a Client or as a Trainer. In creating your Account, you must provide us with your name, email address, password or any additional information as may be required by the Company from time to time.
You will be given a User ID upon the successful creation of your Account. You are solely responsible for safeguarding your User ID and password at all times. You are discouraged from allowing another person to use your account without permission. Having said that, you shall be solely responsible for all activity that occurs on your Account.
You shall notify the Company immediately in the event of an unauthorized use of your Account or a suspected breach of security. In any event, ezyspark shall not be liable for your losses caused by an unauthorized use of your Account.
You may close your Account at any time by following instructions in the Site. Upon your Account closure, we will continue to provide ezyspark Services for any pending Engagement, and this User Agreement will be terminated upon completion of such Engagement or instructed by the Trainer or Client.
You hereby represent and warrant that you shall not cause any disrepute to the Site in any point in time, even after your Account closure.
You shall not upload, post, transmit or disseminate or cause the distribution of any content (either in text, image, video, sound or data) on any part of the Site, including your profile, the posting of your desired Training Service (for Client), the posting of your Training Services (for Trainer) or postings of testimonials, comments, opinions or reviews regarding the Site, the Training Services, or any Users or any contents (“Materials”) that:
(a) are misleading, misrepresenting false and inaccurate, which is intended to cause harm or exploitation of any individual or company or would result in damage and loss incurred/suffered by ezyspark, Client and/or Trainer in any way;
(b) invade a person’s privacy;
(c) is or encourages nudity, pornographic, vulgar, profanity, violence, hatred, illegal, obscene, defamatory, racist, discriminatory, harmful in any way against any person or group, or inappropriate subject matter;
(d) contains links to other commercial services that are not authorized by the Company;
(e) contains advertisement for schemes, surveys, contests, marketing campaigns;
(f) Infringes another persons’ copyright, trademarks and/or other intellectual property rights
You shall own and be solely responsible for the Materials you may have submitted or contributed on the Site. When you upload the Materials, you grant us the right and license to use, store, copy and distribute that Materials on the Site.
Any comments, opinions, statements or views expressed or contributed by the Users which are used by ezyspark as contents published through the Site do not represent the Company’s views or values. The Company reserve the right at its sole discretion, to remove any Material in our opinion, is inappropriate upon being notified by other Users or third parties, or have reasons to believe there is an infringement of the Applicable Laws or breach of this User Agreement without further reference or notice be given to the User(s).
ezyspark Services enable Clients to make payment for the Training Services through the Site.
An Engagement is deemed accepted by the Client upon the Client makes a Deposit payment of a sum equivalent to 50% of the Agreed Training Fees through the Site.
Upon the issuance of Delivery Confirmation, an invoice for Training Services rendered can be generated through the Site. The Client shall make payment for the Balance Agreed Training Fees in accordance with the invoice, the prescribed payment methods and/or instructions through the Site. Subject to paragraph 8A (Service Fees) and paragraph 9 (Cancellation and Postponement), payments from the Clients that are available will be disbursed to the relevant Trainers within 30 days from the receipt of payment.
If a Client fails to make payment accordingly, a remedial action under the applicable laws may be taken against the Client and/or the Company reserves the right to suspend or terminate the ezyspark Services and an interest charged over any outstanding amount at the rate of 8% to be calculated from the due date until the actual date of settlement.
Late payment of the Balance Agreed Training Fees in excess of 15 days may result in an immediate suspension of ezyspark Services, whereas late payment of the Balance Agreed Training Fees in excess of 30 days may result in the termination of ezyspark Services without any liability on the Company.
All rates quoted on the Site are in Ringgit Malaysia, and may be subject to all prevailing statutory taxes and duties (including SST, the Goods and Services Tax, VATs or similar taxes or withholding tax) at the rate as may be imposed by the Malaysian Government from time to time. Any tax liability shall be borne by the Trainer and/or the Client respectively in accordance with the applicable laws. You hereby agree to use your best efforts to do everything necessary and required by the relevant laws to enable and assist the Company to claim or verify any input tax, set-off, rebate or refund in respect of any taxes paid or payable in connection with the Training Services and ezyspark Services provided under this User Agreement.
ezyspark charges Service Fees payable solely by the Trainers, for using the Site as a platform for marketing, invoicing, and communication services.
All cancellations must be communicated through the Site.
Cancellation by Client. In the event Client cancels the Training Services at any time with or without cause upon the Engagement but before the Event Date, 50% of the Agreed Training Fees will be charged as Cancellation Fees (“Cancellation Fees”).
Trainer’s Entitlement to Cancellation Fees. In the event of cancellation by Client, ezyspark shall retain 30% of the Cancellation Fees as Service Fee. Trainers are entitled to the balance of Cancellation Fees if the cancellation by Client occurred through no fault, misconduct, or negligence of the Trainers.
Cancellation without Cause by Trainer. If the Trainer cancels the Training Services at any time upon the Engagement but before the Event Date, or fails to turn up on the Event Date without cause or due to reasons other than the occurrence of Special Circumstances, the Trainer will not be entitled to any payment of the Agreed Training Fees. In the case where Deposit of the Agreed Training Fees has already been paid by the Client, the Client shall be entitled to a full refund of the amount paid.
Cancellation due to Special Circumstances. If the Trainer cancels the Training Services at any time upon the Engagement but before the Event Date, or fails to turn up on the Event Date due to Special Circumstances, ezyspark may offer the following options for the Client’s acceptance:
(a) a full refund of Deposit paid by the Client; or
(b) postpone the Event Date as may be agreed between the Client and the Trainer; or
(c) offer a replacement Trainer (in which case no refund will be given to the Client).
All postponement must be communicated through the Site.
Postponement by Client. The Client may postpone or revise the date of the Engagement. The date revised within 3 weeks of scheduled confirmed date will be chargeable at 10% of the program fee. An invoice will be issued to the Client for this fee, which will be in addition to the previously agreed program cost.
Duration of Postponement. The duration of postponement must not exceed 3 months from the original Event Date. If the postponement exceeds this timeframe, it will lead to cancellation by Client and Clause 9 shall apply.
Postponement by Trainer. In the event the Trainer wishes to postpone the Engagement, the Trainer must fulfill with the conditions as set out in the table below depending on the number of days prior to the Event Date. Trainer who does not fulfill the conditions below are not allowed to postpone the Engagement, it will lead to cancellation without cause by Trainer and Clause 9 shall apply:-
Notice Period. Conditions to be fulfilled:
At least 30 days prior to Event Date
Postponement is possible subject to mutual agreement with the Client.
Within 15 – 30 days prior to Event Date
Postponement is possible only if a replacement trainer recommended by the Trainer is agreed by the Client.
Less than 15 days prior to Event Date
No postponement is allowed.
Duration of Postponement. The duration of postponement must not exceeds 3 months from the original Event Date. If the postponement exceed this timeframe, it will lead to cancellation by Trainer and Clause 9 shall apply.
All Intellectual Property Rights belonging to one party shall remain as the exclusive property of that party owning it. Unless expressly provided in this User Agreement or with prior consent of the parties, no party shall use the other party’s Intellectual Property Rights other than in accordance with and for the purposes of carrying out the obligations under this User Agreement.
Whilst you retain all ownership rights in your Materials, you hereby grant the Company non-exclusive and transferable license to link, read, use, reproduce, distribute, reformat, translate and alter the Material (and format) in order to administer and perform ezyspark Services under this User Agreement. If the Materials are no longer needed for the performance of the Ezyspark Services or at the requests of the Client and/or Trainer, the Company shall return the disclosing party’s Materials and any copies contained in the systems or equipment under the Company’s control shall be deleted or destroyed.
Any derivatives, exploitation or enhancements to the Materials created by the Company in connection with the ezyspark Services shall become the property of ezyspark.
You (whether as Client or Trainer) shall hold in strict confidence all information and data relating to the Company, its services, business affairs, marketing and promotional plans, other operations matters which are (i) created in the course of this User Agreement, or (ii) disclosed to you by the Company, or (iii) directly/indirectly acquired by you from the Company or its affiliated companies. Any such information shall not be disclosed to any third party or used for such other purposes without the prior written consent of the Company, unless disclosure of such information is necessary for the proper discharge of either parties’ rights or obligations under this User Agreement and in law.
The obligations of confidentiality in this clause shall not extend to any matter which is in or becomes part of the public domain otherwise than by reason of a breach of the obligations of confidentiality in this User Agreement or which any party receives from a third party independently entitled to disclose it or which the party is required by law or regulatory authority to disclose.
The confidentiality undertakings herein provided shall survive any termination, whether herein envisaged in this User Agreement or otherwise.
The Company makes no warranties or guarantees as to the reliability, timeliness, availability, quality, accuracy or completeness of the Training Services and/or any services obtained by or from third parties through the use of the ezyspark Services and/or the Site. All services on the Site that are provided to you are strictly “as is” basis. You acknowledge and agree that the Training Services (once confirmed and accepted by the Trainer and the Client) is an Engagement solely between that Client and that Trainer and such that entire risks and/or any liabilities, defaults, breaches of the Trainer and/or the Client arising out of the Training Services and/or any disputes arising therefrom shall remain solely and absolutely between the Client and the Trainer(s).The Company shall not be responsible to resolve any disputes between the Trainer and the Client.
To the extent permitted by law, we and our licensors / third party service providers engaged to host or maintain the Site, have no liability or responsibility to you or any other person for any Loss in connection with:
(a) The Site being unavailable (in whole or in part) or performing slowly;
(b) Any error in, or omission from, any information made available through the Site;
(c) Any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Site. For the avoidance of doubt, you are responsible for ensuring that the process by which you access and use the Site protects you from this; and
(d) Any site linked from the Site. Any link on the Site to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operations.
In no event shall the Company be liable to you or anyone for any direct, indirect, punitive, economic, future, special, exemplary, incidental, consequential or other damages or losses of any time or kind (including personal injury, emotional distress and loss of data, goods, revenue, profits, use or other economic advantage). Any claims against the Company by you (whether as Client or Trainer) shall be in any event be limited to no more any fees retained by ezyspark with respect to the Engagement on which the User was involved as a Client or a Trainer and provided the claims are made within 30 days from the cause of action.
You shall indemnify and hold the Company and its affiliates, officers, employees, licensors, agents, representatives and third party providers (each an “Indemnified Party”) from and against all losses to which such Indemnified Party may suffer or incur as a result of any default, failure, omission, misconduct, negligence or breach in the performance of this Agreement on the part of the indemnifying Party. We may be entitled to defend any claim otherwise subject to indemnification by you and in such case, you further agree to provide full cooperation as reasonably required.
The indemnity herein shall survive the termination or expiry of this Agreement.
The Company is not responsible for failures or delays in performance resulting from force majeure events which include the acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures, power failures and outage, earthquakes or other disasters.
This Agreement shall be and remain valid and binding on the parties, unless sooner terminated by the parties or upon closure of your Account. If you are a Client, you must legally terminate your relationship with the Trainer(s) and vice versa, before terminating this Agreement.
Effect of Termination. Upon the termination of this Agreement, your right to use the Site is automatically revoked, and your Account will be closed. The Company shall immediately be relieved from all further obligations under this Agreement. However, if you have open Engagement with a Trainer, you will continue to be bound by this Agreement or ancillary agreement in connection with such Engagement until all Engagement(s) have completed. ezyspark and the Trainer shall continue to perform those services to complete the open Engagement and you shall continue to be obliged to pay any amount accrued but unpaid for the completion of all the Engagement to the Company for ezyspark Services and/or the Trainers for the Training Services (as the case may be).
No failure or delay on the part of a party in exercising any rights or remedies under this Agreement at any time or for any period of time nor any knowledge or acquiescence by a party of, or in, breach of any provision of this Agreement shall operate as or be deemed to be a waiver thereof nor shall a waiver by that party of any breach constitute a continuing waiver in respect of any subsequent or continuing breach.
This Agreement shall be construed and governed in accordance with the laws of Malaysia.
All disputes, controversies and/or differences arising out of or in connection with this Agreement between you and the Company shall be settled informally and amicably through mutual consultation following service of a notice from a party to the other, setting out a brief description of the claim, contact information and account information for the claims to be evaluated. Parties will have a minimum of 60 days from the date of receipt of the said notice or any other time period as may be mutually extended by the Parties to informally resolve the other party’s claims through amicable means.
In the event the parties fail to resolve any matters in the aforesaid notice, the parties herein shall submit to the non-exclusive jurisdiction of the courts of Malaysia.
The Company will not be part of or involve in any dispute or disagreement between the Client and the Trainer, of which the Client and the Trainer are expected to resolve amongst themselves.
In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable, illegal or otherwise invalid in any respect under any law, such unenforceability, illegality or invalidity shall not affect or impair any other provisions of this Agreement and this Agreement shall then be construed, interpreted and applied so as to produce as nearly as may be the legal, economic and commercial result intended by the parties. In any such instance, the parties shall work together in good faith to make such alternative arrangement(s) or change such term(s) as may be legally permissible to carry out as nearly as practicable the original terms and intent of the Agreement.
The termination of this Agreement howsoever arising shall not affect such of the provisions hereof as are expressed to survive, operate or have effect thereafter.
This Agreement constitutes the entire agreement between the parties in connection with the subject matter herein and replaces and supersedes all previous proposals, quotations and agreements pertaining to the subject matter of this Agreement, whether written or oral.
Notwithstanding this Clause, the parties may enter into any supplemental or separate (oral or written) agreement that are deemed appropriate (including but not limited to non-disclosure agreement, rights assignment agreement.
Client and/or Trainer may not assign the Agreement or any rights or obligations herein without the Company’s prior written consent. Any attempted assignment or transfer is a violation of this Agreement. Notwithstanding the foregoing, the Company may freely assign this Agreement or the other documentation in connection with the ezyspark Services without the consent of the Client and/or Trainer. Subject to the foregoing restrictions, the Agreement will inure to the benefit of the successors and permitted assigns of the parties.
Nothing in this Agreement shall constitute or deemed to constitute a partnership between the parties and nor shall this Agreement be construed to constitute any party as the agent of the other party or employer-employee relationship.
If you have any questions or need assistance, please contact our Customer Support firstname.lastname@example.org.