Terms of Service

Please read the Terms of Service (“ToS“) set forth below, as they apply to your use of our services.

Your conduct of registering as user with us shall irrevocably constitute your acceptance of this ToS and agreement to be bound by them and any and all other applicable terms referenced herein absolutely.

The service is available only to unincorporated or incorporated entities and/or individuals above the age of 18 years who can form legally binding agreements under the applicable laws that have registered with us. If you are not above 18 years of age, please do not proceed to use the Service.

For avoidance of doubt, unless the context otherwise requires, the following words and expressions shall have the following meanings:

“Consumer” means the individual who has purchased the products and/or subscribed to any services as provided or made available hereof;

“Distributor” means the individual and/or entity who has agreed to distribute products and/or services of the Subscriber;

“Subscriber” means the individual and/or entity who has registered to become an user of the Service and whom has made a monthly or annual subscription of the Service pursuant to this

ToS or any written agreement with us.

This ToS shall apply to the Subscriber, Distributor and Consumer where mentioned and as

applicable respectively.

This ToS also refers to the additional terms in our Personal Data Protection Policy, which also apply to your use of our service.

Our Personal Data Protection Policy sets out the terms on which we process any personal data we collect from you, or that you provide to us.

By using our service, you consent to such processing and you warrant that all data provided by you is accurate and to notify us by emails if there are any changes. You understand that through your use of the service you consent to the collection and use (as set forth in the Personal Data Protection Policy) of this information, including the transfer of this information both within and outside of Malaysia for storage, processing and use by us.

As part of providing to you our services, we may need to provide you with certain communications, such as emails, letters and/or administrative messages through the contact details that were provided in this ToS or collected during registration or subscription process.

These communications are compulsory and are considered part of the service which you may not be able to opt-out from receiving.

SmartKood (“Platform”) is a consumer data platform with web.smartkood.com which allows business and/or product owners to collect and obtain details of the consumer and consequently to track and trace the products or services, and consumer loyalty and/or reward system offered by the business (“Service”).

This Service is provided by Foqcus Sdn Bhd (referred as “we”, “us”, “our” or “Foqcus”) and/ or its subsidiaries.

You understand and agree that changes and features or enhancements of the current version of Service shall be subjected to the ToS. You are responsible for fees or costs incurred in obtaining access to the Service, which in particular addresses to the Internet Service Provider charges, if any. In addition, you must provide and are responsible for all equipment, tools or facilities that are necessary to access or use the Service.

The usage of the Service shall comply, and you shall ensure that the usage of the Service complies with all applicable law, guidelines, codes, rules, regulations, notices, instructions or directives of the relevant authorities and/or with any notice(s) given by Foqcus in connection with the Service. Such applicable law(s) or regulation(s) shall include but not be limited to those content that against or violate or in breach of any legislations, relating to subversive, defamatory, obscene or pornographic materials or other content standards or breach of intellectual property rights or other proprietary rights or in a manner which in the reasonable opinion of Foqcus, may adversely affect the use of the Service by other users of Foqcus or the efficiency of the Service or Foqcus Sdn. Bhd.’s Service as a whole.

Business Owner/Subscriber

To use the Service, you shall first and foremostly apply and register for the Subscription of the Service. This could be done by registering and providing the details as requested by us.

You shall furnish payment details upon registration. You shall only be charged upon the acceptance of your registration by us. Thereafter, you should be able to utilise the Service to generate a quick response code (“QR Code”) which can subsequently be applied to your products or services.

Your usage and/or Subscription of the Service is strictly subject to your punctual payment. Foqcus reserves its absolute discretion to terminate the Service for any non- payment and Foqcus shall not be responsible or liable for any losses or damages arising from such termination of the Service under any circumstances whatsoever.

Distributor

The QR Code has to be scanned through a mobile application created by Foqcus and known as Trackco (“App”) for inventory tracking and tracing purposes. The Distributor can only utilise the App by firstly creating a distributor account via an invitation link sent and/or provided by the Subscriber and/or by the person who has invited you to become part of the distribution chain (“Upline”). In order to create a distributor account, the Distributor is required to provide the necessary information requested by us.

Consumer

The Consumer may be required to create a consumer account at the consumer portal https://app.smartkood.com/ and for the purpose of registration may provide the information requested by us.

After successfully registering for a consumer account, the Consumer shall be able to scan the QR Code of the products that were purchased through the Distributor and/or the Subscriber and shall be able, including but not limited to:

• Verify the authenticity of the product;
• Report counterfeit product;
• Participate in campaign or promotional activities organised by the Distributor and/or Subscriber on the Platform including but not limited to lucky draw, surveys and/or collecting loyalty points; and
• Submit e-warranty.

The Platform provides certain communication features available through the use of short message service text messaging (“SMS Messaging”). The Subscriber may elect for the SMS Messaging service by purchasing SMS Credits.The SMS Messaging service is provided and maintained by a third party therefore the speed and efficiency of the SMS Messaging service is not guaranteed and depends on the Subscriber’s telco provider.As of now, the email marketing service of the Platform is still under trial run and we aim to integrate the email marketing service as part of our communication feature.

All promotion campaigns as advertised, may vary from time-to-time and subject to further terms and conditions decided by the Subscriber. Foqcus may, at its discretion, provide promo codes.

In order to generate the QR Code, the Subscriber shall purchase QR Credits. The purchase of the QR Credits can be made on the Platform. Upon completing the purchase of QR Credits, the Subscriber can utilise the QR Credits to generate and apply the QR Code on the Subscriber’s products.

The QR Code can be used by the Subscriber and the Distributor for track and trace of the products whereas the Consumer can scan the QR Code to peruse the features that the Subscriber has put in place in respect of the products.

You can upgrade or downgrade your Subscription plan subject to you topping-up any price difference between your initial plan and the new plan you choose. Notwithstanding this, you accept that any fees paid prior to the downgrade and/or cancellation of your Subscription plan shall be non-refundable.

Any remaining QR Credits in your account that was purchased prior to the upgrade and/or downgrade of your Subscription plan shall be unaffected, except where such QR Credits are purchased by you after the upgrade of your Subscription plan subsequently you are eligible for rebates and/or promotions. Notwithstanding this, you accept that any remaining QR Credits in your account at the time of cancellation of your Subscription plan shall be non-refundable.

Subscription of the Service shall be automatically renewed for yearly or monthly term (each, a Renewal Term) depending on the Subscription Plan as subscribed by you (“Auto Renewal”). A notice shall be sent to you three (3) days prior to the expiration of the Renewal Term notifying you of the Auto Renewal.

Your subscription shall be renewed automatically as long as you have a valid credit card. The Auto Renewal feature shall only be suspended if your credit card is no longer valid and/or when the Subscriber decides not to renew or has terminated the subscription.

Any subscription made after the expiration of the Renewal Term will be deemed NEW subscription with subscription fees charged according to the current market price at that time.

Any information and/or data (“Data”) provided by you for the purpose of using the Service may be primarily stored on Amazon Web Services or any data server that may be changed or designated by us from time to time and that such Data at any time will only be processed and/or accessed by selected individuals.

Notwithstanding this, all employees, individuals, personnel and/or affiliates of Foqcus has duly executed a Non-Disclosure Agreement for the purpose of preserving the confidentiality and anonymity of the Data received from you.

The Subscriber of the Service shall at all times have access to the Data and shall be entitled to export the Data subject to extra surcharges in the event the Subscriber intends to access and/or export certain parts of the analytics.

The ownership of the Data belongs solely to the Subscriber and Foqcus warrants and represents that it held no ownership over the Data provided by you for the purpose of using the Service.

Foqcus merely assumes the role of a service provider. Subsequently, Foqcus shall not be obligated, responsible and/or liable to backup or cause to be backup the Data. It is the sole responsibility and obligation of the Subscriber to ensure the Data is backed up accordingly at its own cost and expense.

All payments shall be paid by you via online payment and credit card only in the currency of the United States of America at the exchange rate as set and fixed by your bank on the date and time of payment.

You acknowledge and accept the fact that all payments are handled and processed by a third-party known as Stripe (“Stripe”) and shall be conducted via Stripe’s payment gateway (http://stripe.com).

You further agree that Stripe shall be entitled to store your credit card details for any automated monthly payments made via Stripe’s payment gateway. Upon payment, Stripe shall generate and furnish you the original receipt and invoice in respect of any payments made by you,

Where requested, you shall tender with proof of payment to avoid interruption of usage of the Service.

In the event of your failure, neglect and/or inability to make payments to us, we shall only issue two (2) written notice as reminders that we retain the right to remove, delete

and/or erase the Data stored with us and thereafter we shall not be responsible and/or liable for any loss, cost and/or damage that arise from the removal and/or deletion of the Data.

The ToS shall continue in full force and effect until terminated in accordance with this ToS. Termination shall not affect any provision of this ToS expressed to have effect after such termination or any rights which either party may have against the other party subsisting at the time or termination. Any termination of Subscription Plan shall be at the discretion of Foqcus.

The Service shall be terminated if any of the following shall occur:

a. the Subscriber commits a breach of any of the terms contained in this ToS;

b. the Subscriber applies the QR Code on counterfeit products;

c. the Subscriber fails to pay any payment which is required to be paid or made in accessing or using the Service that the Subscriber demand or require;

d. the Service is halted or ceased to be provided by Focqus.

Upon termination of the Service for any reason:

a. the Subscriber agrees that there will be no refund of fees and/or QR Credit in respect of the terminated Subscription Plan;

b. the Subscriber agrees that upon the termination of the Subscription Plan, the Subscriber shall be prohibited from accessing the System and the Data stored in the System;

c. notwithstanding the generality of the foregoing, a grace period of thirty (30) days (“Grace Period”) shall be given to the Subscriber from the date a written notice was delivered by Focqus notifying the Subscriber of the same. In the event the Subscriber intends to gain access to the System and the Data stored in the System during the Grace Period, the Subscriber shall via a written notice and payment of United States Dollar Two Hundred Fifty (USD$250) made a request of the same to Foqcus. Upon the expiry of the thirty (30) days, clause (b) shall take place without any further notice given to the Subscriber;

d. the provisions which are intended to survive the termination of this ToS and/or Service shall continue in force in accordance with their respective terms;

e. all obligations of the Parties pertaining to the Service shall cease save except your obligation to pay any unpaid, due and/or outstanding payment shall survive and remain; and

f. subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligations to the other pertaining to the Service.

You agree to indemnify and hold Foqcus, and its subsidiaries, affiliates, associates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable solicitors’ fees, made by any third party due to or arising out of Data that you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the ToS, or your violation of any rights of another.

The Subscriber and Distributor

You expressly understand and agree that:

a. Your use of the Service and/or App is at your sole risk. The Service and/or App is provided on an “as is” and “as available” basis. Foqcus expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to the accuracy of the Data, misrepresentation of Data, any personal data breach by the Subscriber, Distributor and/or Consumer;

b. Foqcus shall not be held liable or responsible for any losses, cost and/or damages that arise due to the actions or inactions of the Consumer, Distributor and/or the Subscriber through the use of the Service and/or App;

c. Foqcus reserves the right at all times to change prices of the Service without any notice to you;

d. Foqcus reserves the right to modify and/or discontinue the Service from time to time without making prior notice to you;

e. Pursuant to Clause (c) and (d), Foqcus shall not be held responsible and/or liable to you for any price change, modification and/or discontinuance in respect of the Service provided by Foqcus;

f. By subscribing to our Service, Foqcus hereby grants to you and you hereby accept from Foqcus a non-exclusive, non-transferable, non-assignable licence to access the use of the Service;

g. You shall be solely responsible for the contents and/or materials that you upload or cause to be upload onto the System;

h. The whole right, title and interest in and to any designs, copyrights, patents, trademarks, technology, know-how and other intellectual property rights belonging to Foqcus in respect of the Platform, System and/or the App shall remain with Foqcus.

i. The content on the Platform is provided to you “as is” and may not be used, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever that is likely to cause confusion among the Consumers and/or infringes the Platform’s intellectual property rights;

j. All data exported through the use of the Service and/or App is done or performed at your own discretion and that you will be solely responsible and you warrant not to hold Foqcus liable for any data leakage arising out of your actions or inactions;

k. You shall duly report any bugs, issues and problems (“Issue”) via our email address sales@foqcus.com and we endeavor to resolve the Issue with minimal down time;

l. The use of our Service does not exclude nor prevent phishing and Foqcus shall not be liable for any phishing attempts made against the Subscriber and Distributor.

The Consumer

You expressly understand and agree that:

a. Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis. Foqcus expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to the accuracy of the Data, misrepresentation of Data, any personal data breach by the Subscriber, Distributor and/or Consumer;

b. Foqcus has no affiliation to any of the promotional campaign organised by the Subscriber, the decisions made in respect of the promotional campaign, prize giveaways and/or loyalty points and Foqcus shall not be held responsible for any disputes arising out of the same;

c. Any data shared by the Subscriber to third party in respect of the Consumer is done or performed at the Subscriber’s own discretion and that Foqcus shall not be liable for the Subscriber’s actions or inactions.

The Service and/or the ToS shall in all respect be construed and interpreted in accordance with the Malaysian law exclusively. The parties hereby agree to submit to the exclusive jurisdiction of the courts of Malaysia in the event of any dispute arising from the Service.

Any notice(s) published by Foqcus regarding to the Service may be sent to you via e- mail or other means of communication. The Service may also contain or provide notice(s) of changes to the ToS or other matters by displaying notices or links to notices to you on the Services.

Please report any violations or breach of ToS to Foqcus. Every tipping off or report of violations or breach of ToS will be treated as confidential information by us.

We reserve the right to amend and/ or revise this ToS at any time by amending the terms without assigning any reason thereto or highlighting to you what the changes are. The amendments shall take effect immediately for unregistered subscribers and subscribers registering their accounts on or after the revision date. In respect of existing Subscribers, before the revision date, the amendments shall take effect thirty (30) days after the revision date.