PETRONAS myPROdata Terms and Conditions of End User Agreement
(“User Agreement”) version 3.0
(13 FEBRUARY 2023)
This User Agreement is a legal agreement between:
VIRTUS IP SDN BHD (Company No. 201301035692 (1065520-D) a company incorporated under the laws of Malaysia and having its registered address at Tower 1, PETRONAS Twin Towers, Kuala Lumpur City Centre, 50088 Kuala Lumpur, Malaysia (“VIPSB”);
and
END USER (collectively referred to as the “Parties” or individually as “Party” as the context may require).
NOW THEREFORE and in consideration of the mutual promises, covenants and conditions hereinafter set out, it is hereby stipulated and agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following definitions shall apply to this User Agreement unless the context requires otherwise:
“Additional Fee”
shall have the meaning assigned in Clause 4.2 of this User Agreement;
“Affiliates”
with respect to any Party means any company or other legal entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control of that Party. For the purposes of this User Agreement, “control” means the ownership directly or indirectly of more than fifty percent (50%) of the voting rights in a company or other legal entity;
“Confidential Information”
means Intellectual Property, all documents, data and information in any format, owned and provided by PETRONAS and/or VIPSB, made accessible via PETRONAS myPROdata, whether marked confidential or otherwise, which includes but is not necessarily limited to, geological and geophysical data, maps, models, interpretations, reports and all other surface and subsurface related data related to oil and gas activities;
“Download Entitlement”
means the maximum amount of download available as subscripted under the Subscription Model;
“Related Persons”
means End User’s Affiliates and its directors, employees and advisers;
“End User”
means any person or entity(s) who has registered to use PETRONAS myPROdata;
“Intellectual Property”
means any copyright, patent, design, trademark, application to register any of the aforementioned rights, trade secrets, rights in know-how, and any other intellectual or industrial property right of any nature whatsoever subsisting in any part of the world.
“Personal Data”
means End User’s user identification and password;
shall have the meaning given to it in the Malaysian Personal Data Protection Act, 2010;
“PETRONAS”
means Petroliam Nasional Berhad (PETRONAS) as the owner for all Confidential Information made accessible via PETRONAS myPROdata for the purpose of this User Agreement;
“PETRONAS myPROdata"
means the digital platform operated by VIPSB to allow End User to access the Confidential Information;
“PETRONAS myPROdata ID”
means End User’s user identification and password;
“Subscription Fee”
shall have the meaning assigned in Clause 4 of this User Agreement:
“Subscription Model”
means the access level to PETRONAS myPROdata as specified in Exhibit-1;
“Subscription Term”
means the duration of either three (3) months, one (1) year, three (3) years or five (5) years, commencing upon successful completion of registration process which vary based on Subscription Model that End User subscribes to;
means a service provider for PETRONAS myPROdata for the purpose of this User Agreement;
“Website”
means the PETRONAS myPROdata website.
1.2 The headings are used for convenience only and shall not affect the construction of this User Agreement.
2. REGISTRATION AND ACCEPTANCE OF PETRONAS myPROdata
2.1 End User requires to create PETRONAS myPROdata ID as part of the registration process for the purpose of this User Agreement. End User shall keep the PETRONAS myPROdata ID secure and safe at End User’s own risk.
2.2 Acceptance
2.2.1 End User should carefully read the following terms and conditions outlined in this User Agreement before using the PETRONAS myPROdata. By selecting ‘I agree’ upon completing the registration process, End User is deemed to have read, understood, and accepted the terms and conditions of this User Agreement.
2.2.2 End User represents and warrants that it has full power and authority to enter into this User Agreement and to perform its obligations under the terms and conditions of this User Agreement.
2.2.3 End User shall not subscribe PETRONAS myPROdata, if End User disagrees with the terms and conditions of this User Agreement or does not have the authority to enter into this User Agreement.
2.2.4 By registering to the use of PETRONAS myPROdata, End User must comply with all the applicable laws and regulations.
2.3 End User warrants that the information provided for registration of PETRONAS myPROdata ID is accurate, current, and complete and will maintain and promptly update such information should there be any changes.
2.4 This User Agreement may be changed at any time and any changes or updates to the User Agreement will be notified on Website. End User will be deemed to have read and accepted the updated User Agreement.
3. TERM AND TERMINATION
3.1 The term of this User Agreement shall commence upon successful completion of registration process and will remain effective during the Subscription Term depending on the Subscription Model subscribed by the End User.
3.2 End User may upgrade the Subscription Model during the Subscription Term and renew the Subscription Model upon expiry of the Subscription Term, whereby the terms and condition of this User Agreement shall continue to remain applicable to End User.
3.3 VIPSB reserves the right at any time to immediately terminate the User Agreement during Subscription Term due to End User’s breach of: -
(a) Clause 6 (Rights and Restrictions to use PETRONAS myPROdata;
(b) Clause 7 (Confidentiality Undertakings and Rights to Use Data);
(c) Any order, judgment or decree of any court or governmental authority by which such End User is bound; or
(d) Any laws or regulations in any relevant jurisdiction.
3.4 Upon expiry of Subscription Term or termination of the User Agreement, access restriction will be imposed to End User save for basic access level, and End User shall permanently delete and destroy the Confidential Information (in whatever form, including but not limited to, electronic data) in its possession and in the possession of Related Persons to whom it was disclosed pursuant to this User Agreement and the End User shall furnish a certification confirming that the Confidential Information including all copies made thereof have been deleted and/or destroyed.
3.5 The provisions of Clause 5, 7, 8 and 9 of this User Agreement shall survive the termination or expiry of this User Agreement for any reason whatsoever.
4. SUBSCRIPTION FEE
4.1 End User understands and agrees that, if and to the extent the use of PETRONAS myPROdata is made available by VIPSB, End User shall pay VIPSB the Subscription Fee and applicable taxes, including, but not limited to, value-added, sales, service and similar tax depending on the Subscription Model or any other amount owing to the use of PETRONAS myPROdata.
4.2 During the Term, End User may increase its Download Entitlement by paying additional fees as may be made available from time to time on PETRONAS myPROdata website (“Additional Fee”). VIPSB reserves its right to amend the Additional Fee from time to time.
4.3 Subscription Fee and Additional Fee or any other amounts due under this User Agreement are non-cancellable and non-refundable.
4.4 End User may carry forward its balance Download Entitlement that is purchased additionally pursuant to Clause 4.2 above to the subsequent Subscription Term, subject to the User renewing the plan upon expiry of the Subscription Term.
4.5 If the End User’s subscription is canceled or terminated, all unused Download Entitlement, including both based Download Entitlement and any rollover Download Entitlement, will expire immediately. There will be no refund or payment for any unused Download Entitlement.
4.6 End User understands and agrees that VIPSB may engage the use of third-party service providers for the purpose of the creation of user subscription, managing a payment gateway and invoice creation for the purpose of billing and invoicing to allow End User to pay the Subscription Fee and Additional Fee or any other amounts due under this User Agreement.
5. TAXES
5.1 VIPSB shall be responsible for and shall pay at its own expense when due and payable all TAXES assessed against it in connection with this User Agreement. All TAXES levied on VIPSB shall be for the account of VIPSB and shall not be reimbursed by the End User.
5.2 The End User shall be responsible for and shall pay at its own expense when due and payable all TAXES assessed against it in connection with this User Agreement. All TAXES levied on the End User shall be for the account of the End User and shall not be reimbursed by VIPSB.
5.3 The End User shall have the right to withhold TAXES from payments due to VIPSB under this User Agreement to the extent that such withholding may be required by the relevant tax authorities, and payment by the End User to the relevant tax authorities of the amount of money so withheld shall relieve the End User from any further obligation to VIPSB with respect to the amount so withheld. If VIPSB is under the opinion that the payment(s) should not be subject to withholding tax in the relevant country, VIPSB shall submit to the End User a letter from the relevant tax authorities confirming that VIPSB is a resident in the relevant country, failing which the End User shall consider VIPSB a non-resident in the relevant country for tax purposes until such time that the required letter is submitted to the End User.
If any withholding is done, the End User shall provide VIPSB with official receipts or other satisfactory evidence in respect of such deduction or withholding.
5.4 For avoidance of doubt, “TAX” or “TAXES” as mentioned above include but shall not be limited to all income, profit, withholding tax, franchise, excess profits, royalty, other taxes, personal property taxes, employment taxes and contributions, imposed or that may be imposed by law, regulations or trade union contracts, which are enforced by or on behalf the Inland Revenue Board of Malaysia (IRB) or of any taxing authorities and includes penalties, interest and / or fines in respect thereof based on the Income Tax Act 1967 or any tax legislation applicable during the duration of this User Agreement, excluding Customs Charges, Service Tax and stamp duty.
5.5 Service Tax
5.5.1 Where service tax is applicable to any services rendered by VIPSB under the user Agreement, End User shall be responsible for and pay the service tax when invoiced by VIPSB for taxable services rendered in accordance with the Agreement, provided that VIPSB shall provide the End User a copy of valid service tax registration approval letter issued by the Royal Malaysian Customs Department (“Customs Authority”) confirming that VIPSB is registered under the applicable Act as a taxable person providing taxable services. VIPSB shall also provide the End User with the applicable service type code for each of the taxable services provided to the End User.
5.5.2 Service tax amount shall be separately stated from the prices and/or rates and shall be separately itemized in the invoice.
For avoidance of doubt, “Service Tax” as mentioned above refers to the tax as defined in the Service Tax Act 2018 and any legislation pertaining to the same including regulations, orders and any amendments relating thereto.
6. RIGHTS AND RESTRICTION TO USE PETRONAS myPROdata
6.1 End User may access and use PETRONAS myPROdata solely in accordance with terms and conditions, Download Entitlement, Subscription Model and Fee, usage limitations and restrictions set forth in this User Agreement except as expressly permitted in this User Agreement.
6.2 End User shall not:
(a) attempt to or reverse engineer, decompile, disassemble, or otherwise reduce PETRONAS myPROdata to any human perceivable form;
(b) attempt to or extract any source code, algorithms, methods, ideas, techniques, workflows or hierarchies from or embodied in PETRONAS myPROdata or any portion thereof; and
(c) modify adapt, translate, rent, lease, loan or create derivative works based upon, distribute, display or publish (publicly or otherwise), relicense or sublicense PETRONAS myPROdata, or any part thereof for third-party.
6.3 End User may download files or amounts of information using standard browser functionality and may be required to download using a secured file transfer protocol (FTP) site or an accelerated download tool. Any information downloaded or otherwise obtained from PETRONAS myPROdata is done at End User own discretion and risk.
6.4 End User shall not sublicense or transfer the End User’s rights in regard to PETRONAS myPROdata to any third party by means of sale, lease, loan, rent, license or otherwise, except as explicitly stipulated in this User Agreement.
6.5 VIPSB will not be liable for any delay, downtime, access time error, risks to viruses, transmission error, software or equipment incompatibilities or other failure of performance. VIPSB will use commercially reasonable efforts to correct any material performance problem brought to its attention and may suspend performance pending such correction.
6.6 VIPSB shall not be liable for the acts, omissions and conduct of any third parties in connection with or related to End User’s use of PETRONAS myPROdata howsoever arising. End User shall assume total responsibility for the use of the PETRONAS myPROdata and all servicing, repair, or correction and any damage to End User hardware and software that may result from the use of the PETRONAS myPROdata.
6.7 End User may download files or amounts of information in accordance with the Download Entitlement. End User acknowledges that the file size previewed is solely for indicative purpose.
7. RIGHTS AND RESTRICTION TO USE CONFIDENTIALITY INFORMATION AND CONFIDENTIALITY UNDERTAKINGS
7.1 All Confidential Information disclosed to End User via PETRONAS myPROdata hereunder whether directly or indirectly shall be kept strictly confidential and shall not be sold, traded, published, commercialized or otherwise disclosed to anyone except to the Related Persons, in any manner whatsoever, including by means of photocopy, reproduction or electronic media except as provided in the User Agreement.
7.2 End User shall ensure that each Related Persons to whom Confidential Information is disclosed is fully aware of the End User obligations under this User Agreement and procure that each Related Persons complies with such obligations as though such person were a party to this User Agreement. End User shall be responsible for ensuring that each Related Persons to whom the Confidential Information is disclosed via PETRONAS myPROdata shall keep such information confidential and shall not disclose or divulge the same to any unauthorized person and a separate Non-Disclosure Agreement on terms which are no less stringent than this User Agreement prior to the disclosure and receipt of any Confidential Information is signed for this purpose.
7.3 In the event that End User establishes any projects or further consider to undertake any commercial transaction arising from the use of Confidential Information via PETRONAS myPROdata under this User Agreement including any presentation or publication in any form to any external parties, such projects or commercial transaction shall be undertaken and governed under a separate definitive agreement with prior written consent from PETRONAS.
7.4 The confidentiality obligation set forth herein shall survive the expiry or termination of this User Agreement as long as the Confidential Information has not become part of the public domain.
7.5 End User shall acquire no proprietary interest in or right to the Confidential Information, and PETRONAS or VIPSB may demand the return thereof at any time upon giving written notice to End User. Within thirty (30) days of receipt of such notice, End User shall return all of the original Confidential Information and shall destroy or cause to be destroyed all copies and reproductions (in whatever form, including both written and electronic media) in its possession and in the possession of Related Persons to whom it was disclosed pursuant to this User Agreement and the End User shall furnish a certification confirming that the Confidential Information including all copies made thereof have been returned and/or destroyed.
7.6 The Confidential Information accessible to End User via PETRONAS myPROdata is non-exclusive and shall not in any way prejudice PETRONAS’ rights to disclose the same to other interested parties. PETRONAS retains the right to sell, trade, use or otherwise make available to third parties all or any portion of the Confidential Information.
7.7 Nothing in this User Agreement shall constitute a warranty or a representation by either VIPSB or PETRONAS that (1) the Confidential Information in PETRONAS myPROdata or the use thereof will be uninterrupted or error-free; (2) the results that may be obtained from the use of the Confidential Information in PETRONAS myPROdata will be accurate or reliable; or (3) the Confidential Information in PETRONAS myPROdata will meet End User’s requirements and by entering into this User Agreement, the End User expressly agree to it.
7.8 End User expressly acknowledges and agrees that: (1) the use of Confidential Information in PETRONAS myPROdata is at End User’s own risk; (2) the Confidential Information in PETRONAS myPROdata are provided on an "as is" and "as available" basis; (3) End User has not relied on any statement, information, or advice from PETRONAS and VIPSB or it representatives that would be deemed to be a warranty of the Confidential Information or form the basis for any liability of PETRONAS and VIPSB; and (4) to the fullest extent permitted under applicable law, PETRONAS and VIPSB expressly disclaim all warranties and conditions of any kind, including those created by course of performance, course of dealing, usage of trade, and whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement; and (4) End User shall be responsible to implement necessary procedures for the protection of Confidential Information and secure proper storage of all Confidential Information in its possession during the Subscription Term of PETRONAS myPROdata.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 This User Agreement is not an agreement of sale, and does not transfer any title, intellectual property or ownership rights of PETRONAS myPROdata to End User. End User acknowledges and agrees that PETRONAS myPROdata and Confidential Information of the foregoing are proprietary property of PETRONAS. End User shall not remove, alter or obscure, any trademark or other proprietary rights of PETRONAS myPROdata under this User Agreement.
8.2 VIPSB hereby represents and warrants that it has and will have for the term of this User Agreement full authority: (1) to licence the PETRONAS myPROdata to the End User on the terms of this User Agreement; and (2) the licensing of the PETRONAS myPROdata and Confidential Information will not infringe any intellectual property rights or any other rights whatsoever of any third party.
8.3 If the use of the PETRONAS myPROdata becomes, or in VIPSB’s opinion is likely to become, the subject of a claim, then VIPSB at may either (a) procure the right for End User to continue to use PETRONAS myPROdata as permitted under this Agreement, or (b) replace or modify PETRONAS myPROdata so that it becomes non-infringing. If VIPSB is not able to undertake (a) or (b) after exercising commercially reasonable efforts, VIPSB may terminate this User Agreement upon written notice to the End User. At such time, VIPSB shall return to the End User a prorated portion of the fees that End User has paid for the subscription based on the remaining number of days in the then-current subscription term. VIPSB will have no liability for any claims caused by or contributed to by (i) any modification or alteration of the PETRONAS myPROdata performed other than by VIPSB, (ii) use of the PETRONAS myPROdata other than as specified in this User Agreement, (iii) any hardware, software, data or other materials not provided by VIPSB, (iv) the combination or use of the PETRONAS myPROdata with non- PETRONAS myPROdata software, hardware, data, materials or services, or (v) any other acts by the End User in violation of this User Agreement. This clause states the End User’s exclusive remedy against VIPSB and the complete liability of VIPSB with respect to any claim of infringement made against the End User.
8.4 All updates, improvements, enhancements and upgrades to PETRONAS myPROdata arising from suggestions, enhancement requests, recommendations or other feedback provided by End User and incorporated into PETRONAS myPROdata shall belong to solely to VIPSB.
9. INDEMNITY
9.1 End User shall at all times keep VIPSB fully and effectually indemnified against all actions, proceedings, costs, charges, expenses, claims and demands whatsoever which may be made or brought against VIPSB in relation to any matter arising out of the use of PETRONAS myPROdata by End User.
9.2 In no event will either Party be liable to to the other Party for any consequential, exemplary, incidental, or indirect damages or costs (including legal fees and expenses) or loss of goodwill or profit in connection with the use of PETRONAS myPROdata or this User Agreement however the same may be caused. End User acknowledges that there may be cases where damages alone would not be an adequate remedy for any breach of the provisions of this User Agreement and that VIPSB may apply to the Court for its decision, for other remedies of injunction, specific performance or other equitable relief for any threatened or actual breach for the provisions of this User Agreement.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 This User Agreement shall be governed by and interpreted in accordance with the laws of Malaysia.
10.2 Any dispute arising out of or relating to this User Agreement, including any breach particularly of Clause 6 (Rights and Restrictions to use PETRONAS myPROdata) or 7 (Rights And Restriction To Use Confidentiality Information And Confidentiality Undertakings)), validity or termination, thereof shall be settled before a sole arbitrator in accordance with Arbitration Rules of the Asian International Arbitration Center (AIAC). The place of arbitration shall be in Kuala Lumpur and the proceedings shall be conducted in the English language. Any award of the arbitrator shall be final and binding on the Parties, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Each Party shall pay its own costs and expenses for the arbitration, except if otherwise decided by the arbitrator. End User acknowledges the monetary damages may be inadequate to protect against breach of this User Agreement. As such, the VIPSB may apply to any competent judicial authority for interim relief and that an application for such measures or an application for the enforcement of such measures ordered by the judicial authority shall not be deemed as an infringement or a waiver of the agreement to arbitrate and shall not affect the powers of the arbitrators.
11. PERSONAL DATA
11.1 End User acknowledges and agrees that VIPSB shall have the right to process certain Personal Data belonging to or supplied by End User from time to time by electronic or paper-based means for the purpose of this User Agreement in accordance with Personal Data Protection Act 2010 and any applicable laws relating to the regulation of the processing of Personal Data and matters connected therewith and incidental thereto.
12. COOKIES
12.1 PETRONAS myPROdata uses cookies and VIPSB policy on cookies is incorporated in this User Agreement and by agreeing to this User Agreement End User agree to its use.
13. MISCELLANEOUS
13.1 Assignment
End User may not assign or transfer (including by way of security or otherwise) any (or any part) of the rights and obligations under this User Agreement to other users, except with prior written consent from VIPSB.
VIPSB may assign, novate and/or transfer this Agreement, including all rights and/or obligations hereunder, to PETRONAS or any of its Affiliates, performing similar or identical services at any time. End User irrevocably consents to such assignment or novation and undertakes to execute within a reasonable time following written notice from VIPSB, all documents necessary to affect such assignment or novation. VIPSB will use all reasonable endeavours to give prior written notice to End User of an absolute legal assignment or novation of the Agreement.
13.2 Notices
All communications by End User for any queries, suggestions and support services in relation to PETRONAS myPROdata shall be written in English language and be sent to VIPSB by email at support.myprodata@petronas.com.
13.3 No joint venture or partnership
It is not the intention of the Parties to create nor shall this User Agreement be deemed or construed to create a partnership, joint venture, association, trust or fiduciary relationship or to authorise the other Party to act as an agent, servant or employee for the other Party.
13.4 Waiver
No waiver by either Party of any breach of a term or condition of this User Agreement to be performed by the other Party shall be construed as a waiver of any succeeding breach of the same or any other term or condition.
13.5 Severability
If any provision or term of this User Agreement is found to be void or unenforceable it shall to the extent of such invalidity or unenforceability be severed. Severance shall not affect any other provision of this User Agreement.
13.6 Entire Agreement
This User Agreement and the exhibit (s) constitute the entire understanding between the Parties with respect to its subject matter. It supersedes all prior agreements, negotiations and discussions between the Parties concerning the subject matter including in correspondence or elsewhere or implied by trade, custom, practice or course of dealing and any purported provisions to the contrary are hereby excluded or extinguished, unless specifically agreed to in writing by a director or other authorized representative of PETRONAS.
[END OF USER AGREEMENT]
EXHIBIT 1 – SUBSCRIPTION MODEL SUMMARY
Note: (1) The Subscription Fee as shown in this Exhibit 1 may change from time to time, as may be updated on the Website, or otherwise.
