Terms of Use
TERMS OF USE
Modified on: Thu, 9 September, 2021 at 9:14 AM
1. Terms of Use
1.1. These Terms of Use (“Terms”) define and govern the relationship, rules and regulations of the interactions by Flux and its Members, including the manner in which the Services shall be provided by Flux and used by a Member and upon confirmation of a Reservation by a Member for a Car, the nature of the relationship shall be a sublease agreement whereby Flux shall be the intermediary and the Member shall be a lessee.
1.2. Subject to the Terms, Head Lease Agreement and Services by Flux as appearing on the Platform, this agreement states the sublease agreement understanding between the Member and Flux concerning access to and use of the Flux Services and supersedes any earlier verbal or written communications between the Member and Flux.
1.3. These Terms may be updated and changed from time to time according to Flux’s policy and all Members may refer to the latest applicable versions always exhibited here or to the notification email sent to a Member’s registered contact email address. Notwithstanding anything else to the contrary, Flux shall be entitled to modify these Terms or the Services at its discretion at any time where the Last Updated date can be found at the end of these Terms.
1.4. Please read these Terms carefully as they contain important information regarding your legal rights, remedies and obligations. These include various limitations, exclusions and obligations to comply with applicable laws and regulations. By accessing or using the Flux Platform, you agree to comply with and be bound by these Terms.
1.5. By virtue of accessing or using the Platform or Services, including any communication with us, you agree to the Terms whether or not you become a registered user of the Services and/or enter into a sublease agreement with Flux.
1.6. These Terms, when read together with the Reservation and any other Documents pertaining to the Services, including without limitation Flux’s Privacy Policy, applicable insurance terms and certificates, roadside assistance terms and any user policies (collectively “Documents”), shall constitute a binding sublease agreement between Flux and the Members.
1.7. If the modified Terms are not acceptable to you, your sole recourse is to stop using and accessing the Services and close your account within thirty (30) days, in which case the previous effective version of the Terms of Service will apply to you, unless you have used the Services during the Intervening Period, in which case the latest Terms will apply to you.
1.8. Flux submits to the law and jurisdiction of Malaysia, and regardless of your country of origin, the governing laws, statutes and policies of Malaysia shall be applied.
2. Introduction
2.1. Flux is an online business functioning as a technology provider that facilitates the connection between consumers (“Members”) who have an interest in subscribing to a Car through Flux from approved Inventory Providers (“Inventory Providers”) via an online Car Subscription Platform which shall be referred to as the “Platform”, whereby both parties shall be construed as a User (or “Users” collectively) of the Platform.
2.2. The Member is any individual or registered entity that signs up on the Platform whether or not they Subscribe to a Car from an Inventory Provider.
2.3. Flux itself is not in the business of renting Cars. The technological provisions of Flux are limited to facilitating, linking or enabling a connection between the Member and Inventory Provider, and is not intended in any way to provide a car rental service operation and thus should not be construed in any way as an act of a car rental service provider or operator. Flux is not responsible and shall not be held liable to its Users for the acts and/or omissions between Members and Inventory Providers on any Services provided save as otherwise provided in these Terms.
3. Definitions
3.1. The meaning of words or expressions shall be in accordance with the applicable definition as provided below:
3.1.1. Accident Fee – means the penalty sum owed by the Member to Flux for contributing or causing any damage to the Car which may or may not be with intent, the amount of which is determined by Flux after investigation and according to its policy;
3.1.2. Account – means a Member’s profile on the Platform which allows access to the Services;
3.1.3. Additional Drivers – means the individuals, up to three (3), that have been approved by the Member and Flux to use the Car;
3.1.4. Affiliate – means a company controlling, controlled by, or under common control with the relevant Party, where control means the direct or indirect power to exercise more than half the voting rights of the relevant company, the power to appoint more than half the members of its supervisory board, board of management or bodies legally representing the company, or the right to manage its affairs;
3.1.5. Car – means the vehicle or automotive transport provided by the Inventory Provider, approved by Flux and listed on the Platform to be leased to the Member;
3.1.6. Class D – means any motor Car with an unladen weight not exceeding 3500 kg;
3.1.7. Competent Driving Licence (CDL) – means an international driving licence recognised in Malaysia or a full-fledged driving licence obtained after 2 years’ experience on a probationary driving licence subject to the KEJARA points demerit system;
3.1.8. Concierge – means the logistical division of Flux, which shall facilitate the delivery and return of the Car, the onboarding and verification process, transporting the Car for its periodic servicing, repairs and other aspects;
3.1.9. Confirmation Fee – means the non-refundable component of the GFV which must be paid in full by the Member to Flux prior to the commencement of the final Service Period of a Subscription to secure purchase of the Car at the GFV at the end of the Subscription;
3.1.10. Documents – means any and all documents which relates to Flux’s business operations and the interactions with Members, Inventory Providers, third parties or service providers including but not limited to Flux’s Privacy Policy, applicable insurance terms and certificates, roadside assistance terms and any user policies;
3.1.11. Excess Mileage Fees – means the fees to be paid to Flux by the Member, for any additional kilometres exceeding their Mileage Package at the end of every Service Period;
3.1.12. Flux – means Flux Sdn Bhd and shall include its Affiliates, subsidiaries, and its and their employees, agents and representatives that provide the Services of connecting Members with Inventory Providers as outlined in this agreement and as defined in Clause 2.1 hereto;
3.1.13. Guaranteed Future Value (GFV) – means the guaranteed future value of the purchase price of the Car upon conclusion of a Subscription which shall be informed to the Member upfront by Flux on the Platform during Reservation and is dependent on the duration of Subscription chosen by the member.
3.1.14. Head Lease Agreement – means the agreement between Flux and the Inventory Provider which grants Flux the authority to sublease the Car to the Member;
3.1.15. Intervening Period – means the 30-day period in which Members may close their Accounts if they do not wish to comply with the latest Terms, in which case the prior Terms will be applied;
3.1.16. Inventory Provider – means the registered owner and Head Lessor of the Car, to Flux through leases listed on the Platform;
3.1.17. Listings – means the curated collection of Cars made available on the Platform for Members’ viewing and selection that have been leased by the Inventory Provider to Flux;
3.1.18. Member – means any approved individual or registered entity recognised by law that signs up on the Platform (paying or non-paying) as a consumer with intent to view and sublease a Car made available on the Platform; and for the avoidance of doubt, the term “Member” shall include but not be limited to any person, corporate body, sole proprietorship, partnership, society or enterprise and as defined in Clause 2.2 hereto;
3.1.19. Mileage Package – means the Flux package made available on the Platform and selected by the Member for the maximum number of kilometres a Member intends to drive the Car on a monthly basis, wherein the aforementioned limit shall be prorated for the last month of any Subscription that is 12 months or more;
3.1.20. Monthly Payment – means collectively the Subscription Fees and any other costs accrued from a previous Service Period due on the first day of every Service Period to be paid by the Member to Flux. This includes, but is not limited to, Subscription Fees, Mileage Package, Excess Mileage Fees, citations, fines, and parking tickets;
3.1.21. Negative Event – means an event which could encompass any of the following:
3.1.21.1. anything that reasonably indicates an existence of a significant risk that a person or entity is or will become unable to pay debts as they become due, including:
3.1.21.2. execution or distress proceedings being levied against any income or assets of the other party;
3.1.21.3. a meeting of the other party’s creditors being called or held;
3.1.21.4. a floating charge becoming fixed, or a security becoming enforceable or being enforced in relation to any of the other party’s assets or undertakings;
3.1.21.5. a step being taken to bankrupt, dissolve or wind up the other party;
3.1.21.6. the other party entering into an arrangement with or assignment for the benefit of, all or any class of its creditors; or;
3.1.21.7. the other party ceasing, or indicating that it is about to cease, carrying on business or there is a threat of the other party ceasing in carrying on its business;
3.1.22. Parties – means Flux and its Members collectively in reference to these Terms;
3.1.23. Platform – means any electronic medium in which Flux makes its Services available including but not limited to, its website (www.driveflux.com), any subdomains thereof, and/or applications which are utilised regardless of the device from which they are accessed;
3.1.24. Replacement Car – means a vehicle provided by an Inventory Provider in circumstances wherein the original Car subscribed to by the Member becomes unavailable;
3.1.25. Reservation – means the electronic application made by the Member to Flux on the Platform to reserve a Car which entails selecting a Subscription and Mileage Package, and subject to approval by Flux;
3.1.26. Service Period – means the calendar month duration for which a Member’s Car is under Active Subscription for which they are charged Subscription Fees. For the avoidance of doubt, month means Service Period;
3.1.27. Services – means the provision of technology provided by Flux through the Platform and the features made available, for Members this also includes the sublease agreement;
3.1.28. Specifications – means the details of the Car as provided to Flux by the Inventory Provider for Cars proposed to be listed on the Platform;
3.1.29. Start Fee – means the non-refundable upfront charge unique to each Car to be paid in full by any individual, non-corporate Member prior to the approval of a Reservation by Flux;
3.1.30. Subscription – means the length of time a Member intends to sublease a Car from Flux and its associated features and perks at the set price outlined by Flux and that is made under set leasing plans on the basis of either month-to-month, 12-month, 24-month or 36-month periods;
3.1.31. Subscription Fees – the fees to be paid by the Member to Flux, for the use of the Car throughout the Subscription;
3.1.32. Terms – means the sublease agreement between Flux and its Members for the use of the Inventory Provider’s Car. When a Member makes a Reservation for a Car via the Flux Platform and upon the approval of the said Reservation by Flux, both Flux and the Member shall be deemed to have entered into a sublease agreement, the terms and conditions of which are set out and governed by these Terms and any additional documents in support thereof, including but not limited to the Reservation and the Documents; (reservation on line, acceptance form, return form)
3.1.33. Users – means collectively any party that engages and/or uses Flux’s Platform and/or Services including but not limited to Inventory Providers and Members;
4. General Terms
4.1. To be eligible to register, Members must be at least 21 years old and holders of a fully issued Competent Driving Licence (CDL) for motor vehicles of Class D with less than 20 demerit points at any time and/or no suspensions on record with the relevant Road Transport Authority and able to enter into legally binding contracts to access and use the Services or register an Account with Flux.
4.2. By logging on and using the Platform, Members represent and warrant that they are 21 years or older, meet the motor vehicle licence requirements above and have the legal capacity and authority to enter into a contract and subsequently be bound by it.
4.3. In order to access the Services, Members must sign up for an Account with Flux by creating a password and providing contact information through the Platform such as their full name, IC or Passport number, driving licence, email address, residential and billing address, local phone number, date of birth, nationality and payment method details, and such other information as requested by Flux and any digital copies for the above.
4.4. Flux collects, stores and processes its Users’ data in order to provide their Services and is compliant to the Personal Data Protection Act 2010 (PDPA 2010) and any other applicable law, regulation or Flux Privacy Policy.
4.5. When Members register for a Flux Account, they will provide Flux with specific information about themselves to enable Flux to verify their identity. Flux does not assume any responsibility for the confirmation of any Member’s identity. Members agree to provide complete and accurate information to Flux. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted, to conduct the inquiries set out below and in accordance with the applicable laws, Flux may, but have no obligation to:
4.5.1. ask any Member to provide a form of government identification or other information, including driving history and driving licence validity, or undertake additional checks designed to help verify the identities or background of Members;
4.5.2. screen the Member against third party databases or other sources and request reports from service providers; and
4.5.2.1. where sufficient information is held to identify a Member, obtain reports from public records of criminal convictions. Members hereby authorise Flux to request, receive, use, and store such information. Flux may accept or reject a Members application of registration at its sole discretion.
4.6. When Members register, they are providing Flux with written instructions and authorisation in accordance with the applicable consumer reporting laws, or any similar laws to obtain their personal and/or business driving score, credit report and/or conduct a background check, including a criminal background check where permissible under applicable law. Members also authorise Flux to obtain their personal and/or business auto insurance score, credit report or conduct a background check at any time Flux reasonably believes there may be an increased level of risk associated with their Account.
4.7. When a Member registers with Flux for an Account, the Member confirms that they have complied fully with all applicable anti-corruption laws including those in the jurisdiction where the Services will be utilised.
4.8. When a Member Subscribes to a Car, the Member is afforded the following privileges:
4.8.1. Selection of a Car from a curated collection as provided by the Inventory Providers;
4.8.2. ‘3-Day Risk-Free Return’ Guarantee;
4.8.3. Insurance coverage as provided by Inventory Providers;
4.8.4. Road Tax as provided by Inventory Providers;
4.8.5. 24/7 Nationwide Roadside Assistance;
4.8.6. Customised Mileage Packages;
4.8.7. Ability to swap Cars (once a month);
4.8.8. Option to purchase Cars, the initiation of which is exercisable up to 30 days before the end of Subscription;
4.8.9. Ability to add Additional Drivers (up to a maximum of three (3));
4.8.10. Concierge service (pickups, deliveries, management of services/repairs); and
4.8.11. Anti-theft telematics.
5. Subscription Process
5.1. It is explicitly prohibited for any Member by virtue of their registered identification to engage in more than one (1) Subscription at any time unless explicitly authorised by Flux. This includes any shared Subscription between other Members of Flux. If a Member is found to have violated this express prohibition, that Member has forfeited all their rights and privileges granted under the Terms.
5.2. Members acknowledge that any and all Subscriptions must be applied through the Platform by a Reservation by selecting a Car, selecting a Subscription plan and selecting a Mileage Package and providing the relevant information and payment information. Upon submission of the Reservation, the payment method will be charged a Reservation Fee. In the event the Car is unavailable the Member will have the option to change its selection. If no change in selection is done, then the Reservation Fee will be refunded to the Member within ten (10) business days.
5.3. Flux within ten (10) business days will review the Reservation and any associated documentation including conducting relevant background and credit checks.
5.4. Upon approval of the Reservation by Flux, the Member’s Account will be notified and a confirmation email will be sent within one (1) business day of the approval. Subsequently, the payment method will be charged a Start Fee for individual Members and, at Flux’s discretion or compulsory in the case of corporate Members, a security deposit which is refundable less any applicable tax. Upon confirmation of payment received, the Concierge will make the necessary arrangements to deliver the Car to the Member within a lead-time of seven (7) days or on a future date, specified by the Member, of up to a maximum of three (3) weeks from the date the Reservation was made or the soonest when the Car is made available to the Member. By agreeing to be charged the Initial Fee, the Member explicitly agrees to be liable for the full amount of the Subscription, which includes but is not limited to the Start Fee, the monthly Subscription Fee for the duration of the Subscription, and other miscellaneous fees as determined in this agreement.
5.5. At the point of delivery and hand-off of the keys to the Car, Concierge will provide orientation, training and relevant documentation to the Member for the general use and care of the Car.
5.6. Members are not able to test drive any Car listed on the Platform that they intend to subscribe to. All Reservations must be approved before the Member may proceed to drive their leased Car.
5.7. Should Flux be unable to contact the Member for seven (7) days following Reservation with the contact details provided by the Member in their Flux account, Flux shall consider the Reservation void and the Reservation fee forfeit.
6. Terms of Sublease Agreement
6.1. The Terms between the Member and Flux is for the Subscription as decided by the Member, electronically recorded on the Platform, unless this agreement is terminated earlier or renewed or extended in accordance with the Terms.
6.1.1. The Member acknowledges that it is subleasing a Car from Flux, that is being leased to Flux from the Inventory Provider.
6.1.2. The Member acknowledges that as the lessee, there is no conveyance of rights of ownership of the Car and it remains the property of the Inventory Provider at all material times. The Member avers to uphold the Inventory Providers interests whilst it has exclusive custody and control of the Car.
6.1.3. Nothing herein contained shall constitute nor be construed as a partnership between or joint venture by the Parties hereto or constitute any party being the agent of any other party. No party shall hold itself out contrary to the terms of this section and no party shall be come liable by any representation, act or omission of the other contrary to the provisions hereof. The Terms is not for the benefit of any third party and shall not be deemed to provide any right or remedy to any such party whether referred to herein or not.
6.1.4. These Terms may be executed in any number of counterparts and by the Parties hereto in separate counterparts, each of which and when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement that shall be binding on the Parties and enforceable.
6.2. Parties hereby agree that time is of the essence in this Agreement and each and every provision hereof.
7. Renewal and Termination of Sublease Agreement
7.1. Any renewal of a Subscription is subject to approval by Flux and is done so through the Platform.
7.2. Save for otherwise stated in these Terms, the Subscription shall be terminated on the end-date selected by the Member.
7.3. Members can opt to auto-renew their Subscription subject to Flux approval, whereby the end-date of the Subscription will be extended by 12 months and the Member will maintain the same Mileage Package and monthly total. Members can opt out of the auto-renewal setting at any time during a Subscription, up till 10 days prior to the renewal date.
7.4. In the event a Subscription is terminated by an Inventory Provider, the Member will be at its own preference afforded the privilege by the Inventory Provider to provide a Replacement Car. Should the Member refuse the Car, the Inventory Provider may make three (3) more offers for Replacement via Flux. Flux will intervene and assist to find a Replacement if the Member is not satisfied. However, should the Member refuse the said three (3) offers, Flux is no longer held liable or obligated to maintain the Member’s Subscription. In such case the Subscription is terminated.
7.5. Termination by Notice – Flux may terminate the Subscription at any time with immediate effect at its own discretion.
7.5.1. Upon termination of the Subscription as provided in Clause 7.5 above, Flux shall immediately retrieve the Car and the Member shall pay all outstanding fees and charges and return the Car to Flux in the condition as stated in Clause 15.5 hereto.
7.5.2. When the termination of the Subscription is due to the non-payment of Monthly Payment, the Member will also be liable for all penalty fees determined by Flux as per Clause 11.10.1.
7.6. The Member may, by notice in writing, terminate the Subscription immediately if any of the following events occur:
7.6.1. A Negative Event happens to Flux; or
7.6.2. An Act of Force Majeure persists for an aggregate period of one (1) month or more thereby affecting Flux.
8. Delivery of Cars
8.1. Concierge shall deliver the Car to the Member from the Inventory Provider in the manner as set out in a Reservation issued by Flux or cater to the arrangements made by Flux in the return of the Car and the delivery of which is in accordance with the Reservation and terms herein.
8.2. Members hereby agree that it falls to the responsibility of the Inventory Provider in ensuring the Car is legally authorised for use on the road or road-worthy (relevant insurance and road tax coverage) at all times during its Subscription. Any insurance policy as provided by the Inventory Provider shall supersede these Terms.
8.3. Users will ensure that at the point of the physical hand over of the Car by or to Concierge that they or their representatives will carry out and document physical inspections of the Car pursuant to Flux’s procedures or practice in order to verify the condition of the car and determine accountability of said condition. Members agree that once hand over of the Car and the signing of relevant Documents have been completed that they acknowledge and accept the findings of the Car inspection by Flux and are further subject to an in-depth inspection occurring upon return of the Car to the Inventory Provider. Where applicable, the Member’s security deposit shall be held and additional charges placed on the Member’s payment method at Flux’s discretion to rectify any damage, modification or component replacement claimed by the Inventory Provider to have been caused by the Member.
8.4. Once the Subscription is approved by Flux, the Member acknowledges that a telematics device will be installed, which will be monitored by Flux for the duration of the Subscription.
8.4.1. The Member agrees that it will in no way disable, damage, tamper, alter or modify the telematics device in any way, and should the Member suspect any of the aforementioned acts have occurred to the device, it will within one (1) business day notify Flux.
8.4.2. The Member acknowledges that the telematics device will track the Car’s mileage, speed, geolocation, idle time, g-forces of acceleration, braking and cornering, and that all the data collected of the Member’s use is the intellectual property of Flux intended for use in managing the Member’s Subscription and such other use as deemed suitable by Flux including purposes related to security, location of a Car, calculation of Excess Mileage Fees and driving patterns or behaviour.
8.4.3. Flux corporate Members can purchase add-ons to their Subscriptions, such as monthly data reports on the active Subscriptions. The data reports on the Cars, which shall not violate any applicable data protection acts and Flux privacy policies, are available at additional cost.
8.5. When a Car is delivered by Concierge to the Member, the Members agree to the verification of his or her identity by providing the originals of any information utilised in his registration such as his IC or Passport. Members will also be required to sign the Car acceptance forms and acknowledge the handover and start of their Subscription.
8.6. The Member acknowledges that the Car will be delivered with comprehensive insurance coverage which supports the use of a car under a Flux Subscription service. Flux is authorised to renew all necessary insurance policies and road tax for the Car as such renewal becomes due for the roadworthy use of the Car.
9. Members Rights and Duties
9.1. The Member’s rights to the Car are constrained to the scope of the Subscription functioning as a sublease. This means that in return for the Monthly Payment owed to Flux by the Member during the Subscription, the Member has the right to:
9.1.1. Exclusive control and custody of the Car for the duration of the Subscription;
9.1.2. Use of the Car for a finite period of time as selected by a Member through various Subscription Plans;
9.1.3. Use of the Car for a mileage as selected by the Member, termed as a Mileage Package, which may be changed throughout the duration of their Subscription. In the event a Member changes the Mileage Package during a Subscription, this change will only be effective for the following month of Subscription.
9.2. Members agree to update the information provided to Flux in the event of any changes to their driving record, contact information, or background. Specifically, with respect to their contact information, Flux may deliver notices to Members at the most recent email, telephone, or billing address provided, and those notices will be considered valid even if Members no longer maintain the aforementioned contact information.
9.3. Members will be solely responsible for all of the activity that occurs in their Account. Members aver that they will not disclose their password to any third party and that they will take sole responsibility for any activities or actions under their Account, whether or not they have authorised such activities or actions.
9.4. Members will immediately notify Flux of any actual or suspected unauthorised use of their Account. Flux is not responsible for Members failure to comply, or for any delay in quarantining their Account after a report of unauthorised access has been made.
9.5. Members agree that they will always use their Account and the Services in compliance with the Terms, applicable laws, rules and regulations in force, and any other policies and standards issued by Flux.
9.6. Members are entitled to swap out their Car for a different Listing after utilising a Car for a minimum period of three (3) Service Periods by submitting the relevant form on the Platform and paying a Reservation Fee and Start Fee associated with the intended Car in the swap. This right is limited to four (4) uses a year in the event a Member swaps out a Car every month. This limitation is not inclusive of the ‘3-Day Risk-Free Return’ Guarantee as laid out below in Clause 9.7.
9.6.1. Members agree that they may only swap out of a Car listed as ‘new’ on the Flux platform after a minimum usage period of 12 months.
9.7. If a Member discovers any technical issues with the car that reasonably affect the safety of use or prevent the use of any feature of the car which was not highlighted by Flux at any point instance up to and including the point of delivery, the Member is entitled to the right to return the Car in exchange for another Flux car. For the avoidance of doubt, only deficiencies in manufacturing or condition shall be entertained. This 3-Day Risk Free Return must be invoked within three (3) days or one-hundred and fifty (150) kilometres of delivery of the Car to the Member at the commencement of Subscription. This right is limited to a use of two (2) times per year and Members will only be charged a pro-rated amount of the subscription fee for the number of days used if they continue their subscription with another Flux Car.
9.7.1. Members agree that should the 3-Day Risk Free Return policy be invoked, the Member shall be charged, or reimbursed as the case may be, any difference in Subscription Fees from the original Car and the Car that the Member chooses to continue the Subscription.
9.7.2. Members agree that Clause 9.7 does not entitle Members to invoke the 3-Day Risk Free Return policy for reasons of personal preference, changes of heart or mistaken selection of a Car where the Member neglected to inform himself or herself of the specifications, details, age or mileage of the car. Should this be the case, the Member agrees to be charged the costs incurred by Flux and the Inventory Provider and any difference in Subscription Fees as per Clause 9.7.1.
9.7.3. Should a Member return a car without continuing with the Flux service, the Member will be charged for the usage of the Car based upon the Flux short term rate in addition to any processing or administrative fees and must return any and all items provided by Flux as part of Members’ privilege or be charged the cost of such items accordingly.
9.8. When a Car has been arranged to be returned to Flux, it is the Member’s obligation to ensure that the Car is clean and has been refuelled with a full tank and there is no damage to the Car. For the avoidance of doubt, a clean Car is one that has been washed and is free of visible dust, dirt, mud, stains and sticky surfaces on the exterior and in the interior, including unpleasant odours in the interior. Members who do not return Cars in the abovementioned state (save for reasonable wear & tear) will be charged accordingly to restore the car to the original state plus processing fees.
9.8.1. For the avoidance of doubt, the presence of permanent stains or rust resulting from misuse of the Car while under the care and custody of the Member shall not be considered reasonable ‘wear and tear’ and shall be charged to the Member accordingly to restore the car to the original state plus processing fees.
9.9. Members can cancel their Subscription at any time at the cost of a Cancellation Fee as outlined in Clause 11.10.1.
9.10. Members at any time can add up to a maximum of three (3) Additional Drivers who may utilise the subscribed Car once approved by Flux. Additional Drivers are obligated to be in compliance with the same Terms as the Members, save for any provision which outlines the primary Member as being responsible.
9.11. Members declare that they and their Additional Drivers hold valid driving licences, who will to their best ability respect the Car leased to them by the Inventory Provider and will take all reasonable measures to return the Car in the same condition as received (save for reasonable wear & tear). Members shall be liable for any damage caused by Additional Drivers falling outside the scope of reasonable wear & tear.
9.12. The primary Member who subscribes to Flux is responsible for any costs Flux deems necessary to recover a vehicle that is not returned.
9.12.1. In addition, an administration fee will be imposed on the primary Member if Flux has to report a vehicle as stolen to law enforcement due to it not being returned.
9.12.2. Any other costs incurred for investigation, compensation or any other fee other than administration will be charged based on the actual amount incurred.
9.13. Members are required at all times to comply with the following:
9.13.1. to operate the Car safely, and in compliance with all applicable laws, including without limitation, speed limits and prohibitions on impaired or distracted driving;
9.13.2. must maintain proof of Subscription in the Car at all times as proof of authorised usage to law enforcement and Members and any passengers in the Car are also required to wear seat belts during its operation;
9.13.3. members are also required to meet any laws or regulations concerning car seats and other protections for children.
9.13.4. in the event of an incident involving the Member and their Car that may or may not include a third-party, Flux reserves the right to conduct its own investigation to ensure the Member had made every effort or taken steps to avoid the incident.
9.14. The Member agrees to be charged an Accident Fee, to be calculated and decided at Flux's discretion, should the claim be made on the Car’s insurance policy.
9.14.1. With respect to the above, should the damage value necessitate an insurance claim and the findings of the police investigation into the accident place the fault with the third party and thus the insurance of the third party is to be claimed, then this clause does not apply.
9.15. Parties agree that this Accident Fee shall only be awarded for any damage that Flux deems as appropriate in its absolute discretion given the circumstances of the incident after its investigation and shall not be provided for any damage that is minimal or reasonably arising from expected ‘wear & tear’.
9.16. In the event a Member contributes or causes any damage from an incident that is determined by Flux to be minimal, Flux may make such a ruling to indemnify the Member if it considers the damage to fall within an acceptable ‘wear and tear’.
9.17. In the event a Member damages the tyres of a Car, the Member is expected to substitute the damaged tyres with a replacement of the same make, model and size at their own cost collectively as a set (in pieces of two (2) being either front or rear wheels). If the Member is unable to facilitate such a replacement within a Flux-active jurisdiction, Flux will arrange the necessary rectification so long as the Member pays the fees and/or costs associated.
9.18. In the event any equipment supplied with the car is missing or damaged, including but not limited to the Car’s key(s), owner’s manual, tool kit, spare tyre, jack, and first aid kit the Member shall be charged the cost to replace said equipment in addition to any applicable processing fees.
9.19. In the event a Member damages the windscreen or windshield of the Car or the Car is damaged by special peril (e.g. flood, landslide or windstorm), the Member agrees to be held liable for a penalty as part of its Accident Fee, in addition to any fees and/or costs arising from such damage.
9.20. For the avoidance of doubt, the Accident Fee shall not be construed as a compensation or payment for the loss in value of the Car in the circumstances set out here unless stated otherwise.
9.21. Members will be provided comprehensive insurance coverage as provided by the Inventory Providers throughout their usage of Flux Subscription. This coverage includes:
9.21.1. Liabilities to third party for injury, death and property damage;
9.21.2. Loss/damage to Car due to accidental fire/theft;
9.21.3. Loss/damage to Car due to accident; and
9.21.4. Loss/damage to Car arising from a flood if provided by Inventory Providers
9.22. Members declare that they will only use the Car for personal use and not for any other reason as outlined below. Members are prohibited from:
9.22.1. Modifying the Car, this includes but not limited to changing any components up to and including the exhaust system, tinting windows and replacing the stock wheels;
9.22.2. Repairing the Car on their own. Members must temporarily return the Car to Flux for any repairs or servicing;
9.22.3. Use the Car for any commercial purposes (e.g. ridesharing, deliveries etc.);
9.22.4. Subletting or hiring the Car to any other person;
9.22.5. Allowing the Car to be used outside their authority, without their permission by persons not authorised or registered as an Additional Driver;
9.22.6. Driving the Cars outside the territorial borders of the country where the Car was leased from;
9.22.7. Operating the Car or allowing it to be operated in circumstances that constitute an offence (e.g. driving under the influence of alcohol);
9.22.8. Operating the Car or allowing it to be operated in any race, speed test, reliability trial, rally or contest, or operated on any race or rally circuit or in any event as a pace-maker or testing in preparation for any of them;
9.22.9. Operating the Car or allowing it to be operated for the transport of more passengers or goods than the maximum specified in the certificate of loading and/or road user charge certificate, whichever is the lesser, for the vehicle;
9.22.10. Operating the Car or allowing it to be operated to propel or tow any other Car;
9.22.11. Transporting any animal in the Car (with the exception of guide dogs for visually impaired people);
9.22.12. Operating or allowing the Car to be used in involvement with any illegal activity;
9.22.13. Allowing any person to smoke in the Car;
9.22.14. Creating, assuming or permitting to be created or assumed any mortgage, pledge, lien, charge, encumbrance or any security interest whatsoever on or over the car;
9.22.15. Operating the Car for use as a Public Service Vehicle under any classification of the Land Public Transports Act 2010 (e.g. Hire & Drive etc.) in the Peninsular or the Commercial Vehicles Licensing Board Act 1987 in its applicable territories.
9.23. In the event a Member breaches any of the prohibitions laid out above in Clause 9.22, any and all rights of the Members are forfeited, the Subscription is terminated immediately and the Member shall be charged the full Subscription Fees for the month in question for the discovery of said violation. Members agree to be held fully and financially responsible for any claims, loss, or damage related to the misuse of the Car and any applicable penalty fee. Members also acknowledge that using a Car in a prohibited manner or otherwise breaching these Terms may lower the Members liability coverage to legal minimum limits, or nullify coverage, and may furthermore nullify any comprehensive or collision protection where allowed by applicable law.
9.24. Members are obligated to give at least one (1) week’s notice when any action with regards to a Car under Subscription is to be taken. This includes but is not limited to requests for repairs, servicing, termination of Subscription or intent to swap out for a different Car.
9.25. All notices and communications by either Party to the other shall be sufficiently served if dispatched by registered post, fax, email or hand delivery to the last known address or email address of the other party. In each case it shall be marked for the attention of the relevant party:
9.25.1. if by registered post or hand delivered, when delivered to the registered addressed;
9.25.2. if by email, when the email is duly sent and record of the transmission is stored in the sent folder and there shall be no mail delivery failure report in the case of an email;
9.25.3. if by facsimile transmission or electronic mail, at the time of delivery as evidenced by a transmission report generated by the sender’s machine in the case of a facsimile transmission.
9.26. Parties acknowledge that oral communication of which the contents cannot be produced or verified does not constitute notice served.
10. Option to Purchase
10.1. Flux members have the option to purchase the Car at the end of their Subscription at the GFV for Subscriptions which are a minimum of 12 months in duration. The Member acknowledges that GFV does not vary based on Mileage Package chosen upfront or changed during Subscription.
10.2. The GFV shall be made known to the Member upfront by Flux on the Platform during Reservation and shall not change throughout the duration of Subscription.
10.3. The GFV shall not be affected for any reason, including any damage incurred on the Car due to the Member’s fault or otherwise, except for cases as in Clause 7.4 whereby a Replacement Car is provided by the Inventory Provider.
10.3.1. In cases where the Replacement Car is similar to the Car including but not limited to the parameters of colour, mileage, year of first registration, specification and features and of a condition equal or superior to that of the Car, the GFV will remain unaffected.
10.3.2. In cases where the Replacement Car is not similar to the Car including but not limited to the parameters of colour, mileage, year of first registration, specification or features, the Member agrees that the GFV attached to said Replacement Car may change.
10.4. The Member understands and agrees to the fulfilment of the following prior to the end date of the Subscription in order to purchase the Car at the GFV:
10.4.1. Continuous Active Subscription with the Car with all outstanding charges paid in full leading up to the payment of the Booking Fee including Subscription Fees, Excess Mileage Charges, and, where applicable, amounts due under Clauses 11.7
10.4.2. Successful payment of the Booking Fee to Flux before the commencement of the final Service Period;
10.4.3. Completion of the remainder of the Subscription in a continuous manner with all outstanding charges paid in full including Subscription Fees or early cancellation charges as per Clause 11.10.1 in lieu thereof, Excess Mileage Charges, and, where applicable, amounts due under Clauses 11.7;
10.4.4. Provision of all necessary Documents required for ownership transfer in a timely manner prior to the commencement of the final Service Period;
10.4.5. Surrender of the Car to Flux or the Inventory Provider prior to the end of Subscription at a date, time and location specified by Flux to carry out inspections necessary for the transfer of ownership of the Car from the Inventory Provider to the Member
10.4.6. Furtherance to Clause 10.4.5, the Car must be returned by the Member in a condition where the Car shall pass said inspection in all regulatory requirements for legal and roadworthy operation in Malaysia;
10.4.7. Secure and execute the financing for the Car for the full GFV amount via hire purchase loan, cash or otherwise prior to the transfer of ownership alongside full payment of any downpayment not covered by financial institution financing of the Car based on a schedule specified by Flux;
10.4.8. Purchase valid insurance coverage and road tax to complete the ownership transfer process;
10.4.9. Appear in person at either the place of business of the Inventory Provider or any location nominated by the Inventory Provider, including but not limited to Road Transport Department counters, at an agreed upon date and time and complete all necessary documentation and regulatory processes for the transfer of ownership of the Car from the Inventory Provider to the Member.
10.5. Further to the above requirements, the member acknowledges and accepts that any act of swapping out a Car and swapping back to said Car at a later date renders the Member ineligible to purchase the Car at the GFV at the end of the original Subscription duration. Should the Member wish to purchase the Car at the GFV, the Member must complete a full Subscription plan with a single Car on an uninterrupted basis, where the GFV offered for the car may or may not match an earlier GFV value for the same Car.
11. Fees and Payment
11.1. All Cars shall be priced in accordance with its Listing as available on the Platform.
11.2. In any Subscription, Members are responsible for paying all fees, including when they become due collectively as a Monthly Payment no later than the first (1st) day of each Service Period for their use of the Car for the said Service Period.
11.3. Members agree that prior to any Subscription being approved, they will pay Flux a Start Fee and may also be required to pay a refundable security deposit as determined by Flux.
11.4. Members agree that they will pay any Excess Mileage Fees incurred at the end of every Service Period.
11.5. The Excess Mileage Fees is based on an excess mileage rate unique to each Car and is calculated from each additional kilometre travelled beyond the Mileage Package chosen for the applicable month of Subscription and will be charged monthly. Mileage, and hence the calculation of excess mileage, is tracked exclusively by Flux through the telematics device and Members acknowledge this data may not be identical to the mileage shown on the odometer of the Car.
11.6. Members will be responsible for all of the costs relating to any citations and fines (e.g. tolls, parking tickets, speeding violations or any non-compliance of laws resulting in the imposition of any monetary sum) incurred during the subscription period in addition to any applicable processing fees.
11.7. Members authorise Flux to charge any payment method or stored payment credential associated with their Account for all amounts due, including but not limited to, Start Fee, security deposits, processing fees, fees, fines/penalties, deductibles, and damages, and Members furthermore represent and warrant that they are authorised to permit Flux to do so.
11.8. All payments to Flux must be made through a payment method registered on the Member’s Account and approved by the payment provider. Members agree and authorise any third-party partners to charge their provided payment method where and when necessary to offset any outstanding amount owed to Flux.
11.9. In the event a Member decides to cancel a Subscription that is Month-to-Month, the Member will be charged the full Monthly Payment for any month of use that has commenced without any pro-rated refund.
11.10. In any Subscription that is 12 months or more, the last month of said Subscription will be charged on a prorated basis to the Member for time used for the Car provided that at least one (1) month notice is given prior to the end of the Subscription.
11.10.1. In the event a Member decides to cancel a Subscription that is 12 months or more, with more than one (1) month remaining in its Subscription, the Monthly Payment for the remaining duration of the Subscription or the Monthly Payment that matches the actual commencement and cancellation date will be charged on an early cancellation fee basis to the Member, whichever is lower and where such calculation excludes the Start Fee already paid by a member.
11.10.2. If a Member decides to cancel a Subscription that is 12 months or more for a car that is listed as ‘new’ on the Flux platform at any time before 12 full payment cycles have been charged, the Member must pay the equivalent of 20 percent of the car’s sticker price as published by the manufacturer at the time of commencement of the Subscription, less any Subscription Fees that have been paid thus far and excluding the Start Fee.
11.11. In the event a Members payment fails or defaults, Flux will immediately notify the Member to rectify the issue and provide alternative methods of payment.
11.11.1. Should the payment default duration lapse more than seven (7) days without rectification, the subscribed Car will be immediately put into a Recovery Process in which:
11.11.1.1. Flux will immediately proceed to retrieve the Car using the telematics device.
11.11.1.2. Flux will charge the Member on a prorated basis for each day the Car is not returned and a penalty fee.
11.11.1.3. To the fullest extent permitted by law, Flux shall not be obligated to provide any notice or legal process or conduct a hearing for the Member as a preliminary condition for Flux to recover the Car.
11.11.1.4. Flux, or its appointed agents or representatives, are hereby authorised by the Member to enter any premises owned or occupied by the Member, or where necessary, the Member must make all reasonable efforts to secure and obtain the right, license and/or permission for Flux to enter any premises for purposes of recovering and repossessing the Car.
12. Incidents and General Upkeep
12.1. Members must immediately within one (1) business day report any and all events or happenstance which has caused damage or may have caused damage to the Car they are using to Flux at +603-6411 5611 or to support@driveflux.com and if applicable to notify any law enforcement agency.
12.1.1. Members who fail to notify the relevant law enforcement agency in the event of a road accident will subsequently void an insurance claim, which will result in the Member being liable for the full cost of the rectification of the car.
12.2. In the event of any circumstance or incident involving law-enforcement or road transport authority or any situation in which they are notified, the Member is afforded the authority, validity and protection of the Inventory Provider to utilise the Car as long as the Member adheres to these Terms. The Member must notify Flux of any such incident within one (1) day.
12.3. Members are obliged to take all necessary and reasonable steps in the event of an accident involving a third party including but not limited to collecting information such as the name, address and contact information of the driver, the registration number and a brief description of the car involved, be present in the process of lodging a police report and to cooperate in filing of accident claims.
12.4. Members are obliged to use all reasonable efforts to secure evidence from any available witnesses and to provide Flux, the Inventory Provider or third-party claims administrators with a written description of the incident and any other information requested, including identity and insurance information of any parties involved in the incident.
12.5. Members are required to cooperate in any loss investigation conducted by Flux, the Inventory Provider or third-party claims administrators, or insurers including but not limited to the provision of personal information and other details deemed necessary. After an incident, Members may not continue to use the Car unless they have obtained explicit permission from Flux.
12.6. The following uncooperative conduct by a Member may result in the reporting of the Car under Subscription as stolen to law enforcement officers or bodies, subjecting Members and any other Additional Driver(s) to arrest, and civil and/or criminal penalties, and the voiding of applicable insurance coverage:
12.6.1. If a Member fails to return the Car subscribed to, at the time and place agreed upon with Flux or prohibit and hinder the pickup by Concierge;
12.6.2. If a Member does not return the Car by the end of the Subscription and has not properly obtained a renewal through the Platform;
12.6.3. If the Car is returned to any place other than agreed upon with Flux. Any damage to, loss or theft of the Car occurring prior to Flux inspecting the Car upon return at the end of the subscription is the responsibility of the Member;
12.6.4. If a Member misrepresents facts to Flux staff pertaining to booking, use, or operation of the Car;
12.6.5. If the Car’s interior components are stolen or damaged when the Car is unlocked or keys are not secured during the reservation period;
12.6.6. If a Member fails or refuses to communicate in “good faith” with the police, Flux, or other authorities with a full report of any accident or vandalism involving the Car or otherwise fail to cooperate in the investigation of any accident or vandalism;
12.6.7. If the Car is operated by anyone who has given a fictitious name, false address, or a false or invalid driving licence; whose driving licence becomes invalid during the Subscription period; who has obtained the keys without permission of Flux staff; or who misrepresents or withholds facts to/from the Flux material to the subscription, use or operation of the Car.
12.7. In addition to the above, the Member acknowledges that any instance of the Member leaving the keys in a Car unattended or handing over the keys and thus, control of the Car, to a third party including but not limited to Additional Drivers, valet services, car detailing facility or otherwise, will render the Member completely responsible for the loss of the Car should such action result in a theft as this circumstance is not covered under the insurance policy of the Car.
12.8. If the Car suffers any damage that is caused or contributed by the Member or Additional Drivers, the Member agrees to be held responsible for the sum of fees due for its restoration or replacement as outlined in the Terms unless the damage caused is determined by Flux to be acceptable ‘wear & tear’ or it is covered by the relevant insurance coverage provided.
12.9. If the Car suffers any fault or is in need of urgent repairs, maintenance or servicing and Flux is notified of this by its Member, the Concierge will return the Car to the Inventory Provider in pursuit of such rectification.
12.10. During an active Subscription, in the event a Car is returned to the Inventory Provider as a result of these needs for repairs, maintenance or servicing that are not caused by the Member or onto the Member’s Car by a third party, the Monthly Payment shall be prorated based on the usage of the Member for the particular Service Period if work is not completed within seven (7) days from the time the Car was returned.
12.10.1. Flux corporate Members who opt-in to Flux’s replacement car program are entitled to a temporary Replacement Car within twenty-four (24) hours of a Car being returned to the Inventory Provider as a result of any repairs, maintenance or servicing for any reason, termed as courtesy car(s), based on pre-purchased limits of days per car per year.
12.11. Flux reserves the right to maintain discretion in deciding the duration of time granted to an Inventory Provider for repairs, maintenance or servicing to be carried out on the grounds of how long it would reasonably be expected to take.
12.12. If the repairs, maintenance or servicing of a Car as in Clause 12.10 exceeds four (4) weeks expectation of time for repairs, the Parties hereby agree that the Subscription is considered terminated. Any payments due for use of the Car up to the date of final use by the Member shall be charged on a prorated basis for days utilised and paid to the Inventory Provider.
12.12.1. In the event of a traffic accident involving the Car only or the Car and a third party where an insurance claim may or may not occur, the Member shall continue to pay Subscription Fees at the current rate without any proration until repairs are completed.
12.12.2. If the Car is found to be in a condition of beyond repair or declared a total loss by insurance agency under which the Car is covered by an insurance product, the Subscription is considered terminated unless the Inventory Provider is able to provide, at its discretion, a similar car with which the Member may continue subscription.
12.13. Members shall bear all costs of repair or maintenance carried out outside the authorised service and repair facility unless agreed to by the Inventory Provider prior to commencement of such repairs.
12.14. Members acknowledge that Flux engages with third-party service providers for features such as twenty-four (24) hour roadside assistance and that Flux may provide the Members contact details to these third parties where necessary for Flux’s Services.
12.15. In the event a ticket or fine is issued to the Car based upon its licence plate, Flux will pay the outstanding sum due and charge the Member’s Account at its next billing cycle in addition to any processing fees.
12.15.1. For any tickets or summons incurred by the Member against their driving licence, these violations/penalties are the direct responsibility of the Member.
12.16. In the unfortunate event of an incident or accident which may damage or disable the Car, the Member is afforded the right to contact our nationwide roadside assistance service provider.
13. Indemnities, Exclusions and Limitations
13.1. In no event shall either Party to this Terms be liable for indirect or consequential loss or damage.
13.2. Each party (in each case, the “Indemnifying Party”) indemnifies the other (in each case, the “Indemnified Party”) against any cost, liability, loss or damage incurred or suffered by the Indemnified Party arising out of or in connection with an unlawful or negligent act or omission of the Indemnifying Party, or its employees, agents, representatives or subcontractors that results in:
13.2.1. any bodily injury to or death of a natural person, and any loss of or damage to a third party’s property, real or personal; or
13.2.2. any loss of or damage to property of the Indemnified Party, real or personal.
13.3. The Indemnifying Party's obligation to indemnify the Indemnified Party shall be reduced proportionately to the extent that an unlawful or negligent act or omission of the Indemnified Party, its employees, agents, representatives or subcontractors has contributed to the cost, liability, loss, damage or claim.
13.4. Flux shall not be liable to the Member for any representation or breach of any implied condition, warranty or other terms of the Subscription for any loss, damages, costs, expenses or other claims for compensation whatsoever, whether occasioned by the negligence of the Inventory Provider, Member or otherwise, which arises out of or in connection with this Subscription, or which in any way relates to the Specifications, or the manufacture, use or sale of any other dealing in any of the Cars by or for the Member or any other agents, servants, representatives and/or associates to the extent that the claim is for loss of profits, contracts, goodwill, anticipated savings or wasted expenditure, or for any indirect, special or consequential loss or damages.
13.5. The Parties hereby agree that the Inventory Provider shall not be liable to the Member for any injury to the Member or any damage to the Car nor any loss of the Member’s suffered whether direct or indirect as a result of the Member’s use of the Car for so long as the Inventory Provider has complied with its obligations under the Head Lease Agreement in ensuring the Car provided is to their knowledge without any fault or defect that may have significantly contributed to the incident which has caused said damage.
13.6. The Parties hereby agree that should any external entity not party to these agreements seek redress for any claim pertaining to any of the agreements, their claim will be limited and enforceable only against the primary offender and to the extent of their interest in the Car. Otherwise the Parties will preserve the interests of the Inventory Provider in their leased asset being the Car and make every effort to ensure they have limited the liability of the Inventory Provider.
13.7. In the event either Party seeks redress or claim against any other Party to any of the agreements, it agrees to limit the liability of the Party the claim is sought against in so far as reasonably expected for the remuneration or compensation sought for and will not seek any award or order that would not fall within the scope of liability the offending Party is responsible for.
13.8. The obligations of the Inventory Provider as the head lessor are as exhibited in the Head Lease Agreement and do not constitute the personal obligations of any of the individual partners, members, directors, officers, shareholders, trustees or beneficiaries of the Inventory Provider and the Member shall not seek recourse against them or any of their personal assets for the satisfaction of any liability with respect to the agreements. In the event of any default by the Inventory Provider, the Member agrees to indemnify Flux and the Inventory Provider for any loss from any early termination of its lease as a result of the Inventory Provider’s winding up.
13.9. If there is a finding of any liability of Flux or the Inventory Provider, the Member agrees to limit the liability of either subject to this Agreement, a sum or penalty that is not valued more than the Car itself, save for any other clauses in the Terms.
13.10. To the furthest extent permitted by law, any entity that is not a party to this contract ("Third Party") shall be entitled to claim a benefit stipulated in this contract provided that the benefit is directly in the interest or favour of the Third Party.
14. Warranties
14.1. Mutual Warranties – each party represents and warrants that:
14.1.1. it has full authoritative power to enter into and give effect to a sublease agreement and to complete the transactions contemplated under the Terms;
14.1.2. it has taken all necessary action to authorise the execution, delivery and performance of the Terms;
14.1.3. at the date of the Terms, the execution, delivery and performance of this agreement by it does not contravene any contractual, legal or other obligations that apply to it;
14.1.4. on execution of the Subscription, by virtue of receipt of payment for the Reservation, its obligations under this agreement shall be valid, binding and effective; and
14.1.5. all information given by it to the other party before entering into the sublease agreement is complete and accurate.
15. Disclaimers
15.1. Flux is not in the business of operating any form or class of Public Service Vehicle as outlined in the Land Public Transport Act 2010 or the Commercial Vehicles Licensing Board Act 1987 including but not limited to ‘hire & drive’ Cars or as an intermediary business which facilitates such activities. Flux is an authorised intermediate lessor, subleasing Cars to Members that have been duly leased to Flux by Inventory Providers under the regulated business activities of private leasing as outlined by the Ministry of Finance and empowered by the Financial Reporting Act 1997 and the requirements set out in the Malaysian Accounting Standards Board.
15.2. Flux does not itself provide Car rental operations and/or insurance services and is not responsible for any of the acts or omissions of any of the Users of its services including the Members, Inventory Providers, Car manufacturer or any 3rd party provider of services. To the extent permitted by applicable law, Flux makes no warranty that the Services, including but not limited to, the Listing and/or any Car, will meet Member requirements or be available on an uninterrupted, secure, or error-free basis. Flux makes no warranty regarding the quality of any Listings, Cars, the Services, or any content or the accuracy, timeliness, truthfulness, completeness, or reliability of any content obtained through the Services. No advice or information, whether oral or written, obtained from Flux or its service providers or through the Services or content, will create any warranty not expressly made herein subject to any provision of any applicable laws.
15.3. Flux makes no guarantees on the accuracy of the Specifications and mileage of a Car as seen on the Platform. Mileage is on an as-received basis, at the time of inspection of a Car prior to being accepted as a listing on the Flux Platform.
15.4. Members acknowledge and agree that their mileage allowance as per the chosen Mileage Package for a particular month will be used for all Flux interactions. This includes, but is not limited to, delivery and return of the car during scheduled and unscheduled maintenance requirements and at the start and end of a subscription.
15.5. Members are obliged to return the Car in the same condition in which it was received save for reasonable ‘wear and tear’. Under no circumstances are they allowed to modify, customise or upgrade the Car. In the event this occurs, Flux shall at its own costs and expenses restore the Car to the original condition provided by the Inventory Provider and the Member at fault shall be held accountable for the costs of repairs and/or restoration to Flux.
15.5.1. In consideration of the above, the Parties agree that extended periods of use of the Car will cause unavoidable ‘wear & tear’.
15.5.2. Hence a Member’s obligation to return the Car in the same condition it was received is given consideration that the Members will not be subject to additional costs, if the ‘wear & tear’ is reasonably expected.
15.6. Liquidated damages - Members acknowledge that the actual damages likely to result from engaging in deceitful or questionable practices, such as grey market transactions (i.e. using Flux to find a Car, and then completing a transaction or related transaction partially or wholly independent of Flux, in order to circumvent the obligation to pay any Flux Subscription Fees) would cause damage to the business model of Flux or resulting in loss of profits to Flux in the form of use of the Platform, training, onboarding, market reach, processing fees, Subscription Fees, undermining the reservation fee/cancellation fee, the drop in value in the utility of the Platform, the wasted cost in building the Platform and investment in the form of marketing, branding and advertisements, and the like. Taking into consideration all such factors, Members and Inventory Providers agree that Flux would suffer damage where in such instances, and Inventory Providers agree to pay Flux RM8,000.00 being agreed Liquidated Damages to compensate Flux for each time Inventory Providers are found liable of such conduct whereby the Inventory Providers consider such a sum to be fair and reasonable given the circumstances.
16. Intellectual Property
16.1. “Intellectual Property Rights” shall mean any and all copyright, database rights, know-how, trademarks, designs, images, digital works, patents, confidential information, trade secrets or other industrial property rights created, developed, subsisting or used in connection with the Services, the Platform and all related or arising works pursuant including but not limited to websites, applications and added features, and whether in existence at the date hereof or created in the future.
16.2. Parties agree that Flux is the sole and exclusive owner - or exclusive licensee – as allowed by applicable law - of all rights, title, and interest in all rights arising, including any and all other intellectual property rights, in the IPR. Such IPR will also include images and/or digital works as contained and/or seen in the Platform and that the Member shall take no action to challenge or object to the validity of such rights or Flux’s ownership or registration thereof.
16.3. The Member hereby acknowledges that Flux may use the said images or digital works for advertising, marketing, commercial, and other business purposes in any media or platform, whether in relation to the Listing or otherwise, without further notice or compensation. Further, the Member hereby waives any and all rights to royalties or moral rights they may have in the images or digital works. Member shall hold Flux harmless and indemnify Flux (and keep Flux indemnified) against all costs, claims, demands, expenses and damages of whatsoever nature incurred by or awarded against Flux arising out of a claim of infringement of any intellectual property right however arising as a result of or in connection with these Terms.
16.4. Flux Content and User Content License. Subject to compliance with the provisions of these Terms, Flux grants the Member a limited, revocable, non-exclusive, non-transferable license, to access and view any Flux content solely for personal and non-commercial purposes and access and view any content to which they are permitted access, solely for their personal and non-commercial purposes. The Member shall not have the right to sublicense or license rights granted in this section. No licenses or rights are granted by implication or otherwise under any IPR owned or controlled by Flux or its licensors, except for the licenses and rights expressly granted in this sublease agreement.
16.5. Flux responds to notices of alleged copyright infringement and will terminate Accounts of repeat offenders according to the process set out in the Copyrights Act or any other similar law. Members are obligated to ensure that any of their activities on the Platform shall not infringe on the Intellectual Property of any legal owner.
17. Confidentiality
17.1. Obligation of Confidentiality - Where a Party receives Confidential Information from the other Party under the Terms, save as otherwise required by law to disclose or such Confidential Information becomes public through no fault of the Parties hereto, the recipient shall:
17.1.1. keep the Confidential Information confidential and use all reasonable means to prevent the disclosure and to protect the confidentiality thereof;
17.1.2. not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this agreement; and
17.1.3. not, without the other Party’s written consent, disclose Confidential Information to any person other than its employees, agents, relevant authorities and/or representatives who need the information for the purposes of the Terms; and
17.1.4. execute a confidentiality agreement containing terms and conditions no less restrictive than those set out in this clause in such cases which may necessitate the involvement of professional advisors, consultants and agents.
17.2. In addition to the obligations set out in the preceding paragraph, the Member agrees to the following:
17.2.1. Except as otherwise expressly provided in the Terms, the Member agrees that any and all Confidential Information (including without limitation the details of this agreement, any information on the Cars subscribed and terms of the Subscription) belonging to or disclosed by Flux has been and will be deemed to have been received in confidence and will be used only for purposes of this agreement.
17.2.2. The Member agrees to use all reasonable means to prevent the disclosure and to protect the confidentiality thereof.
17.2.3. The Member agrees that it will not hold or engage in or pursue any interactions with Flux’s Inventory Providers and that in the event that an Inventory Provider or third-party attempts to contact the Member with regards to this sublease agreement, it will immediately notify Flux of such occurrence.
17.2.4. In any event, compliance by each of the Users referenced in the preceding sentence with the confidentiality obligations set out in this clause will remain the responsibility of the Member.
17.3. The provisions of this clause shall survive the expiration or termination of this sublease agreement for whatever reason for a period of up to three (3) years.
18. Cooperation in Taking Legal Action
18.1. Notice of Infringement - Both Parties shall give immediate notice to the other of any breach, potential hazard, mechanical defect, infringement or threatened or suspected act or omission that shall at any time come to the knowledge of a party to this sublease agreement together with such detailed information as shall from time to time be available to such party relating to said act or omission which would detrimentally and adversely affect the course of business or the Terms.
18.2. Cooperation - In any suit, either party may commence or defend pursuant to its rights under this Clause 12 in order to protect its rights, the other party shall, at the request of the party initiating or defending such suit, cooperate in all respects and, to the extent possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens and the like. The cooperating party shall be reimbursed for all out of pocket expenses incurred in providing such assistance by the party initiating or defending such suit.
19. Force Majeure and Cancellation
19.1. “Force Majeure” means in relation to any party any extraordinary circumstances beyond its reasonable control regardless if the frequency of its occurrence is common in the region, such as serious fire, storm, and/or flood, earthquake, explosion, acts of a public enemy, war, insurrection, strikes and/or labour disputes of a person other than such party, acts of God, acts of any government, or any agency thereof which affects the performance of any provision of the Terms by that party but for the avoidance of doubt does not include either party being unable to fulfil its obligations under this agreement as a result of a lack of funds and/or being or becoming insolvent.
19.2. If by reason of any Force Majeure, either Party is prevented from or delayed in performing any of its obligations hereunder, then such delay or non-performance shall not be deemed to be a breach of this Sublease agreement and no loss or damage shall be claimed by the other Party by reason thereof.
19.3. Each Party shall immediately notify the other Party in writing of the occurrence of any event of Force Majeure applicable to its obligations under the Terms and its consequences. If any Party considers the event of Force Majeure to be of such severity or to be continuing for an aggregate period of three (3) months such that any Party is unable to perform any of its obligations hereunder, this agreement may be terminated by that Party by notice in writing to the other Party, which termination may take effect immediately or on the date specified in the notice of termination at the mutual agreement of the Parties.
20. Waiver
20.1. No right under the Terms shall be deemed to be waived except by notice in writing signed by each party.
20.2. A waiver made by either party pursuant to this clause will not prejudice its rights in respect of any subsequent breach of the agreement by either party.
20.3. Any failure by either party to enforce any clause of the Terms, or any forbearance, delay or indulgence granted by either party to the other party, will not be construed as a waiver of a party’s rights under this agreement.
20.4. The rights, powers and remedies of either party contained in this agreement are cumulative and not exclusive of any rights, powers or remedies provided to either party by law. No single or partial exercise by either party of any right, power or remedy shall preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
21. Dispute Resolution
21.1. Mandatory Mediation: In the event there is any dispute between the parties to this sublease agreement, the Parties must mediate such dispute that may arise before commencement of any legal action. No Party to this agreement can bring legal action against another Party to this agreement nor its associated parties (e.g. Inventory Providers, Members, Additional Drivers, insurance providers, third parties seeking damages for injuries, Car manufacturers) without first participating in mandatory mediation.
21.1.1. The Parties hereby agree that they are obligated to attend a minimum of three (3) sessions of minimum one (1) hour in length with a good faith objective to resolve the dispute.
21.1.2. If the Parties cannot agree upon the person to act as the mediator within 14 days of the date of the notice of mandatory mediation, the Malaysian Mediation Centre (MMC) will appoint a mediator subject to approval of the Parties and the procedure and conditions of the MMC.
21.2. This sublease agreement shall be governed by Malaysian law. Any dispute, controversy or claim arising in connection with this agreement which cannot be settled by the mandatory mediation process set out in the preceding paragraphs, or by negotiation between the parties or their representatives shall be pursued through legal proceedings in the courts of Malaya.
22. Severability
22.1. If any provision of the Terms is held invalid, unenforceable or illegal for any reason, the agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted or modified to reflect the true intention of the Parties.
22.2. The Member may not delegate their legal obligations or transfer any of their rights, in whole or in part, to any third party without advance written consent of the Flux. They will remain responsible for their obligations hereunder in any event. If any provision of this agreement is construed to be unenforceable, the remaining provisions will not be affected and will continue in full force and effect.
23. Survival of Agreement
23.1. Subject to any provision to the contrary, this agreement shall endure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not endure to the benefit of any other persons.
23.2. The covenants, conditions and provisions of this agreement which are capable of having effect after the expiration of the agreement shall remain in full force and effect following the expiration of the agreement.
24. Headings.
24.1. Headings are for reference purposes only and do not carry any legal effect in the interpretation and construction of any provisions herein contained.
25. Violations.
25.1. Flux has the right, but not the obligation, to investigate, pursue, and seek to prosecute, litigate, or refer to law enforcement officers or bodies, violations of the Terms to the fullest extent permissible by law. Flux may access, preserve, and disclose any of the Members information if Flux is permitted or required to do so by law; if Flux believes in good faith that it is reasonably necessary to respond to claims asserted against Flux or to comply with permissible legal process (for example, subpoenas or warrants); to enforce or administer the agreement, Terms ; to do so for fraud prevention, risk assessment, investigation, customer support, product development and debugging purposes; and/or to protect the rights, property, or safety of Flux, its employees, its Inventory Providers or the public.
25.2. Flux reserves the right, at any time and without prior notice, in accordance with applicable law, to remove or disable access to any content that Flux, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services. If Flux believes the Member is abusing Flux, their other Members, Inventory Providers, or Flux employees in any way including but not limited to lack of punctuality, discrimination based on gender, race, national origin, physical or mental disability, medical condition, marital status, age, religion and political affiliation, verbal or physical harassment, violent, harmful, threatening or disruptive behaviour and otherwise, or violating the agreement Terms, Flux, may in their sole discretion and without limiting other remedies, limit, suspend, or terminate the Member’s access to their Services, terminate Subscriptions, deny claims, reduce or eliminate any discounts, and take technical and/or legal steps against the Member. Additionally, Flux reserves the right to refuse or terminate their Services to anyone for any reason at our discretion to the full extent permitted under applicable law.