PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
Your use of our Platform and Services is governed by this Agreement. Unless stated otherwise, all capitalised terms in this Agreement shall have the meaning ascribed to Clause 21 (Interpretation and Definitions) of this Agreement.
1ACCEPTANCE OF TERMS
1.1.1.Any buyer who intends to access the Platform and use the Services to buy the Products must accept the terms and conditions of this Agreement including any schedules, appendices and annexures thereto and all other terms, conditions, rules and policies applicable to buyers which are incorporated into this Agreement by reference and any amendments thereto.
1.1.2.By registering and using the Services, you as a Buyer agree to be bound by this Agreement.
1.1.3.This Agreement forms a legally binding agreement between Mecan App Sdn Bhd ("Mecan" or "we" or "us") and you as the Buyer.
1.1.4.If the Buyer does not agree to any of the terms and conditions of this Agreement, the Buyer shall not make any purchase on the Platform.
1.1.5.The Buyer agrees to purchase the Products on the Platform and uses the Platform and Services at its own risk.
1.2.1.This Agreement is entered into between Mecan App Sdn Bhd ("Mecan" or "we" or "us") and you as a Buyer for use of Services.
1.2.2.The Platform is limited to parties that can enter into legally binding contracts under applicable laws.
1.2.3.The Buyer represents and warrants:
(a)where the Buyer is an individual, the Buyer is an adult of at least 18 years capable of validly entering into this Agreement;
(b)where the Buyer is a business or corporation,
(i)the Buyer is and will remain at all times, a business or corporation duly registered, validly existing and in good standing under the laws of the country in which the business or corporation is registered; and
(ii)the Buyer has all requisite right, power and authority to enter into this Agreement and perform the Buyer's obligations under this Agreement;
(c)any information provided or made available by the Buyer or the Buyer's Affiliates is at all times accurate and complete; and
(d)the Buyer and any person that has a financial interest in the Buyer's business, or any person which the Buyer is acting on behalf of:
(i)has not been barred or otherwise prevented from purchasing on the Platform;
(ii)has no affiliation with any Mecan's employee which may result in an actual or potential conflict of interest; or
(iii)has not been involved in any lawsuit or claim that has a bearing on this Agreement.
1.3.1.Mecan reserves the right to amend this Agreement at any time, at its sole and absolute discretion. Mecan shall notify the Buyer of such amendments including the effective date for such amendments by an announcement to be published on the main page of the Platform. Such amendments shall thereafter bind the Buyer. The Buyer shall be responsible to visit the Platform regularly and keep itself updated on any amendments to this Agreement.
1.3.2.The Buyer's continued use of the Platform and/or the Services following any amendment to this Agreement taking effect constitutes the Buyer's agreement to be bound. If the Buyer does not agree to any amendment to this Agreement, the Buyer must discontinue the use of the Platform and the Services.
1.3.3.Mecan shall not be responsible and will not indemnify the Buyer for any loss the Buyer suffers arising from the amended terms and conditions of this Agreement or the Buyer's failure to keep itself updated on the amendments to this Agreement, and the Buyer shall hold Mecan harmless and indemnify Mecan from any losses that the Buyer may suffer therefrom.
2SERVICES FOR BUYER
2.1.1Mecan provides an online transaction platform and ancillary services on the Platform which allow Members of the Platform to conduct Transactions.
2.1.2Unless otherwise provided in this Agreement, Mecan is not involved in the actual transaction between the Seller and Buyer.
2.1.3The Buyer and the Seller are independent business entities. Mecan is neither the agent nor representative of the Buyer or the Seller, and has no authority to act on behalf of either party.
2.1.4The Buyer acknowledges that the information and details of the Products are provided and posted by the Seller on the Platform. As such, Mecan does not guarantee the accuracy of the information or the quality, safety or authenticity of the Products.
2.1.5The Buyer agrees that Mecan shall have no liabilities and is not responsible for any risks of the Transactions. The Buyer is expected to read the Products listing, verify and evaluate the accuracy of the Products details and exercise its own assessment and judgment before proceeding with the Transaction on the Platform. Mecan makes no representations or warranties in relation to the Services and the Products.
2.1.6Mecan has the role of providing, operating and managing the Platform for the sole purpose of enabling a safe, efficient and reliable Transaction between the Sellers and the Buyers. In respect of communication relating to any problems or issues arising during the Transaction, the Buyer shall contact the Seller via the Platform directly.
2.1.7The following are the services ("Services") provided by Mecan under this Agreement:
(b)management of deliveries of Products through Logistics Provider and returns;
(c)processing the Buyer's payments, refunds and adjustments; and
(d)limited customer care services to be provided to the Buyer.
3USE OF PLATFORM
3.1.1In using the Platform, the Buyer shall maintain the confidentiality of the Buyer's account and password, and restrict unauthorised access to the Buyer's account. The Buyer agrees to accept responsibility for all activities that occur under the Buyer's account.
3.1.2While using the Platform, the Buyer undertakes that the Buyer will not:
(a)post inappropriate content on the Platform as more particularly described in Clause 5 (Contents and Intellectual Property Rights);
(b)violate any laws, third party's rights, or Mecan's policies;
(c)transfer the Buyer's account to another party without Mecan's consent;
(d)copy, modify, or distribute the contents from the Platform and Mecan's Intellectual Property Rights or involving any third party;
(e)collect information about the Members or third parties as may be available on the Platform, including but not limited to email addresses, without their consent; and/or
(f)use existing Member's accounts or create new Member accounts in order to circumvent or avoid, buying or selling limits, and other restrictions by Mecan.
3.2Requirements to be a Buyer
3.2.1The Buyer must register on the Platform to use the Platform and the Services. To complete the registration, the Buyer must submit the following to Mecan through the Platform:
(a)if the Buyer is an individual, a copy of the Buyer's personal identification documents, being the Buyer's Identity Card (MyKad) or passport and registration of business in accordance with the Registration of Businesses Act 1956;
(b)if the Buyer is a business or corporation, a copy of the necessary business licenses, registration or corporation documents as requested by Mecan;
(c)the Buyer's current and up-to-date contact information including but not limited to the Buyer's email address, mobile phone number, fixed landline number and residential or an office address (as the case may be);
(d)the Buyer's bank account information together with documents, as required by Mecan, evidencing that the bank account is owned by and in the name of the Buyer or the Buyer's company or business; and
(e)such other information or documents that Mecan deems necessary from time to time.
3.2.2Mecan may accept or reject the Buyer's application to be a Buyer at Mecan's sole and absolute discretion, which decision cannot be contested.
3.2.3The Buyer shall ensure that all the information provided to Mecan for registration purposes is true, accurate, not misleading and up to date and will immediately let Mecan know if there are any changes to the same. The Buyer shall indemnify and keep Mecan indemnified and hold Mecan harmless from any expense, loss or damage that Mecan may suffer arising from any inaccurate or false information provided by the Buyer or its Affiliates.
3.3.1Mecan reserves the right to refuse registration, suspend or cease provision of any Services, terminate accounts, remove or edit any contents on the Platform, or cancel Orders in its sole and absolute discretion.
3.3.2Without limiting other remedies, Mecan may limit, suspend, or terminate the Platform, its Services and Member's accounts, prohibit access to the Platform and its contents, delay or remove hosted contents and take technical and legal steps to keep the Buyer off the Platform if, based on Mecan's sole and absolute discretion, Mecan is of the view that the Buyer is or may be potentially creating problems or legal liabilities, exploiting or abusing the Platform, infringing the Intellectual Property Rights of Mecan and/or of third parties, in breach of any of the terms and conditions of this Agreement.
3.3.3Mecan may suspend or terminate the Buyer's account if the Buyer is a recurring infringer of the Intellectual Property Rights of Mecan and/or third parties.
3.3.4Mecan may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any Order. In such instance, the Buyer will be refunded with the payment that has been charged for an Order that Mecan has stopped or cancelled unless the Order is stopped or cancelled due to fault attributable to the Buyer.
3.3.5In the event the Buyer did not make any purchase of the Products or has been inactive for more than twelve (12) months, Mecan reserves the right to cancel or terminate the Buyer's account without notice to the Buyer.
3.3.6If there is any breach of this Agreement, Mecan reserves the right to impose such penalties as set out in Schedule 1 (Penalties).
3.4Limitation of Services or Platform
3.4.1The Buyer acknowledges that the availability of the Services and Platform is subject to:
(a)availability of resources (whether resources are under the control of Mecan or a third party) and availability of a suitable network infrastructure at the time at which the Services are requested or delivered;
(b)if applicable, geographic and technical capability of communication networks and other delivery systems at the time at which the Services are requested or delivered; and
(c)the Buyer meeting the technical requirements for accessing the Platform.
4PLACING OF ORDERS ON THE PLATFORM
4.1Seller's Right to Select Buyer
4.1.1The Seller is entitled to sell Products to any Buyers and/ or to Buyers selected by the Seller ("Mecan Plus Seller"). The Buyer shall check the Product page to determine whether the Product is for sale to Mecan Plus Seller only.
4.1.2If the Buyer intends to purchase Products which are indicated on the Product page for sale to Mecan Plus Sellers only, the Buyer shall submit its application to be an Mecan Plus Seller together with such information as may be required by the Seller. The Buyer will be notified of the application status not later than three (3) Business Days after the date of the application.
4.1.3The acceptance by the Seller of the Buyer's application to be a Mecan Plus Seller shall not be construed as an offer and/or acceptance for sale and purchase of Products or a Transaction.
4.2Placing of Orders
4.2.1All information on the Platform constitutes an invitation to treat and shall not be considered as a binding offer.
4.2.2The Buyer may make place an Order to purchase the Products from the Seller by completing the Order form on the Platform.
4.2.3It is the Buyer's responsibility to ensure the accuracy of the Order. The Buyer shall take note of the Product Price for the Products and any additional costs or fees including Delivery Fee and/or taxes (If applicable) stated in the descriptions on the Product page on the Platform.
4.2.4The Buyer shall also take note of the delivery period in respect of a Product specified on the Seller's Product page.
4.2.5The Buyer may submit any Enquiry via the Q&A section on the Seller's Product page for the Seller to respond to the same. All communications regarding the Transactions or potential Transactions with other Buyers or Sellers shall be made through the Platform.
4.2.6Mecan is entitled to impose limits on Order or transaction values, on the Buyer or on the Seller and will not be liable if Mecan does not proceed with an Order that would exceed said limit.
4.3Confirmation of Order and Payment for Order
4.3.1The Order will be confirmed by the Buyer upon receipt by Mecan of the full Transaction Amount from the Buyer.
4.3.2The Buyer shall pay the Transaction Amount through the Platform in accordance with Schedule 2 (Payment Terms).
4.4Delivery of Product
4.4.1The Buyer shall provide the address for delivery of the Products to the Seller via the Platform and shall ensure the accuracy of the same. The Buyer shall bear the risk for any Products wrongly delivered due to the incorrect delivery details provided by the Buyer.
4.4.2Where the address specified by the Buyer for delivery of the Product is the same address where the Logistics Provider stores the Product on behalf of the Seller, the Product is deemed to be delivered to the Buyer when:
(a)the correct quantity of Product is segregated from the other goods stored at the said address and packaged in accordance with the Seller Agreement; and
(b)the Buyer is notified in writing in accordance with this Agreement that the Product is ready to be collected by or on behalf of the Buyer.
4.4.3Once the Product is ready for delivery, the Platform system will be updated to show the delivery details for the Order, including the delivery company name, tracking number, bill of lading or airway bill or such other document as proof of delivery and such other particulars pertaining to the Order as necessary, on the Platform system and the Buyer will receive the notification of the same via the Platform system ("Notification of Ready for Delivery"). Thereafter, the status for the Order will be automatically changed from "Preparing for Delivery" to "Delivery in Progress".
4.4.4The Products will be delivered by or on behalf of the Seller to the Buyer or such address as may be provided by the Buyer within the applicable lead times for Order fulfilment as specified in the Seller Service Levels. The delivery service and other services relating to delivery may be provided by Mecan in association with third party service providers to the Seller.
4.4.5The Buyer may check the name of the Logistics Provider, the tracking number, the delivery status, bill of lading or airway bill or such other document as proof of delivery and such other particulars pertaining to the Order as necessary, on the Platform system.
4.4.6Upon delivery of the Products by the Logistics Provider to the Buyer:
(a)the Buyer shall sign on the confirmation of receipt of Products ("Confirmation of Receipt"); and
(b)the risk of loss or damage to the Products will be passed from the Seller to the Buyer; and
(c)subject to Paragraph 3.2.6(a) of Schedule 3 (Cancellation, Refund and Replacement), the legal ownership will be passed from the Seller to the Buyer.
5CONTENTS AND INTELLECTUAL PROPERTY RIGHTS
5.1Rights and Obligations
5.1.1When posting reviews, comments or feedbacks on the Platform, the Buyer must ensure that such postings:
(a)are not of any malicious intent;
(b)are accurate and not misleading;
(c)are not illegal, obscene or threatening;
(d)are not defamatory or libellous;
(e)are not invasive of privacy;
(f)do not include any personal data in contravention of the personal data protection laws of any jurisdiction;
(g)do not infringe the Intellectual Property Rights of Mecan and/or any third party;
(i)are not otherwise injurious or objectionable to Mecan or any third parties.
5.1.2The Buyer shall not use a false electronic mail address, impersonate any person, or otherwise mislead as to the origin of the reviews, comments or feedbacks uploaded by the Buyer.
5.1.3Mecan is not obliged to verify the accuracy and legality of the reviews, comments or feedbacks posted by the Buyer on the Platform.
5.1.4Mecan reserves the right to determine the use and placement of Contents, and the appearance, design, functionality and all other aspects of the Platform and the Services.
5.1.5Mecan shall retain all its right, title and interest in and to its technology and Intellectual Property Rights, with its other rights reserved.
5.1.6The Buyer will not be entitled to use any Intellectual Property Rights belonging to Mecan save as otherwise provided under this Agreement or without Mecan's prior approval in writing.
5.1.7Failure to comply with this Clause 5.1 shall entitle Mecan to impose any or all of the penalties as set out in Schedule 1 (Penalties).
5.1.8The Buyer shall indemnify and hold Mecan and its Affiliates harmless from all actions, claims or demands which may be instituted or made against the Buyer arising from violation of Mecan's Intellectual Property Rights.
5.2Removal of Contents by Mecan
5.2.1The Buyer is deemed to have granted Mecan a royalty-free, perpetual and irrevocable licence to use, modify, or publish any contents submitted by the Buyer to the Platform and to remove the same if it is inappropriate for public disclosure or likely to breach any laws and regulations.
5.2.2The Buyer agrees that Mecan shall have the right but not the obligation to monitor, screen and review any contents uploaded by the Buyer. Notwithstanding any monitoring, Mecan takes no responsibility and assumes no liability for any contents posted by the Buyer and reserves the right, but not the obligation, to remove the same from the Platform.
5.2.3The Buyer shall indemnify Mecan against all claims arising or resulting from the contents posted to the Platform by the Buyer.
6CANCELLATION, REFUND AND REPLACEMENT
Mecan and the Buyer shall comply with the cancellation, refund and replacement provisions as set out in Schedule 3 (Cancellation, Refund and Replacement).
7MANAGEMENT OF DISPUTES
7.1Mecan's Right to Settle Disputes
7.1.1The Buyer agrees that in the event where the Buyer is unable to resolve a dispute with a Seller then Mecan shall be entitled to negotiate a settlement on behalf of the Seller with the Buyer in relation to such disputes.
7.2Decision by Mecan Binding
7.2.1The Buyer agrees that:
(a)any decision made by Mecan shall be binding on the Buyer and the Seller; and
(b)the Buyer shall comply with any instructions given by Mecan, through the Customer Service Centre, pursuant to any decision or settlement.
7.3.1Notwithstanding Clauses 7.1 and 7.2, the Buyer acknowledges that Mecan is not a judicial or arbitration institution. Consequently, the Buyer shall not hold Mecan liable and shall waive any claim the Buyer may have against Mecan in respect of any decision relating to the dispute.
8BUYER'S UNDERTAKINGS AND COVENANTS
8.1.1By using the Platform and/ or Services, the Buyer undertakes, represents and warrants that it will:
(a)comply with all applicable laws, treaties, ordinances, codes and regulations;
(b)comply with all terms and conditions of this Agreement and the Policies;
(c)ensure that any information provided under this Agreement is up to date, accurate, and complete and is not misleading;
(d)ensure the accuracy of the Orders for Products by confirming the types and quantity of the Products ordered.
8.2.1The Buyer further undertakes, represents and warrants that it will not, directly or indirectly:
(a)infringe any Intellectual Property Rights belonging to Mecan or any third party;
(b)post or display any materials that exploits or otherwise exploits persons under the age of 18 years or display pornographic materials of any kind;
(c)exploit, misuse or manipulate the Platform to conduct any fraudulent, deceptive or dishonest activities;
(d)participate in any activities which will interfere with the proper functioning of the Platform or Mecan's operations and/or business;
(e)post or display any political or religious content;
(f)post or disclose any personally identifying information or private information about minors or any third parties without their consent or the parent's or guardian's consent;
(g)post any content that advocates, promotes, or otherwise encourages violence against any governments, organisations, groups or individuals or activities that leads to cruelty towards animal;
(h)conduct activities such as gambling, sweepstakes, raffles and lotteries or participate in any activities related to pyramid or Ponzi schemes, or any other illegal, immoral or antisocial activities;
(i)use, or access, input or upload on, the Platform, any material that is not directly connected with the Products, or permit the use of Buyer's account or offer "free space" on or other access to the account or the Platform to third parties;
(j)access content and information that concerns any party other than the Buyer, transmit unsolicited email, interfere with the proper working of the Platform;
(k)transmit any viruses, Trojan horses or other harmful code, or attempt to bypass any mechanism used to detect or prevent such activities;
(l)create liability for Mecan and its Affiliates, directors, officers, employees, contractors, agents and subcontractors or expose any of them to undue risk or otherwise engage in activities that Mecan, in its sole discretion, determines to be harmful to Mecan's goodwill, operations or reputation;
(m)open multiple accounts using other parties' names and details on the Platform without Mecan's prior approval; and/or
(n)use the Platform or the Services to violate the privacy of others or to "stalk" or otherwise harass another.
8.3.1The Buyer represents and warrants that all its representations, warranties and undertakings in this Agreement will be fulfilled and will remain true and correct at all times and will subsist for so long as necessary to give effect to each and every of them in accordance with this Agreement. In the event any of them becoming unfulfilled, incorrect or untrue, the Buyer will promptly inform Mecan of the same and rectify the breach.
9.1.1Subject to Clauses 9.2 and 9.3, the Buyer and Mecan will:
(a)treat as strictly confidential the Confidential Information belonging to each other;
(b)not copy, make use of or disclose to any person Confidential Information; and
(c)take all reasonable steps to prevent the copy, use or disclosure of any such Confidential Information.
9.2.1Mecan and the Buyer may disclose Confidential Information which would otherwise be confidential if and to the extent:
(a)reasonably required to give effect to the terms of this Agreement;
(b)required by law of any relevant jurisdiction;
(c)required by any securities exchange or regulatory or governmental body to which Mecan or the Buyer is subject or submits wherever situated whether or not the requirement for information has the force of law;
(d)disclosed on a confidential basis to the Affiliates, directors, officers, employees, professional advisers, contractors, agents or other representatives ("Representatives") of Mecan or the Buyer provided that such Representatives have agreed to be similarly bound by the confidentiality provisions contained in this Agreement;
(e)the information has come into the public domain through no fault of Mecan or the Buyer;
(f)required to enable Mecan or the Buyer to enforce their respective rights under this Agreement; or
(g)prior written approval has been given by the other party,
provided that any such information disclosed pursuant to Clause 9.2.1(a) or Clause 9.2.1(b) or Clause 9.2.1(c) will (unless otherwise required by law) be disclosed only after notice in writing to the other party to this Agreement.
9.3Confidentiality Survives Termination
The restrictions contained in this Clause will continue to apply after the termination of this Agreement.
10.1Compliance with Privacy Notice
10.1.1The Buyer shall comply with Mecan's Privacy Notice which can be accessed at www.mecan.trade/privacy-policy at all times.
10.2Indemnity for Personal Data Claims
10.2.1The Buyer agrees to indemnify and hold harmless Mecan and employees, directors and agents from, any and all damages, losses, liabilities, penalties, claims, demands, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, attorney's fees, experts' fees and other costs of litigation) ("Personal Data Claims"), to the extent such Personal Data Claims arise from or may be in any way attributable to:
(a)any violation of this Agreement or the Policy by the Buyer;
(b)the negligence, fraud or wilful misconduct of the Buyer, its Affiliates, officers, directors, employees, agents, contractors or its subcontractors (whether such subcontractors are approved by Mecan or not); or
(c)any security incident for which the Buyer is directly or indirectly responsible.
11.1Services Provided on "As Is" Basis
11.1.1The Platform and the Services are provided on an "as is" basis.
11.2No Mecan's Representations and Warranties
11.2.1Except as expressly provided for in this Agreement, Mecan makes no other representations or warranties of any kind, express or implied, including:
(a)the implied warranties of merchantability, fitness for a Product, particular purpose, title, and non-infringement;
(b)that the Platform or the Services will always be accessible, uninterrupted, timely, secure, or operate without error;
(c)that the information, Content, materials, or products included on the Platform will be as represented by Mecan, available for sale on a timely manner, lawful to sell, or that the Sellers will perform as promised;
(d)any implied warranty arising from course of dealing or usage of trade; and
(e)any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by Mecan.
11.3Exclusion of Liability
11.3.1The Buyer acknowledges that any information and any materials provided by or through the Platform and the Services may contain inaccuracies or errors and Mecan expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by the laws.
11.3.2Any link found on the Platform is provided for the Buyer's convenience to access to further information. It does not signify that Mecan endorses the contents thereof and Mecan has no responsibility and shall not be liable for the content of external links.
11.3.3As Mecan is not involved in transactions between the Sellers and Buyers, the Buyer shall release Mecan and its Affiliates, officers, directors, employees and agents from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected therewith, provided such release will not apply where actual claims, demands or damages arise due to Mecan's fraud, negligence or wilful misconduct.
11.3.4Any typographical clerical or other error or omission in any acceptance, invoice, Contents or other document on the part of Mecan will be subject to correction without any liability for Mecan.
11.3.5The Buyer acknowledges that any information provided by Mecan through the Platform, may contain inaccuracies or errors, despite Mecan's reasonable effort to minimise such errors. Mecan excludes liability for any such inaccuracies or errors to the fullest extent permitted by law.
11.4.1The Buyer will defend, indemnify and hold harmless, Mecan and its Affiliates, officers, directors, employees, agents, from and against any and all damages, losses, liabilities, obligations, penalties, fines, fees, claims, litigation, demands, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, attorney's fees, consultants' fees, experts' fees and other costs of litigation) arising out of, or related to:
(a)any actual or alleged breach of the Buyer's undertakings, representations, warranties, or obligations set forth in this Agreement or Policies;
(b)any incorrect, misleading, or erroneous information provided to Mecan or any third party in connection with the Services; or
(c)any non-compliance by the Buyer with any applicable laws or the Policies.
11.4.2If at any time Mecan reasonably determines that any indemnified claim might adversely affect Mecan, Mecan may take control of the defences at the expense of the Buyer. The Buyer may not consent to the entry of any judgment or enter into any settlement of a claim against Mecan without the prior consent by Mecan in writing.
11.4.3Mecan will not be held liable for any damages of any kind, including direct, indirect, incidental, punitive, and consequential, arising out of or in connection with this Agreement, the Seller Agreement, the Platform, the Services, the inability to use the Services, the Products, or from messages received or transactions entered into, provided that Mecan will indemnify the Buyer for any direct damages resulting primarily from Mecan's fraud, gross negligence or willful misconduct.
11.5Limitation of Mecan's Liability
11.5.1To the fullest extent permitted by the laws, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of Mecan and Mecan's Affiliates and their respective officers, directors, employees, agents and contractors, and any of them, to the Buyer and anyone claiming by or through the Buyer, for any and all claims, losses, costs, damages, or expenses resulting from or in any way related to this Agreement will not exceed US Dollar Two Thousand Five Hundred (USD2,500) (or such equivalent amount in local currencies of Malaysia). This limitation shall apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by the laws.
12.1Mecan's Right of Termination
12.1.1Mecan has the right to unilaterally and immediately terminate this Agreement upon the occurrence of any of the following:
(a)the Buyer breaches any provision of this Agreement and fails to remedy the same within fourteen (14) days from being so notified;
(b)the Buyer breaches any applicable laws or Mecan's Policies;
(c)the Buyer passes a winding up resolution or a court of competent jurisdiction makes an order for the same;
(d)the issuance of an administrative order in relation to the Buyer, or the appointment of a receiver over, or an encumbrance taking possession of, or the selling of any of, the Buyer's assets;
(e)the Buyer makes an arrangement or composition with its creditors generally or applies to a court of competent jurisdiction for protection from its creditors; or
(f)the Buyer ceases or threatens to cease to carry on business.
12.2The Buyer's Right of Termination
12.2.1If the Buyer is dissatisfied with the Platform and/or the Services or with any terms, conditions or policies of Mecan in operating the Platform and/or providing the Services, the Buyer's sole remedy is to discontinue using the Platform and/or the Services.
12.3Termination without Cause
12.3.1Mecan may unilaterally terminate this Agreement without cause by providing ninety (90) days' prior written notice to the Buyer.
12.4Consequence of Termination
12.4.1Upon termination of this Agreement, the Buyer will cease to have access to and use the Platform and/or the Services. Mecan reserves its right to claim for compensation or damages in the event the termination falls under Clause 12.1.1.
12.4.2Any such termination shall not affect the rights and obligations of the Buyer arising before the date of termination.
13GOVERNING LAW AND DISPUTE RESOLUTION
13.1.1This Agreement shall be governed by the laws of Malaysia.
13.2.1Any difference, controversy, or claim, arising between Mecan and the Buyer will be settled by arbitration, in English, in Kuala Lumpur, and in accordance with the rules of the Asian International Arbitration Centre ("AIAC"). Furthermore, the arbitral tribunal will consist of a sole arbitrator, to be designated by the Chairman of the AIAC. Any award by the arbitration tribunal will be final and binding upon Mecan and the Buyer.
13.2.2The arbitrator will award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by such party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.
13.2.3Notwithstanding Clause 13.2.1, in the event either party believes that it may suffer irreparable harm prior to the resolution of any conflict by following the arbitration procedures established in this Agreement, such party may apply to a court of competent jurisdiction for a restraining order or other equitable relief in order to prevent or alleviate such harm pending the arbitration. The parties agree that this paragraph will not operate as a request that the court abstains from accepting jurisdiction or from granting appropriate orders which the court may deem necessary or appropriate to protect the interests of the parties.
14.1.1Any notice between Mecan and the Buyer under this Agreement shall be given in writing by personal delivery, prepaid registered post or electronic mail to the address and electronic mail address of the parties stated on the Platform.
14.1.2Any notices shall be deemed to have been served:
(a)if delivered personally, when left at the addresses referred to in Clause 14.1.1;
(b)if posted within Malaysia to a Malaysian address, three (3) Business Days after posting and in any other case, seven (7) Business Days after posting; and
(c)if email transmission, when electronic confirmation of receipt is received by the sender.
14.1.3In proving service of notices, it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed, and duly stamped and posted or that the electronic mail has been sent to the correct electronic mail address.
14.2.1If a provision in this Agreement is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this Agreement.
14.3.1The Buyer cannot assign, transfer or subcontract all or part of its rights and/or obligations deriving from this Agreement, without the prior written consent of Mecan. Mecan may assign, transfer or subcontract all or part of its rights and/or obligations deriving from this Agreement.
14.4Relationship Between the Parties
14.4.1The Buyer and Mecan are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise or sales representative relationship between the parties. This Agreement will not cause the establishment of any relationship of employment between the parties or with any person who provides services to either party. The Buyer will have no authority to make or accept any offers or representations on behalf of Mecan.
14.4.2This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Mecan and the Buyer.
14.4.3Notwithstanding any other provision in this Agreement to the contrary, nothing contained herein will oblige Mecan or the Buyer to engage in any action or omission to act which would be prohibited by or penalised under the laws or of any other country.
14.5.1No party will be liable to the other or be deemed to be in breach of this Agreement by reason of any delay or failure to perform any of its obligations due to an event of Force Majeure. Upon the occurrence of any event of Force Majeure, Mecan may, at its option, fully or partially suspend delivery/performance of its obligations under this Agreement while such event or circumstance continues. If any of the events of Force Majeure will continue for a period exceeding three (3) months, Mecan may notify the Buyer that it will terminate this Agreement.
14.6.1All stamp duty and registration fees (if any) in respect of this Agreement will be fully borne and paid by the Buyer.
15INTERPRETATION AND DEFINITIONS
In this Agreement, unless the context requires otherwise:
15.1.1Any reference to:
(a)a person includes an individual, firm, partnership, joint venture, unincorporated association, proprietorship, corporation or other body corporate;
(b)a person includes the legal personal representatives, successors and permitted assigns of that person;
(c)a statute includes rules, regulations and any other subordinate legislation under it and consolidations, amendments, re-enactments or replacements of any of them;
(d)this Agreement and any other document or instrument referred to in this Agreement includes this Agreement and any such other document or instrument as amended, supplemented, modified or novated from time to time;
(e)a "Recital", "Clause", "Schedule", "Appendix" or "Annexure" is a reference to a recital and clause of, and schedule, appendix or annexure to, this Agreement, all of which form an integral part of this Agreement;
(f)a "Paragraph" is a reference to a paragraph of the Clause or Schedule in which such reference appears;
(g)writing includes all modes of representing or reproducing words in a legible, permanent and visible form;
(h)the singular includes the plural and vice versa;
(i)a gender includes all genders;
(j)a date or time of day is a reference to Malaysian date or time; and
(k)any Malaysian legal term shall, in respect of any jurisdiction other than Malaysia, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction.
15.1.2Headings and sub-headings are inserted for ease of reference only and do not affect the interpretation of this Agreement.
15.1.3Any thing or obligation to be done under this Agreement which requires or falls to be done on a stipulated day, shall be done on the next succeeding Business Day, if the day upon which that thing or obligation is required or falls to be done falls on a day which is not a Business Day.
15.1.4Where an act is required to be done within a specified number of days after or from a specified date, the period is exclusive of the date so specified and if any period of time falls on a day which is not a Business Day, then that period is to be deemed to only expire on the next Business Day.
15.1.5Unless a contrary indication appears, a reference in this Agreement to "including" shall not be construed restrictively but shall mean "including without prejudice to the generality of the foregoing" and "including, but without limitation".
15.1.6No rule of construction applies to the disadvantage of a party because the party is responsible for the preparation of this Agreement or any part of it.
15.2.1In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meaning:
with respect to any party, any entity directly or indirectly controlled by, or controlling, the said party or any subsidiary of the aforesaid;
a day on which the banks are open for business in Kuala Lumpur, Malaysia and excludes weekends or public holidays;
a Member, who purchases the Products through the Platform, subject to the terms and conditions of this Agreement;
any information proprietary to a party to this Agreement or an Affiliate thereof, that is disclosed to the other party to this Agreement or an Affiliate thereof, whether marked as confidential or not, that should be considered confidential information under the circumstances;
Product information, text, images, and any other relevant and/or legally required information in relation to the listing of Products on the Platform, including third parties' and the Seller's Intellectual Property Rights related materials;
"Customer Service Centre"
Mecan's customer service department;
the charges for delivery of the Products to the address as specified by the Buyer at the time of purchase on the Platform, borne by the Buyer;
an enquiry made by a Buyer or potential Buyer in respect of a particular Product, which is submitted via the Q&A section on the Platform;
any event or cause beyond a party's reasonable control such as, but not limited to:
(a)act of God, explosion, flood, tempest, fire or accident;
(b)war or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terrorism or civil unrest;
(c)Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d)import or export regulations or embargoes;
(e)interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Mecan or of a third party); and
(f)health epidemics declared by the World Health Organisation;
a Buyer whose principal place of business for the purchase of the Products is outside Malaysia;
"Intellectual Property Rights"
all intellectual property rights howsoever arising and in whatever media, whether or not registered, including (without limitation) copyright, confidential information, trade secrets, goodwill, patents, trade marks/ service marks, trade names, registered designs and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
the logistics provider approved by Mecan and appointed by the Seller for the delivery of the Products;
Mecan App Sdn Bhd (Company No.: 962465-W), a company incorporated under the laws of Malaysia having its registered office at 6-1, Tower 2B, UOA Business Park 40150 Shah Alam, Selangor, Malaysia.
member of the Platform, registered either as a Seller or a Buyer, who has agreed to be bound by the Seller Agreement or this Agreement, respectively and who is entitled to use the Platform to sell and/or purchase Products to other Members via the Platform;
a request placed by a Buyer on the Platform for the purchase of any Product in accordance with this Agreement;
the online market place owned and operated by Mecan, and known as "www.mecan.trade", being an e-commerce platform that enables Transactions between registered Members, having its domain at www.mecan.trade;
shall collectively refer to:
(b)all other policies posted on the Platform from time to time;
Mecan's policy relating to the processing, collection, use, disclosure and management of personal data on or through the Platform;
Seller's products and/or services listed for sale on the Platform;
the selling price at which a Product is offered for sale on the Platform, which shall include all applicable taxes under the relevant laws;
a Member who sells the Products through the Platform, subject to the terms and conditions as contained in this Agreement. The word "Seller" whenever used in this Agreement, depending on the context in which it occurs, refers to one or more of the following:
(b)local business seller (with business / company registration); or
(c)global seller member (with business / company registration);
the terms and conditions which a Seller agrees or deemed to have agreed to in order to use the Platform to sell the Products;
the final amount due to the Seller for each Successful Transaction;
"Seller Service Levels"
the minimum levels of service required by the Seller in the performance of the Seller's obligations as a Seller on the Platform, as more particularly specified and accessible at [ ]
has the meaning as set out in Clause 2.1.7;
a sale and purchase transaction of the Products between a Buyer and a Seller which is conducted online via the Platform; and
the gross payment received from the Buyers by Mecan for the purchase of Products on the Platform, being the Product Price plus the Delivery Fee.
1.Cancellation of Transaction.
2.Suspension or termination of membership.
3.Cancellation or forfeiture of any benefits which may be provided to the Buyer;
4.Imposition of financial penalties in such amounts as may be provided for under this Agreement.
5.Claims for damages or loss caused by breach or non-compliance.
6.Issuance of warning letters by Mecan.
1.The Buyer may make payments for the Products via the following methods:
(c)online banking or internet bank transfer; or
(d)Automated Teller Machine (ATM).
2.Mecan shall not be held responsible for any losses which may arise from payments made by the Buyer through a method which is not stated in this Agreement. Mecan reserves the right at any time to modify or discontinue, temporarily or permanently, any payment method without providing notice to the Buyer.
3.If the Buyer fails to make payment for the Transaction pursuant to the terms and conditions of the payment method elected or payment is cancelled for any reason whatsoever, then without prejudice to any other right or remedy available to Mecan, Mecan shall be entitled to cancel the Transaction.
CANCELLATION, REFUND AND REPLACEMENT
1.1.Cancellation by Seller
(a)Mecan (if the Seller's Amount for the cancelled Order or Transaction has not been paid to the Seller); or
(b)the Seller (if the Seller's Amount for the cancelled Order or Transaction has been paid to the Seller),
to the Buyer within three (3) Business Days of such cancellation. For the avoidance of doubt, it shall be the Seller's obligation and liability at all times to refund the Transaction Amount to the Buyer in the event of cancellation pursuant to this Paragraph 1.1.1.
1.2.Cancellation by Mecan
1.2.1Mecan shall have the discretion to cancel the Transaction at any time where it deems it necessary, if:
(a)the Transaction is prohibited by law;
(b)the Transaction will breach the terms and conditions of this Agreement;
(c)the cancellation is to protect the interests of the Buyer, Seller and/or any relevant third party; or
(d)there are any electronic, operational, server, system or technical error.
The Buyer and the Seller will be notified of the cancellation above in writing. The Transaction Amount will be refunded by the Seller to the Buyer after deducting the administrative fees, processing fees and banking charges.
1.2.3Where the Products are to be delivered from the Seller or the Seller's storage point to the address for delivery specified by the Buyer which are within the same country, in the event any Product is not delivered in full after ten (10) Business Days from the date "Order Confirmed", Mecan may cancel the Order or Transaction and notify the Seller and Buyer in writing of such cancellation.
Where the Products are to be delivered from the Seller or the Seller's storage point to the address for delivery specified by the Buyer which are not within the same country, in the event any Product is not delivered in full after twenty (20) Business Days from the date "Order Confirmed", Mecan may cancel the Order or Transaction and notify the Seller and Buyer in writing of such cancellation.
1.2.4Paragraph 1.2.3 shall not apply to Products which the Seller has expressly stated on the Product page that such Product is subject to pre-orders, pre-determined delivery dates or any other exceptions which are approved by Mecan in writing. In order for the Seller to rely on this Paragraph, the Seller shall ensure that the timelines for delivery are clearly stated in the description of the Product page to enable the Buyers make an informed decision.
1.2.5In the event of cancellation pursuant to Paragraph 1.2.3,
(a)Mecan (if the Seller's Amount for the cancelled Order or Transaction has not been paid to the Seller); or
(b)the Seller (if the Seller's Amount for the cancelled Order or Transaction has been paid to the Seller),
as the case may be, shall refund the Transaction Amount in full to the Buyer within five (5) Business Days of such cancellation. For the avoidance of doubt, it shall be the Seller's obligation and liability at all times to refund the Transaction Amount to the Buyer in the event of cancellation pursuant to Paragraph 1.2.3.
1.3Cancellation by Buyer
1.3.1After Order Confirmed
Once the Order has been confirmed in accordance with Clause 4.3.1, any cancellation will require the Seller's approval, subject always to the terms of this Agreement.
1.3.2Cancellation Not Allowed After Delivery
Once a Product has been sent out to the Buyer, the status for the Order on the Platform shall be changed to "Delivery in Progress". The Order cannot be cancelled from this point onwards.
1.3.3Upon the Seller's approval for the Buyer's request to cancel under Paragraph 1.3.1 has been obtained, the refund will be credited to the Buyer not later than ten (10) Business Days from the date of the Seller's approval for the cancellation.
2.EXCHANGES, RETURNS AND REFUNDS
2.1.Defective Products or Products Do Not Conform to Written Descriptions
2.1.1In the event the Buyer rejects the Product on the grounds that the Product is faulty, defective or damaged, or the Product delivered does not conform to the written specification or descriptions as stated on the Seller's Product page, the Buyer must notify the Seller via the Platform within seven (7) days from the receipt of the Product ("Rejection Period"). Any request submitted via electronic mail, letter or phone conversation will not be entertained.
2.1.2Upon the Buyer's notification in accordance with Paragraph 2.1.1, the Seller shall:
(a)investigate the Buyer's complaint;
(b)determine whether the Buyer's complaint is justifiable or has merits; and
(c)if the Buyer's complaint is justified or with merits,
(i)be entitled, at the Seller's sole and absolute discretion, determine whether the Buyer will receive a refund or replacement for the Product; and
(ii)refund or replace the Product,
within fourteen (14) days commencing on the day immediately after the Rejection Period. The Seller may request from the Buyer, the proof of defective, faulty or damaged products or products not conforming to written descriptions for purposes of processing the Buyer's complaint. Where the Buyer is unable or refuse to provide the evidence to support its rejection of the Product, Mecan and/or the Seller shall have the discretion to reject the Buyer's request.
2.1.3In the event the Product is found to be defective, faulty or damaged due to no fault of the Buyer, the Seller shall be responsible for all costs associated with the return and refund or replacement. The Buyer will be required to provide receipt or evidence of the costs involved.
2.1.4If the Seller determines that the Product is defective, faulty or damaged and that such defect, fault or damage is attributed to mishandling of the Product by the Buyer, the Seller will not be liable to accept / replace the returned Product. In such instance, if the Buyer has returned the Product to the Seller, the Buyer shall be responsible for all costs associated with the return of the Product to the Seller and back to the Buyer.
2.3Non-returnable or exchangeable Products
2.3.1The Buyer is not allowed to return or exchange the following Product(s), unless such Product(s) is defective, had expired or wrongly delivered:
(a)Product(s) delivered from outside Malaysia;
(b)gadgets and electronics;
(c)lingerie and underwear;
(d)food items, fast moving consumer goods;
(f)hosiery, shapewears and bodyshapers;
(h)beauty and skincare products;
(j)customised products; or
(k)ticket, hotel reservations and vouchers, airline tickets, concert tickets or Product(s) of similar nature or descriptions.
3.1.1Non-compliance with the provisions of this Schedule shall entitle Mecan to impose on the Buyer any and all of the penalties as set out in Schedule 1 (Penalties) as Mecan shall determine at its discretion.
3.1.2Mecan shall not be responsible for any risk or be liable for any claims, demands, expenses, losses, cost or damages in connection with the return of any Products by the Buyer.
3.2Procedures for Return, Refund and Exchange
3.2.1Upon the Seller's approval of the Buyer's request in accordance with Paragraph 2.1.2, the Buyer shall within five (5) Business Days arrange for the return of the Products. The Seller and/or Mecan shall have no legal obligation to entertain any request where the Buyer fails to return the Product.
3.2.2The Buyer shall ensure that the returning Products are:
(a)in its original purchase condition when it was delivered and remain unmarked, unused and undefaced in any manner, together with its complimentary items such as accessories (if any);
(b)returned together with tags intact as the Buyer originally received; and
(c)returned together with proof of purchase (original tax invoice and official receipt).
3.2.3The Buyer shall bear the shipping fee for the return of the Product to the Seller unless such return falls under Paragraph 2.1.3 above. The Buyer shall be responsible for the risk of loss or damage to the Products in the course of delivery of the Products back to the Seller.
3.2.4Within fourteen (14) Business Days upon the Seller's approval for the Buyer's request for a refund or replacement under Paragraph 2.1.2 above has been obtained and the Seller has confirmed receiving the returned Product which fulfilled the requirements set out in Paragraph 3.2.4:
(a)the refund will be credited to the Buyer; or
(b)the Seller will arrange for the replacement Product to be delivered to the Buyer,
and the legal ownership of the returned Product will be passed to the Seller.
3.2.5If the Buyer is a Foreign Buyer, the refund for an Order may be less than the original Transaction Amount due to the deduction of the financial charges (if any) and/or the foreign exchanges conversion.
3.2.6The Buyer's sole remedy in the event of cancellation of the Transaction will be to receive a refund of the payment, subject to deduction as set out in Paragraph 3.2.7. The Buyer shall not have the right to insist on the completion of the Transaction or be entitled to any other compensation.
3.2.7All refunds to the Buyer under this Agreement will be made via the same mode of payment at the time of purchase as set out in Paragraph 1 of Schedule 2 (Payment Terms). Mecan reserves the right to modify the mechanism of processing refunds at any time without prior notice.
3.2.8Mecan shall not be responsible for any risk or be liable for any claims, demands, expenses, losses, cost or damages in connection with the return of any Products.