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1.       INTRODUCTION

1.1     The following terms & conditions (“Terms of Sale”) will apply to any purchase you make from SCommerce Trading Malaysia Sdn. Bhd. and its affiliates and subsidiaries (individually and collectively "SCommerce", "we", "us" or “our”) of products (“SCommerce Products”) on “S-Mart” and “E-Mart” in the Platform.  If you purchase any SCommerce Product, you will be deemed to have consented to the terms and conditions described in these Terms of Sale, as well as any other terms and conditions set out in any SCommerce Products listing, whenever you make a purchase from SCommerce on the Platform. 

1.2     These Terms of Sale supplement the Terms of Service and the other Shopee Policies, of which these Terms of Sale form a part – please read the Terms of Service and the other Privacy Policy available on the Site as they contain important information regarding your rights and obligations.  Any terms that are used in these Terms of Sale that are not defined here will have the meanings given to such terms in the Terms of Service and/or the applicable Shopee Policy. 

1.3     All terms and conditions described in these Terms of Sale are subject to change at SCommerce’s discretion pursuant to the Terms of Service and these Terms of Sale.  

2.       YOUR STATUS

2.1     By purchasing any SCommerce Product, you warrant to us that:

(i)    you are purchasing such SCommerce Product for your personal consumption and not for

       business or commercial purposes (including for sale or resale);

(ii)   you are at least eighteen (18) years old; and

(iii)  you are legally capable of entering into binding contracts.

3.       PLACING AN ORDER

3.1     When you place an order to purchase SCommerce Products, your order is deemed an offer to purchase products from us. We have absolute discretion to reject your order without any reason. Your order is accepted when we inform you that we have accepted your order.  Each order accepted by us shall constitute a separate contract.

3.2     SCommerce Products purchased online may not be in stock even after order confirmation. If we are unable to fulfill your order, we will contact you to offer an alternative SCommerce Product or a refund.

3.3     You cannot cancel your order once we accept your order. We reserve the right to cancel any order and refund you the price of any SCommerce Product/s for which you have paid without interest (in lieu of delivery or supply of such product/s), even after we have sent you an email informing that your order has been accepted and payment has been received by us.

4.       PRICE

4.1     The price of any SCommerce Product is (except in cases of error) as displayed in our store on the Platform (“Store”). 

4.2     If we discover an error in the price of a SCommerce Product you have ordered, we will inform you as soon as possible and give you the option of proceeding with your order at the correct price or cancelling it.  If we are unable to contact you, your order will be treated as cancelled, and (if payment has been received by us) you will be refunded accordingly.

4.3     All prices are stated in Ringgit Malaysia and inclusive of Sales and Service Tax (SST).

5.       NO WARRANTIES

5.1     All SCommerce Products and data or information on our Store are offered or provided on an "as-is" and "as-available" basis. We do not warrant that the availability, description, images and prices of the SCommerce Products stated on our Store are accurate and complete. We will not be liable in any way for inaccuracy and incompleteness in relation to the availability, description, images and prices of SCommerce Products or any data or information on our Store.

6.       RISK

6.1     Risk of damage to, or loss of, the SCommerce Products shall pass to you at the time of delivery.

6.2     Notwithstanding delivery and the passing of risk in the SCommerce Products or any other provision of these Terms of Sale, title to the SCommerce Products shall not pass to you until SCommerce has received in cash or cleared funds payment in full of the price of the SCommerce Products.

7.       RETURNS AND EXCHANGES

7.1     Refunds and returns shall be subject to the Shopee Mall Terms of Service.

8.       LIABILITY

8.1     We exclude all representations, warranties, conditions and terms (whether express or implied by statute, common law or otherwise) to the fullest extent permitted by law, including that the quality of SCommerce Products will meet your needs or expectations after any form of misuse, abuse, normal wear and tear, product mishandling, misguided usage and/or deviation from printed instructions. We will not be liable for damages which are not reasonably foreseeable arising out of or in connection with your order of SCommerce Products through our Store.

8.2     Where the manufacturer or distributor of SCommerce Products has issued a warranty in respect of such SCommerce Products, you hereby agree to look solely to such manufacturer or distributor for any claims related to such warranties, and to indemnify, defend and hold us, and our officers, directors, employees, agents and suppliers, harmless against such claims.

8.3     Except to the extent required by any applicable law, we will not be liable to any person for any loss or damage which may arise from the use of or reliance on any content or information displayed on our Store.

8.4     We will not be liable to you or any party for any damages, losses, expenses or costs whatsoever (including without limitation, any death, injury, direct, indirect, special, exemplary, incidental or consequential damages, or economic loss or loss opportunity) arising out of or in connection with your order and/or purchase of SCommerce Products, or reliance on any information, materials or online services provided at our Store, regardless of the form of action and even if we had been advised as to the possibility of such damages. This exclusion clause shall take effect to the fullest extent permitted by law.

8.5     For the avoidance of doubt, we shall in no event be liable for any death, injury, direct, indirect, special, exemplary, incidental, consequential, or other indirect damages or costs of any kind suffered or incurred by you arising from or in connection with:

(i)       any access, use or the inability to access or use our Store, or reliance on the Materials and/or any information contained in our Store;

(ii)      any mishandling and/or abuse of any SCommerce Product by you or other persons;

(iii)     use of any SCommerce Product by you or other persons in any manner, whether foreseeable or otherwise, and you expressly assume all risks associated with usage and storage of all SCommerce Product upon delivery;

(iv)     any delay in delivery or cancellation of order or refund;      

(v)      any system, server or connection failure, error, omission, interruption, delay in transmission, or computer virus;

(vi)     any use of or access to any other website linked to our Store, even if we or our agents or employees are advised of the possibility of such damages, losses and/or expenses. Any hyperlinks to any other websites are not an endorsement of such websites and such websites should only be used or accessed at the site your own risk. In no circumstances will we be considered to be associated or affiliated in whatever manner with any trade or service marks, logos, insignia or other devices used or appearing on the websites to which our Store are linked; or

(vii)    any exercise of rights by us under these Terms of Sale, the Terms of Service, any Policy and any other rights provided by law.

8.6     In any event, and notwithstanding anything contained in these terms & conditions, our maximum aggregate liability in contract, tort (including negligence or breach of the statutory duty) or otherwise arising out of or in connection with your order and/or purchase of SCommerce Products shall be limited to the price of the SCommerce Products ordered and/or purchased from our Store.

8.7     Notwithstanding the foregoing, nothing in these Terms of Sale (a) excludes, restricts or modifies any condition, warranty, right or liability implied into these terms and conditions (including any condition, warranty, right or liability imposed by the Unfair Contracts Terms Act (Cap. 396)) where to do so is illegal or would render any provision hereof void; or (b) shall limit or exclude any liability for death or personal injury caused by our negligence. 

9.       INTELLECTUAL PROPERTY

9.1     All content included in or made available through our Store, including but not limited to information, communications, software, graphics, images, videos and sounds (the "Materials"), including all copyright and any other proprietary rights, are property of SCommerce, its content providers and/or third party licensors. All rights are reserved.

9.2     The Materials may not be reproduced, modified, transferred, distributed, republished, downloaded, posted or transmitted in any form or by any means including but not limited to electronic, mechanical photocopying or recording without our prior written consent. You also may not, without our prior written consent, insert any hyperlink to our Store on any other website or "mirror" any Materials on any other server or website. Without prejudice to the foregoing, you agree that the Materials contained within or available through our Store may not be used for commercial purposes or distributed commercially.

9.3     The trademarks, service marks, trade names and logos ("Trade Marks") used or appearing on our Store are property of SCommerce, its affiliates or third party licensors. You may not, without our prior written consent, use any Trade Marks as a hyperlink to our Store or any other website.

10.     LINKS

10.1   From time to time, our Store may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse these other websites. We have no responsibility for the content of these other websites. We make no representations or warranties that these other websites do not infringe the intellectual property rights of any person. We are not authorizing the reproduction of material found on these other websites.

11.     DATA PROTECTION

11.1   Any personal data you transmit to us will be collected, used and/or disclosed in accordance with our Privacy Policy.

12.     INDEMNITY

12.1   You agree fully to indemnify, defend and hold us, and our officers, directors, employees, agents and suppliers, harmless immediately on demand from and against all claims, liability, damages, losses, costs and expenses, including legal fees, arising out of any (i) breach of these Terms of Sale, (ii) any liabilities arising out of the use of our Store, and (iii) any violation of any law or the rights of a third party, including intellectual property infringement pertaining to any content which you post or transmit on or via our Store, by you or by any other person accessing our Store using your account and/or your personal information.

13.     GENERAL TERMS

13.1   Any delay or failure to insist upon strict performance of any provisions hereof shall not be deemed a waiver of our rights and remedies. The invalidity of any provision of these terms & conditions shall not adversely affect the validity or enforceability of the remaining provisions.

13.2   These Terms of Sale supersede all prior representations, understandings and agreements (if any) between us.

13.3   Any term or condition, or any part thereof, which is declared or adjudged to be illegal, invalid, prohibited or unenforceable under any applicable law in any jurisdiction shall be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating, vitiating or rendering unenforceable, the remaining terms or conditions of these Terms of Sale, and any such illegality, invalidity, prohibition or unenforceability in any jurisdiction shall not invalidate, vitiate or render unenforceable any such conditions in any other jurisdiction.

13.4   We shall not be liable to you for loss or damage resulting from delay or failure to perform our obligations under these Terms of Sale, either in whole or in part, when the same is due to causes beyond our reasonable control, including but not limited to civil war, insurrections, strikes, riots, fires, floods, explosions, earthquakes, serious accidents or any acts of God, government regulations, epidemics, quarantine or labour trouble resulting in cessation, slowdown or interruption of work. In the event of the same, our obligations herein shall be extended for the periods of such circumstances only so far as they affect the performance of our obligations under these Terms of Sale. 

13.5   These Terms of Sale and any rights, obligations and licenses granted therein may not be assigned or transferred by you, but may be assigned or transferred by us without restriction.

13.6   Clauses 2 (Your Status), 3 (Placing an Order), 5 (No Warranties), 8 (Liability), 9 (Intellectual Property), 10 (Links), 11 (Data Protection), 12 (Indemnity), and 13 (General Terms) shall survive any expiration or termination of these Terms of Service.

13.7   A person who is not a party to any agreement governed by these terms and conditions has no right under the Contracts (Rights of Third Parties) Act (Chapter 53B) to enforce any of the terms of such agreement.

13.8   These Terms of Sale shall be governed by and construed under the laws of Singapore. You agree to submit to the exclusive jurisdiction of the courts of Singapore in relation to and/or in connection with these Terms of Sale.

Last Updated: 19 December 2018