1.1. For the purpose of these Terms, the terms defined in this Clause, and elsewhere in these Terms, will have the following meanings:
(a) “Buyer” means a registered User which transacts on the Website by using his/her Points in exchange for Items;
(b) “Items” means the goods and/or services offered by the Sellers on the Website;
(c) “Points” means the points of credit received by registered Users in exchange for
pledging their goods and/or service on the Website;
(d) “Qu” or “we” or “us” mean MSME New Media Sdn Bhd (Company No: 11264120-U);
(e) “Seller” means a registered User which transacts on the Website by selling his/her Items to a Buyer;
(f) “Services” means e-commerce business activities including but not limited to providing an online platform which facilitates barter trade between users, or such other services as Qu may introduce from time to time;
(h) “User” means any person which uses the Website;
(i) “User Content” means any content posted to, or sent on, the Website by Users; and
(j) “Website” means [Please insert website] or the Qu mobile application.
2.1 If there is any inconsistency between the provisions of these Terms and any agreement subsequently entered into between you and Qu, the agreement shall prevail.
2.2 In these Terms, any reference to any legal entity or individual person includes, where appropriate, a reference to its authorised agents, delegates, successors or nominees. Expressions in the singular form include the plural and vice versa.
2.3 No rule of law (or interpretation to the effect) that an ambiguity in a document is to be construed against the party drafting or preparing such document shall apply in respect of these Terms.
2.4 Any reference to any law, statute or regulation or enactment shall include references to any statutory modification or re-enactment thereof, or to any regulation or order made under such law, statute or enactment (or under such a modification or re-enactment).
2.5 The headings used in these Terms are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in, interpreting these Terms.
3. SERVICES PROVIDED
3.1 These Terms set out the terms and conditions under which Qu will provide the Services to you on the Website. You agree that Qu shall have sole and absolute discretion to determine whether the Services are to be provided by Qu, and Qu may refuse to provide any Services without giving any reason or without incurring any liability to you as a result.
3.2 The Website is provided to you for your use subject to these Terms, the Terms and Conditions, or other relevant policies. By using the Website, you agree to be bound by these Terms. You are also responsible for ensuring that all persons who access the Website through your Internet connection or account are aware of these Terms and other applicable terms and conditions, and that they comply with them.
4.1 You understand, acknowledge and agree that we are not a seller of the items listed on the Website; that we are not an advertiser of any of the items listed on this Website; and that we are not a party to the transactions between Users on the Website. The Website only provides a platform for Users to privately transact for Items, and:
(a) we are not involved in the actual transaction or transfer of Items between Users;
(b) we make no representation as to the quality, safety, morality or legality of any aspect of the Items listed;
(c) we make no representation as to the truth or accuracy of the listings, the ability of Sellers to sell Items or the ability of Buyers to pay for Items;
(d) we are not a bank or any other kind or form of financial institution and all Points credited to your account are not actual cash deposits, do not earn interest, and are only account entries that entitle you to the amount of the credited Points if you use them in accordance with these Terms;
(e) we make no representation as to the accuracy of other Users’ details; and
(f) we make no representation that Users will complete the transfer of the Item or deliver the Item to the Buyer; or that a User has truthfully and accurately described an Item posted on the Website; or that the transfer of an Item complies with applicable legal requirements for the transaction.
4.2 You understand, acknowledge and agree that Qu does not and will not assume any advisory, fiduciary or similar other duties. You understand, acknowledge and agree that you have taken, or will take, the necessary independent legal or other advice before Qu provides Services to you and before you transact with any User.
5. PERSONAL DATA PROTECTION
You agree that Qu may collect, store, process, disclose, access, review and/or use personal data (including sensitive personal data) about you, whether obtained from you or from other sources in accordance with the Personal Data Protection Act 2010 for purposes of rendering the Services and in connection with the operation of the Website. You further acknowledge and agree to the Privacy Notice as displayed on the Website.
6. USE OF SERVICE
6.1 Only registered Users may pledge their Items in exchange for Points. All Points may be used in exchange for Items from other Users on the Website.
6.2 Points will be credited to your account upon completing the pledging process as set out on the Website. Specifically, one (1) Qu Point will be granted for every one Ringgit Malaysia (RM 1) worth of Items pledged on the Site.
6.3 In consideration of the Points granted in Clause 6.2, the User agrees, covenants and undertakes that upon the receipt of a request from Buyers with adequate Points for the User’s Items, the User shall take all necessary steps to promptly deliver or procure the delivery of the Items to the Buyer.
6.4 Points will be deducted from your account whenever you have completed a transaction for Items. The amount of Points deducted shall be reflective of the consideration of the transaction. Users are still able to transact with the balance Points in accordance to these Terms.
6.5 Qu will maintain a record of the Points credited to and debited from your account and allow you to check the status of your account online by logging in and checking the Qu Statement. Although Qu makes every effort to ensure that accounts are credited correctly, it is your responsibility to verify that your Points have been credited properly. If you feel the Points credited to your account are incorrect, you must contact Qu via email within 14 days following the alleged error and explain in full the basis of your dispute, attaching any relevant information which offers evidence of the discrepancy. Upon receipt of your notice, we will investigate your claim and notify you of our decision to adjust or maintain the amount of Points credited to your account, as we deem appropriate, within thirty (30) days. If we need additional time to decide your claim, we will notify you and will endeavor to render a decision as soon as reasonably practicable. Any decision by
us with regard to such a claim will be final.
6.6 Points have no cash value, and may not be assigned, transferred and/or pledged to any third party.
7.1 In consideration for the User pledging its Items, Qu shall provide the User with Qu Points of commensurate value in accordance with Clause 6.2.
7.2 The User represents and warrants to Qu that the Items pledged, where applicable, are:
(a) valid and that the User is the legal and beneficial owner of the Items;
(b) readily saleable and are valued at the fair market value of the Items; and
(c) free from any lien, security interests, charges or encumbrances.
7.3 The Items pledged pursuant to these Terms shall be continuing security for the provision of these Items upon demand of a sale subsequently by a Buyer to the User.
7.4 The User agrees that it shall have the responsibility to ensure that the Items are adequately insured against any loss and/or damage.
7.5 Upon the occurrence of any of the following events, each of which shall constitute a default (“Event of Default”):
(a) failure of the User to respond to a request to purchase an Item initiated by a Buyer, as set out in Clause 6.3 within 3 days from the date of demand;
(b) any material default on the part of User in the performance of any covenant, term or other provision of these Terms;
(c) a petition is presented or a proceeding is commenced or an order is made or an effective resolution is passed for the winding-up, insolvency, administration, judicial management, reorganisation, reconstruction, dissolution or bankruptcy of the User or for the appointment of a liquidator, receiver, administrator, judicial manager, trustee or similar officer of the User or of all or any part of the User’s business or assets;
(d) [the User creates an encumbrance or a security interest in the Item that has been pledged for sale on the Website]; or
(e) the User fails to do all things necessary to preserve and maintain the value of the Item pledged for sale on the Website, and in addition to Qu’s right to exercise any rights or remedies provided under law or any other applicable statute, Qu may, in its sole discretion:
(i) seek specific performance from a Court of competent jurisdiction to compel the User to honour its obligations under the pledge; or
(ii) terminate the pledge without notice and to nullify and re-claim the Qu Points received with respect to the pledge.
8. TRANSACTIONS ON THE WEBSITE
8.1 We do not transfer legal or beneficial ownership of Items from a Seller to a Buyer, and nothing in these Term shall modify the applicable laws relating to the transfer of legal or beneficial ownership of an item upon physical delivery of the Item. Unless the transacting Users agree otherwise, each User will become the Item’s lawful owner upon payment of Points and physical receipt of the item, in accordance with applicable laws.
8.2 If you engage in transactions on the Website, you agree to comply with all applicable legal requirements governing the specific requirements for transfer and shipping of Items.
8.3 You may not use the Website for transactions involving any illegal goods or services, including any:
(a) illegal goods, or any substance or device that may pose a threat to other Users and the general public;
(b) prescriptions, prescription drugs or devices;
(c) stocks or securities of any kind;
(d) drug paraphernalia;
(e) plants or seeds;
(f) bombs, bomb making supplies, or instructions on how to make bombs;
(g) exotic animals, endangered animals, or products made from such;
(h) sexually explicit material, including pornography;
(i) weapons, firearms, or ammunition;
(j) stolen or counterfeit goods; or
(k) alcohol, cigarettes, or tobacco.
The above list is not exhaustive and we reserve the right to modify this list at any time without prior notice.
9. OBLIGATION TO SUPPLY
9.1 Notwithstanding that a User has not made a pledge to offer for sale any of its Items on the Website, Qu reserves the right to require any User that has not previously pledged its Items on the Website to make available its Items up to a value of RM 30,000 if a Buyer makes such a request to the User or Qu. In the event a User refuses to comply with such a request, Qu may then remove the User from the Website and the User shall not have any recourse against Qu or the Site, or any of the subsidiaries or associate companies of Qu or the Site, for such removal. In consideration for supplying its Items, the User shall receive Qu Point of commensurate value from the Buyer.
9.2 Upon making a pledge of its Items, the User shall be required to honour its pledge in accordance with the Pledge Agreement and such other terms and conditions on the Website.
10. MESSAGING SERVICE
10.1 We retain the discretion whether to publish, edit, delete, block, reject, take down or remove any part or all of any User Content. However, we have no obligation whatsoever to monitor or independently verify any User Content or to edit, delete or refuse to post or transmit any User Content.
10.2 As a Buyer, you may transmit User Content to Sellers strictly for the purpose of enquiring about the goods and/or service offered by the Seller. As a Seller, you are prohibited from initiating any messages to any User, but you may able to respond to a message request when initiated by a Buyer strictly for the purpose of negotiating and concluding a transaction. In any event, we retain the right to store and process any User Content sent on the Website.
10.3 Qu absolutely prohibits and will not be responsible or liable for the content of any material (including but not limited to the User Content) posted to this Website by us or by third parties which is defamatory, offensive, obscene, inaccurate, misleading, unlawful, pornographic or which in any way infringes a third party rights, including but not limited to intellectual property rights.
10.4 You are prohibited to use the Services to send automated, unsolicited or unauthorised messages, advertising or promotional material or any junk mail, spam or chain letters.
10.5 You retain all intellectual property rights in your User Content. You grant us an irrevocable, royalty free, perpetual, worldwide licence to use, modify, transmit, communicate to the public, reproduce and sublicense your User Content in any form, including on the Website and in any print or electronic publication.
10.6 You consent to us doing or omitting to do any and all acts in relation to your User Content that would otherwise infringe any past, existing or future moral rights in the User Content. You waive any rights you may have to take action against us in relation to any act or omission which would otherwise infringe any past, existing or future moral rights in your User Content.
10.7 You warrant that the User Content is your original work and you own all rights in relation to the User Content. You indemnify us against any action, claim or proceedings alleging that the User Content infringes the rights of any person, and any cost, charge, expense, payment, loss, damage or liability suffered or incurred by us in connection with the foregoing.
10.8 You must not include, in your User Content, any links to any third party websites, except where such third party websites belong to you.
10.9 To the extent permitted by law, we will be under no liability to you in respect of any loss or damage which you may suffer or incur or which may arise directly or indirectly in connection with your supply of User Content to our public forums and blogs, or the subsequent use of your User Content by us or any third parties.
10.10 We reserve our right to refuse to transmit or to remove or alter any User Content (in whole or in part), the transmission or the posting of which would in our sole discretion violate any right of any person or constitute an offence or a breach of any policy, notice or other requirement of ours.
11. REPRESENTATIONS AND WARRANTIES
11.1 The User represents and warrants to Qu that:
(a) if the User is a body corporate, it is either a Malaysian registered sole proprietorship, Malaysian registered partnership, limited liability partnership, private or public limited company, or an unlisted public company incorporated under Malaysian laws;
(b) if the User is an individual, that he/she is at least eighteen (18) years of age;
(c) it is solvent, and there are no reasonable grounds to suspect that it is unable to pay its debts as and when they become due and payable;
(d) it has the legal capacity to enter into, perform and deliver these Terms and to perform its obligations under these Terms and the relevant agreements. Furthermore, the User has taken all necessary actions to authorise its entry into, performance and delivery of any obligations created under these Terms and the relevant agreements;
(e) the obligations assumed by the User in these Terms and the relevant agreements constitute the legal, valid, binding, and enforceable obligations of the User;
(f) all information provided by the User to Qu does not contain any false or misleading statements, or any material omission, and is true and accurate in all material respects on and as at the date it was provided;
(g) there is no action, suit, or proceeding at law, equity, or before any court, tribunal, governmental body, agency or official or any arbitrator (whether pending or threatened) that is likely to affect the legality, validity or enforceability of these Terms or the relevant agreements, or affect the User’s ability to perform its obligations;
(h) it will comply with all applicable legal requirements in listing, agreeing to trade, transferring and shipping, and buying and/or selling all Items;
(i) it will be solely responsible for compliance with all applicable export or import controls with respect to any transactions of Items; and
(j) it will comply with all legal requirements regarding the reporting, collection, withholding and payment of all GST and/or other taxes and duties applicable to the transfer and transport of each Item.
12.1 The User authorises Qu to:
(a) obtain and verify any information about the User as Qu may, in its sole and absolute discretion, deem fit; and
(b) disclose any information and/or data relating to the User and its account(s) or any other information as Qu may deem necessary to:
188.8.131.52 any of the User’s head office, representative and branch offices and/or any related company or associated company of the User, in any jurisdiction;
184.108.40.206 any government or regulatory agency or authority;
220.127.116.11 any of the User’s potential assignees or transferees (subject to the prior consent of Qu);
18.104.22.168 any other third parties, service provider, agents or business partners wherever situated for any purpose whatsoever; and/or
22.214.171.124 any other person to whom disclosure is permitted or required by the Law.
The User agrees to indemnify and render harmless Qu and its officers against all losses, taxes, expenses, costs, legal fees, and liabilities (present, future, contingent or otherwise on any indemnity basis), which may be suffered or incurred by Qu as a result of or in connection with the User’s breach of the Terms or the relevant agreements and/or any steps taken by Qu in the event of a breach of these Terms or the relevant agreements.
14. EXCLUSION AND LIMITATION OF LIABILITY
14.1 Neither Qu nor any of its officers shall be liable in contract, tort (including negligence or breach of statutory duty) or otherwise, for: (i) any loss of profit, business or revenue, (ii) any costs or expenses, or any special, indirect or consequential damages of any nature whatsoever, suffered or incurred by the User as a result of or in connection with the provision of the Services.
14.2 We do not review User’s positings or User Content and we are not involved in the actual transaction between Users. As most content on the Website comes from other Users, we do not guarantee the accuracy of postings or User communications or the quality, safety or legality of any Items offered. You agree to not hold us responsible for the acts and omissions of the Users on the Website.
14.3 We do not accept liability for any description of any User’s submissions which may contain unlawful, threatening, abusive, defamatory, obscene or indecent information, or material of any kind which violates or infringes upon the rights of any other person, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law.
14.4 You acknowledge that we cannot guarantee continuous, error-free or secure access to our Services or that defects in the Service will be corrected. While we will use reasonable efforts to maintain an uninterrupted Service, we cannot guarantee this and we do not give any promises or warranties (whether express or implied) about the operation and availability of our Website, Services, applications or tools.
14.5 To the extent legally permitted, we expressly disclaim all warranties, representations and conditions, express or implied, including those of quality, merchantability, merchantable quality, durability, fitness for a particular purpose and those arising by statute. We are not liable for any loss, whether of money (including profit), goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of, or inability to use the Website, even if you advise us or we could reasonably foresee the possibility of any such damage occurring. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Despite the previous paragraph, if we are found to be liable, our liability to you or any third party (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) is limited to the greater of (a) the total fees you pay to us in the 12 months prior to the action giving rise to liability, and (b) five hundred Ringgit Malaysia (RM500.00).
15. TIME OF ESSENCE
It is a fundamental term of the relationship between the parties that the User will perform its obligations on time.
16. INDEPENDENT CONTRACTORS
The Users and Qu are independent contractors. No agency relationship, partnership, joint venture, employer-employee relationship or franchisor-franchisee relationship is intended or created by this Agreement.
17. NO WAIVER OF RIGHTS
A failure or delay in exercising any right, power or privilege in respect of these Terms will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise of that right, power or privilege or exercise of any other right, power or privilege.
Qu may at any time, give the User notice of any amendment, variation, revision, supplement or any other change to these Terms by post, e-mail or such other means as Qu shall deem fit. Changes shall take place on and from the date specified in the notice or if no such date is specified, on and from the date of such notice. Without prejudice to the foregoing, the entry into or continued entry into the Services after such change shall be deemed as the User’s acceptance and agreement to the same.
19. GOVERNING LAW AND JURISDICTION
19.1 These Terms will be governed and construed in accordance with laws of Malaysia.
19.2 With respect to any suit, action or proceedings relating to any dispute arising out of or in connection with these Terms, each party submits to the exclusive jurisdiction of the courts of Malaysia.