GENERAL TERMS AND CONDITIONS OF USE

1. INTRODUCTION

1.1 These are the General Terms and Conditions of Use for www.nesh.com.my (collectively, the “Website”). The Website is operated by Nesh Marketing Sdn Bhd, a company incorporated in Malaysia under the Registration No. 201401034750 (1110849-T) and with its registered office at Unit No.12, Jalan 4/2 Puteri, Bandar Puteri Puchong,Selangor Malaysia. (hereinafter referred to as “NESH” or “we”).

1.2 Users of the Website (“Customer”, “User”, “you” and “your”) will be subject to these General Terms and Conditions of Use. Nesh and the User shall collectively be referred to as “Parties” and “Party” shall refer to any of them, as the context may require.

1.3 These General Terms and Conditions of Use consist of miscellaneous provisions, which shall be applicable to all Users of the Website, terms and conditions of sale on www.nesh.com.my.

1.4 By using the Website, you agree to be bound by these General Terms and Conditions of Use.

1.5 These General Terms and Conditions of Use may be amended, modified or updated from time to time by Nesh without notice. You are encouraged to check this page regularly to take notice of any changes we may have made to the General Terms and Conditions of Use.

1.6 These General Terms and Conditions of Use, together with the Privacy Policy, governs and applies to anyone accessing or using the Website and the relationship between the Parties. By accessing and/or using the Website, you are deemed to have agreed to be bound by these General Terms and Conditions of Use, the Privacy Policy and any amendments issued by us from time to time.

2. REPRESENTATIONS AND WARRANTIES

2.1 By using the Website and utilizing the services available via the Website:

1. You represent and warrant that you are over 18 years of age;
2. You have the legal capacity to abide by these General Terms and Conditions of Use and to form a binding contract;
3. You undertake to accept and be bound by these General Terms and Conditions of Use and to comply with all applicable laws, regulations and rules in relation to your access to and use of the Website;
4. You represent and warrant that you are authorized to provide the personal data necessary and all personal data provided to Nesh is true and accurate;
5. You are authorized to use the payment method you will provide for placement of orders

TERMS AND CONDITIONS OF SALE FOR Nesh.com.my

GENERAL LEGAL PROVISIONS

16. ACCESS AND USE OF WEBSITE

16.1 Access of Website

16.1.1 It is your responsibility to ensure your equipment (computer, laptop, netbook, tablet or other mobile device) meets all the necessary technical specifications to enable you to access and use the Website and is compatible with the Website.

16.1.2 Unavailability of features, parts, or content:

1. We cannot guarantee the continuous, uninterrupted or error-free operability of the Website;
2. There may be times when certain features, parts or content of the Website, become unavailable (whether on a scheduled or unscheduled basis) or are modified, suspended or withdrawn by us, in our sole discretion, without notice to you;
3. You agree that we will not be liable to you or to any third party for any unavailability, modification, suspension or withdrawal of the Website, or any features, parts or content of the Website.

16.2 Use of Website

16.2.1 Unless otherwise specified, the Website is solely for your personal and non-commercial use and you agree that you are only authorised to visit, view and retain a copy of any information or services obtained from the Website for informational use. You understand and agree that you are strictly prohibited from duplicating, adapting, modifying, commercially distributing, publishing, licensing or selling any information, material or services obtained from the Website.

16.2.2 Except to the extent expressly set out herein, you are not allowed to:

1. ‘scrape’ content or store content of the Website on a server or other storage device connected to a network or create an electronic database by systematically downloading and storing all the content of the Website;
2. remove or change any content of the Website or attempt to circumvent security or interfere with the proper working of the Website or the servers on which it is hosted;
3. use any part of the content on the Website for commercial purposes without obtaining a license to do so from us or our licensors;
4. modify the physical or electronic copies of the content of the Website you have printed, copied, or stored; or
5. create links to the Website from any other website without our prior written consent, although you may link from a website that is operated by you provided the link is not misleading or deceptive and fairly indicates its destination, you do not imply that we endorse you, your website, or any products or services you offer, you link to (and do not frame or replicate) the home page of the Website, and the linked website does not contain any content that is unlawful, threatening, abusive, defamatory, pornographic, obscene, vulgar, indecent, offensive or which infringes on the intellectual property rights or other rights of any third party;
6. transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
7. knowingly transmit any data, send or upload any material that contains viruses, trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or
8. use the Website in any way that breaches any applicable law, regulation or rule;
9. use the Website in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.

17. CONTENT

17.1 All information, text, descriptions, data, graphics, images, logos, illustrations, designs, icons, video clips, audio clips, sounds, files, specifications, advertisements, titles, names, intellectual property rights and any other information provided on the Website (hereinafter referred to as the “Content”) are owned by Nesh or its associated companies.

17.2 We may change the format and content of the Website from time to time. You agree that your use of the Website is on an ‘as is’ and ‘as available’ basis and at your sole risk.

17.3 Whilst we try to make sure that all information contained on the Website (other than any User-Generated Content and/or User Submission) is correct, it is not intended to amount to authority or advice on which reliance should be placed. You should check with us or the relevant information source before acting on any such information.

17.4 Nesh makes no representations, warranties or guarantees, whether express or implied, as to the accuracy, completeness, currency, correctness, reliability, integrity, quality, fitness for purpose or originality of any Content of the Website and, to the fullest extent permitted by law, all implied warranties, conditions or other terms of any kind are hereby excluded and we accept no liability for any loss or damage of any kind incurred as a result of you or anyone else using the Website or relying on any of its content. Nesh reserves the right, in its sole discretion, to amend, modify, update, change or otherwise alter the Content at any time without providing notice.

17.5 We cannot and do not guarantee that any Content of the Website will be free from viruses and/or other code that may have contaminating or destructive elements. It is your responsibility to implement appropriate IT security safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of content.

17.6 The Website may include links to third party websites that let you leave the Website. These linked sites are not under the control of Nesh and Nesh is not liable or responsible for the accuracy, completeness, timeliness or availability of any third party content. Links to any third party websites are provided for your convenience only and the inclusion of any link does not imply endorsement by Nesh of the website. Your use of such third party website(s) is at your own risk and may be subject to that third party’s terms and conditions.

18. INTELLECTUAL PROPERTY RIGHTS

18.1 Nesh and/or its associated/affiliated companies are the owner(s) or the licensee(s) of all intellectual property rights in the Website. Such intellectual property rights shall include but are not limited to copyrights, trademarks, industrial design rights, patents, know-how, privileged or similar information, whether registered or not, as well as all other rights related to Nesh or its associated companies’ trademarks, Products or business activities.

18.2 All intellectual property rights in any Content of the Website (including text, graphics, software, photographs and other images, videos, sound, trademarks and logos) are owned by Nesh or our associated/affiliated companies or our licensors and except where expressly permitted by us, you may not use, reproduce, copy, modify, publish, transmit, distribute, display, download, licence, transfer or sell any Content.

18.3 Nothing in these General Terms and Conditions of Use gives you any rights in respect of any intellectual property owned by us or our associated/affiliated companies or our licensors and you acknowledge that you do not acquire any ownership rights by downloading Content from the Website. If you print off, copy or store pages or Content from the Website (only as permitted by these General Terms and Conditions of Use), you must ensure that any copyright, trademark or other intellectual property right notices contained in the original Content are reproduced.

19. DISCLAIMER AND LIMITATION OF LIABILITY

19.1 Nesh assumes no liability or responsibility for:

1. errors, mistakes or inaccuracies of the Content, User-Generated Content, User Submission, Products or any other information or material set out or made available through the Website;
2. any unauthorised use of secure servers (whether provided by Nesh directly or by third parties appointed by Nesh) and/or any and all personal information stored therein;
3. any property damage of any nature whatsoever resulting from a Customer or User’s access to and use of or reliance on any Content, User-Generated Content, User Submission, Products or any other information or material set out or made available through the Website or any linked third party website(s);
4. any interruption or cessation of transmission to or from the Products provided on the Website or any linked third party website(s);
5. any viruses, trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware transmitted through the Website or any linked third party website(s);
6. any errors or omissions in the Content, User-Generated Content, User Submission, information or material set out or made available through the Website or any linked third party website(s) or for any loss or damage of any nature incurred as a result of the use of or reliance on any of the foregoing.

19.2 Any Content, User-Generated Content and Products made available or obtained through the Website or any linked third party website is done at the Customer’s own discretion and risk. The Customer shall be solely responsible for any damage to their computer system or electronic device, or any loss of data that results therefrom.

19.3 Use and reliance upon any and all of the Content, User Submission or User-Generated Content is at the Customer’s own discretion and risk and is made available on an “as is” and “as available” basis. Except as may be expressly stated herein, Nesh makes no warranties or representations about the accuracy or completeness of the Content, User Submission, User-Generated Content, Products or any other items or material made available or linked to from the Website.

20. INDEMNITY

20.1 The Customer shall keep Nesh fully indemnified against all actions, claims, demands, proceedings, liabilities, losses (whether direct, indirect or consequential), costs (including legal costs on a full indemnity basis) and expenses of every kind suffered or incurred by Nesh, its officers, employees, servants, representatives, manufacturers, distributors, corporate affiliates and/or agents, arising out of or in connection with:

1. any claim made by any third party due to or arising out of any Content posted by the Customer on the Website;
2. any actual or alleged breach or non-performance or non-observance of any of the Customer’s obligations or warranties under these General Conditions, or otherwise arising in any way out of the Customer’s use of the Website or purchase of the Products; or
3. any infringement or misappropriation by the Customer of any third party’s patent, copyright, trademark or other intellectual property rights in connection with the use of the Website or purchase of the Products.

21. FORCE MAJEURE

21.1 A force majeure event means any cause which is not reasonably foreseeable and is beyond the reasonable control and not due to the fault or negligence of the Party affected (including its subcontractors, if any) and which could not have been avoided by due diligence and the use of reasonable efforts. A force majeure event includes but shall not be limited to any act of God, drought, flood, earthquakes, storm, fire, lightning, epidemic, war, riot, civil disturbance, sabotage, explosions, strikes, or labour disputes (excluding any strikes, labour disputes or other labour difficulties in which the employees of the affected Party (or its subcontractors, if any), are involved) and changes in law. A force majeure event includes the failure of a subcontractor to furnish labour, services, materials or equipment in accordance with its contractual obligations only if such failure is itself due to a force majeure event.

21.2 Nesh shall not be liable for any failure or delay in performing its obligations under these General Terms and Conditions of Use as a result of a force majeure event, provided that it notifies the Customer as soon as reasonably practicable upon knowing that it will not be able to fulfil its obligations.

21.3 Obligations which arose prior to the occurrence of the force majeure event causing the suspension of performance shall remain enforceable and shall not be excused.

21.4 Where the force majeure event affects Nesh’s delivery of Products to the Customer, Nesh will arrange to deliver the Products to the Customer after the force majeure event is over.

22. BREACH

22.1 When we consider that a breach of these General Terms and Conditions of Use has occurred, we may take such action as we deem appropriate.

22.2 A material breach of these YOU may result in:

1. immediate, temporary or permanent withdrawal of your right to use the Website;
2. immediate, temporary or permanent removal of any User-Generated Content and/or User Submissions uploaded by you to the Website;
3. legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
4. further legal action against you; or
5. disclosure of such information to law enforcement authorities as we reasonably feel is necessary or as required by law.

22.3 We exclude our liability for all action we may take in response to breaches of these General Terms and Conditions of Use. The actions we may take are not limited to those described above, and we may take any other action we reasonably deem appropriate.

23. PERSONAL INFORMATION

23.1 When you use the Website, you may provide us with personal data which is collected and used in accordance with the terms of our Privacy Policy which is accessible at https://www.nesh.com.my/content/7-privacy-policy.

23.2 It is important that you read our privacy policy, which may be updated from time to time, and understand how we use your information and the rights that you have about your information.

24. REMEDIES AND WAIVERS

24.1 No failure on Nesh’s part to exercise or any delay or failure on Nesh’s part in exercising any right, power or remedy provided by law or under these General Terms and Conditions of Use shall be deemed as a waiver of such right, remedy or power. The rights provided under these General Terms and Conditions of Use are cumulative and are not exclusive of any rights or remedies provided by law. Any waiver provided by Nesh to the Customer will be valid only if in writing.

25. ILLEGALITY

25.1 If at any time, any provisions of these General Terms and Conditions of Use is or becomes illegal, invalid or unenforceable in any respect, that shall not affect the legality, validity or enforceability of any other provisions of these General Terms and Conditions of Use.

26. GOVERNING LAW

26.1 These General Terms and Conditions of Use shall be governed by and construed in accordance with the laws of Malaysia and the Parties submit to the exclusive jurisdiction of the Courts of Malaysia in all matters arising out of or in connection with these General Terms and Conditions of Use.

UPDATE: 7th July 2021