Version No. 1 effective date May 8, 2017
These Terms describe the terms and conditions applicable to your access and use of the website supergift.com.my(hereinafter the “Site” or “Super Gift”). This document is a legally binding agreement between you as the user(s) of the Site (hereinafter referred to as “you”, “your” or “User”) and Emfy Tech listed in clause 2.1 below (hereinafter referred to as “we”, “our” or “Emfy Tech”).
1.APPLICATION AND ACCEPTANCE OF THE TERMS
1.1 Your use of the Site and Super Gift’s services, software and products (hereinafter collectively as the “Services”) is subject to the terms and conditions contained in this document as well as the Privacy Policy and any other rules and policies of the Site that we may publish from time to time. This document and such other rules and policies of the Site are collectively referred to below as the “Terms”. By accessing the Site or using the Services, you agree to accept and be bound by the Terms. Please do not use the Services or the Site if you do not accept all of the Terms.
1.2 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Emfy Tech, or (b) you are not permitted to receive any Services under the laws of Malaysia or other countries / regions including the country / region in which you are resident or from which you use the Services.
1.3 You acknowledge and agree that Emfy Tech may amend any Terms at any time by posting the relevant amended and restated Terms on the Site. By continuing to use the Services or the Site, you agree that the amended Terms will apply to you.
1.4 If we posted or provided a translation of the English language version of the Terms, you agree that the translation is provided for convenience only and that the English language version will govern your uses of the Services or the Site.
1.5 You may be required to enter into a separate agreement, whether online or offline, with Emfy Tech or our affiliate for any Service (“Additional Agreements”). If there is any conflict or inconsistency between the Terms and an Additional Agreement, the Additional Agreement shall take precedence over the Terms only in relation to that Service concerned.
1.6 The Terms may not otherwise be modified except in writing by an authorized officer of Emfy Tech.
2. PROVISION OF SERVICES
2.1 Emfy Tech that you are contracting with is registered in Pahang, Malaysia,who you agree may invoice you for their part of the Services.
2.2 You must register as a member on the Site in order to access and use some Services. Further, Emfy Tech reserves the right, without prior notice, to restrict access to or use of certain Services (or any features within the Services) subject to any condition that Emfy Tech may impose in our discretion.
2.3 Services (or any features within the Services) may vary for different regions and countries. No warranty or representation is given that a particular Service or feature or function thereof or the same type and extent of the Service or features and functions thereof will be available for Users. We may in our sole discretion limit, deny or create different level of access to and use of any Services (or any features within the Services) with respect to different Users.
2.4 Emfy Tech may launch, change, upgrade, impose conditions to, suspend, or stop any Services (or any features within the Services) without prior notice except that in case of a fee-based Service, such changes will not substantially adversely affect the paying Users in enjoying that Service.
3. USERS GENERALLY
3.1 As a condition of your access to and use of the Site or Services, you agree that you will comply with all applicable laws and regulations when using the Site or Services.
3.2 You agree to use the Site or Services solely for your own private and internal purposes. You agree that (a) you will not copy, reproduce, download, re-publish, sell, distribute or resell any Services or any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etcetera available on or through the Site (the “Site Content”), and (b) you will not copy, reproduce, download, compile or otherwise use any Site Content for the purposes of operating a business that competes with Emfy Tech, or otherwise commercially exploiting the Site Content. Systematic retrieval of Site Content from the Site to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from Emfy Tech is prohibited. Use of any content or materials on the Site for any purpose not expressly permitted in the Terms is prohibited.
3.3 You must read Super Gift’s Privacy Policy which governs the protection and use of personal information about Users in the possession of Emfy Tech. You accept the terms of the Privacy Policy and agree to the use of the personal information about you in accordance with the Privacy Policy.
3.4 You agree not to undertake any action to undermine the integrity of the computer systems or networks of Emfy Tech and/or any other User nor to gain unauthorized access to such computer systems or networks.
3.5 By posting or displaying any information, content or material (“User Content”) on the Site or providing any User Content to Emfy Tech or our representative(s), you grant an irrevocable, perpetual, worldwide, royalty-free, and sub-licensable (through multiple tiers) license to Emfy Tech to display, transmit, distribute, reproduce, publish, duplicate, adapt, modify, translate, create derivative works, and otherwise use any or all of the User Content in any form, media, or technology now known or not currently known in any manner and for any purpose which may be beneficial to the operation of the Site or the provision of any Services. You confirm and warrant to Emfy Tech that you have all the rights, power and authority necessary to grant the above license.
4. MEMBER ACCOUNTS
4.1 User must be registered on the Site to access or use some Services (a registered User is also referred to as a “Member” below). Except with Emfy Tech’s approval, one User may only register one member account on the Site. Emfy Tech may reject User’s application for registration for any reason.
4.2 Upon registration on the Site, Emfy Tech shall assign an account and issue a member ID and password (the latter shall be chosen by a registered User during registration) to each registered User.
4.3 A set of Member ID and password is unique to a single account. Each Member shall be solely responsible for maintaining the confidentiality and security of the Member ID and password and for all activities that occur under the account. No Member may share, assign, or permit the use of the Member account, ID or password. Member agrees to notify Emfy Tech immediately if you become aware of any unauthorized use of your password or your account or any other breach of security of your account.
4.4 Member agrees that all activities that occur under your account (including without limitation, posting any information, clicking to accept any Additional Agreements or rules, subscribing to or making any payment for any services) will be deemed to have been authorized by the Member.
4.5 Member acknowledges that sharing of your account with other persons, or allowing multiple users to use your account (collectively, “multiple use”), may cause irreparable harm to Emfy Tech or other Users of the Site. Member shall indemnify Emfy Tech, our affiliates, directors, employees, agents and representatives against any loss or damages (including but not limited to loss of profits) suffered as a result of the multiple use of your account. Member also agrees that in case of the multiple use of your account or Member’s failure to maintain the security of your account, Emfy Tech shall not be liable for any loss or damages arising from such a breach and shall have the right to suspend or terminate Member’s account without liability to Member.
5. MEMBER AND USER’S RESPONSIBILITIES
5.1 Each Member/User represents, warrants and agrees that you have full power and authority to accept the Terms, to grant the license and authorization and to perform the obligations hereunder;
5.2 Member/User will be required to provide information as part of the registration process on the Site or your use of any Service or the member account. Each Member represents, warrants and agrees that (a) such information and material whether submitted during the registration process or thereafter throughout the continuation of the use of the Site or Service is true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
5.3 Upon becoming a Member, you consent to the inclusion of the contact information about you in our Database and authorize Emfy Tech and our affiliates to share the contact information with other Users or otherwise use your personal information in accordance with the Privacy Policy.
5.4 Each Member/User represents, warrants and agrees that (a) you shall be solely responsible for obtaining all necessary third party licenses and permissions regarding any User Content that you submit or post; (b) any User Content that you submit or post does not infringe or violate any of the copyright, patent, trademark, trade name, trade secrets or any other personal or proprietary rights of any third party (“Third Party Rights”);
5.5 Each Member/User further represents, warrants and agrees that the User Content that you submit or post shall:
a) be true, accurate, complete and lawful;
b) not be false, misleading or deceptive;
c) not contain information that is defamatory, libelous, threatening or harassing, obscene, objectionable, offensive, sexually explicit or harmful to minors;
d) not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
e) not violate other Terms or any applicable Additional Agreements;
f) not violate any applicable laws and regulations or promote any activities which may violate any applicable laws and regulations;
g) not contain any link directly or indirectly to any other web sites which includes any content that may violate the Terms.
5.6 Each Member further represents, warrants and agrees that you shall/are:
a) carry on your activities on the Site in compliance with any applicable laws and regulations;
b) carry on your activities in accordance with the Terms and any applicable Additional Agreements;
c) not use the Services or Site to defraud any person or entity (including without limitation use of stolen credit/debit cards);
d) not impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
e) not engage in spamming or phishing;
f) not engage in any other unlawful activities (including without limitation those which would constitute a criminal offence, give rise to civil liability, etcetera) or encourage or abet any unlawful activities;
g) not involve attempts to copy, reproduce, exploit or expropriate Emfy Tech’s various proprietary directories, databases and listings;
h) not involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
i) not involve any scheme to undermine the integrity of the data, systems or networks used by Emfy Tech and/or any user of the Site or gain unauthorized access to such data, systems or networks;
j) not engage in any activities that would otherwise create any liability for Emfy Tech or our affiliates.
5.7 Member/User may not use the Services and member account to engage in activities which are identical or similar to Emfy Tech’s e-commerce marketplace business.
5.8 Member acknowledges and agrees that Emfy Tech shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or material or information created, obtained or accessible through the Services or Site. Emfy Tech does not endorse, verify or otherwise certify the contents of any comments or information made by any Member. Each Member is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other information
5.11Member acknowledges and agrees that each Member is solely responsible for observing applicable laws and regulations in its respective jurisdictions to ensure that all use of the Site and Services are in compliance with the same.
6. BREACHES BY MEMBERS
6.1 Emfy Tech reserves the right in our sole discretion to remove, modify or reject any User Content that you submit to or post on the Site which we reasonably believe is unlawful, violates the Terms, could subject Emfy Tech or our affiliates to liability, or is otherwise found inappropriate in Emfy Tech’s opinion.
6.2 If any Member breaches any Terms, or if Emfy Tech has reasonable grounds to believe that a Member is in breach of any Terms, Emfy Tech shall have the right to take such disciplinary actions as it deems appropriate, including without limitation: (i) suspending or terminating the Member’s account and any and all accounts determined to be related to such account by Emfy Tech in its discretion; (ii) restricting, downgrading, suspending or terminating the subscription of, access to, or current or future use of any Service; (iii) imposing other restrictions on the Member’s use of any features or functions of any Service as Emfy Tech may consider appropriate in its sole discretion; and (iv) any other corrective actions, discipline or penalties as Emfy Tech may deem necessary or appropriate in its sole discretion.
6.3 Without limiting the generality of the provisions of the Terms, a Member would be considered as being in breach of the Terms in any of the following circumstances:
a) Emfy Tech has reasonable grounds to suspect that such Member has used a stolen credit card or other false or misleading information in any transaction,
c) Emfy Tech has reasonable grounds to suspect that any information provided by the Member is not current or complete or is untrue, inaccurate, or misleading, or
d) Emfy Tech believes that the Member’s actions may cause financial loss or legal liability to Emfy Tech or our affiliates or any other Users.
6.4 Emfy Tech reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, Emfy Tech may disclose the Member’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action. Emfy Tech shall not be liable for damages or results arising from such disclosure, and Member agrees not to bring any action or claim against Emfy Tech for such disclosure.
6.5 Emfy Tech may, at any time and in our reasonable discretion, impose limitations on, suspend or terminate the Member’s use of any Service or the Site without being liable to the Member if Emfy Tech has received notice that the Member is in breach of any agreement or undertaking with any affiliate of Emfy Techand such breach involves or is reasonably suspected of involving dishonest or fraudulent activities.
6.7 Each Member agrees to indemnify Emfy Tech, our affiliates, directors, employees, agents and representatives and to hold them harmless, from any and all damages, losses, claims and liabilities (including legal costs on a full indemnity basis) which may arise from your submission or posting of any User Content, from your use of the Site or Services, or from your breach of the Terms.
6.8 Each Member further agrees that Emfy Techis not responsible, and shall have no liability to you or anyone else for any User Content or other material transmitted over the Site, including fraudulent, untrue, misleading, inaccurate, defamatory, offensive or illicit material and that the risk of damage from such material rests entirely with each Member. Emfy Techreserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Member, in which event the Member shall cooperate with Emfy Tech in asserting any available defenses.
8. LIMITATION OF LIABILITY
8.1 to the maximum extent permitted by law, the services and products provided by Emfy Tech on or through the site are provided “as is”, “as available” and “with all faults”, and Emfy Tech hereby expressly disclaims any and all warranties, express or implied, including but not limited to, any warranties of condition, quality, durability, performance, accuracy or reliability. All such warranties, representations, conditions, and undertakings are hereby excluded.
8.2 to the maximum extent permitted by law, Emfy Tech makes no representations or warranties about the validity, accuracy, correctness, reliability, quality, stability, completeness or currentness of any information provided on or through the Site; Emfy Tech does not represent or warrant that use of products or services offered on the site does not violate any third party rights; and Emfy Tech makes no representations or warranties of any kind concerning any product or service offered or displayed on the Site.
8.3 Any material downloaded or otherwise obtained through the Site is done at each User’s sole discretion and risk and each User is solely responsible for any damage to User’s computer system or Emfy Tech’s computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any User from Emfy Tech or through or from the Site shall create any warranty not expressly stated herein.
8.4 The Site may make available to User services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall Emfy Tech and our affiliates be held liable for any such services or products.
8.5 Each User hereby agrees to indemnify and save Emfy Tech, our affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (including legal costs on a full indemnity basis) which may arise from such User’s use of the Site or Services or from your breach of any of the terms and conditions of the Terms. Each User hereby further agrees to indemnify and save Emfy Tech, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise from User’s breach of any representations and warranties made by User to Emfy Tech.
8.6 Each User hereby further agrees to indemnify and save Emfy Tech, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a result of any claims asserted by Third Party Rights. Each User hereby further agrees that Emfy Tech is not responsible and shall have no liability to you, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. Emfy Tech reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Emfy Tech in asserting any available defenses.
8.7 Emfy Tech shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following.
a) the use or the inability to use the Site or Services;
b) any defect in data, information or services obtained from a User or any other third party through the Site;
c) violation of Third Party Rights or claims or demands that User’s use of products or services offered or displayed on the Site may violate or may be asserted to violate Third Party Rights; or claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants;
d) unauthorized access by third parties to data or private information of any User;
e) statements or conduct of any User of the Site; or;
f) any matters relating to Services however arising, including negligence.
8.8 Notwithstanding any of the foregoing provisions, the aggregate liability of Emfy Tech, our employees, agents, affiliates, representatives or anyone acting on our behalf with respect to each User for all claims arising from the use of the Site or Services during any calendar year shall be limited to the greater of (a) the amount of fees the User has paid to Emfy Techor our affiliates during the calendar year and (b) the maximum amount permitted in the applicable law. The preceding sentence shall not preclude the requirement by the User to prove actual damages. All claims arising from the use of the Site or Services must be filed within one (1) year from the date the cause of action arose or such longer period as prescribed under any applicable law governing this Term of Use.
8.9 The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not Emfy Tech has been advised of or should have been aware of the possibility of any such losses arising.
9. FORCE MAJEURE
9.1 Under no circumstances shall Emfy Tech be held liable for any delay or failure or disruption of the content or services delivered through the Site resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Emfy Tech is the sole owner or lawful licensee of all the rights and interests in the Site and the Site Content. The Site and Site Content embody trade secrets and other intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Site and Site Content shall remain with Emfy Tech, our affiliates or licensors of the Site Content, as the case may be. All rights not otherwise claimed under the Terms or by Emfy Tech are hereby reserved.
10.2 “Emfy Tech”, “Super Gift”, and related icons and logos are registered trademarks or trademarks or service marks of Emfy Tech and are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.
10.3 Emfy Tech may have independent third parties involved in the provision of the Services (e.g., the authentication and verification service providers). You may not use any trademark, service mark or logo of such independent third parties without prior written approval from such parties.
11. NOTICES
11.1 All legal notices or demands to or upon Emfy Tech shall be made in writing and sent to Emfy Tech personally to the following entity and address: No 7 Lorong Promenade Villa 2, Kuantan Pahang.
The notices shall be effective when they are received by Emfy Tech in the above-mentioned manner.
11.2 All legal notices or demands to or upon a User shall be effective if either delivered personally, sent by courier, certified mail, by facsimile or email to the last-known correspondence, fax or email address provided by the User to Emfy Tech, or by posting such notice or demand on an area of the Site that is publicly accessible without a charge. Notice to a User shall be deemed to be received by such User if and when.
a) Emfy Tech is able to demonstrate that communication, whether in physical or electronic form, has been sent to such User, or
b) immediately upon Emfy Tech posting such notice on an area of the Site that is publicly accessible without charge.
11.3 You agree that all agreements, notices, demands, disclosures and other communications that Emfy Tech sends to you electronically satisfy the legal requirement that such communication should be in writing.
12. GENERAL PROVISIONS
12.1 Subject to any Additional Agreements, the Terms constitute the entire agreement between you and Emfy Tech with respect to and govern your use of the Site and Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
12.2 Emfy Tech and you are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
12.3 If any provision of the Terms is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
12.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
12.5 Emfy Tech failure to enforce any right or failure to act with respect to any breach by you under the Terms will not constitute a waiver of that right nor a waiver of Emfy Tech’s right to act with respect to subsequent or similar breaches.
12.6 Emfy Tech shall have the right to assign the Terms (including all of our rights, titles, benefits, interests, and obligations and duties in the Terms to any person or entity. You may not assign, in whole or part, the Terms to any person or entity.
12.7 In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of Malaysia, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Selangor, Malaysia.
