eShop Marketplace Terms and Conditions

Marketplace Terms and Conditions

This Service (hereinafter defined) is made available by TNG Digital Sdn Bhd, Registration No. 201701042478 (1256651-M) (“TNGD“) subject to the Marketplace Terms and Conditions herein (“Terms and Conditions“). You acknowledge that you have read and fully understood these Terms and Conditions prior to your use of the Service. Your use of the Service constitutes unconditional acceptance of these Terms and Conditions as may be amended by TNGD from time to time.

1. DEFINITIONS

For the purpose of these terms and Conditions, the following terms shall have the meanings as defined below: –

“Buyer”	means the person who purchases Goods on the Platform;
“Contract”	means the individual contract formed when TNGD accepts an order placed by Buyer on the Platform for the purchase of Goods sold by TNGD;
“External Sites”	shall have the meaning as assigned to it in Clause 9.1;
“Goods”	means the goods made available for sale on the Platform;
“Platform”	means any marketplace feature, commerce platform, or related digital service made available on or accessed via the Touch ‘n Go eWallet, whether existing as at the date of these Terms and Conditions or introduced, modified, or rebranded by TNGD from time to time (including, without limitation, the eShop and Near Me features);
“Service”	means the use of any services, information, and functions made available by TNGD on the Platform;
“Terms and Conditions”	means these Marketplace Terms and Conditions for the Service as may be varied or modified from time to time at TNGD’s sole discretion;
“TNGD”	means TNG Digital Sdn Bhd (Registration No. 201701042478 (1256651-M)), a company incorporated in Malaysia and having its place of business at Level 5, Tower 6, Avenue 5, Bangsar South, No.8, Jalan Kerinchi, 59200 Kuala Lumpur;
“TNGD Goods”	means Goods which are manufactured and produced by TNGD;
“Touch ‘n Go eWallet” or “TNG eWallet”	means an authorised e-wallet software application on a mobile device through which it facilitates commercial transactions operating under the brand name Touch ‘n Go eWallet; and
“Warranty Period”	shall have the meaning as assigned to it in Clause 11.2.

 

2. BASIS OF THE CONTRACT
   • The Platform provides:
     • a place and opportunity for the sale and purchase of Goods between the Buyer and TNGD; and
     • redirection to External Sites to enable purchase of specific goods and/or services, subject always to Clause 9.
   • Where the Buyer has placed an order on the Platform for the purchase of Goods sold by TNGD and TNGD has accepted the same, this shall constitute a Contract entered into directly between the Buyer and TNGD.
   • Any information made available on the Platform in connection with the supply of Goods, including photographs, drawings, data about the extent of the delivery, appearance, performance, dimensions, weight, consumption of operating materials, operating costs or any information disclosed by TNGD or any third party shall not be binding and for information purposes only. In entering into the Contract, the Buyer agrees that he shall not rely on and waives any claim based on any such representation or information so provided.
   • The Buyer agrees that unless otherwise expressly stated, TNGD is not the manufacturer of the Goods and therefore, to the fullest extent permitted by law, disclaims any and all of the following:
     • express and implied warranties from respective manufacturers in respect of the Goods;
     • liability arising from any defects and/or issues with the Goods;
     • liability for damages resulting from the use or failure of the Goods; and
     • liability for personal injury and/or property damage caused by the Goods.

• While TNGD endeavours to provide an accurate description of the Goods, TNGD does not warrant that such description is accurate, current, or free from error. In the event that the Goods the Buyer receives is fundamentally different from the Goods as described on the Platform and which the Buyer has ordered, Clause 7 shall apply.

3. ORDERS AND SPECIFICATIONS

• The Buyer may purchase Goods by placing and completing the order on the Platform and shall be responsible for ensuring the accuracy of the order. All orders shall be subject to TNGD’s acceptance in its sole discretion and each order accepted by TNGD shall constitute a separate Contract and shall be deemed to be irrevocable and unconditional upon transmission through the Platform unless expressly stated otherwise in these Terms and Conditions.
• Order acceptance and the Contract between the Buyer and TNGD will only be concluded upon TNGD issuing a payment confirmation to the Buyer. For the avoidance of doubt, TNGD shall be entitled to refuse or cancel any order without giving any reasons to the Buyer prior to issuing such order confirmation. TNGD shall furthermore be entitled to require the Buyer to furnish TNGD with contact and other verification information, including but not limited to address, and contact numbers prior to issuing an order confirmation.
• No Contract may be modified or cancelled by the Buyer except with prior written consent from TNGD and on the terms that Buyer shall indemnify TNGD in full against all claims, losses, costs, damages, and expenses incurred by TNGD as a result of such modification or cancellation.

4. PRICE

• The price of the Goods shall be the price stated on the Platform at the time the Buyer places and completes the order on the Platform. The price shall include any applicable taxes which the Buyer shall be liable to pay but may exclude delivery fee (if any).
• In the event that Goods have been mispriced on the Platform, TNGD reserves the right to terminate the Contract, in which case the Buyer shall be notified of such cancellation. TNGD shall have such right to terminate the Contract notwithstanding that the Goods have been issued, delivered, or are in transit, or that payment has been made by the Buyer. In such circumstances whereby the Goods have been delivered, the Buyer undertakes that it shall return the Goods to TNGD.

5. TERMS OF PAYMENT

• The Buyer shall make payment for the Goods using the Touch ‘n Go eWallet only. When the Buyer places an order on the Platform, actual payment shall be charged upon TNGD’s acceptance of the Buyer’s order and the formation of a Contract. All payments shall be made to TNGD.
• The Buyer acknowledges that each payment is subject to TNGD’s User Terms and Conditions (https://www.touchngo.com.my/assets/pdf/user-tnc.pdf) and its provisions are incorporated herein by reference.
• The Buyer may not claim against TNGD for any failure, disruption, or error in connection with the Buyer’s payment. TNGD reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform without notice to the Buyer or giving any reason.
• If the Buyer fails to make payment pursuant to any of TNGD’s applicable terms and conditions, or if the payment is cancelled for any reason whatsoever, then without prejudice to any other right or remedy available to TNGD, TNGD shall be entitled to:
  • Where the Goods have not been delivered, cancel the Contract or suspend issuance/delivery of the Goods until payment is made in full.
  • Where the Goods have been delivered, TNGD may:
    • Charge the Buyer interest on the amount unpaid at the rate of one percent (1%) per calendar month until payment is made in full. For the avoidance of doubt, a part of a month shall be treated as a full month for the purposes of calculating interest; and/or
    • Deduct the payment amount due directly from the Buyer’s Touch ‘n Go eWallet account balance.
• All refunds shall be issued to the Buyer’s Touch ‘n Go eWallet account. TNGD makes no guarantee of any nature for the timeliness of the refunds reaching your account. The processing of payment is subject to TNGD’s timelines. All costs associated with the refund process shall be borne by the Buyer. All refunds are conditional upon TNGD’s acceptance of a valid return of the Goods. TNGD reserves the right to modify the mechanism of processing refunds at any time without notice.

6. ISSUANCE / DELIVERY / PERFORMANCE

• In the event the Goods purchased are in digital form (e.g. e-vouchers or e-coupons), such Goods shall be issued to the Buyer’s “Collection Page” tab on the “GOrewards” platform on the Touch ‘n Go eWallet, or any other platform as may be stipulated by TNGD from time to time.
• In the event the Goods are physical in form, such Goods shall be delivered to the address specified by the Buyer in his order.
• For physical Goods, the estimated delivery timeframe is within seven (7) working days for deliveries to West Malaysia and within eleven (11) working days for deliveries to East Malaysia. The Buyer acknowledges that these timeframes are estimates only and that delays may occur due to unforeseen circumstances.
• The Buyer is not entitled to choose the time of issuance or delivery.
• In the event the Buyer elects for self-pick up of the Goods, the Buyer shall collect the Goods from a collection point to be specified by TNGD within three (3) working days from the date the Goods is made available at the collection point, failing which, the Contract will be terminated, the Goods will be returned to TNGD, and a refund shall be made to the Buyer.
• TNGD has the right at any time to sub-contract all or any of its obligations for the sale and/or delivery of the Goods to any other party as it may decide from time to time without giving prior notice of the same to the Buyer.
• The Buyer acknowledges that any dates quoted for delivery of the Goods are approximate only and delays may occur. The time for issuance/delivery of the Goods or performance of the obligations by TNGD shall not be of the essence, and TNGD shall not be liable for any delay in issuance/delivery or performance howsoever caused.
• If TNGD fails to deliver the Goods in accordance with the Contract or within a reasonable time, the Buyer shall, by serving a written notice to TNGD, be entitled to demand performance within a specified time thereafter and such specified time shall be no less than fourteen (14) days. If TNGD fails to do so within the specified time, the Buyer shall be entitled to terminate the Contract and claim a refund of payment in respect of the undelivered Goods. The Buyer agrees that the aforementioned right shall be its sole remedy in such circumstances.
• Where the Goods have been delivered to the Buyer even after such refunds have been claimed by the Buyer pursuant to Clause 6.7 above, the Buyer shall immediately notify TNGD of the delivery. The title in the Goods shall not pass to the Buyer and Buyer shall hold the Goods as TNGD’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer. TNGD shall be entitled at any time to demand the Buyer to deliver up the Goods to TNGD and in the event of non-compliance, TNGD reserves its right to take legal action against the Buyer for the delivery of the Goods and also reserves its right to seek damages and all other costs including but not limited to legal fees against the Buyer.
• If the Buyer fails to take delivery of the Goods (otherwise than by reason of TNGD’s fault) then the Goods shall be deemed to be delivered and the Contract shall be deemed to be concluded.

7. RETURN, REFUND, AND REPLACEMENT OF GOODS

• The Buyer may request for a return, refund, or replacement of the Goods (“Request(s)”) by contacting TNGD via the Live Chat function which can be found on https://www.touchngo.com.my/. Each Request shall be subject to TNGD’s internal investigation and approval, and TNGD will revert to the Buyer with its decision within thirty (30) days. TNGD’s decision for each Request shall be final.
• Notwithstanding the above, Requests shall not be entertained in the following events:
• Where the Goods have expired; and/or
• Where the Request was made after seven (7) days from the receipt of Goods.
• The provisions under this Clause 7 shall apply only to physical Goods sold by TNGD. The Buyer acknowledges and agrees that digital Goods, digital products, or any Goods delivered in digital form are, by their nature, not subject to return or replacement once delivered to the Buyer. TNGD shall not, to the fullest extent permitted by law, entertain any Requests for return, refund, or replacement of such digital Goods, save where:
  • the digital Goods are technically defective or invalid upon delivery;
  • the digital Goods delivered are fundamentally different from the Goods as described on the Platform and which the Buyer has ordered; or
  • required by applicable law.
• TNGD’s decision on any such Request under Clause 7.3 shall be final.

8. RISK AND TITLE IN THE GOODS

• Where the Goods purchased are in digital form, risk of damage to or loss of the Goods shall pass to the Buyer at the time of issuance.
• Where the Goods purchased are in physical form, risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery; or if the Buyer fails to take delivery of the Goods, at the time when TNGD has tendered delivery of the Goods.
• Notwithstanding issuance or delivery (as the case may be) and passing of the risk in the Goods or any other provision of these Terms and Conditions, the title in the Goods shall not pass to the Buyer until TNGD has received in cash or payment in full of the price of the Goods.
• Until such time as the title in the Goods passes to the Buyer, the Buyer shall hold the Goods as TNGD’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer.
• The Buyer agrees to immediately notify TNGD of any matter from time to time affecting TNGD’s title to the Goods and the Buyer shall provide TNGD with any information relating to the Goods as TNGD may require from time to time.
• Until such time as the title in the Goods passes to the Buyer, TNGD shall be entitled at any time to demand the Buyer to deliver up the Goods to TNGD and in the event of non-compliance, TNGD reserves its right to take legal action against the Buyer for the delivery of the Goods and also reserves its right to seek damages and all other costs including but not limited to legal fees against the Buyer.
• The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remains the property of TNGD, but if the Buyer does so all moneys owing by the Buyer to TNGD shall (without prejudice to any other right or remedy of TNGD) forthwith become due and payable.
• If the provisions in this Clause 8 are not effective according to the law of the country in which the Goods are located, the legal concept closest in nature to retention of title in that country shall be deemed to apply mutatis mutandis to give effect to the underlying intent expressed in this clause, and the Buyer shall take all steps necessary to give effect to the same.
• The Buyer shall indemnify TNGD against all losses, damages, costs, expenses, and legal fees incurred by TNGD in connection with the assertion and enforcement of TNGD’s rights under this Clause 8.

9. EXTERNAL AND THIRD-PARTY SITES

• The Platform contains links to platforms operated and maintained by third parties, including but not limited to such third parties’ mini programs on the Touch ‘n Go eWallet, mobile applications, and/or websites (“External Sites”). These links are provided to redirect you to the External Sites to enable purchase of specific goods and/or services, or for your reference and convenience only. TNGD does not operate, control, or endorse in any respect such External Sites or their content. You assume sole responsibility for use of these External Sites and are therefore advised to examine the terms and conditions of those External Sites carefully.
• Any transactions performed on the External Sites shall at all times be between you and such third parties only. In no event shall TNGD be or construed to be a party to such transaction. TNGD accepts no obligations in connection with any such transactions. The Buyer and such third party shall be entirely responsible for such transactions between them, including but not limited to any fulfilment and or warranty of purchase.

10. TERMINATION

• The Buyer may not terminate the Contract after the Contract has been concluded. Any return, refund, or replacement of the Goods shall be in accordance with Clause 7.
• Without prejudice to any other right of termination elsewhere in these Terms and Conditions, TNGD may stop any Goods in transit, suspend further issuance/delivery to the Buyer and/or terminate the Contract with immediate effect by notice to the Buyer on or at any time after the occurrence of any of the following events:
  • The Goods under the Contract being unavailable for any reason whatsoever;
  • The Goods under the Contract has been mispriced on the Platform;
  • The detection of suspicious and/or fraudulent behaviour by the Buyer;
  • Breach by the Buyer of these Terms and Conditions; and/or
  • Breach by the Buyer of TNGD’s User Terms and Conditions (https://www.touchngo.com.my/assets/pdf/user-tnc.pdf).

Under such circumstances, a refund will be made to the Buyer and such refund shall be the Buyer’s sole remedy.

11. WARRANTIES AND REMEDIES

• Save for as expressly provided in these Terms and Conditions, all other warranties, conditions. or terms, including those implied by statute or common law, are excluded to the fullest extent permitted by law.
• Subject to this Clause 11, TNGD warrants that the TNGD Goods will correspond with their specification at the time of delivery or issuance and agrees to remedy any non-conformity therein for a period of three (3) months commencing from the date on which the Goods are delivered or deemed to be delivered (“Warranty Period“). Where the Buyer is dealing as a consumer (within the meaning of the Sale of Goods Act 1957 and the Consumer Protection Act 1999), TNGD further gives to the Buyer such implied warranties which cannot be excluded by law.
• TNGD’s above warranty concerning the TNGD Goods is given subject to the following conditions:
• No condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the TNGD Goods supplied or that they will be suitable for any particular purpose or use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to TNGD.
• Any description given of the TNGD Goods is given by way of identification only and the use of such description shall not constitute a sale by description.
  • TNGD binds itself only to issue or deliver TNGD Goods in accordance with the general description under which they were sold, whether or not any special or particular description shall have been given or shall be implied by law. Any such special or particular description shall be taken only as the expression of TNGD’s opinion in that behalf. TNGD is not liable for any such special or particular description which may have been provided by any third party through any means whatsoever. TNGD does not give any warranty as to the quality state condition or fitness of the TNGD Goods.
  • TNGD shall be under no liability for the following measures and actions taken by the Buyer or third parties and the consequences thereof: improper remedy of defects, alteration of the TNGD Goods without the prior agreement of TNGD, addition and insertion of parts, in particular of spare parts which do not come from TNGD.
  • TNGD shall be under no liability in respect of any defect arising from unsuitable or improper use, defective installation or commissioning by the Buyer or third parties, fair wear and tear, wilful damage, negligence, abnormal working conditions, defective or negligent handling, improper maintenance, excessive load, unsuitable operating materials and replacement materials, poor work, unsuitable foundation, chemical, electro-technical/electronic or electric influences, failure to follow TNGD’s instructions (whether oral or in writing), misuse, or alteration or repair of the TNGD Goods without TNGD’s approval.
  • TNGD is not liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without TNGD’s prior written approval and the Buyer shall indemnify TNGD against each loss, liability and cost arising out of such claims.
  • TNGD shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the TNGD Goods has not been paid in cleared funds by the due date for payment.
  • TNGD shall be under no liability whatsoever in respect of any defect in the TNGD Goods arising after the expiry of the Warranty Period.
• Where there is any defect in the quality or condition of the TNGD Goods or where the TNGD Goods fail to correspond with its specification, the Buyer may apply to return the defective and/or damaged TNGD Goods to TNGD in exchange for a replacement or a refund in accordance with Clause 7
• When TNGD has provided replacement TNGD Goods or given the Buyer a refund, the non-conforming Goods (or parts thereof) shall become property of TNGD.

12. LIABILITY AND INDEMNITY

• In no event shall TNGD be liable for loss of profit or goodwill, loss of production or revenue, or any type of special, indirect, or consequential loss whatsoever (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss were reasonably foreseeable or if TNGD had been advised by the Buyer of the possibility of incurring the same.
• The remedies set out in Clause 11 are the Buyer’s sole and exclusive remedies for non-conformity of or defects in the Goods and TNGD’s liability for the same shall be limited in the manner specified in Clause 11.
• Notwithstanding any other provision of these Terms and Conditions, TNGD’s maximum cumulative liability to a Buyer or to any other party for all losses under, arising out of or relating to the sale of Goods under each Contract, shall not exceed the sums that the Buyer paid to TNGD under such Contract.
• If a number of events give rise substantially to the same loss they shall be regarded as giving rise to only one claim under these Terms and Conditions.
• No action shall be brought against TNGD later than three (3) months after the date a Buyer became aware of the circumstances giving rise to a claim or the date when he ought reasonably to have become aware, and in any event, no later than three (3) months after the end of the Warranty Period.
• In furtherance of the above, you agree that the content of the Platform is provided on an “as is” basis. You therefore agree that your use of the Platform and its Services, and the Goods offered for sale on this Platform are provided at your sole risk. TNGD disclaims:
  • All warranties or representations of any kind regarding the Platform, its operations or the accuracy, reliability, completeness, usefulness, non-infringement of intellectual property rights, or quality of any information, content or material included herein;
  • to the fullest extent permitted by applicable laws, all conditions and warranties, express and implied, including but not limited to implied warranties of merchantability or fitness for a particular purpose or non-infringement; and
  • all liability to you or any third party for any direct, indirect, special, consequential or punitive loss or damage (including without limitation loss of revenue, loss of goodwill, loss of reputation and loss of, or damage to, data), incurred or suffered in connection with the use or inability to use the Platform whether based in contract, tort or otherwise even if we are informed of their possibility.
• In the event of any third-party claims, damages, losses, or expenses (including legal fees) brought against TNGD arising from or relating to your usage of this Platform and its Services, and/or the Goods, you agree to defend, indemnify, and hold TNGD, our directors, employees, agents, partners, affiliates and other licensed persons, harmless at all times.

13. GENERAL

• Interpretation
  • The headings used are for convenience only and shall not affect the construction or interpretation of these Terms and Conditions.
  • All references to statutes and/or provisions of statutes include such statutes and provisions as modified, re-certified, or re-enacted.
  • Unless the contrary intention is evinced, words in the singular include the plural and vice-versa; words importing the masculine gender include the feminine and neuter and vice-versa; references to persons include bodies corporate, unincorporated associations, partnerships or an authority.
  • The words “included”, “including”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding them.
• Force Majeure

TNGD shall not be liable for non-performance, error, interruption, or delay in the performance of its obligations under these Terms and Conditions (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the Platform’s and/or Service’s contents if this is due, in whole or in part, directly or indirectly, to an event or failure which is beyond TNGD’s reasonable control.

• Notices

Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed, if to TNGD, to its registered office or principal place of business and if to the Buyer, to the address stipulated in the relevant order, email address provided by the Buyer or through the Touch ‘n Go eWallet.

• No Waiver

No waiver by TNGD of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. Further, TNGD’s failure to enforce these Terms and Conditions shall not constitute a waiver of these terms, and such failure shall not affect TNGD’s right later to enforce these Terms and Conditions.

• Severability

If any provision of these Terms and Conditions is held by any competent authority to be illegal, invalid, or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.

• Third Party Rights

No person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall have any right to enforce any terms of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties, which the agreement must refer to this Clause 15.6.

• Governing Law

The Contract and these Terms and Conditions shall be governed by and construed in accordance with the laws of Malaysia, and the parties hereby submit to the exclusive jurisdiction of the Malaysian courts.

• Variation

TNGD may, through the Platform or by such other method of notification as TNGD may designate, vary these Terms and Conditions and such variation shall take effect on the date TNGD specifies through the above means. If you continue to use the Platform after such date, you are deemed to have accepted such variation. If you do not accept the variation, you must stop accessing or using the Platform.

• Errors and Omissions

Any typographical, clerical, or other error or omission in any acceptance, invoice, or other document on TNGD’s part shall be subject to correction without any liability on TNGD’s part.

• Entire Agreement

These Terms and Conditions shall constitute the entire agreement between you and TNGD relating to the subject matter hereof and supersedes and replaces in full all prior understandings, communications, and agreements with respect to the subject matter hereof.

• Sub-contracting

TNGD reserves the right to delegate or subcontract the performance of any of its functions in connection with the performance of its obligations under these Terms and Conditions and reserves the right to use any service providers, subcontractors and/or agents on such terms as TNGD deems appropriate.