PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS A MEDIATION PROVISION AND CLASS ACTION WAIVER WHICH MAY SIGNIFICANTLY AFFECT YOUR RIGHT TO HAVE A DISPUTE HEARD IN COURT, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. PLEASE READ THIS AGREEMENT AND THE MEDIATION PROVISION AND CLASS ACTION WAIVER BELOW CAREFULLY.

 

Welcome to themodernist.com.my (the "Site"). The Modernist™ is brought to you by Beccaria Luxury Sdn Bhd (referred to in these Terms as "we", "us", "our", and "The Modernist™").

 

By accessing or using any part of the site and/or engaging our Services and/or purchasing a product from us, you are stating that you have read, understand, and agree to be bound by the following Terms of Service (collectively, the “Terms”), the Terms of Sale,  Privacy Policy, Consignment Agreement ( if you are a Consignor), and any other terms (“Additional Terms”) published on our Site, INCLUDING THE BINDING MEDIATION PROVISION CONTAINED IN SECTION 27. If you do not agree to them you may not use this Site and should leave it immediately. 

 

The Terms apply to all visitors of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content (“Users”). Please read the Terms carefully before placing any orders on the Site. We recommend you should keep a copy of the Terms for future reference.

 

Any new features or tools, which are added to the site shall also be subject to the Terms of Service. We may modify the Terms from time to time. You can review the most current version of the Terms at any time on this page. We reserve the right, at our sole discretion, to update, change or replace any part of the Terms by posting updates and/or changes to our Site. Your continued use of or access to our Site or the Service following the posting of any changes to the Terms constitutes acceptance of those changes. The Terms was last modified on 30th June, 2022.

 

1.     THE MODERNIST TERMS

By agreeing to the Terms, you represent that you are of legal age to form a binding contract and are not a person barred from receiving Services under the laws of the Malaysia or other applicable jurisdiction.

You may not use our Products for any illegal or unauthorised purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your Services.

 

2.     DESCRIPTION OF SERVICES

In the Site, we provide users with access to sales of luxury resale items and related Services (the “Service"). You are responsible for obtaining access to the site, and that access may involve third-party fees (such as internet Service provider or mobile data charges). In addition, you must provide and are responsible for all equipment necessary to access the site.

The term our “Online Services” refers to The Modernist, our mobile and tablet applications, our pages on third party social media platforms such as Instagram, Facebook, Twitter, Pinterest and Google+ and any other Sites or apps we own or run from time to time.

The term our “Services” refers to our online Services and any of our other Products and services, such as authentication, consultation, restoration services, offered from time to time. If you use any of our Services, we will refer to you as the terms “user”, “visitor”, “you”, “your”, “yours” in this policy. 

 

3.     GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the Site through which the service is provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

 

4.     REGISTRATION

You warrant that: -

1. The personal information which you are required to provide when you register as a customer is true, accurate, current and complete in all respects.

2. You will notify us immediately of any changes to the personal information by contacting us.

3. You agree not to impersonate any other person or entity or to use a false name or a name that you are not authorised to use.

 

5.     YOUR ACCOUNT

You represent and warrant that you are of legal age to form a binding contract and are not a person barred from receiving Services under the laws of the United States or any other applicable jurisdiction. You also agree to provide true, accurate, current and complete information about yourself as prompted by the Site's registration form. If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or The Modernist has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, The Modernist has the right to suspend or terminate your account and refuse any and all current or future use of the Site and Service (or any portion thereof). If you use the Site or Service, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account or password. Because of this, we strongly recommend that you exit from your account at the end of each session. You agree to notify The Modernist immediately of any unauthorized use of your account or any other breach of security. The Modernist reserves the right to refuse service, terminate accounts or remove or edit content in its sole discretion for any reason or no reason.

 

6.     CONTENT

The Modernist endeavours to ensure that the information posted by it on the Site is accurate and complete. The Modernist does not, however, guarantee that the Content or any other information available on the Site is accurate and/or error-free, The Modernist does not promise that the functionality of the Site or Content will be error-free or that the Site, Content or the server that makes it available are free of viruses, malicious code or other components which are potentially harmful. We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.

The Modernist recommends that all users of the Internet ensure they have up to date virus checking software installed.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

 

7.     ACCEPTANCE OF ORDERS

All information on the Site is an invitation to treat only and is not an offer or unilateral contract. You agree that your order is an offer to purchase the Products listed in your order ("Products") from us on the Terms. All orders submitted by you are subject to acceptance by us. We may choose not to accept your order in our discretion for any reason whatsoever without liability to you unless we are not permitted to do so under the statutory law. Examples of when we may not accept your order are as follows:

i.       If Products are shown on the Site but are not available or are incorrectly priced or otherwise incorrectly described; 

ii.      If we are unable to obtain authorisation of your payment; 

iii.    If you order multiple quantities of an individual Product where such Products are to be shipped to any one customer or delivery address; 

iv.    If shipping restrictions may apply to a Product; or 

v.     If the delivery address you give is the address of an entity or individual providing freight forwarding services.

After submitting an order to us, we will send you an order acknowledgement email with your order number and details of the Products you have ordered from us and details of the delivery you have ordered. Please note that this email is an acknowledgement that we have received your order and is not an acceptance of your order. Acceptance of your order and the formation of (a) a contract of sale of the Products between you and us and (b) a contract for delivery services between you and us will not take place until the Products have been despatched by our delivery partner on your behalf pursuant to your delivery contract with us. After entering into the contract of sale, we will be under a legal duty to supply you with goods that are in conformity with the contract.

When placing an order for the first time, you may be offered the option to open an account with us and will be required to complete certain required fields on an order form. We may provide you with and/or ask you to use identifications and passwords and other means for you to be able to access certain areas of the Site, such as the My Account section of the Site ("Secure Access"). Where we do so, it is on the condition that you shall be responsible for ensuring that such Secure Access is kept secure and confidential at all times. You shall comply with all security directions and/or recommendations given by us and inform us at info@themodernist.com.my immediately if you become aware of or suspect any unauthorised use of the Secure Access or if the Secure Access becomes available to an unauthorised party. Without prejudice to our other rights and remedies, we may suspend your access to the Site without liability to you, if in our reasonable opinion, such action is necessary for safeguarding the Site.

In the event prolonged inactivity causes your connection to the Site to fail, your selection of goods may be lost. In such case, you will be required to re-enter your selection. Please note that items in your shopping basket are not reserved and may be purchased by other customers.

Before you submit your order, you will be given the opportunity to review your selection, check the total price of your order and correct any input errors.

You will be charged for Products when they have been despatched by our delivery partner on your behalf, except in the case of placing a pre-order. Payments for items on pre-order will be taken at the time of purchase.

Variations in both the manufacturing processes we use and also the display properties of the computer hardware you use to view the Site may mean that the colours, measurements, fabrics and designs of the Products displayed on the Site and the Products delivered to you may differ in appearance in minor respects.

 

8.     PRICES

All prices of Products on the Site are the price for the Products only. They include any SST or other sales tax payable. We shall endeavour to notify you if the price displayed is not fully inclusive of any customs duties or taxes. Prices do not include the charge to you for delivery if any.

We endeavour to ensure that all pricing information on the Site is correct. Occasionally, however, an error may occur and Products may be mispriced. If a Product's correct price is lower than the price stated on the Site, subject to our right to refuse an order, we will charge the lower amount and send you the Product. If a Product's correct price is higher than the price stated on the Site, we will, at our discretion, contact you and ask you whether you wish to proceed with the order at the correct price or cancel your order and notify you of such cancellation. We will not be obliged to supply Products at an incorrect price. The Modernist may vary the prices of Products listed on the Site at any time and without any notice but such changes will not apply to Products in respect of which you have been sent a Shipping Confirmation.

Please note that in some countries additional duties may be payable to your local tax authorities on receipt of your delivery. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order. Please also note that you must comply with all applicable laws and regulations of the country for which the Products are destined. We will not be liable for any breach by you of any such laws.

 

9.     PAYMENT TERMS

The total cost of your order will be the purchase price for the Products (which you pay to us) plus any delivery charges.

You confirm that the credit/debit card or payment method that is being used is yours and that all details you provide to us in respect thereof including, without limitation, name and address details are complete, correct and accurate. You further confirm that the credit/debit card is valid and the inputted payment details are correct. All credit/debit cardholders and payment account holders are subject to validation checks and authorisation by the card issuer or payment method provider. If the issuer of your card or payment method refuses to authorise payment, we will not accept your order and we will not be liable for any delay or non-delivery and we are not obliged to inform you of the reason for the refusal.

We are not responsible for any charges or other amounts which may be applied by your card issuer or bank or payment method provider as a result of our processing of your credit/debit card payment or other method of payment in accordance with your order or as a result of the seller of the Product(s) being located in the Malaysia.

If your credit/debit card or payment method is not denominated in Malaysian Ringgit (MYR) the final price may be charged in the currency of your card or account. Such final price is calculated and charged by your card issuer or bank or payment method provider and therefore we shall not be responsible for any cost, expense, charge or other liability which may be incurred or suffered by you as a result of your card issuer or payment method provider charging you in a different currency other Malaysian Ringgit.

 

10.  INVOICING

Where we elect or are required by applicable law, to issue or make available an invoice, we reserve the right to issue or make available electronic invoices and you agree to such form of invoicing.

 

11.  DELIVERY, TITLE AND RISK

We do not currently deliver Products, but our delivery partners do. Orders will be sent to the delivery address that you have given on your order form. Neither we nor our delivery partner can be held responsible if that delivery address is incorrect or incomplete. Please note that our delivery partner does not deliver to PO boxes. Please note that there may be restrictions on the locations to which our delivery partner delivers Products purchased from the Site. Delivery restrictions will be clearly marked on the individual product page.

 

Providing your order has been accepted by us, your order shall be processed by us and our delivery partner will endeavour to dispatch your order in accordance with the estimated delivery times set out in the delivery information or as otherwise specified in the checkout process as you submit your order. There may be restrictions or exclusions in respect of specific addresses in countries to which we ship. These may change from time to time. We shall endeavour to notify you of such restrictions but this may not be possible until we have received your order. Orders received after any specified “cut off” or “last order” time or received on a day that is not a working day will be processed on the next working day. Estimated delivery times will be calculated from the date on which the order is processed, unless otherwise specified.

Title in the Products will pass to you on the later of: -

(a) the date on which we receive payment in full for such Products; and 

(b) the date and time of dispatch of such Products by our delivery partner on your behalf for delivery to your nominated address.

Once a Product has been dispatched by our delivery partner on your behalf, all risk of damage to, or loss of, the Product shall pass to you. However, we make certain provisions protecting you until such time as our delivery partner delivers the Product(s) to you.

We shall be entitled to supply the Products in instalments and each instalment shall be deemed to constitute a separate contract with us, and we shall be entitled to supply only part of an order.

As part of the ordering process, you will contract for a supply of goods by The Modernist and a separate supply of delivery services from our delivery partner. Monies due from you to our delivery partner will be collected by The Modernist and passed to our delivery partner on your behalf. Upon placing an order, you will receive various emails and paper documents in relation to your order. In respect of each of these and any other similar emails or paper documents, please note that references to shipping, handling and any other similar terms relate to the services performed by our delivery partner. For administrative ease, you will not receive separate documents or email confirmations from The Modernist.

In the event that a Product is subsequently imported into a country other than the country to which our delivery partner delivered the Product, you shall be responsible for complying with all local import requirements, laws, regulations and rules and paying all import taxes and duties as may be applicable in respect thereof.

 

12.  RETURNS

ALL SALES ARE FINAL ONCE THE ITEM IS AUTHENTICATED AND DELIVERED, AND NO REFUND REQUESTS WILL BE HONORED REGARDLESS OF THE CURRENT VALUE OF THE ITEM. If you experience a problem with your purchase or an item, please contact us at info@themodernist.com.my. If there is a problem with an item you received, you must contact us in writing within 3 days after receiving the item with a detailed description of the problem. The Modernist verification tags or stickers that are attached to items must not be removed, or the items will not be eligible for return or exchange under any circumstance (including damage in transit).

If you receive an item that you believe is inauthentic, you may qualify for a full refund subject to the provision of a written statement of non-authenticity or letter of evidence from Real Authentication. The Item(s) must be returned unused or unopened, and with the original receipt, designer garment tags attached, and any related accessories or packaging included.

We reserve the right to refuse returns of any merchandise that we determine does not meet our return/exchange requirements.

Where you have paid any duties or taxes directly to the relevant authorities on the importation of the Product you wish to return, The Modernist shall have no liability in relation to any claim for a refund of such duties or taxes from the authorities or whether or not such a refund is possible.

Please note that clearance-priced merchandise may not be returned or exchanged with the Service Provider. All sales are final.

 

13.  AUTHENTICATION AND BRANDS

You acknowledge and agree that The Modernist’s authentication process is in-house and independent. Brands identified on the Site are not involved in the authentication of the Products being sold, and none of the brands sold assumes any responsibility for any Products purchased from or through the Site. Brands sold on the Site are not partnered or affiliated with The Modernist in any manner. However, The Modernist fully cooperates with brands seeking to track down the source of counterfeit items, which includes revealing the contact information of consignors submitting counterfeit goods. See www.themodernist.com.my/authenticity.

 

14.  MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our Products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Service, Terms, and Additional Terms (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

 

15.  PRODUCTS OR SERVICES

Certain Products or Services may be available exclusively online through the Site. The Products or Services may have limited quantities and are subject to no return or no exchange according to our Return Policy.

We have made every effort to display as accurately as possible the textures, colours and images of our Products that appear at www.themodernist.com.my. We cannot guarantee that your computer monitor’s display of any colour will be accurate.

We reserve the right, but are not obligated, to limit the sales of our Products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products or services that we offer. All descriptions of Products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.

We do not warrant that the quality of any Products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

 

16.  ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at www.themodernist.com.my. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

 

17.  PACKING AND SHIPPING

Buyers are responsible for all shipping costs and fees. We will, at the buyer's expense, either provide packing, handling, insurance and shipping services or coordinate with shipping agents instructed by the buyer in order to facilitate such services for property purchased from The Modernist.  As a courtesy to buyers, The Modernist will, without charge, wrap purchased items for hand carry only. Any such instruction, whether or not made at our recommendation, is entirely at the buyer's risk and responsibility and we will not be liable for acts or omissions of third party packers or shippers. The Modernist will require presentation of government-issued identification prior to release of a piece to the buyer or the buyer's authorized representative.

 

18.  OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to the Terms.

 

19.  THIRD-PARTY LINKS

In an attempt to provide you with increased value, we may include third party links on our site. These linked sites have separate and independent privacy policies. We therefore have no responsibility or liability for the content and activities of these linked sites. Nonetheless, we seek to protect the integrity of our site and welcome any feedback about these linked sites (including if a specific link does not work). Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party Products should be directed to the third-party.

 

20.  USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or the TERMS.

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libellous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related Site. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

 

21.  DATA PROTECTION

By placing an order, you agree and understand that we may collect, use, store and process your personal data in accordance with our Privacy Policy. The Modernist fully respects the privacy of individuals who access and use the Website. For details on the manner in which we use cookies, the type of information we collect, how and for what purpose, we use your information and under what circumstances we disclose information please see our Privacy Policy here, which are incorporated into and form part of these Terms.

 

22.  ASSIGNMENT

We reserve the right to transfer, assign, novate or sub-contract all or any of our rights and obligations under these Terms provided that your rights under these Terms are not affected. You may not assign, sub-contract or otherwise transfer any of your rights or obligations under these Terms without our consent in writing.

 

23.  ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related Site is inaccurate at any time without prior notice (including after you have submitted your order).

The Modernist may change the provisions of this Agreement. We undertake no obligation to update, amend or clarify information in the Service or on any related Site, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related Site, should be taken to indicate that all information in the Service or on any related Site has been modified or updated.

 

24.  PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related Site, other Sites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related Site, other Sites, or the Internet. We reserve the right to terminate your use of the Service or any related Site for violating any of the prohibited uses.

 

25.  DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

All content, Products, and services on the Site, or available through the Service, or obtained from a Site to which the Site is linked (a “Linked Site”) are provided to you “as is” without warranty of any kind either express or implied including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, title, non-infringement, security or accuracy.

The Modernist does not endorse and is not responsible for: -

i.       The accuracy or reliability of any opinion, advice or statement made through the Site or Service by any party; or

ii.      Any content provided on Linked Sites; or

iii.    The capabilities or reliability of any Product or Service obtained from a Linked Site.

Other than as required under applicable Malaysia Consumer Protection Law, under no circumstances will The Modernist be liable for any loss or damage caused by a User’s reliance on information obtained through the Site or a Linked Site, or User’s reliance on any Products or Service obtained from a Linked Site.

It is the responsibility of the User to evaluate the accuracy, completeness or usefulness of any opinion, advice, product, service or other content available through the Site, or obtained from a Linked Site.

We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.

You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.

You expressly agree and understand that your use of, or inability to use, the service is at your sole risk. The service and all Products and services delivered to you through the service are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

You expressly understand and agree that 9n no case shall The Modernist, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any Products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

 

26.  INDEMNIFICATION

You agree to indemnify, defend and hold harmless The Modernist and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any and all claims, fines, penalties, liabilities, losses, demands, and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by The Modernist and such parties, and shall defend The Modernist and such parties against any and all claims arising out of (1) your breach of these Terms and Use and Terms of Service; (2) your breach of the Consignment Agreement and Privacy Policy; (4) fraud you commit, or your intentional misconduct or gross negligence; or (5) your violation of any applicable Laws of Malaysia or the rights of a third party. The Modernist will control the defences of any claim to which this indemnity may apply, and in any event, you shall not settle any claim without the prior written approval and consent of The Modernist.

 

27.  MANDATORY MEDIATION AGREEMENT AND CLASS ACTION WAIVER

EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THIS SECTION, YOU AND WE AGREE THAT ANY LEGAL OR EQUITABLE CLAIMS ARISING OUT OR RELATING IN ANY WAY TO YOUR RELATIONSHIP WITH US, YOUR USE OF SERVICE, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS TERM, THE FORMATION, VALIDITY, ENFORCEABILITY, SCOPE, OR APPLICABILITY OF THIS TERM, THE SITE, ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY THE MODERNIST OR THROUGH THE MODERNIST, AND/OR RIGHTS OR PRIVACY AND/OR TERMS OF SALE, WILL BE RESOLVED WITH THE FOLLOWING PROCEDURES:-

 

A.    INTERNALLY BETWEEN YOU AND US (“NEGOTIATION”)

UPON WRITTEN NOTICE OF ANY DISPUTES, THE PARTIES SHALL ATTEMPT TO RESOLVE IT PROMPTLY AND INTERNALLY BY NEGOTIATION BETWEEN YOU AND THE MODERNIST.

 

B.     MEDIATION

IF THE DISPUTES IS NOT SETTLED THROUGH NEGOTIATION IN ACCORDANCE WITH PARAGRAPH A ABOVE, THE PARTIES AGREE TO RESOLVE THE DISPUTES BY BINDING, INDIVIDUAL MEDIATION AND THE MODERNIST RESERVED THE RIGHT TO ELECT A MEDIATOR AND THE PARTIES SHALL AGREE ON THE MEDIATOR APPOINTED BY THE MODERNIST.

YOU AGREE THAT ANY CLAIMS YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING MEDIATION. YOU WAIVE THE RIGHT TO HAVE YOUR DISPUTES HEARD IN COURT AND WAIVE THE RIGHT TO BRING CLASS CLAIM. YOU UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN MEDIATION. 

WE EACH AGREE THAT ANY MEDIATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS BETWEEN YOU AND THE MODERNIST AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. 

WHEN A SETTLEMENT IS REACHED, BOTH PARTIES SHALL SIGN THE SETTLEMENT FORM AND FORGO THE RIGHTS TO APPEAL.

 

28.  FORCE MAJEURE

The Modernist shall be excused from performance under these Terms, to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labour strikes, or (5) other causes beyond the reasonable control of The Modernist. In the event that The Modernist is temporarily unable to ship to you a purchased item because of such an event, The Modernist will give you the option of deferring shipment or receiving a refund of your charges.

 

29.  SEVERABILITY

In the event that any provision of the Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from the Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.

 

30.  TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms are effective unless and until terminated by either you or us. You may terminate the Terms at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of the Terms, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

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31.  ELECTRONIC COMMUNICATIONS

When you visit www.themodernist.com.my send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

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32.  PRINT A COPY FOR YOUR RECORDS

You agree to print or make an electronic copy of this Agreement (and any amendment from time to time) and retain it in your records. You also agree to make a copy of any other information that we deliver to you in writing. 

33.  COPYRIGHT

All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of The Modernist or its content suppliers and protected by Malaysia and international copyright laws. The compilation of all content on this site is the exclusive property of www.themodernist.com.my and protected by Malaysia and international copyright laws. All technology used on this site is the property of www.themodernist.com.my or its software suppliers and protected by Malaysia and international copyright laws.

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34.  TRADEMARKS

www.themodernist.com.my; The Modernist; and other marks indicated on our site are registered trademarks of The Modernist, or its affiliates, in Malaysia and other countries. The Modernist graphics, logos, page headers, button icons, scripts, and service names are trademarks or trade dress of The Modernist. The Modernist trademarks and associated images may not be used in connection with any product or service that is not The Modernist, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits The Modernist. All other trademarks not owned by The Modernist or its subsidiaries that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Modernist.

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35.  CHANGE OF NAME

The Modernist shall have the absolute right to vary, amend and/or modify the name of the business without giving any reason or notice to the you and you shall agree to and accept the name so varies, amended and/or modified without any objection whatsoever, and without The Modernist having to compensate you any resulting costs, expenses or losses.

36.  LICENSE AND SITE ACCESS

The Modernist grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of The Modernist. This license does not include any resale or commercial use of this site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of www.themodernist.com.my. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of The Modernist and our affiliates without express written consent. You may not use any meta tags or any other “hidden text” utilising The Modernist name or trademarks without the express written consent of The Modernist. Any unauthorized use terminates the permission or license granted by The Modernist. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the homepage of www.themodernist.com.my so long as the link does not portray The Modernist, its affiliates, or their Products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any The Modernist logo or other proprietary graphic or trademark as part of the link without express written permission.

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37.  ENTIRE AGREEMENT

The Terms govern our relationship with you. The failure of The Modernist to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.

The Terms and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of the Terms shall not be construed against the drafting party.

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38.  SEVERANCE

Each provision of these Terms shall be construed separately and independently of each other. If any provision is deemed invalid, void or otherwise unenforceable, that provision shall be deemed severable form and not affect the enforceability of any of the other provisions of these Terms.

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39.  GOVERNING LAW

By visiting The Modernist, you agree that the Terms and the relationship between you and The Modernist shall be governed by and construed in accordance with the laws Malaysia.

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CONTACT US

Questions about the Terms of Service should be sent to us at:

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THE MODERNIST

Level 35-02 (East Wing), Q Sentral, 2A, Jalan Stesen Sentral 2,

KL Sentral, Kuala Lumpur 50470, Malaysia.

Email: info@themodernist.com.my

Phone: +603-2731 9225

Whatsapp: +6011-16019856

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The Modernist reserves the right to amend this Terms at any time. The version published on the Site is the one currently in force.

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Last updated: June 30th, 2022