Welcome to Drinkies Malaysia. You should be of legal drinking age to visit the Website.
HEALTH WARNING: MEMINUM ARAK ADALAH MEMBAHAYA UNTUK KESIHATAN. Excessive alcohol consumption is harmful to your health.
1 Parties and Agreement to the terms and conditions
1.1 This agreement (“Agreement”) is an agreement between you (“you” or “your”) and Heineken Marketing Malaysia Sdn. Bhd. (“HEINEKEN”) (Company No: 5971-D) and shall govern:
(a) the use of www.drinkies.my (“Site”);
(b) the services made available to you through or in connection with the Site (“Services”);
(c) sale and purchase of any of the products offered through the Site (“Products”); and third party products made available, offered, published or sold through the Site (“Third Party Products”), collectively referred to as the “Products”; and
(d) your use of all details, content, dimensions, data, photographs, text, descriptions, specifications, audio, video clips, graphics, images, materials, documentation and/or other information or any part thereof (“Information”) made available to you by HEINEKEN in connection with this Agreement.
1.2 Your use of the Site constitutes your full agreement to the terms contained in this Agreement. If you do not accept any of the terms contained in this Agreement, you should immediately cease all usage of the Site and notify HEINEKEN to discontinue any updates which you have signed up for, failing which you shall be deemed to have accepted all the provisions contained in this Agreement.
2 Compliance with Laws and Policies
2.1 The sale of alcohol to individuals below the age of 21 years old or professing the religion of Islam is strictly prohibited. If you fall below any of the categories above, please immediately exit the Site. You shall not purchase any Products from the Site.
2.2 You shall comply with and procure all your employees, staff, agents, representatives and/or personnel to comply with all applicable law, regulations, guidelines, policies, orders, codes and/or other requirements as may be imposed by all relevant governmental or regulatory bodies and authorities from time to time.
2.3 You shall comply with all guidelines, rules, regulations, policies, instructions, and procedures in connection with this Agreement as imposed or may be imposed from time to time by HEINEKEN at HEINEKEN’s absolute discretion.
3 Provision of Services and Products
3.1 If you wish to have full access to the Site and Services or if you wish to purchase any of the Products, you shall provide HEINEKEN with all the necessary information. You shall be responsible for ensuring that all information made available by you to HEINEKEN is accurate, original, authentic, complete, reliable, current, error-free and will not violate or infringe the rights, including without limitation Intellectual Property Rights (hereinafter defined), of any third party. You may be asked to provide additional verification or Information and HEINEKEN shall be entitled to refuse you the access to the Site and/or the Services and/or refuse to process your order in the event you do not agree or fail to provide the requested Information without any liability on the part of HEINEKEN. If you have created an account, you shall be solely responsible for maintaining the confidentiality of the information and activities of your account.
3.2 In the event that the contract for the sale of any of the Products is deemed to have been formed, usually when you have received the order confirmation email from HEINEKEN, you may not modify or cancel such contract except with HEINEKEN’s agreement in writing and on the condition that you shall indemnify HEINEKEN in full against all loss, costs, damages, charges and expenses (including loss of profit) incurred by HEINEKEN as a result of such modification or cancellation.
3.3 At any time before the formation of the contract for the sale of any of the Products, HEINEKEN shall be entitled to refuse or cancel your order without giving any reasons despite the fact that your order has been acknowledged by HEINEKEN. If any payment has already been made by you and received by HEINEKEN in relation to an order which has been cancelled for the above reasons, HEINEKEN will refund the same to you.
3.4 HEINEKEN reserves the right to limit your order or the quantity of the Products you may order. Your order is subject to the availability of the Products. Please refer to Clause 7 for order fulfilment and delivery.
- 3.5 All Third Party Products are offered by the relevant third-party seller (“Vendor”) and HEINEKEN is merely the facilitator of such Third Party Products.
- 3.6 The agreement formed or entered into between the relevant Vendor and you through the Site for the sale of any of the Third Party Products (“Sale Contracts”) are strictly made between the relevant Vendor and you to the full and absolute exclusion of HEINEKEN. For the avoidance of doubt,
- (a) HEINEKEN makes no representation and/or warranty of any kind as to the Third Party Products and HEINEKEN shall not be made liable or responsible to you in any manner whatsoever for any costs, loss, damages, claims, fines, penalties, liabilities and/or expenses howsoever arising from the Sale Contract, including without limitation for any negligence, delay, failure, fault and/or breach on the part of the relevant Vendor save and except that HEINEKEN shall be responsible for arranging the Third Party Products to be delivered to the agreed address specified by you from the Vendor’s site/warehouse.
- (b) The Vendor shall be solely liable for all claims in relation to and in connection with the Sale Contracts, including, without limitation, defective quality and/or inaccurate description of the Third Party Products save and except for the delivery of the Products from the Vendor’s site/warehouse to the agreed address specified by you; and
- (c) HEINEKEN shall not in any manner whatsoever be construed, at law or otherwise, to owe a fiduciary duty to you in respect of the obligations on the part of the Vendor.
3,7 Notwithstanding the foregoing, the Sale Contracts shall be subject to and you shall observe and comply with the following terms and conditions:
(a) You shall carry out all your obligations in connection with the Sale Contracts diligently in a timely manner; and
- (b) You shall comply with any instructions, guidelines and/or policies as may be published or provided by HEINEKEN in connection with the Sale Contracts from time to time.
3.8 In the event that any conflict, dispute and/or issue in respect of the Sale Contract arises,
(a) You shall promptly notify HEINEKEN and use your best endeavor to resolve such conflict, dispute or issue fairly and amicably;
(b) HEINEKEN shall have the right to retain any sums paid for the Third Party Products until a mutually amicable binding resolution has been reached; and
(c)HEINEKEN shall be entitled to intervene or take part in the resolution of such conflict, dispute or issue in order to protect its goodwill and reputation at its sole and absolute discretion and you shall comply with all reasonable instruction as may be made by HEINEKEN in connection thereof.
4 Licence Terms
4.1 Subject to the terms and conditions contained herein, HEINEKEN hereby grants you a non-transferable, non-exclusive licence to use the Site, Services and/or the Information made available to you by HEINEKEN in connection with this Agreement (“HEINEKEN Property and Services”, reference to HEINEKEN Property and Services shall include any part thereof). Save and except as otherwise stated in this Agreement or with HEINEKEN’s prior written consent, you shall not and shall not attempt, whether by yourself or by allowing any third party, to:
(a) use HEINEKEN Property and Services for any purposes other than for the purpose of this Agreement. You shall not commercialise any HEINEKEN Property and Services;
(b) use HEINEKEN Property and Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with or not authorised by this Agreement or act fraudulently or maliciously;
(c) commercially exploit, misuse or abuse HEINEKEN Property and Services in any manner whatsoever or otherwise compromise the integrity of HEINEKEN’s software or systems;
(d) access any Information not intended for you, including without limitation logging into a server or an account which you are not authorized to access;
(e) use any device, software or routine to interfere with the proper working of the HEINEKEN Property and Services and/or transmit or distribute any malicious code, viruses, or harmful data or cause any such malicious code, viruses, or harmful data to be transmitted or distributed into or through HEINEKEN Property and Services or any operating system. You shall continuously operate nationally recognized virus scanning software to ensure that your system that integrates with or connected to HEINEKEN Property and Services does not contain any virus or any other contaminant;
(f) distribute, transmit or post (or cause to be distributed, transmitted or posted) through or on HEINEKEN Property and Services any Information which is or may be unlawful, technologically harmful, false, misleading, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, which encourages or may encourage conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable laws or which violates or infringes or may violate or infringe the rights (including intellectual property rights) of others;
(g) send, advertise or publish any unsolicited advertising or promotional content through or on HEINEKEN Property and Services;
(h) collect or harvest any Information from HEINEKEN Property and Services or HEINEKEN’s systems in an unauthorized manner or attempt to decipher any transmissions to or from the servers running any of the services provided or hosted on or through the Site;
(i) carry out any activity or use HEINEKEN Property and Services in a way which may:
i. interfere with the proper working of HEINEKEN Property and Services or otherwise affect the performance or functionality of any computer facilities related to HEINEKEN Property and Services;
ii. interfere with or circumvent the security features of HEINEKEN Property and Services or any related website, other websites, or the Internet;
iii. damage, disable, overburden, impair or compromise HEINEKEN’s systems or security; or
iv. interfere with other users’ use and enjoyment of HEINEKEN Property and Services;
(j) copy, distribute, recreate, and/or disseminate the underlying software of HEINEKEN Property and Services except where such act is incidental to the normal use of HEINEKEN Property and Services, or where it is necessary for the purpose of this Agreement or other back-up and/or operational security reasons;
(k) provide or otherwise make available the underlying software of the Site in whole or in part (including object and source code), in any form to any person;
(l) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the underlying software of HEINEKEN Property and Services;
(m) disassemble, decompile or reverse engineer or create derivative works based on the whole or any part of the HEINEKEN Property and Services; and
(n) make alterations or modifications to the underlying software of the whole or any part of HEINEKEN Site/Services or permit the same to be combined with, or become incorporated in, any other programs.
5 Consumer Protection
5.1 Notwithstanding anything contained herein, if the Consumer Protection Act 1999 (“CPA”) applies and if you are dealing as a consumer under the CPA (consumer shall have the meaning prescribed to it by the CPA, “Consumer”),
(a) HEINEKEN gives you such implied warranties under the CPA that cannot be excluded by the CPA. This Agreement is only intended to exclude or limit the remedies and rights you may have to the maximum extent permitted by the CPA; and
(b) nothing in this Agreement is intended to exclude or limit HEINEKEN’s liability to you for any loss or damage arising from HEINEKEN’s negligence or HEINEKEN’s breach of any express or implied terms of this Agreement without adequate justification.
6 Terms of payment
6.1 You may make payment to HEINEKEN for the purchase of any of the Products via any of the payment gateways available on the Site. You shall be bound by the specific terms and conditions applicable to the relevant payment gateway in addition to this Agreement.
7 Order Fulfilment and Delivery of Products
7.1 Time for delivery shall not be of the essence of the Agreement. Dates quoted on the Site for delivery are approximate only and HEINEKEN shall not be liable for any delay in delivery of the Products. Please note that HEINEKEN has the right to sub-contract its obligations for the delivery of the Products to any third party at any time and at its sole discretion. The order fulfilment and delivery of the Products shall be in accordance with HEINEKEN’s order fulfilment and delivery policy attached to this Agreement as Part 1 of Schedule 1.
8 Risk and Title
8.1 Risk of damage to or loss of the Products shall pass to you at the time of delivery or, if you wrongfully fail to take delivery of the Products, the time when HEINEKEN has tendered delivery of the Products. HEINEKEN shall not be liable for any damage to or loss of the Products from the time when risk passes to you.
8.2 The property in the Products shall pass to you upon the later of the following events:
(a) HEINEKEN has received cleared funds payment in full of the price of the Products; or
(b) delivery of the Products.
8.3 In the event that you have received any Products in which the property has yet to pass, you shall hold the Products on behalf of HEINEKEN on trust and shall not cause the Product to be encumbered in any way until the property has passed to you. HEINEKEN shall have the right to demand you to deliver up to HEINEKEN the Products in which the property has not passed to you. You shall indemnify HEINEKEN against all loss damages costs expenses and legal fees incurred by HEINEKEN in connection with the assertion and enforcement of HEINEKEN’s rights under this Clause if such actions become necessary as a result of your fault.
9 Return and Refund Policy
9.1 If you are dealing as a Consumer under the CPA, this Clause is only intended to exclude or limit the remedies and rights you may have under the CPA to the maximum extent permitted by the CPA. Save and except the foregoing, the provisions below shall apply to all contracts formed between HEINEKEN and you for the sale and purchase of the Products.
9.2 The return and refund of any Products shall be in accordance with HEINEKEN’s return and refund policy set out in Part 2 of Schedule 1.
10 Promotions, Vouchers and Points
10.1 HEINEKEN may do promotions, issue vouchers and award points for the purchase of the Products through the App or Site from time to time. The promotions and issuance and utilisation of the vouchers and points shall be governed by the terms and conditions set out in Part 3 of Schedule 1.
11.1 HEINEKEN warrants that the Services will be provided with reasonable care and skill.
11.2 To the maximum extent permitted by law and subject to the provisions of the CPA (where you are dealing as a Consumer under the CPA), aand HEINEKEN Property and Services are provided on an “as is” and “as available” basis, with all faults and without warranties or conditions of any kind, and HEINEKEN hereby disclaims all warranties and conditions with respect to such HEINEKEN Products and HEINEKEN Property and Services save and except as otherwise stated herein. Without limiting the generality of the foregoing, HEINEKEN does not guarantee, represent or warrant:
(a) that the HEINEKEN Products and/or HEINEKEN Property and Services will meet your requirements;
(b) that your use of the Services and/or the Site will be uninterrupted, timely, secure or error-free;
(c) the timeliness, adequacy or completeness of the Information contained in the Site or the Services; and
(d) that the Site or the Services are free from any computer virus or other malicious, destructive or corrupting code, agent or program. You shall be responsible for implementing all necessary security and virus protection measures on or in your computer or mobile device before accessing the Site.
11.3 You understand, acknowledge and agree that advice or recommendations are a matter of opinion and may not represent the true application, quality or feature of a particular Product, as such you accept that any advice or recommendation given by HEINEKEN, its employees or agents is followed or acted upon entirely at your own risk, and accordingly HEINEKEN shall not be liable for any such advice or recommendation.
12 Liability of HEINEKEN
12.1 To the maximum extent permitted by law and subject to the provisions on the CPA:
(a) in no event shall HEINEKEN be liable for any indirect, incidental, punitive and/or consequential damages and/or losses, loss of profit, goodwill, production and/or revenue and/or any other type of special losses and/or damages howsoever arising whether or not such losses and/or damages were reasonably foreseeable or HEINEKEN had been advised of the possibility of the same incurring; and
(b) HEINEKEN’s maximum and cumulative total liability (including any liability for acts and omissions of its Representatives) in respect of any and all costs, loss, damages, claims, fines, penalties, liabilities and/or expenses however arising under, or in connection with, this Agreement (whether arising in contract, tort or otherwise) shall not exceed the fees paid by you for the relevant Products.
13 Intellectual Property Rights
13.1 You acknowledge and agree that HEINEKEN and/or HEINEKEN’s suppliers, contractors, partners and/or licensors (if any), shall own and retain all rights, titles and interests in, to and under (a) patents, registered designs, designs, copyrights and all other intellectual or industrial properties in connection with the Products and HEINEKEN Property and Services, including without limitation know-how, inventions, and trade secrets (and all copies and derivative works thereof, by whomever produced); and (b) all of its respective names, service marks and logos, trade names and any other trademarks (collectively be referred to as the “Intellectual Property Rights”). Nothing in this Agreement shall transfer or assign any such Intellectual Property Rights to you. All Intellectual Property Rights created and/or developed pursuant to this Agreement by HEINEKEN (its suppliers, contractors, partners and/or licensors (if any)) shall belong absolutely to HEINEKEN.
13.2 You shall not use HEINEKEN Property and Services and any other properties in which any of the Intellectual Property Rights subsist except only to extent necessary for the purpose of and to the extent permitted by this Agreement. You shall not, whether by yourself or through any other person, engage in any conduct which will infringe the Intellectual Property Rights of HEINEKEN or those of any third party in relation to your use of the Site and/or Services.
14 Confidential Information
14.1 “Confidential Information” means all information of any kind, whether in machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”, that are made available by or on behalf of the disclosing party to the receiving party for the purposes relating to or in connection with this Agreement. “Confidential Information” shall not include information that: (i) was, at the time of its disclosure, already in the possession of the receiving party and such party can establish, through reasonably sufficient and credible competent evidence, such prior possession; (ii) is independently developed by the receiving party, (iii) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its Representatives (hereinafter defined); or (iv) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its Representatives; provided, however, that such source is not to the knowledge of the receiving party bound by a confidentiality agreement or other legal or fiduciary obligation of secrecy to the disclosing party.
14.2 The receiving party shall not disclose the Confidential Information or any part thereof to any person except (i) where such disclosure is required by law or the regulations of any securities exchange; (ii) where such disclosure is permitted under this Agreement; (iii) to their respective employees, agents, service provider, personnel and/or legal, financial and/or accounting advisors (collectively, “Representatives”) who have a definite need to know such Confidential Information for the purpose of this Agreement; and/or (iv) with prior written approval of the disclosing party. In the event that any Confidential information is disclosed to any third party and/or Representatives in accordance with this Clause, the receiving party shall ensure that such third party and/or Representatives have been duly apprised of the requirements of this Clause and are or will be bound to keep such Confidential Information confidential as required in this Agreement.
14.3 Notwithstanding anything contained herein, HEINEKEN shall be entitled to disclose your Information to the relevant Vendor or HEINEKEN’s service providers for the purpose of this Agreement. You hereby irrevocably and unconditionally authorises HEINEKEN to forward your contact Information to the relevant Vendor and service providers of HEINEKEN.
14.4 All Confidential Information shall solely be used for the purpose of this Agreement.
15 Personal Data
15.1 Your Personal Data will be processed in accordance with the Privacy Notice published on the Site.
16 Force Majeure
16.1 HEINEKEN shall not be liable to you in any manner whatsoever or be deemed to be in breach of this Agreement by reason of any delay in performing or any failure to perform any of HEINEKEN’s obligations if such delay or failure was due to any cause beyond HEINEKEN’s reasonable control, including but not limited to:
(a) fire, act of God, storm, explosion, earthquake, flood, tempest, accident or other natural disaster;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock outs or other industrial actions or trade disputes (whether involving employees of HEINEKEN or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery faced by HEINEKEN or suppliers; or
(g) telecommunication, transportation, power supply, or system disturbances or failures, or breakdown in machinery resulting in the impossibility of the use of any of the aforementioned.
17.1 You may post and/or submit any reviews, comments, suggestions, ideas, and other Information to HEINEKEN via the Site provided that such Information is in compliance with the relevant provisions contained in Clause 4. HEINEKEN reserves the right (but not the obligation) to remove or edit any Information posted or submitted by you.
17.2 If you do post or submit any Information to HEINEKEN, unless otherwise specified by you and agreed by HEINEKEN, you grant HEINEKEN a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such Information throughout the world in any media together with your name and identity. You represent and warrant that all Information posted and/or submitted by you to HEINEKEN is accurate, original, authentic, complete, reliable, current, error-free and will not infringe the Intellectual Property Rights of any third party.
17.3 Without limiting the generality of Clause 4, you agree that you shall not upload any submission that includes or references any one or more of the following:
- (a) Information known by you to be false, inaccurate or misleading;
- (b) Offensive, profane, vulgar, obscene or inappropriate language or visuals;
- (c) Defamatory, libelous, or slanderous content;
- (d) Content which infringes any third party's copyright, patent, trademark, trade secret, right of publicity, right of privacy, moral rights, and/or any other applicable personal or proprietary rights; or
- (e) Programming or materials containing any Trojan horses, computer viruses, worms, harmful code, or other potentially damaging computer programs or files.
18 Availability of the Site
18.1 HEINEKEN shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability, and equipment or device needed for access to and use of the Site.
19 Third Party Sites
19.1 The Site may contain links to other independent third-party sites/platforms. Such third party sites/platforms are not under HEINEKEN’s control, and HEINEKEN is not responsible for any Information contained therein. The inclusion of such a link or reference does not imply endorsement of, or association with, the site/platform by HEINEKEN, or any warranty of any kind, either express or implied.
20.1 You shall fully indemnify, hold harmless and if so requested by HEINEKEN, defend HEINEKEN, its affiliates and each of their respective members, directors, officers, employees and agents harmless from and against any and all actions, claims, costs, damages, demands, expenses, losses, payments, fines, penalties and liabilities (“Losses”) made against, suffered, or incurred by HEINEKEN arising howsoever from or in connection with this Agreement, whether in tort, contract or otherwise, including without limitation any Losses arising from (i) your use of HEINEKEN Property and Services; (ii) arising from your breach, negligence, omission, misrepresentation, non-observance or non-performance of this Agreement. This Clause shall survive the expiry or termination of this Agreement for any reason whatsoever.
21 Termination and Suspension
21.1 Without prejudice to any other rights HEINEKEN may have under this Agreement or at law, HEINEKEN may immediately terminate this Agreement by notice in writing if:
(a) you are in breach of this Agreement and such breach is not remedied within thirty (30) days of HEINEKEN's written notice; or
(b) you shall pass a resolution for winding up or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or bankruptcy proceeding or if a receiving order is made against you or you make any arrangement or composition with your creditors.
21.2 HEINEKEN shall be entitled to terminate your use of the Site for convenience by giving you at least thirty (30) days’ prior written notice and all orders made prior to the date of such notice will be fulfilled unless otherwise agreed.
21.3 Upon termination of this Agreement and during any suspension, (a) all rights granted to you under this Agreement shall cease; (b) you must immediately cease all activities authorised by this Agreement; and (c) when requested, you shall return to HEINEKEN or destroy all Confidential Information.
21.4 Without prejudice to any other rights HEINEKEN may have under this Agreement or at law, HEINEKEN shall have the right to immediately (without notice):
22.1 “Business Day” shall mean a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the state of Selangor, Kuala Lumpur, Johor and/or Penang. Except as otherwise agreed or provided in this Agreement, all notices and other communications to be sent to the other party (“Recipient”) pursuant to this Agreement shall be in writing and in English language and shall be valid and sufficient if dispatched or sent to the address, email address or facsimile notified by the Recipient to the other party (through the Site or under this Agreement). Such notice shall be deemed to have been served (a) if delivered personally at the time of delivery; (b) if sent by registered mail or courier, five (5) days after dispatch; (c) if sent by facsimile, upon receiving the confirmation report stating successful transmission of the facsimile if sent before 5p.m. on a Business Day and if sent on a non-Business Day or after 5p.m. on a Business Day, the next Business Day; or (d) if sent by e-mail, upon successful delivery of the e-mail and recorded as a sent mail if sent before 5p.m. on a Business Day and if sent on a non-Business Day or after 5p.m. on a Business Day, the next Business Day. Notwithstanding anything to the contrary in this clause, notification by way of email shall not be applicable to or valid with respect to any legal, notices, claims, demands, suits, actions and/or proceedings.
22.2 The details of HEINEKEN are as follows:
Sungei Way Brewery, Lot 1135, Batu 9, Jalan Klang Lama
6012 281 8888
23 No Agency/Partnership
23.1 Nothing in this Agreement shall create, or be deemed to create, a joint venture, partnership or the relationship of principal and agent between/among the parties. No party has any authority to act, make representations or bind or contract on behalf of the other party.
24.1 HEINEKEN shall have the right at any time to add, delete, amend, or modify this Agreement, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for access and use. Such addition, deletion, amendment, or modification shall be effective immediately upon notice thereof, which may be given by means of, including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which you obtain notice thereof. Any use of the Site by you after the issuance of such notice shall be deemed to constitute acceptance of this Agreement with such addition, deletion, amendment, or modification. You shall immediately notify HEINEKEN in the event that you are not agreeable to any such addition, deletion, amendment, or modification and this Agreement shall be deemed terminated upon your notification to HEINEKEN of your disagreement unless otherwise agreed by HEINEKEN.
24.2 You are responsible for reviewing the latest version of this Agreement each time you submit your order. No amendment or variation of this Agreement by you shall be valid and binding unless approved in writing by both parties.
25.1 No failure or delay on the part of a Party in exercising any rights or remedies under this Agreement at any time or for any period of time nor any knowledge or acquiescence by a Party of, or in, breach of any provision of this Agreement shall operate as or be deemed to be a waiver thereof nor shall a waiver by that Party of any breach constitute a continuing waiver in respect of any subsequent or continuing breach. A provision of right or remedy under this Agreement may not be waived except in writing signed by the waiving Party.
26.1 Any term, condition, stipulation, provision, covenant or undertaking (“Provision”, and any reference to Provision shall include any part thereof) contained in this Agreement which is illegal, invalid or unenforceable shall be fully severable and ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining Provisions contained in this Agreement which shall not be affected by the illegal, invalid or unenforceable Provision or by its severance herefrom. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable Provision had never comprised a part hereof. Where any Provision of, or the application of any provision of this Agreement is illegal or unenforceable or deemed to be illegal or unenforceable, the Provision shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable Provision.
27 Governing law
27.1 This Agreement shall be governed by the laws of Malaysia and you agree to submit to the non-exclusive jurisdiction of the Courts in Malaysia.
28 Entire Agreement
28.1 This Agreement (together with any documents referred to herein) constitutes the whole agreement between the parties relating to the subject matter hereof and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing relating to the subject matter hereof and no representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as set out in this Agreement.
29 Assignment, Novation, Delegation and Subcontracting
29.1 Your rights, title, benefits, obligations and duties under this Agreement shall not be transferred, assigned, novated and/or sub-contracted to any other party without HEINEKEN’s prior written consent. HEINEKEN shall be entitled to transfer, assign, novate and sub-contract its rights and obligations under this Agreement.
30 Successors and Assigns
30.1 This Agreement shall be binding upon the parties and their permitted legal assigns and successors in title.
31.1 The Provisions of this Agreement which are capable of having effect after the expiration/termination of this Agreement shall remain in full force and effect following the expiration/termination of this Agreement unless otherwise agreed in writing.
32.1 In this Agreement, unless the context otherwise requires: (a) words denoting the singular include the plural and vice-versa; (b) words denoting natural persons may include bodies corporate and unincorporated; (c) references to any legislation or to any provision of legislation shall include any modification or re-enactment of that legislation or any legislative provision substituted for, and all regulations and statutory instruments issued under such legislation or provision; (d) headings of this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement; (e) no rule of construction or interpretation applies to the disadvantage or detriment of the party having control or being responsible for the preparation of this Agreement; and (f) any words following the terms including, include or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
PART 1 ORDER FULFILMENT AND DELIVERY POLICY
1. HEINEKEN will process your order from 7:00 am to 11:00 pm, Monday to Saturday excluding public holidays in the state of Selangor, Kuala Lumpur, Johor and Penang (“Order Processing Window”). All orders received outside these hours, Sundays and on any such public holiday will not be processed by HEINEKEN until the next Order Processing Window.
2. Subject to Clause 7 of this Agreement, all orders received before 11:00 pm on a day which is not a Sunday or a public holiday in the state of Selangor, Kuala Lumpur and Penang will be delivered to you between 3:00 pm to 11:00 pm on the same day.
3. You shall be present at the address and within the delivery window specified or selected by you to take delivery and accept the Products. After your second order with HENEKEN, you may authorise a representative who has attained the age of 21 years and non-Muslim to take delivery and accept the Products at the address specified by you on your behalf. Such representative shall accept the Products under the same terms and conditions that would apply had you taken the delivery yourself. Unless otherwise agreed, anyone at the delivery address is presumed to have attained the age of 21 years old and non-Muslim and authorized by you to receive the delivery.
4. If you fail to take delivery of the Products, you may receive instructions from HEINEKEN or any other third party engaged by HEINEKEN to collect the Products or rearrange for re-delivery. In the event that you have unreasonably delayed in accepting or taking the delivery or fail to give HEINEKEN adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond your reasonable control or by reason of HEINEKEN’s fault) then, without prejudice to any other right or remedy available to HEINEKEN, HEINEKEN may:
(a) store the Products for three (3) days from the last date HEINEKEN and/or its agent contacted you to take delivery. HEINEKEN shall be entitled to charge storage fees thereafter incurring on a daily basis until the Products are collected by or re-delivered to you; or
(b) terminate the Contract and sell the Products at the best price readily obtainable and refund the money paid by you and received by HEINEKEN after deducting (i) all reasonable costs incurred by HEINEKEN (including storage and selling expenses), and (ii) any shortfall below the price under the contract for the sale and purchase of the Products by you.
5. The Products will only be delivered to a valid residential, corporate or home address. If your designated delivery location (i.e., street, avenue, etc.) is inaccessible, rendering HEINEKEN unable to make the delivery, HEINEKEN will contact you to determine the best alternate location.
6. In the event that you opt to take delivery of the Products at HEINEKEN’s premises, you shall be notified once the Products are available at the said premises. The Products shall only be provided to you following your presentation of the confirmation of purchase and proof of identification to the satisfaction of HEINEKEN. The Products shall only be available at HEINEKEN’s premises for a period of thirty (30) days following which title in the Products shall revert to HEINEKEN and paragraph 2 (b) shall apply.
60Mins Cold Promise
7. HEINEKEN offers a 60Mins Cold Promise on selected items (will be indicated on the Site) delivery subject to postcode coverage, geographical limitations and weather and traffic conditions.
8. HEINEKEN or its representative will contact you for verification purposes and update you regarding the status of delivery and estimated time of arrival of your Products.
9. The time of 60Mins Cold Promise starts from the time your order and delivery details are verified and confirmed by HEINEKEN or when you receive a confirmation email from HEINEKEN, whichever later.
Unforeseen Circumstances and Indemnity
10. In the case of inclement weather or unforeseen delivery complications, it may be necessary to make adjustments to the delivery schedule. If there is a significant delay, HEINEKEN’s customer service representative may call or e-mail you to let you know the status of your delivery. HEINEKEN will deliver your order the first possible moment the conditions permit.
11. You shall fully indemnify HEINEKEN for any costs and expenses incurred by HEINEKEN as a result of your failure to comply with HEINEKEN’s delivery policy.
PART 2 RETURN AND REFUND POLICY
1. If there is any issue with the delivered Products, you shall immediately submit a return form to HEINEKEN by way of e-mail to the email address specified and in any event such form shall be lodged within twenty four (24) hours after receipt of the Products. A reference number will be issued to you upon the receipt of the return form by HEINEKEN. HEINEKEN reserves the right to refuse any returned Product where a return form is not submitted or attached. Please follow the instructions stated in the return form and package the Product securely.
2. You acknowledge and accept that all returned Products will be subject to an examination by HEINEKEN, its merchant, manufacturer or supplier. HEINEKEN reserves the right to refuse to replace or issue the refund for the returned Products in the following situations, including without limitation:
(a) Change of Products without any specific reason;
(b) Products with missing merchandise serial number or product code;
(c) Non-faulty Products;
(d) Gift certificates/vouchers;
(e) Free gift items; and/or
(f) Promotional items.
PART 3 VOUCHERS AND POINTS
HEINEKEN may do promotions, issue vouchers and award points for the purchase of the Products through the App or Site from time to time subject to the terms and conditions contained herein. HEINEKEN shall have the absolute discretion to vary the terms and conditions applicable to each voucher/promotion. “Vouchers” includes, but not limited to, points, coupon code, discount code, discount coupon, sale voucher, voucher code or any other form of discount applicable to the purchase of the Products from the App or Site. Specific promotion terms and conditions can be found on the promotions terms and conditions page.
Unless stated otherwise:
1. Vouchers are for one (1) time use only;
2. Vouchers can only be used for normal priced items;
3. Vouchers cannot be used in conjunction with any promotions, discounts, sales or special events;
4. Vouchers cannot be used for any corporate orders;
5. Only one (1) voucher per transaction;
6. Vouchers are not transferrable or exchangeable for cash or any other forms of legal tender;
7. If the value of your order exceeds the amount stated in the Voucher, the difference thereof should be paid by you. If the value of your order is less than the amount stated in the Voucher, the difference thereof shall not be refunded to you.
8. If applicable, a valid Voucher must be entered at the checkout page in order to redeem its value.
9. Failed transaction or cancelled payment will make the Voucher used in connection with such failed transaction or cancelled payment void or invalid. Please contact firstname.lastname@example.org or 03 7861 4343 for assistance.
10. Vouchers shall be valid during the validity period specified and the validity of the Vouchers cannot be extended. Points expire within one (1) year from the date the points are credited into your account.
11. Additional terms and conditions may be specified in relation to specific 13. Voucher (for example, duration, eligibility, discount amount and products covered), and will govern the use and redemption of those Vouchers. Some special conditions must be satisfied in order to activate the Vouchers.
12. HEINEKEN shall not be held responsible for the loss or damage of any Vouchers. Damaged vouchers will be considered as invalid Vouchers and will not be replaced.
13. Failure to comply with any of these terms and conditions may result in order cancellation and/or Vouchers to be void.
14. HEINEKEN reserves the right to cancel or modify any order, or revoke the use of Vouchers for any reason, including without limitation due to:
a. Suspicious or fraudulent purchasing activity or Vouchers’ use;
b. Abuse of Vouchers, including the use of multiple accounts or multiple checkouts associated with the same customer or group of customers; or
c. Voucher used in bad faith (including resold Vouchers or use of the Vouchers by customers purchasing Products for the purpose of re-selling).
15. All Vouchers are provided on an “as is” and “as available” basis, with all faults and without warranties or conditions of any kind, and HEINEKEN hereby disclaims all warranties (express or implied) and conditions with respect to all Vouchers. HEINEKEN will not be liable and/or be required to offer replacement of any Vouchers.