All quotations and sales contracted by the Seller whether or not expressly referred to in other documents of sale, purchase, invoices or delivery notes issued by the Seller or Buyer are subject to these conditions except to the extent that variation from specific provisions hereof has been agreed to by the Seller in writing. Conflicting purchasing conditions or other reservations made by the Buyer shall be deemed to have been rejected by the Seller unless expressly accepted in writing.
If any of the terms of this contract are found by any court or administrative body of competent authority to be illegal, void, voidable, invalid, unreasonable or unenforceable by any reason of law the shall be illegal, void, voidable, invalid, unreasonable or unenforceable to that extent only and all other terms of the contract shall remain legal, valid, reasonable and fully enforceable.
Seller reserves the right to vary these conditions as necessary on giving the Buyer reasonable notice in writing of such variation.
2. Quotations, Orders
Seller’s offer shall be subject to Seller’s written order confirmation which shall constitute the binding contract of sale between Seller and Buyer. In transactions where written order confirmation are neither customary nor requested by Buyer, Seller’s invoice shall be considered the binding contract between Seller and Buyer.
Quotations and any accompanying technical or other information supplied by the Seller are illustrative only and are not offers from the Seller capable of immediate binding acceptance. A Contract shall come into existence only when the Seller accepts the Buyer’s order.
Unless expressly termed as firm, prices quoted or contracted by the Seller may be revised by the Seller to cover unforeseen increase in the Seller’s costs. If Seller desires to revise price accordingly but is restricted to any extent against so doing by reason accordingly but is restricted to any extent against so doing by reason of any governmental laws, regulations, order or action, Seller shall have the right to rescind this contract by written notice to Buyer, if Seller and Buyer cannot agree forthwith on an equitable solution concerning the additional cost thus incurred.
4. Buyer's Credit & Payment
All Seller’s costs and expenses in respect of collecting overdue accounts shall be reimbursed by the Buyer.
If at any time the Buyer fails to take delivery, is overdue with payments or suspends payments then the Seller may without liability or prejudice to its rights to dispose of the product(s) in transit and defer or cancel further deliveries under contract with the Buyer or require advance payments or satisfactory security for payment of such deliveries and no forbearance, course of dealings or prior payment shall affect this right of Seller.
Buyer is not entitled to withhold payment of any sums (or parts thereof) after they have become due by reason of any right of set-off or counter-claim which the Buyer may have or allege or for any other reason whatsoever.
5. Appropriation of Payments
All payments received from the Buyer will be applied towards settlement of the Buyer’s oldest debts comprising of the earliest invoices, debit notes (including debit notes for overdue interest) and other charges howsoever arising PROVIDED ALWAYS the Seller may appropriate any payments towards account of interest before principal in respect of any debts as the Seller shall in its absolute discretion deem fit.
Notwithstanding any other payment provisions, the Seller reserves the right, in the event that the Buyer is a sole trader or partnership at the time of this contract and subsequently decided to convert the his/her status to that of a limited liability company, to issue forthwith an invoice for all outstanding amounts which is owed to the Seller, for which the Seller shall require payment within five (5) working days.
6. Statement of Account
All amounts stated in the invoices and statement of accounts of the Seller shall be conclusive of the amounts due and owing by the Buyer to the Seller and shall be binding against the Buyer in any legal proceedings.
Any delivery date specified is a forecast in the light of current conditions but shall not be legally binding on the Seller. Delivery times or periods when unspecified will be when the product(s) are ready.
The Goods are deemed delivered when either:
i. the Buyer collects them from the delivery point following the Seller’s notification that they are ready for collection; or
ii. If the Buyer have requested an alternative delivery point and the Seller has agreed, when the Seller have delivered the goods to that place.
If the Buyer does request changes to the delivery point, the Buyer shall be liable for any charges made by the Seller or any additional cost or expenses incurred by the Seller as a result of such a change.
Delivery shall be deemed to have been made if Seller delivers the product(s) to the location specified by the Buyer and Delivery Order is endorsed by any person present thereat. Seller is not responsible to ensure the product(s) have been delivered to or is collected by the Buyer or its authorised personnel and shall not be liable for any loss or damage to the Buyer by reason of unauthorised collection of the product(s).
The Buyer shall notify the Seller in writing if a delivery is not received within seven (7) working days from the date the Seller informed the Buyer that it had been despatched.
Subject to the other provisions of these Conditions, the Seller shall not be liable for any direct, indirect or consequential loss (all of which include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, changes or expenses caused directly or indirectly by any delay in the delivery date or any other time given for delivery of the goods (even if caused by the Seller’s negligence).
The Buyer must examine the goods on receipt and if the Buyer believes there is a loss or damage to the goods during transit which may be Seller’s responsibility, Buyer must notify Seller in writing within three (3) working days of receipt of Seller’s delivery note. If Seller does not receive such written notice within the required time scale then Seller will not be liable to Buyer for any loss or damage to the goods arising during transit. If goods have been damaged during transit then all packaging materials must be retained for examination by Seller, the carrier or their agents.
9. Return Goods
If Buyer discovers before using them that goods which Seller has delivered to Buyer does not comply with the provisions of Condition 12 at the time of delivery then provided that:
i. written notice has been given to Seller of such defect within five (5) working days of the date when Buyer first could have reasonably ascertained that such defect existed; and
ii. Buyer has not in any way dealt with the goods so as to put them in a worse condition than when they were delivered to Buyer
the Seller will replace or refund the price of any goods and reimburse Buyer for all reasonable costs incurred by Buyer in returning the goods to Seller.
The remedy provided in Conditions 9a. shall, provided it is performed by the Seller within a reasonable time, be the Buyer’s only remedy for defects in goods which have not been used by Buyer and for the avoidance of doubt the Seller shall not be liable for storage costs; warehousing, processing, manufacturing, labour or any other indirect or consequential loss.
The Seller may agree to store the Buyer’s goods at a charge provided the Buyer gives the Seller at least five (5) working days’ notice.
In the event that the Buyer has been given notice in accordance with this contract that the goods are ready for collection and the Buyer does not collect them within five (5) working days, unless a waiver of this clause has been agreed the Buyer shall be charged storage costs at the discretion of the Seller. Such charges shall continue to accrue until the Buyer has collected the goods and the Buyer shall be invoiced for such storage charges accordingly.
If the Seller has stored the Buyer’s goods for three (3) calendar months or more then the Seller can give the Buyer one (1) calendar month written notice at any time requiring the Buyer to remove the goods from storage.
If the Buyer does not remove the goods when requested to do so, the Seller may then dispose of them in any manner seen fit. The Seller will charge the Buyer with all costs of such disposal including costs of waste disposal and environmental charges, or, if the Seller is able to sell the goods then the Seller will set-off the proceeds of sale against the costs of arranging the sale and any outstanding storage costs.
The provisions of Clause 11 apply whether or not title in the goods has been passed to the Buyer.
11. Force Majeure
Delivery of product(s) or performance of services sold hereunder may be delayed or suspended by the Seller in the event of an act of God, war, and any other unforeseen circumstances such as riot, fire, explosion, accident, flood, shortage of raw material, labour, facilities, breakage or failure of machinery or any other event beyond the reasonable control of the Seller or in the event of labour trouble, strike, lockout or injunction, any of which event prevents the manufacture or despatch of a shipment of product(s) or of a material upon which the manufacture of product(s) is dependent. If because of any such event, the Seller is unable to supply part or total of the product(s) or render part or total of the services contracted hereunder, the Seller shall be exempted to such extent from its obligations hereunder upon giving notice of such event to the Buyer, but this contract shall otherwise remain in force.
Seller warrants that the product(s) will conform to the properties as set out in our relevant published product(s) data sheets in respect of the products prevailing at the time of purchase and shall be free of any defects arising out of or referable to the process by which the products are manufactured.
Seller disclaims all conditions and warranties relating to the product(s) whether express or implied to quality, performance, merchantability or fitness for any purpose be it known to Seller or not unless Seller has specifically agreed in writing that the products(s) will be fit for the particular purpose for which the Buyer has given detailed written specification to the Seller.
Seller’s liability in respect of product(s) proved by the Buyer to be defective is limited to either a refund to Buyer of the purchase price thereof or at Seller option, a replacement of such product(s) at their point of delivery provided that in any event Seller’s maximum liability in respect of any product(s) proved to be defective shall not exceed its invoice value. In no circumstances shall the Seller be liable for loss of profit or consequential or other loss of whatsoever nature arising from any such defects.
Where a complaint or a claim has been made in respect of product(s) proved or alleged to be defective, Seller may suspend further deliveries of any such product(s) until the validity of such complaint or claim has been finally determined in which event the applicable delivery date(s) shall be postponed accordingly.
Seller shall not be liable in contract or tort for any injury, loss, expenses, damage to property, loss of profit and/or other consequential loss direct or indirect howsoever attributable to the supply or use of the product(s).
14. Risk and Property
All risk in the product(s) shall pass to the Buyer when the Seller delivers the product(s) in accordance with the terms of sale (including these Conditions) to Buyer or any other persons to whom Seller has been authorised by Buyer to deliver the product(s) whether expressly or by implication, thereafter the Seller shall not be liable for the safety of the product(s).
Notwithstanding the above, property in the product(s) shall remain with the Seller until it has received payment in full of all sums which are or may become due from the Buyer to the Seller in respect of any product(s) or services supplied under any contract subsisting between them, provided that if the Buyer sells part of the product(s) to third party, the proceeds of such sale shall be held by Buyer for the Seller’s account until the Seller has been paid in full.
Seller reserves the right to charge interest at the rate of 1.5% per month on overdue bills.
Buyer shall indemnify and keep the Seller fully indemnified for any breach, infringement, violation, non-compliance and/or omission of any Statutory duties of any governmental, statutory and/or local authority laws, regulations, directives especially those relating to the environment as regards the storage, usage and disposal of used and unused products(s), packaging and containers bearing the Seller’s name and/or logo.
No failure or delay by the Seller in exercising any rights hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right preclude any further exercise thereof or the exercise of any other rights.
18. Infringement of Patents, Designs
Buyer shall indemnify Seller against all damages, claims, costs and expenses which the Seller may become liable as a result of work done or product(s) sold in accordance with Buyer’s specifications which involves infringement of any patents, registered designs or trademarks.
19. Applicable Law, Jurisdiction
All Seller’s contract with the Buyer including these Conditions shall be governed and construed exclusively in accordance with the Laws of Malaysia, which is law of the Seller’s domicile.
20. Effective Service of Notices
Any notices, demands or invoices to be given by the Seller to the Buyer shall be in writing and shall be sufficiently served or given to the Buyer by sending the same by ordinary post addressed to the Buyer at the Buyer’s address last known to the Seller and shall be in such event be deemed to have been served on and duly received by the Buyer at the time when such letter would be in the ordinary course of posting/mailing be delivered. Alternatively, the said notices, demands or invoices shall be deemed to have been sufficiently served or given after 12 hours of being sent/faxed to the Buyer at the Buyer’s last known place of business, if sent by facsimile transmission.