STANDARD TERMS AND CONDITIONS OF SALE
1. INTERPRETATION AND DEFINITIONS
1.1 In this document, the following term and expressions shall bear the meaning as follows:-
“Buyer” the buyer of the Goods from the Seller.
“Delivery Order” the document from the Seller ordering the release of the Goods to the Buyer pursuant to the Order.
“Goods” the goods which shall be supplied by the Seller to the Buyer pursuant to an Order made under this Agreement.
“Confidential Information” any information in relation to the Buyer which is disclosed to the Seller by the Buyer pursuant to or in connection with this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such).
“Order” the order of the Goods made by the Buyer under this Agreement.
2.1 Unless otherwise expressly agreed in writing by the Seller, these terms and conditions shall govern all contracts for sale of the Goods from the Seller to the Buyer.
2.2 Advertising material, leaflets or brochures shall not form part of this Agreement unless otherwise specifically agreed between the Seller and the Buyer in writing to be a term of this Agreement.
3. OFFER AND ACCEPTANCE
3.1 All Orders placed by the Buyer shall be subject to the acceptance of the Seller and an acknowledgement of that Order sent by the Seller to the Buyer shall constitute the acceptance of that offer. The Seller may at its absolute discretion accept or reject any Order placed by the Buyer.
4. PRICE AND PAYMENT
4.1 The prices of the Goods are those price stated in the website. Prices for undelivered Goods may be increased in the event of an increase in the Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control. In such an event the Seller shall notify the Buyer of the increased price. In the event the Buyer does not accept the increased in price, the Buyer must notify the Seller whereupon the affected Order shall automatically be cancelled by the Seller
4.2 The price is exclusive of any goods and service tax or value added tax or any other sales tax or excise duties prevailing at the time of the Order which are to be paid by the Buyer and shall be added to the price
5. DELIVERY BY THE SELLER
5.1 Any dates stated for delivery of the Goods are approximate dates of delivery only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously and expressly agreed by the Seller in writing.
5.2 Where the Goods are ordered for delivery to specified site, the Seller’s obligation is to deliver as near to the specified site as would be reasonable in the circumstances and the Buyer shall pay the charges of delivery as shall be fixed by the Seller after taking into account the size, quantity, weight of the Goods and the destination. The Buyer is to provide at its own expense the labour, facilities and/or equipment required for unloading and stacking the Goods.
5.3 Where it is a bulk Order and if the Seller deems fit, the Seller shall be entitled to deliver the Goods by instalments and in such event, each instalment shall be treated as separate contract save and except that the delivery of further instalments may be withheld until the Goods contained in earlier instalments have been paid for in full.
6. CONDITION OF GOODS
6.1 The Buyer shall, upon delivery or collection, examine the Goods for defects and completeness. Upon signing and/or affixing the Buyer’s company rubber stamp by the Buyer, its employees, agent, representative or other persons authorized by the Buyer on the Delivery Order, the Buyer shall be deemed to have duly received the Goods.
6.2 Notwithstanding Clause 6.1 above, in the event of any defect or shortage of the Goods, the Buyer shall notify the same to the Seller within seven (7) days of the date of receipt of the Goods, failing which:-
(a) the Buyer shall be deemed to have accepted the Goods in good and satisfactory condition and in the quantity as ordered; and
(b) no claim for damage in transit or for shortage in delivery will thereafter be entertained.
7. RETURN OF GOODS
7.1 Notwithstanding the provisions of Clause 6 above and with at least seven (7) days prior notice from the Customer to E-TRIMAS and at E-TRIMAS’s absolute discretion, E-TRIMAS may permit the Customer to return the Goods subject to the following terms and conditions :
(a) return must be made within 7 days of the date of delivery (as stated on the delivery documentation);
(b) Goods must be returned to E-TRIMAS in their original, unopened packaging and in a condition which will enable them to be immediately fit for re-sale; and
(c) Goods must be adequately packed with dispatched freight/delivery charges prepaid by Customer, clearly labelled, to Trimas Auto Electrical Sdn Bhd, 15, Jalan Arfah 2, Off Jalan Kuching, Medan Niaga Seri Kuching, 51200 Kuala Lumpur.
7.2 The Customer shall be liable for any loss or damage of the Goods until they are delivered to E-TRIMAS and E-TRIMAS shall not be obligated to give any credit or refund if the foregoing conditions are not complied with.
8. CANCELLATION OF ORDER
8.1 Any Order which has been acknowledged by the Seller in the manner set out in Clause 3.2 above cannot be cancelled by the Buyer without the Seller’s prior approval.
8.2 Where the Seller accepts such cancellation, the Seller shall be entitled to charge the Buyer an amount representing any losses suffered and/or expenses incurred directly or indirectly by the Seller resulting from such cancellation.
8.3 Where the Seller does not accept such cancellation, the Seller shall be entitled to recover the invoice price of the Goods so ordered from the Buyer and to charge the Buyer with additional losses suffered and or expenses incurred directly or indirectly resulting from such cancellation.
9. PASSING OF RISK
9.1 Risk in the Goods shall pass to the Buyer at the time of arrival of the Goods at the place of delivery of the Buyer or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has attempted delivery of the Goods.
10. RETENTION OF TITLE
10.1 Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
10.2 Notwithstanding the price of the Goods has not been paid in full, the Seller shall be entitled:-
(a) to sue for their price once its payment has become due and payable; or
(b) at any time to require the Buyer to forthwith return the Goods to the Seller and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer where the Goods are stored and repossesses the Goods.
11.1 The Seller shall not in any circumstances be liable, whether in contract or tort, to the Buyer for any indirect or consequential loss or damage (including, without limitation, loss of profits, loss of contracts or loss of use of the Goods) or for any claim against the Buyer by any third party.
11.2 The Seller’s liability for damage or non-delivery of Goods shall in any event be limited to replacement of the Goods within a reasonable time (or, at the Seller’s option, refunding the price thereof) whether or not the damage or non-delivery is due to the Seller’s negligence.
12.1 Except as provided by the Clauses 11.2 and 11.3, the Seller shall at all times during the continuance of this Agreement and for a period of six (6) months after its completion or termination:
(a) use its best endeavours to keep all Confidential Information confidential and accordingly not to disclose any Confidential Information to any other person; and
(b) not use any Confidential Information for any purpose other than the performance of the Seller’s obligations under this Agreement.
12.2 Any Confidential Information may be disclosed by the Seller to:
(a) any governmental or other authority or regulatory body; or
(b) any duly authorized employees of the Seller
to such extent only as is necessary for the purposes contemplated by this Agreement, or as is required by law and subject in each case to the Seller using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
12.3 Notwithstanding any other provision of this Agreement, the Parties acknowledge that Confidential Information shall exclude any part of such disclosed information or data which :
(a) is or becomes in the public domain, is public knowledge and public property and or is publicly available in any way without breach of this Agreement by the receiving party; or
(b) becomes lawfully available to either Party from a third party free from any confidentiality restriction;
(c) is required to be disclosed under any relevant law, regulation or order of court, provided the effected party is given prompt notice of such requirement or such order and (where possible) provided the opportunity to contest it, and the scope of such disclosure is limited to the extent possible; or
(d) was previously in the possession of the Receiving Party and which was not acquired directly or indirectly from the Disclosing Party as evidenced by written records.
13. FORCE MAJEURE
13.1 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Agreement by reason of any delay in performing or failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure is due to any cause beyond the Seller’s reasonable control.
13.2 Without prejudice the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s control:
(a) acts of God, fire, explosion, storm, flood or accident;
(b) acts of public enemy, war, threat of war, sabotage, insurrection, riot, civil disturbance or requisition;
(c) acts or omissions of government or any rules, regulations or orders or measures of any kind of any governmental authority;
(d) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Sellers or of a third party);
(e) difficulties in obtaining raw materials, labour, fuel parts or machinery; and
(f) power failure or breakdown in machinery.
13.3 In such event, the Seller shall be entitled to suspend its obligations in relation to the Goods for a period equal to time lost as consequence of such event without any liability or penalty. The Seller may at its option cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
14.1 All notices and other communications hereunder shall be in legible writing and may be delivered to or sent by prepaid priority post, facsimile transmission or electronic mail to the Party to whom the notice is given at the address shown herein or such other address as that party shall have previously notified to the sender or sent by electronic mail at the electronic mail address registered with the Seller.
14.2 Every notice shall be deemed to have been received and given three (3) business days after the actual date of the posting or if delivered, the date of delivery or if sent by facsimile transmission, upon proof of successful transmission or if sent by electronic mail, the sending date.
15. COSTS AND EXPENSES
15.1 In the event of legal action being taken by the Seller against the Buyer for recovery of the outstanding sum for breach of payment obligations herein, the Buyer shall be responsible for all costs and disbursements (including but not limited to the legal costs) incurred by the Seller on a full indemnity basis.
16.1 No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party in relation to any other provision of this Agreement, nor shall any waiver of such right operate as a waiver of any subsequent breach of the same provisions by the other party.
17.1 Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of this Agreement which shall continue in full force and effect and be valid and binding on the parties.
18. GOVERNING LAW
18.1 This Agreement shall be governed by and construed in accordance with the laws of Malaysia and the parties agree to submit to the exclusive jurisdiction of the Malaysian Courts.