Standard Terms and Conditions for sale of goods and provision of services

1.         DEFINITIONS AND INTERPRETATION

1.1       In these Terms and Conditions, unless the context otherwise requires, the following words and expressions shall have the following meanings:

“Buyer”		means the person who issues an Order in accepting a quotation of the Supplier for the sale of the Goods or the provision of the Services whose order for the Goods and/or Services is accepted by the Supplier or who otherwise entered into a Contract with the Supplier for the purchase of the Goods and/or Services;
“Confidential Information”		means any information in relation to the Supplier which is disclosed to the Buyer by the Supplier pursuant to or in connection with these Terms and Conditions (whether orally or in Writing,and whether or not such information is expressly stated to be confidential or marked as such);
“Contract”		means the contract for the Buyer’s purchase of the Goods and/or the Services and the Supplier’s sale of the Goods and/or provision of the Services made between the Buyer and the Supplier which shall incorporate these Terms and Conditions;
“Goods”		means the goods (including any instalment of the Goods and/or parts for them) which shall be supplied by the Supplier to the Buyer in accordance with the Contract which shall incorporate these Terms and Conditions;
“Order”		means the purchase order for the Goods and/or Services, being a document issued or placed by the Buyer to the Supplier specifying the Goods to be supplied and/or the Services to be provided by the Supplier;
“Services”		means the services in relation to the Goods which shall be provided by the Supplier to the Buyer in accordance with the Contract which shall incorporate these Terms and Conditions;
“Software”		means such software or program as set out in the Contract;
“Supplier”		means SATO AUTO-ID MALAYSIA SDN. BHD. (673611-D) (200401035102) , a company incorporated in Malaysia and having its registered address at Upper Penthouse, Wisma RKT, No.2, Jalan Raja Abdullah, Off Jalan Sultan Ismail, 50300 Wilayah Persekutuan Kuala Lumpur and its principal place of business at No. 38, Jalan Pemberita U1/49, Section U1, 40150 Shah Alam, Selangor Darul Ehsan;
“Terms and Conditions”		mean these standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Supplier;
“Website”		means the Supplier’s website at www.satoasiapacific.com/malaysia;
“Writing”		includes telex, cable, facsimile transmission, electronic mail and any comparable means of communication.

1.2       The headings used in these Terms and Conditions are included for convenience only and will not limit or otherwise affect the construction or interpretation of these Terms and Conditions.

1.3       Any reference in these Terms and Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2.         Basis of SUPPLY

2.1       Unless the Supplier and the Buyer has entered into a separate written agreement in relation to the Buyer’s procurement of the Supplier’s supply of Goods and/or Services and such written agreement remains valid and binding prior to the Supplier accepting any Order from the Buyer (“Prior Written Agreement”), these Terms and Conditions shall govern all Contracts for sale of the Goods and/or provision of Services from or by the Supplier to the Buyer.

2.2       A Contract between the Supplier and the Buyer shall be deemed concluded when the Buyer accepts any written quotation of the Supplier or, when the Supplier receives an Order from the Buyer which is in accordance with these Terms and Conditions and the Supplier has accepted the Order in accordance with these Terms and Conditions.

2.3       A Contract shall consist of the following documents:

(a)       the relevant Order, excluding any general terms and conditions, if such have been enclosed with the Order or stipulated in the Order; and

(b)       these Terms and Conditions.

In case of inconsistencies, the documents will prevail in accordance with the above order, unless an explicit reference has been made in the subordinated document to the effect that a specific provision shall prevail notwithstanding certain provisions in the superior document.

2.4       The Contract shall constitute the sole agreement between the Buyer and the Supplier and shall supersede any prior agreements, correspondence and/or understanding, either oral or written and all other terms and conditions contained or referred to in any documentation submitted by the Buyer such as purchase orders, requests for quotations or in correspondence or elsewhere or implied by trade custom practice or course of dealing are hereby expressly excluded.

2.5       No variation to these Terms and Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Supplier.

2.6       The Supplier’s employees or agents are not authorised to make any representations concerning the Goods and/or the Services, unless confirmed by the Supplier in Writing. In entering into the Contract, the Buyer acknowledges that it did not rely on any such representations which are not so confirmed by the Supplier in Writing.

2.7       Any advice or recommendation given by the Supplier or its employees or agents to the Buyer or its employees or agents as to the Goods and/or the Services which is not confirmed in Writing by the Supplier is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed in Writing by the Supplier.

2.8       Any bona fide typographical, clerical or other error or omission in any sales literature, advertising material, leaflets, brochures, quotation, price list, acceptance of offer, invoice or other document of information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

2.9       Sales literature, advertising material, leaflets, brochures or other document of information shall not form part of the Contract unless otherwise specifically agreed by the Supplier and the Buyer in Writing to be a term of the Contract.

3.         Orders and Specifications

3.1       The information, statements, contents or materials contained on the Website, sales literature, advertising material, leaflets, brochures or other document of information in connection with the supply of the Goods and/or provision  of the Services including but not limited to photographs, drawings, specifications and availability of the Goods have been posted on an “as is”, and “as available” basis are not binding and for information purposes only. The Supplier does not warrant or guarantee the accuracy or completeness of these information, statements, contents or materials, and expressly disclaim any liability for any errors, omissions and/or inaccuracies in these information, statements, contents or materials. The Supplier shall endeavour, but is not obliged to correct any inaccuracies, errors, omissions or typographical errors in the information, statements, contents or materials posted on the Website or in any sales literature, advertising material, leaflets, brochures or other document of information, and such information, statements, contents or materials may be changed, amended or updated from time to time without notice and without liability on the Supplier’s part.

3.2       The Supplier’s quotation or the information, statements, contents or materials on the Website or any sales literature, advertising material, leaflets, brochures or other document of information shall not under any circumstances whatsoever be considered or construed as an offer to sell.

3.3       An Order issued by the Buyer to the Supplier shall constitute the offer or, when the Buyer’s representative executes or signs on the Supplier’s quotation shall also constitute the offer. When the Buyer places the Order, it shall be deemed that the Buyer has read, understood and agreed to these Terms and Conditions and shall be binding on the Buyer. No Order submitted by the Buyer shall be deemed to be accepted by the Supplier. An email may be issued by the Supplier confirming the receipt of the Order together with proposed delivery time or revised details such as pricing and specifications but nothing in the email issued by the Supplier shall be deemed that Order has been accepted by the Supplier. All Orders submitted by the Buyer shall be subject to the Supplier’s final approval and acceptance and any acceptance by the Supplier shall be in Writing and by the Supplier’s authorized representative.

3.4       The Buyer shall be responsible to the Supplier for ensuring the accuracy and correctness of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Supplier any necessary information relating to the Goods and/or Services within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.

3.5       The quantity, quality and description of and any specification for the Goods and/or scope of work for the Services shall be those set out in the Supplier’s quotation (if accepted by the Buyer in Writing) or the Buyer’s Order (if accepted by the Supplier in Writing).

3.6       The Supplier reserves the right not to process the Order or not to accept the Order and the Supplier is not obliged to assign any reasons for not processing or accepting the Order.

3.7       The Supplier’s acknowledgement of receipt of the Order shall not be deemed as the Supplier’s acceptance of the Order.

3.8       In processing the Order, the Supplier is entitled to request for further information or confirmation of information from the Buyer including but not limited to delivery location or address and contact numbers.

3.9       If the Goods are to be manufactured or any process is to be applied to the Goods by the Supplier in accordance with a specification submitted by the Buyer, the Buyer shall indemnify and keep the Supplier indemnified in full against all suits, actions, demands, loss, damages, liabilities, costs and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Supplier’s use of the specifications submitted by the Buyer.

3.10     The Supplier reserves the right to make any changes in the specifications of the Goods or the scope of work for the Services which are required to conform with any applicable statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier’s specifications or the Services to be performed in accordance with the Supplier’s scope of work, which do not materially affect their quality or performance.

3.11     No Order which has been accepted by the Supplier may be cancelled by the Buyer except with the agreement in Writing of the Supplier and on terms that the Buyer shall indemnify and keep the Supplier indemnified in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of the cancellation. The Buyer shall within seven (7) days from the Supplier’s written demand pay to the Supplier all such loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of the cancellation.

4.         CONSIDERATION

4.1       The price of the Goods or the fees for the Services shall be the Supplier’s quoted price or fees or, where no price or fee has been quoted (or a quoted price or fee is no longer valid), the price or fee listed in the Supplier’s published price list current at the date of acceptance of the Order. Where the Goods are supplied for export from Malaysia, the Supplier’s published export price list shall apply. All prices or fees quoted are valid for thirty (30) days only or until earlier acceptance by the Buyer, after which time they may be altered by the Supplier without giving notice to the Buyer.

4.2       The Supplier reserves the right, by giving notice to the Buyer at any time before delivery of the Goods or performance of the Services, to increase the price of the Goods or fees for the Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (such as without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods or the scope of work for the Services which was requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate information or instructions.

4.3       Except as otherwise stated under the terms of any quotation or in any price list of the Supplier, and unless otherwise agreed in Writing between the Buyer and the Supplier, all prices are given by the Supplier on an ex works basis, and where the Supplier agrees to deliver the Goods, otherwise than at the Supplier’s premises, the Buyer shall be liable to pay the Supplier’s charges for transport, packaging and insurance.

4.4       The price for the Goods or the fee for the Services is exclusive of any applicable goods and services tax, value added tax, sales and service tax or similar tax which the Buyer shall be liable to pay to the Supplier in addition to the price of the Goods or fee for the Services. In the event of a change in applicable law concerning taxes and duties prior to the dispatch of Goods to the Buyer or the provision of Services to the Buyer, the Buyer shall pay the Supplier, where applicable, any increase in the said taxes and duties.

5.         Terms of Payment

5.1       Subject to any special terms agreed in Writing between the Buyer and the Supplier:

(a)       the Supplier shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Buyer for the price at any time after the Supplier has notified the Buyer that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods; and/or

(b)       the Supplier shall be entitled to invoice the Buyer for the fee for the Services in accordance with the payment milestones as set out in the Supplier’s quotation (if accepted by the Buyer in Writing) or the Buyer’s Order (if accepted by the Supplier in Writing).

5.2       The Buyer shall pay the price of the Goods or the fee for the Services (less any discount to which the Buyer is entitled, but without any other deduction, set-off or counter claim) on Cash on Delivery basis, if so required by the Supplier or within thirty (30) days of the date of the Supplier’s invoice, and the Supplier shall be entitled to recover the price or fee, notwithstanding that delivery of the Goods may not have taken place and the property in the Goods has not passed to the Buyer or the Services have not been delivered or performed in full. The time of payment of the price and/or the fee shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3       If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:

(a)       stop any Goods in transit, suspend further deliveries to the Buyer, suspend performance of Services without any liability to the Buyer and exercise its rights under Clause 9;

(b)       appropriate any payment made by the Buyer to such of the Goods and/or the Services (or the goods or services supplied under any other contract between the Buyer and the Supplier), as the Supplier may think fit (notwithstanding any purported appropriation by the Buyer);

(c)       charge the Buyer late payment interest on the amount unpaid, at the rate of one per cent (1%) per month, calculated from the date payment is due until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and/or

(d)       terminate the Contract in accordance with Clause 15.1 below

5.4       If there is any discrepancy in the invoice, the Buyer shall within seven (7) days from the date of the Supplier’s invoice notify the same to the Supplier in Writing, failing which the account in that invoice shall be deemed to be in order.

5.5       The Buyer agrees that a statement of accounts in Writing showing the amount owing by the Buyer duly certified by the Supplier’s authorised representative shall be binding and conclusive evidence of the amount owing by the Buyer to the Supplier.

6.         Delivery OF GOODS

6.1       Delivery of the Goods shall be made by the Buyer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Supplier, by the Supplier delivering the Goods to that place.

6.2       Any dates quotes for delivery of the Goods are approximate only and the Supplier shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Supplier in Writing. The Goods may be delivered by the Supplier in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3       Where delivery of the Goods is to be made by the Supplier in bulk, the Supplier reserves the rights to deliver up to 100 per cent (100%) more or 50 per cent (50%) less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.

6.4       Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.5       if the Supplier fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Supplier’s reasonable control or the Buyer’s fault, and the Supplier is accordingly liable to the Buyer, the Supplier’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.6       If the Buyer wishes to postpone the date of delivery, the Buyer shall give at least three (3) days prior written notice to the Supplier. If the Buyer fails to take delivery of the Goods or fails to give the Supplier adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Supplier’s default), then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:

(a)       store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage as follows:

Day	Storage Cost
Weekday	RM50 per day
Weekend & Public Holiday	RM100 per day

OR,

(b)       sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract;

OR,

(c)       terminate the Contract with the Buyer in accordance with Clause 15.1 below and to recover all loss and expense occasioned by the Buyer’s failure to take delivery, for which the Buyer shall be fully liable.

7.         DELIVERY OF SERVICES

7.1       The Supplier will provide the Services in respect of the Goods during such period and/or within such hours as set out in the Supplier’s quotation (if accepted by the Buyer in Writing) or the Buyer’s Order (if accepted by the Supplier in Writing).

7.2       The Supplier may, depending on the severity of the fault reports lodged, provide the Services either remotely, on site or have the Goods delivered to the Supplier’s premises at the cost of the Buyer.

7.3       Services supplied outside of the Supplier’s working hours will be provided on a best effort basis subject to availability of qualified personnel to perform such services.

7.4       The Buyer shall lodge fault reports in accordance with the Supplier’s standard procedures as published by the Supplier from time to time on its Website.

7.5       Upon receipt of a fault report, the Supplier will use its best efforts to, respond within such standard response time as published by the Supplier from time to time on its Website.

7.6       Subject to any special terms agreed in Writing between the Buyer and the Supplier; the Services do not include:

(a)       the replacement of Goods that have become unserviceable or obsolete;

(b)       the replacement of cables;

(c)       the relocation of the Goods;

(d)       any work required as a result of the relocation of the Goods;

(e)       repair required as the result of accidental or deliberate damage of the Goods or of the acts of third parties or of pest activity;

(f)        repair required as the result of unauthorized modifications of the Goods;

(g)       the provision of accessories and consumables;

(h)       the restoration of lost data of any Goods; or

(i)         the refurbishment of any Goods.

7.7       The Supplier will not replace parts or perform remedial maintenance on Goods which fail due to:

(a)       external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning;

(b)       the use of the Goods for other than its intended purpose;

(c)       the use or interface of the Goods with items not provided or approved by the Supplier; or

(d)       the performance of maintenance or attempted repair by persons other than the Supplier or as authorised by the Supplier; or

(e)       relocation of the Goods without the prior Written consent of the Supplier.

7.8       Replacement parts may be new or reconditioned to good working order.

7.9       Risk in and to all replacement parts will pass to the Buyer upon installation. However, property in and to all replacement parts will pass to the Buyer upon the Supplier’s receipt of full payment thereof. Property in and to the replaced parts will pass to the Supplier upon removal.

7.10     The Buyer shall:

(a)       perform such tasks, take such actions and provide all necessary equipment, materials, information, facilities, services, consumables, accessories and any other items that the Supplier reasonably requires to assist it to provide the Services;

(b)       ensure that the Supplier has safe access to the location of the Goods for the purpose of providing the Services;

(c)       keep such records relating to the use and performance of the Goods as may be requested by the Supplier from time to time and ensure that the Supplier’s personnel have access to such records at all reasonable times;

(d)       operate the Goods in accordance with the Supplier or the manufacturer’s conditions and specifications.

The Supplier will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of the failure of the Buyer to comply with the above.

8.         SOFTWARE LICENSING

8.1       Where the Goods supplied by the Supplier are Software or has Software installed in the Goods, the Buyer will only be granted a non-exclusive, non-assignable and non-transferable licence to use the Software. Nothing contained in these Terms and Conditions shall be interpreted or deemed that ownership or property in and to the Software including all intellectual property rights therein shall be transferred to the Buyer.

8.2       The Buyer further acknowledges that there is no transfer of title or ownership to the Buyer of the Software and any modifications, updates, patches, fixes, releases, new applications or any intellectual property rights therein. Where the Goods supplied by the Supplier are Software, risk of loss and damage shall pass to the Buyer upon installation whereas where the Goods have Software installed in them, risk of lass and damage shall pass in accordance with Clause 9 hereinbelow.

8.3       Use of the Software is limited to such equipment as designated by the Supplier, unless the prior written consent of the Supplier has been obtained to use the Software on alternative equipment.

8.4       Any modifications, updates, patches, fixes, releases, new applications may be provided as and when they are available and at the discretion of the Supplier.

8.5       The Supplier shall retain ownership of all rights (including without limitation all intellectual property rights therein), title to and interest in the Software whether in its original form or as modified by the Buyer.

8.6       The Buyer covenants and undertakes that it shall not copy or reproduce the Software, in whole or in part and in any form or media for any purpose other than as permitted by the Supplier in Writing and subject to such conditions as the Supplier may reasonably impose.

8.7       The Buyer shall notify the Supplier immediately on becoming aware of any unauthorised use, reproduction or copying of the whole or any part of the Software or any of its related manuals or documentations.

8.8       The Buyer shall not modify the whole or any part of the Software or combine or integrate or incorporate the whole or any part of the Software in any other computer program or system without the prior consent in Writing of the Supplier. Any modifications, whether permitted or not permitted by the Supplier, whether made by the Buyer and/or any third party shall remain the property of the Supplier and the Buyer shall have no claims or interest whatsoever therein.

8.9       The Buyer shall not reverse assemble or reverse compile or directly or indirectly allow or cause any third party to reverse assemble or reverse compile the Software or any part of the Software for any reason whatsoever.

9.         Risk and Property

9.1       Risk of damage to or loss of the Goods shall pass to the Buyer;

(a)       in the case of Goods to be delivered at the Supplier’s premises, at the time when the Supplier notifies the Buyer that the Goods are available for collection; or

(b)       in the case of Goods to be delivered otherwise than at the Supplier’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.

9.2       Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Supplier to the Buyer for which payment is then due.

9.3       Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Supplier’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Supplier’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business. In the event the Buyer resells or use the Goods in the ordinary course of its business, the Buyer shall account to the Supplier for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

9.4       Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Supplier shall be entitled at any time to require the Buyer to deliver up the Goods to the Supplier and, if the Buyer fails to do so forthwith, the Supplier may without prejudice to other right or remedy, take legal action against the Buyer for the delivery up of the Goods or the repossession of the Goods and to seek damages and all other costs including but not limited to legal fees against the Buyer.

9.5       The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Buyer does so all moneys owing by the Buyer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.

9.6       The Buyer agrees with the Supplier that the Buyer shall immediately notify the Supplier of any matter from time to time affecting the Supplier’s title in the Goods and the Buyer shall provide the Supplier with any information relating to the Goods as the Supplier may require from time to time.

9.7       If the provisions in these clauses are not effective according to the law of the country in which the Goods are located, the legal concept closest in nature to retention of title in that country shall be deemed to apply mutatis mutandis to give effect to the underlying intent expressed in this condition, and the Buyer shall take all steps necessary to give effect to the same.

9.8       The Buyer shall indemnify the Supplier and keep the Supplier indemnified against all loss damages costs expenses and legal fees incurred by the Supplier in connection with the assertion and enforcement of the Supplier’s rights under this condition.

10.       Warranties and Liability

10.1     Subject to the conditions set out below the Supplier warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve (12) months from the date of their initial use or twelve (12) months from delivery, whichever is the first to expire. Where the Goods are spare parts (including print head), the warranty period for such Goods shall be three (3) months from the date of delivery or three (3) months from the date of their initial use, whichever is the first to expire.

10.2     Where the Goods supplied are Software or has Software installed in the Goods have Software installed in them, the Supplier warrants that the Software will perform substantially in accordance with the Software’s functionalities and specifications. Notwithstanding the foregoing, the Supplier does not warrant or represent to the Buyer that the Software or any part thereof will operate free from errors or interruptions.

10.3     The above warranty is given by the Supplier subject to the following conditions;

(a)       the Supplier shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

(b)       the Supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Supplier’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Supplier’s approval in Writing;

(c)       the Supplier shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the price of the Goods has not been paid by the due date for payment;

(d)       the above warranty does not extend to parts, materials or equipment not manufactured by the Supplier, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier;

(e)       the Supplier is not liable for any loss damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without the Supplier’s prior approval in Writing and the Buyer shall indemnify the Supplier against each loss liability and cost arising out of such claims;

(f)        the Supplier shall be under no liability whatsoever in respect of any defect in the Goods arising after the expiry of the warranty period of the Goods; and

(g)       no condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose or use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to the Supplier.

10.4     The Supplier warrants that the Services:

(a)       will be provided in accordance with generally acceptable practices and in accordance with the standards in the industry; and

(b)       the Services will be performed by personnel who are suitably qualified or trained to perform the Services.

10.5     Subject as expressly provided in these Terms and Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

10.6     Where the Goods are sold to a consumer (as defined by the Consumer Protection Act 1999) the statutory rights of the Buyer are not affected by these Terms and Conditions.

10.7     The Buyer shall, upon delivery or collection, examine the Goods for defects and completeness. Upon signing and/or affixing the Buyer’s company stamp by the Buyer, its employees, agent, representative or other persons authorized by the Buyer, the Buyer shall be deemed to have duly received the Goods.

10.8     Any claim by the Buyer which is based on shortage or any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Supplier in Writing within three (3) working days from the date of delivery whereas for any claim in relation to fault in the Services, the Buyer shall notify such fault in the Services to the Supplier within seven (7) working days from the date of performance of the Services. If delivery is not refused, and the Buyer does not notify the Supplier within the aforesaid stipulated timeframe:

(a)       the Buyer shall be deemed to have accepted the Goods and/or Services in good condition and in the quantity as ordered and the Buyer shall not be entitled to reject the Goods and/or Services;

(b)       no claim for damage in transit or for shortage in delivery will thereafter be entertained;

(c)       the Supplier shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods and/or Services had been delivered in accordance with the Contract; and

(d)       if the Supplier chooses to rectify the defects or errors the Supplier shall be entitled to claim for all costs and expenses from the Buyer arising therefrom.

10.9     Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Supplier in accordance with these Terms and Conditions, the Supplier shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Supplier’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Supplier shall have no further liability to the Buyer.

10.10   Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other terms, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Supplier, its employees or agents or otherwise) which arise out or in connection with the supply of the Goods or their use or resale by the Buyer or the provision of the Services, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the price of the Goods or the fee for the Services, except as expressly provided in these Terms and Conditions.

11.       FORCE MAJEURE

11.1     The Supplier shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Supplier’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Supplier’s reasonable control;

(a)       Act of God, explosion, flood, tempest, fire or accident;

(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 the Supplier or of a third party);

(f)        Difficulties in obtaining raw materials, labour, fuel, parts or machinery;

(g)       Power failure or breakdown in machinery.

11.2     Upon the happening of any one of the events set out in Clause 11.1, the Supplier may at its option: –

(a)       fully or partially suspend delivery/performance while such event or circumstances continues;

(b)       terminate any agreement to sell and supply so affected with immediate effect by written notice to the Buyer and the Supplier shall not be liable for any loss or damage suffered by the Buyer as a result thereof.

12.       LIABILITY

12.1     The Supplier’s liability under or in connection with the agreement to sell and supply the Goods and/or Services shall be subject to the limitations set out in this Clause 12.

12.2     The Supplier shall be under no liability whatsoever where this arises from a reason beyond its reasonable control as provided in Clause 11.1 or from an act or default of the Buyer.

12.3     In no event shall the Supplier be liable for loss of profit or goodwill, loss of production or revenue or any type of special indirect or consequential loss whatsoever (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss were reasonably foreseeable or the Supplier had been advised of the possibility of the Buyer incurring the same.

12.4     The sole and exclusive remedy of the Buyer under these Terms and Conditions shall be the Supplier’s obligation, if any, to repair, replace or refund as set out in these Terms and Conditions.

12.5     Without prejudice to anything herein contained in these Terms and Conditions, the Supplier’s maximum and cumulative total liability (including any liability for acts and omissions of its employees agents and sub-contractors) in respect of any and all claims for defective performance, breach of contract, compensation, indemnity, tort, misrepresentation, negligence at law or equity and any other damages or losses which may arise in connection with its performance or non-performance under the Contract, shall not exceed the total price of the Goods or the fee for the Services, as the case may be.

12.6     If a number of events give rise substantially to the same loss they shall be regarded as giving rise to only one claim under these Terms and Conditions.

13.       Export Terms

13.1     Where the Goods are supplied for export from Malaysia, the provisions of this Clause 13 shall (subject to any special terms agreed in Writing between the Buyer and the Supplier) apply notwithstanding any other provisions of these Terms and Conditions.

13.2     The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.

13.3     Unless otherwise agreed in Writing between the Buyer and the Supplier, the Goods shall be delivered FOB the air or sea port of shipment in accordance with INCOTERMS 2000.

13.4     The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Supplier’s premises before shipment. The Supplier shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

13.5     Payment of all amounts due to the Supplier shall be made by irrevocable letter of credit opened by the Buyer in favour of the Supplier and confirmed by a bank acceptable to the Supplier or, if the Supplier has agreed in Writing on or before acceptance of the Buyer’s order to waive this requirement, by such other mode of payment as the parties shall otherwise agree in Writing.

13.6     The provisions of the United Nations Convention on Contracts for The International Sale of Goods are hereby excluded by the parties.

13.7     If the Buyer is required by law to withhold any taxes, duties or other charges, levies or amounts (“Withholding Tax”), then (i) the Buyer will promptly so notify the Supplier, and (ii) the Buyer shall pay as additional price or fees such additional amount as shall result in the Supplier receiving, net of any Withholding Tax, the amount the Supplier would have otherwise received pursuant to the Contract Agreement or pursuant to an invoice from the Supplier, as if no such Withholding Tax had been imposed or had been required to be withheld.

14.       CONFIDENTIALITY

14.1     Except as provided by Clauses 14.2 and 14.3, the Buyer shall at all times during the continuance of the Contract and after its termination or fulfilment of the Contract:

(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 those set out in these Terms and Conditions.

14.2     Any Confidential Information may be disclosed by the Buyer to:

(a)       any governmental or other authority or regulatory body; or

(b)       any duly authorized employees of Buyer;

to such extent only as is necessary for the purposes contemplated by these Terms and Conditions, or as is required by law and subject in each case to the Buyer 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.

14.3     Any Confidential Information may be used by the Buyer for any purpose or disclosed by the Buyer to any other person to the extent only that:

(a)       it is at the date hereof, or hereafter becomes, public knowledge through no fault of the Buyer (provided that in doing so the Buyer shall not disclose any Confidential Information which is not public knowledge); or

(b)       it can be shown by the Buyer, to the reasonable satisfaction of the Supplier, to have been known to it prior to its being disclosed by the Supplier to the Buyer.

15.       TERMINATION

15.1     In the event that the Buyer breaches any provision of these Terms and Conditions, the Supplier, without prejudice to any other rights or remedies that the Supplier may have against the Buyer, will be entitled to immediately:

(a)       stop any Goods in transit, suspend further deliveries to the Buyer, suspend performance of Services without any liability to the Buyer and exercise its rights under Clause 9; and/or

(b)       terminate the Contract in the event the Buyer remains in breach of any such provision after receiving not less than fourteen (14) days’ notice in Writing from the Supplier identifying the breach and requesting its remedy and if the Goods have been delivered or the Services have been performed but not paid for the price or the fee shall become immediately due and payable notwithstanding any previous agreement of arrangement and the Supplier shall be entitled to recover all loss and expense occasioned by the Buyer’s breach for which the Buyer shall be fully liable.

15.2     In any of the following events:

(a)       the Buyer passing a resolution for its winding up or a court of competent jurisdiction making an order for the Buyer’s winding up or dissolution;

(b)       the making of an administration order in relation to the Buyer or the appointment of a receiver, receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person over or an encumbrancer taking possession of or selling any of the Buyer’s property or assets;

(c)       the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);

(d)       the Buyer ceases to be able to pay its debts as they become due;

(e)       the Buyer ceases, or threatens to cease, to carry on business; or

(f)        the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly;

the Supplier shall, without prejudice to any other right or remedy available to the Supplier, be entitled to terminate the Contract immediately or suspend any further deliveries or performance under the Contract without any liability to the Buyer, and if the Goods have been delivered or the Services have been performed but not paid for the price or the fee shall become immediately due and payable notwithstanding any previous agreement of arrangement to the contrary and the Supplier shall be entitled to recover all loss and expense occasioned by the Buyer’s breach for which the Buyer shall be fully liable.

16.       NOTICES

16.1     All notices and other communications hereunder shall be in legible Writing and may be delivered to or sent by prepaid registered 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 Supplier.

16.2     Every notice shall be deemed to have been received and given three (3) 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.

17.       General

17.1     The Supplier is a member of the group of companies whose holding company is SATO Corporation, Japan, and accordingly the Supplier may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Supplier.

17.2     Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms and Conditions but if there is any conflict between the provisions of Incoterms and these Terms and Conditions, the latter shall prevail.

17.3     No waiver by the Supplier of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

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

17.5     These Terms and Conditions and the Contract shall be governed by the laws of Malaysia and the Buyer agrees to submit to the exclusive jurisdiction of the Courts in Malaysia.

17.6     The Supplier shall be entitled to commence court legal proceedings for the purposes of protecting its intellectual property rights and confidential information by means of injunctive or other equitable relief.

17.7     The Supplier reserves its right to these Terms and Conditions at any time.

17.8     The Buyer agrees that it shall indemnify and hold harmless to the Supplier from any claim, demand, loss, liability, damage or expense arising pursuant to any action or claim brought by any party against the Supplier and/or its employee(s) in respect of the breach of the Contract.

17.9     In the event of legal action being taken by the Supplier 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 Supplier on a full indemnity basis.

17.10   No forbearance, delay or indulgence by a party in enforcing the provisions of the Contract shall prejudice or restrict the rights of that party in relation to any other provision of the Contract, nor shall any waiver of such right operate as a waiver of any subsequent breach of the same provisions by the other party.

17.11   Stamp duty(ies) if any (including penalties), shall be borne by the Buyer.

17.12   The Supplier is committed to safeguarding the Buyer’s privacy and will not disclose to third parties outside the Supplier’s organization. The Supplier’s privacy policy is detailed in the Website and the Buyer is to read it thoroughly. By accepting these Terms and Conditions, the Buyer acknowledge that the Buyer has read and agreed with the Privacy Policy and consent to the Supplier’s collection, use and disclosure of the Buyer’s Personal Data for the purposes as set out in the Privacy Policy. The Supplier’s privacy policy may change from time to time and all changes will be posted on the Website. When so posted, they shall become effective immediately. It shall be the Buyer’s responsibility to monitor the changes posted.

17.13   The Buyer consents and the Supplier is also hereby authorized to carry out credit or reference checks from any source including but not limited to credit information, from the Inland Revenue Authorities, Insolvency Department, Companies Commission of Malaysia, EPF, other financial institutions, Central Credit Reference Information System (CCRIS), SME Credit Bureau, any other credit reference or credit reporting agencies, any other public records, person, individual and/or entity, as the Supplier shall deem appropriate.

17.14   Nothing in these Terms and Conditions shall create or deemed to create an agency, partnership or joint venture between the parties.

17.15   The Supplier shall also be entitled to carry out its obligations under these Terms and Conditions through any agents or subcontractors appointed by it in its absolute discretion for that purpose.

17.16   The Buyer shall not assign or in any manner whatsoever encumber or transfer its interest or rights or any part thereof in the Contract without obtaining the prior written consent of the Supplier.

17.17   No modification, variation or amendment of the Contract shall have any legal effect and force unless such modification, variation or amendment is in Writing and executed by both parties.

17.18   The Contract shall be binding upon the heirs personal representatives successors in title and permitted assigns of the Buyer and the successors-in-title and assigns of the Supplier.