STANDARD TERMS AND CONDITIONS OF SALE
1.6 The terms and conditions for the sale of the Goods are set out in Terms and Conditions
2. USE OF THE WEBSITE
2.1 You must register an account with us in order to obtain a quotation or place an order through the Website. To register, you shall:
(i) provide us with true, current and complete information about yourself including but not limited to your name or your company name, company number, email address, contact person, payment details and such other particulars as shall be required by us from time to time;
(ii) from time to time, maintain and promptly update your registration data which are set out in your account or profile to keep it true, accurate, current and complete.
2.2 KVC reserves the right to decline registration or cancel your registration or your account at KVC’s sole discretion without assigning any reason. After registration has been completed, you will be given a password and account. You shall keep the password confidential and immediately notify KVC if you are become aware of any unauthorised use of your password or account by third party. You are responsible for all transactions carried out using your account and password. We shall not be responsible for any misuse of your account by someone who uses your password and account
(i) Not to upload, post, email or otherwise transmit any content that is immoral, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(ii) Not to upload, post, email or otherwise transmit any material that contains worms, software viruses or any other computer code, file or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(iii) Not to collect or store personal data about other users; and
(iv) Not to interfere with or disrupt the service or services or networks connected to the service, or disobey any requirements, procedures, policies or regulations of the networks connected to the service.
2.4 By browsing, accessing or using the Website, you represent and undertake to KVC that:-
(a) you shall not use the Website for any illegal, immoral or unauthorised purpose nor shall you, in the use of the Website, violate any laws in Malaysia or in your jurisdiction (including but not limited to any intellectual property laws); and
(b) you must not, transmit or cause to be transmitted any worms or viruses or any code of destructive nature on or through the Website.
3. DISCLAIMER AND LIMITATION OF LIABILITY
3.1 The information, materials and services contained on the Website or in KVC’s email have been posted on an "as is", and "as available" basis. We do 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 and materials. We shall endeavor, but we are not obliged to correct any inaccuracies, errors, omissions or typographical errors in the information posted to the Website, and such information including information on pricing and availability of products may be changed, amended or updated from time to time without notice.
3.2 You shall be responsible in maintaining and promptly updating your registration data set out in your account or profile to keep it true, accurate, current and complete. You further warrant or guarantee the accuracy, currency and/or completeness of these information. Other information, services or functionalities contained in your account or profile which have been provided or made available by KVC such as historical data, credit information, analytics and trends (“Additional Information”) have been posted on an "as is", and "as available" basis and is for general information and is not intended to address your specific requirements and does not constitute any form of advice or recommendation by KVC. You acknowledge that such Additional Information furnished out in your account or profile does not necessarily reflect the views and opinions of KVC and that such Additional Information should not be relied upon by you in making (or refraining from making) any specific purchases or other business or personal decisions and acknowledge that professional advice should be obtained before making any such decision. In addition, we do not warrant or guarantee the accuracy or completeness of such Additional Information furnished in your account or profile and expressly disclaim any liability for any errors, omissions and/or inaccuracies in such Additional Information. We shall endeavor, but we are not obliged to correct any inaccuracies, errors, omissions or typographical errors in such Additional Information furnished in your account or profile.
3.3 We disclaim liability for any damages including, without limitation, direct or indirect, special, incidental, compensatory, exemplary or consequential damages, losses or expenses, including without limitation lost or misdirected orders, lost profits, lost registrations, lost goodwill, or lost or stolen programs or other data, however caused and under any theory of liability arising out of or in connection with:
(a) use of the Website, or inability to see, access or use the Website by any party; or
(b) any failure or performance, error, omission, interruption, defect, delay in operation or transmission; or
(c) line or system failure or the introduction of a computer virus, worm or other technical sabotage, even if we or our employees or representatives are advised of the possibility or likelihood of such damages, losses or expenses.
4. USER SUBMISSIONS
4.1 Anything that you post on or submit to or through the Website and/or provide to KVC, including but not limited to, questions, reviews, comments and suggestions (collectively, "Submissions") shall be treated as non-confidential and non-proprietary and shall become KVC’s sole and exclusive property and shall not be returned to you.
4.2 KVC may then disseminate or use such Submissions for any purposes whatsoever including but not limited to reproduction, transmission, publication, broadcast, posting, developing, manufacturing and marketing products. In addition, when you post comments or reviews to the Website, you also grant KVC an irrevocable and unconditional right to use the name that you submit, in connection with such Submissions. You shall not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead KVC or third parties as to the origin of any Submissions. KVC may, but shall not be obliged to, respond to, remove or edit any Submissions.
5. ORDER AND ACCEPTANCE
5.1 Our quotation or the information, materials and services provided in the Website shall not under any circumstances whatsoever be considered or construed as an offer to sell.
5.2 We reserve the right not to process your order or not to accept your order. KVC reserves the right to refuse or cancel any order for any reason at any given time. Where you have requested for our quotation, you are to note that our quotation shall valid for a certain period only and upon expiry, shall no longer be valid. We may also request for further information from you in order to process your order, including but not limited to your address, email address and payment details and you shall promptly provide true, current and complete information to KVC.
5.3 KVC may, at KVC’s sole discretion, set a limit to the quantity of an order which is placed by or under your account, same credit card, and/or use the same billing and/or shipping address. In the event your order exceeds the limit, you may contact KVC to increase the limit. However, any increase of limit is at KVC’s sole discretion.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Unless otherwise indicated, all copyright in the Website design, contents, text, images and graphics belongs to KVC. All Rights are reserved. Unless permitted by KVC, none of the contents or materials may be copied, downloaded, displayed, posted, transmitted used or reproduced in whole or part in any form or by any means for any purposes. The product image may be indicative and not an exact representation, for illustration purposes only.
6.2 You shall not, without the KVC’s expressed prior written consent, insert a link to the Website on any other website, frame or "mirror" any material contained on the Website on any other server.
6.3 Any such unauthorised reproduction, retransmission or other copying or modification of any of the contents of the Website may be in breach of statutory or common law rights which could be the subject of legal action.
6.4 We disclaim all liability which may arise from any unauthorized reproduction or use of the contents of the Website.
6.5 Unless otherwise indicated, all trade names, domain names, brand names, trade symbols, logos, trademarks and services marks are the property of KVC and/or their respective third party proprietors as identified in the Website.
6.6 Unless the prior written consent of KVC or the relevant third party proprietor of any of the trademarks, service marks or logos appearing on the Website has been obtained, no license or right is granted to any party accessing the Website to use, download, reproduce, copy or modify such trademarks, services marks or logos. Similarly, unless the prior written consent of KVC or the relevant proprietor has been obtained, no such trademark, service mark or logo may be used as a link or to mark any link to the Website or any other site.
7.3 By registering, you consent and authorize KVC 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 KVC shall deem appropriate.
8.1 We do not warrant, guarantee or make any representation regarding the security of accounts, or that the Website is free form destructive material, including but not limited to computer viruses, hackers, or other technical sabotage, nor do we warrant, guarantee or make any representations that access to the Website will be fully accessible at all times, uninterrupted, or error-free.
8.2 Any electronic communication sent to KVC may not be secure and thus may be disclosed. Accordingly, users are requested not to send sensitive or confidential information electronically. In addition, the sending of electronic mail to any staff or other contact identified in the Website or any communications, whether by way of feedback or response to queries or otherwise, does not create a purchaser and seller relationship between you and KVC.
9.2 Our cookies are safe and do not collect your name, address or product information contained within the cookies itself. The cookie simply holds the 'key' that once read by the Website, it will unlock your information.
9.3 Most web browsers automatically accept cookies. However, you can disable cookies on your computer or have your browser notify you when you receive a new cookie by indicating this in the preferences or options menu in your browser.
10.1 Links from or to websites (if any) outside the Website are meant for convenience only. Such linked websites are owned and operated by third party and as such are not under our control. Therefore, we shall not be responsible and make no warranties in respect of the contents of those websites, the third parties named therein or their products and services.
10.2 The provision of the links shall not be considered an endorsement or verification or approval of such linked websites or the contents therein. By utilising these links, you acknowledged and agreed that we are not responsible for the actions, contents, accuracy, privacy, policies, opinions expressed, services provided, goods sold, or other links provided by these sites. You further acknowledged and agreed that we are not responsible either directly or indirectly for any damage or loss caused by use of or reliance on linked sites.
12.1 By accessing or using the Website, you hereby irrevocably and unconditionally agree to indemnify and keep us indemnified from all liabilities, claims, losses and expenses, including but not limited to any legal fees that may be incurred by KVC in connection with or arising from:
(a) your use or misuse of the Website and the services provided herein;
(c) any intellectual property right or proprietary right infringement claim made by a third party against KVC in connection with your use of the Website.
13. GOVERNING LAW
STANDARD TERMS AND CONDITIONS OF SALE
1. INTERPRETATION AND DEFINITIONS
1.1 In this document, unless the context otherwise requires, the following words and expressions shall have the following meanings:
“Buyer” means the buyer of the Goods from KVC who has accepted the quotation from KVC or who otherwise entered into a Contract with KVC for the purchase of the Goods;
“Contract” means the contract regarding the Buyer’s purchase of the Goods and KVC’s supply of the Goods to the Buyer which shall incorporate these Terms and Conditions;
“Goods” means the goods which shall be supplied by KVC to the Buyer pursuant to these Terms and Conditions;
“Confidential Information” means any information in relation to KVC which is disclosed to the Buyer by KVC 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);
“KVC” means KVC Industrial Supplies Sdn Bhd (183220-D), a company incorporated in Malaysia and having its registered address at Wisma KVC, Lot 3, Jalan P10/12, Kawasan Perusahaan Bangi, 43650 Bandar Baru Bangi, Selangor;
“Order” means the purchase order for the Goods made by the Buyer;
“Terms and Conditions” mean these standard terms and conditions set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between the Buyer and KVC;
“Website” means KVC’s website at www.kvc.com.my;
“Writing” includes electronic mail facsimile transmission 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 of these Terms and Conditions.
2.1 Unless otherwise expressly agreed in writing by KVC, these Terms and Conditions shall govern all contracts for sale of the Goods from KVC to the Buyer.
2.2 A Contract between KVC and the Buyer shall be deemed concluded when KVC receives an Order from the Buyer which is in accordance with these Terms and Conditions and KVC has accepted the Order in accordance with these Terms and Conditions.
2.3 Any other terms and conditions contained or referred to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom practice or course of dealing are hereby expressly excluded.
3. ORDERS AND ACCEPTANCE
3.1 The information, statements, contents or materials contained on the Website in connection with the supply of the Goods including but not limited to photographs, drawings, specifications, availability of the Goods and pricing have been posted on an "as is", and "as available" basis are not binding and for information purposes only. KVC 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. KVC shall endeavor, but is not obliged to correct any inaccuracies, errors, omissions or typographical errors in the information, statements, contents or materials posted on the Website, and such information, statements, contents or materials may be changed, amended or updated from time to time without notice and without liability on KVC’s part.
3.2 KVC’s quotation or the information, statements, contents or materials on the Website shall not under any circumstances whatsoever be considered or construed as an offer to sell.
3.3 An Order from the Buyer whether made through the Website or other means shall constitute the offer. It is the Buyer’s responsibility to ensure that the information contained in the Order are accurate and correct.
3.4 When the Buyer places the Order, it shall be deemed that the Buyer has read, understood and agreed to these Terms and Conditions. When placing an Order, the Buyer further acknowledges that it does not rely on and waives any claim based on any such representations or information not so confirmed.
3.4 KVC reserves the right not to process the Order or not to accept the Order and KVC is not obliged to assign any reasons for not processing or accepting the Order.
3.5 Upon receipt of the Order, KVC shall send an electronic acknowledgement that the Order has been received. Such electronic acknowledgement shall not be deemed as KVC’s acceptance of the Order.
3.6 In processing the Order, KVC is entitled to request for further information or confirmation of information from the Buyer including but not limited delivery address and contact numbers. Upon KVC issuing a confirmation of dispatch of the Goods to the Buyer, it shall be deemed that KVC has accepted the Order.
4. PRICE AND PAYMENT TERMS
4.1 The price of the Goods shall be the price stated in the Website at the time which the Buyer submits its Order to KVC. The price excludes the cost of packaging, delivery charges, insurance and 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 KVC in addition to the price of the Goods.
4.2 In the event of a change in applicable law concerning taxes and duties prior to the dispatch of Goods to the Buyer, the Buyer shall pay KVC, where applicable, any increase in the said taxes and duties.
4.3 The Buyer shall pay KVC for the Goods. Payment can be made pursuant to the various payment methods set out in the Website. The terms and conditions applicable to each type of payment, as contained in the Website, shall be applicable to the Contract. Notwithstanding anything contained in the Website or these Terms and Conditions, KVC, may, in its sole discretion, refuse any of the payment methods to anyone or any user without notice for any reason at any time.
4.4 In addition to any additional terms contained in the Website, the following terms shall also apply to the following types of payment:
(a) Credit Card
Credit Card payment option is available for Buyers. KVC accepts all valid Visa and MasterCards, both Credit and Debit, and is 3D Secure (Verified by Visa, and MasterCard Secure) enabled. Credit card information will be protected by means of industry- leading encryption standards.
Additional charges may be incurred by and charged to the Buyer if the Buyer uses a credit card not issued by a Malaysian bank due to foreign exchange.
(b) Debit Cards
Visa and MasterCard debit cards payment option is only for debit cards issued by Malaysian banks subject always to the validity of the card and bank’s availability. Debit card numbers will be protected by means of industry-leading encryption standards.
(c) Online Banking
If the Buyer selects payment by online banking, the Buyer shall transfer the payment for the Goods to a KVC’s designated account for the total amount of the Buyer’s purchase (including any applicable taxes, fees, insurance and shipping costs). The transaction must be paid in Ringgit Malaysia and all banking charges for online banking shall be borne by the Buyer.
Currently, online bank transfers from AmBank Berhad, Bank Islam Malaysia Berhad, CIMB Bank Berhad, Hong Leong Bank Berhad, Maybank Berhad, Public Bank Berhad and RHB Bank Berhad are available.
4.5 A Buyer meeting KVC’s requirements may apply to KVC for credit terms by submitting such documents and information as requested by KVC. Notwithstanding the Buyer meeting KVC’s requirements, KVC may, at its sole discretion refuse any application for credit terms without assigning any reasons. Any credit terms granted shall be subject to such terms and conditions KVC in its sole discretion deems fit including imposing late payment charges, requirement of personal and/or corporate guarantee(s) and KVC may in its sole discretion terminate or withdraw any credit terms granted without assigning any reason whatsoever.
4.6 In the event KVC at its sole discretion grants the Buyer credit terms for the payment of the price of the Goods, full payment shall be due and payable upon expiry of the credit period granted by KVC or when the credit limit has been exceeded, whichever is earlier.
4.7 In the event the Buyer fails to settle in full any of KVC’s invoices within the credit terms granted by KVC, the Buyer acknowledges that KVC shall have a right (without prejudice to any other right or remedy at law and in equity) to:
(a) impose late payment charges at the rate of one point five (1.5%) per centum per month on the outstanding amount from the date due for payment until the outstanding amount is fully settled and the Buyer shall pay to KVC such late payment charges; and/or
(b) cancel or suspend any further delivery to the Buyer under any Contract and KVC shall have no liability whatsoever to the Buyer.
4.8 If there is any discrepancy in the invoice, the Buyer shall within seven (7) days from the date of KVC’s invoice notify the same to KVC in writing, failing which the account in that invoice shall be deemed to be in order.
4.9 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to KVC, KVC shall be entitled to charge interest on any and all amounts due and owing to KVC calculated from the date the payment is due until payment thereof in full, at the rate of eighteen per centum (18%) per annum.
4.10 The Buyer agrees that a statement of accounts in writing showing the amount owing by the Buyer duly certified by KVC’s authorised representative shall be binding and conclusive evidence of the amount owing buy the Buyer to KVC.
5.1 Delivery of the Goods shall be made to the address specified by the Buyer in its Order.
5.2 KVC has the right at any time to sub-contract all or any of its obligations for the sale/delivery of the Goods to any other party as it may from time to time decide without giving notice of the same to the Buyer.
5.3 Any dates quoted for delivery of the Goods are approximate dates of delivery only and KVC shall not be liable for any delay in delivery of the Goods however caused. The time for delivery/performance shall not be of the essence.
5.4 Where the Goods are ordered for delivery to a specified location, KVC’s obligation is to deliver as near to the specified location as would be reasonable in the circumstances and the Buyer shall pay the costs of delivery as shall be determined by KVC after taking into account the size, quantity, weight of the Goods and destination. The Buyer shall at its own cost and expense provide its own labour, facilities and/or equipment required for unloading and stacking the Goods.
5.5 Where it is a bulk order, KVC shall be entitled to deliver the Goods by batches or instalments and in such event, each batch of delivery shall be treated as separate Contract save and except that the delivery of further batch(es) may be withheld until the Goods delivered earlier have been paid in full.
5.6 In the event if the Buyer is responsible to collect the Goods (ExFactory), the Buyer shall collect the Goods from such location as shall be specified by KVC within seven (7) days from the date KVC notifies the Buyers that the Goods are ready for collection.
5.7 If the Buyer fails to collect the Goods at the expiry of such notification, KVC may:
(a) store or keep the Goods until the actual collection day and the Buyer shall pay KVC all the costs incurred (including insurance); in storing the Goods;
(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 that price and the Buyer shall pay KVC such shortfall upon demand from KVC; or
(c) terminate the applicable Contract and claim for damages.
5.8 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.
5.9 If there is any defect or shortage of the Goods, the Buyer shall notify the same to KVC in Writing within three (3) 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 satisfaction condition and in the quantity as ordered; and
(b) No claim for damage in transit or for shortage in delivery will thereafter be entertained.
5.10 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 taxes or duties on them.
6. RISK AND TITLE
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery of the Goods or if the Buyer fails to take collection of the Goods, at the time when KVC has tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing of risk in the Goods to the Buyer, the title in the Goods shall not pass to the Buyer until KVC has received full payment of the price of the Goods.
6.3 Until such time as the title in the Goods passes to the Buyer, the Buyer shall hold the Goods as KVC’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 KVC’s property. In the event the Buyer resells or use the Goods in the ordinary course of its business, the Buyer shall account to KVC 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.
6.4 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), KVC shall be entitled at any time to require the Buyer to deliver up the Goods to KVC and, if the Buyer fails to do so forthwith, KVC 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.
6.5 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 KVC, but if the Buyer does so all monies owing by the Buyer to KVC shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
6.6 The Buyer agrees with KVC that the Buyer shall immediately notify KVC of any matter from time to time affecting KVC’s title in the Goods and the Buyer shall provide KVC with any information relating to the Goods as KVC may require from time to time.
6.7 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.
6.8 The Buyer shall indemnify KVC and keep KVC indemnified against all loss damages costs expenses and legal fees incurred by KVC in connection with the assertion and enforcement of KVC's rights under this condition.
7. CANCELLATION OF ORDER
7.1 The Contract shall not be cancelled from the moment KVC issues a confirmation of dispatch of the Goods to the Buyer without the KVC’s prior written approval.
7.2 Where KVC at its sole discretion accepts such request for cancellation by the Buyer, KVC shall be entitled to charge the Buyer an amount representing the losses or expenses directly or indirectly resulting from such cancellation and the Buyer shall pay such amount within seven (7) days from KVC’s written demand.
7.3 Where KVC at its sole discretion does not accept such request for cancellation by the Buyer, KVC shall be entitled to recover the full price of the Goods from the Buyer and to charge the Buyer with additional losses both direct and indirect from such cancellation and the Buyer shall pay such amount within seven (7) days from KVC’s written demand.
8.1 Except as provided by Clauses 8.2 and 8.3, 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.
8.2 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.
8.3 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 KVC, to have been known to it prior to its being disclosed by KVC to the Buyer.
9. WARRANTIES AND REMEDIES
9.1 Subject as expressly provided in these Terms and Conditions all other warranties conditions or terms, including those implied by statute or common law, are excluded to the fullest extent permitted by law.
9.2 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 a specification, the Buyer acknowledges and agrees that the non-conforming Goods (or part thereof)’s warranty and liability lies with and given by the manufacturer of the Goods and shall be subject to the manufacturer’s warranty. In no way shall KVC be liable to the Buyer for any defect or for any warranty and liability in respect of the Goods. Where the Buyer is dealing as a consumer (within the meaning of the Malaysian Sale of Goods Act 1957 and the Consumer Protection Act 1999), KVC further gives to the Buyer such implied warranties as cannot be excluded by law.
9.3 In the event by operation of law KVC is responsible for warranties concerning the defective Goods, such warranties shall be subject to the following conditions:
(a) 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 KVC;
(b) Any description given of the Goods is given by way of identification only and the use of such description shall not constitute a sale by description;
(c) KVC binds itself only to deliver Goods in accordance with the general description under which they were sold, whether or not any special or particular description shall have been given or shall be implied by law. Any such special or particular description shall be taken only as the expression of KVC’ opinion in that behalf. KVC does not give any warranty as to the quality state condition or fitness of the Goods;
(d) KVC shall be under no liability whatsoever for the following measures and actions taken by the Buyer or third parties and the consequences thereof: improper remedy of defects, alteration of the Goods without the prior written agreement of KVC, addition and insertion of parts, in particular of spare parts which do not come from KVC or KVC’s suppliers;
(e) KVC shall be under no liability whatsoever in respect of any defect arising from unsuitable or improper use, defective installation or commissioning by the Buyer or third parties, fair wear and tear, wilful damage, negligence, abnormal working conditions, defective or negligent handling, improper maintenance, excessive load, unsuitable operating materials and replacement materials, poor work, unsuitable foundation, chemical, electro-technical/electronic or electric influences, failure to follow KVC’s or manufacturer’s instructions (whether oral or in writing) misuse or alteration or repair of the Goods without KVC’s prior written approval;
(f) KVC 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 KVC’s prior written approval and the Buyer shall indemnify KVC against each loss liability and cost arising out of such claims;
(g) KVC shall be under no liability whatsoever under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid in cleared funds by the due date for payment;
(h) KVC 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.
9.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified by the Buyer directly to the manufacturer of the Goods or, if the Buyer wishes to seek KVC’s assistance in liaising with the manufacturer of the Goods, to notify KVC within three (3) days of the date of receipt of the Goods or where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure. If there are even slight reservations concerning the suitability for use or the slightest reservations concerning safety, the Goods must not be used. KVC shall be given written notification immediately, specifying the reservations or the defect. However in no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure, except where the failure is such that the Goods delivered are of a fundamentally different nature than those which KVC had contracted to deliver.
10. FORCE MAJEURE
10.1 KVC shall not be liable to the Buyer or be deemed to be in breach of the Sale Agreement by reason of any delay in performing or any failure to perform any of KVC's obligations if the delay or failure was due to any cause beyond KVC's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond KVC'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 of 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) interruption of traffic, strikes, lock-outs, other industrial actions or trade disputes (whether involving employees of KVC or of a third party);
(f) interruption of production or operation, difficulties in obtaining raw materials labour fuel parts or machinery;
(g) power failure or breakdown in machinery.
10.2 Upon the happening of any one of the events set out in Clause 10.1 KVC 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 KVC shall not be liable for any loss or damage suffered by the Buyer as a result thereof.
11. INSOLVENCY OF BUYER
11.1 This Clause applies if:
(a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
(c) the Buyer ceases or threatens to cease to carry on business; or
(d) KVC reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.2 If this Clause applies then without prejudice to any other right or remedy available to KVC, KVC shall be entitled to terminate the Contract or suspend any further delivery/performance without any liability to KVC and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.1 KVC’s liability under or in connection with the agreement to sell and supply the Goods shall be subject to the limitations set out in this Clause 12.
12.2 KVC shall be under no liability whatsoever where this arises from a reason beyond its reasonable control as provided in Clause 10 or from an act or default of the Buyer.
12.3 In no event shall KVC 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 KVC had been advised of the possibility of the Buyer incurring the same.
12.4 The remedies set out in Clause 9 are the Buyer’s sole and exclusive remedies for non-conformity of or defects in the Goods. All product warranty and liability for the Goods shall lie with and given by the manufacturer of the Goods. In no way will KVC be liable to the Buyer for any product warranty and liability in respect of the Goods.
12.5 Without prejudice to anything herein contained in these Terms and Conditions, KVC’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.
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.
13.1 On or at any time after the occurrence of any of the events in Clause 13.2 KVC may stop any Goods in transit, suspend further deliveries to the Buyer and exercise its rights under Condition 6 and/or terminate the Contract with the Buyer with immediate effect by written notice to the Buyer.
13.2 The events are: -
(a) the Buyer being in breach of an obligation under the Contract;
(b) 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;
(c) the making of an administration order in relation to the Buyer or the appointment of a receiver over or an encumbrancer taking possession of or selling any of the Buyer’s assets;
(d) the Buyer making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors;
(e) the Buyer being an individual becomes bankrupt.
14.1 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 KVC.
14.2 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.
15.1 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.
15.2 No waiver by KVC 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.
15.3 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.
15.4 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.
15.5 KVC 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.
15.6 KVC reserves their right to these Terms and Conditions at any time.
15.7 The Buyer agrees that it shall indemnify and hold harmless to KVC from any claim, demand, loss, liability, damage or expense arising pursuant to any action or claim brought by any party against KVC and/or its employee(s) in respect of the breach of the Contract.
15.8 In the event of legal action being taken by KVC 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 KVC on a full indemnity basis.
15.9 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.
15.10 Stamp duty(ies) if any (including penalties), shall be borne by the Buyer.
15.12 The Buyer consents and KVC 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 KVC shall deem appropriate.
15.13 Nothing in these Terms and Conditions shall create or deemed to create an agency, partnership or joint venture between the parties.
15.14 KVC shall 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.
15.15 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 KVC.
15.16 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.
15.17 The Contract contains the whole agreement between the parties and supersedes any prior written or oral agreement between them in relation to its subject matter.
15.18 The Contract shall be binding upon the heir’s personal representatives successors in title and permitted assigns of the Buyer and the successors-in-title and assigns of KVC.