Throughout this site, the terms "we", "us", "our", "Eubiq", "Eubiq Malaysia", "Exaltech" and "Exaltech Malaysia" refer to Exaltech (Malaysia) Sdn Bhd, a company incorporated in Malaysia under its registered address at 29A, Lorong P. S. 1, Bandar Perda, 14000 Bukit Mertajam, Pulau Pinang, Malaysia; and any of its subsidiaries, related and/or affiliated companies as appropriate in the context.
Your continued use of the Site following the posting of changes to these Terms and Conditions of use constitutes your acceptance of those changes.
USE OF THE SITE
We grant you a non-transferable and revocable membership account to use the Site, under the Terms and Conditions described, for the purpose of shopping for personal items sold on the Site. Commercial use or use on behalf of any third party is prohibited, except as explicitly permitted by us in advance. Any breach of these Terms & Conditions shall result in the immediate revocation of the membership account granted in this paragraph without notice given to you.
Accuracy, completeness and timeliness of information
Content and materials provided on this site is as a service to its customers and solely for informational purposes only. Although we have attempted to provide accurate information on The Exaltech Web Site, Exaltech assumes no responsibility for the accuracy of the information. We may change the programs or products mentioned at any time without notice. Mention of non-Exaltech products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.
ALL INFORMATION PROVIDED ON THE EXALTECH WEB SITE IS PROVIDED "AS IS" WITH ALL FAULTS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. EXALTECH AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXALTECH AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THE EXALTECH WEB SITE OR ANY EXALTECH PRODUCT, DAMAGES RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENT, EVEN IF EXALTECH OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Any non-personal communication or material you transmit to this website by electronic mail or otherwise, including but not limited to any data, questions, comments, suggestions or the like is (collectively, "Submissions"), and will be treated as, non-confidential. Anything you transmit or post becomes sole and exclusive property of Exaltech Malaysia and may be used, without any restriction for any purpose, including but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. These materials shall not be returned to you. You shall not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Submissions. We may, but shall not be obligated to, remove or edit any Submissions.
Furthermore, the Exaltech Malaysia is free to use for any purposes whatsoever (including but not limited to the developing, manufacturing, advertising and marketing of products) any remarks, ideas, artwork, inventions, developments, suggestions, concepts or the like contained in any communication you send to this website. Any such use is without compensation to the party submitting information. By submitting information, you are also warranting that you own the material/content submitted, that it is not defamatory and that the Exaltech Malaysia's use will not violate any third party's rights. However, Exaltech Malaysia is under no obligation to use the information submitted.
ORDER ACCEPTANCE & SPECIFICATION
Please note that there are cases when an order cannot be processed for various reasons. We reserve the right to refuse or cancel any order for any reason at any given time. You may be asked to provide additional verifications or information, including but not limited to phone number and address, before we accept the order.
We are determined to provide the most accurate pricing information on the Site to our users; however, errors may still occur, such as cases when the price of an item is not displayed correctly on the website. As such, we reserve the right to refuse or cancel any order.
In the event that an item is mispriced, we may, at our own discretion, either contact you for instructions or cancel your order and notify you of such cancellation. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card or bank account charged.
GST will be implemented in Malaysia with effect from 1 April 2015 at the rate of 6%. It will replace the existing sales tax and service tax. Prices of Items and services provided by Exaltech Sdn Bhd, being GST registered company, will include GST where applicable.
Please refer to the GST Act 2014 published in the gazette on 19 June 2014 and the GST Regulations 2014 issued on 30 June 2014. GST is under the jurisdiction of the Royal Malaysian Customs Department (“Customs Department”).
TRADEMARKS AND COPYRIGHTS
Intellectual property rights
All copyright and other intellectual property rights in all text, images and other materials on this website are the property of the Exaltech Malaysia or are included with the permission of the relevant owner.
You are permitted to browse this website, reproduce extracts by way of printing, downloading to a hard disk or for the purposes of distribution to other individuals. This is only to be done on the proviso that you keep intact all copyright and other proprietary notices and that the above trademark notice appears on such reproductions. No reproduction of any part of this website may be sold or distributed for commercial gain/profit nor shall it be modified or incorporated in any other work, publication or website.
The trademarks, logos, characters and service marks (collectively "Trademarks") displayed on this website belong to, or are exclusively licensed to the Exaltech Malaysia. Nothing contained on this website should be construed as granting any license or right to use any Trademark displayed on this website. Your use/misuse of the Trademarks displayed on this website, or on any other content on this website, except as provided for in these Terms and Conditions, is strictly prohibited. You are also advised that the Exaltech Malaysia will aggressively enforce its intellectual property rights to the fullest extent of the law including criminal prosecution for serious offences.
You are specifically restricted from all of the following:-
• publishing any Website material in any other media;
• selling, sublicensing and/or otherwise commercializing any Website material;
• publicly performing and/or showing any Website material;
• using this Website in any way that is or may be damaging to this Website;
• using this Website in any way that impacts user access to this Website;
• using this Website contrary to applicable laws and regulations or in any way may cause harm to the Website, or to any person or business entity;
• engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Website;
• using this Website to engage in any advertising or marketing.
Certain areas of this Website are restricted from being access by you and Exaltech may further restrict access by you to any areas of this Website, at any time, in absolute discretion. Any user ID and password you may have for this Website are confidential and you must maintain confidentiality as well.
LINKS TO OTHER WEBSITES
Links on the Exaltech websites may take you outside the Exaltech Malaysia network and the Exaltech accepts no responsibility for the content, accuracy or function of these other websites. The links are provided in good faith and the Exaltech Malaysia cannot be held responsible for any subsequent change in other websites to which we provide a link.
The inclusion of any link to other websites does not imply endorsement by the Exaltech Malaysia. We highly recommend that you make yourself aware of and carefully read the legal and privacy notices of all other websites that you visit.
WARRANTIES AND DISCLAIMERS
Your use of this website is exclusively at your sole risk.
This website is provided to you on an "As Is" and "As Available" basis and, consequently, the Exaltech Malaysia gives no warranties of any kind, whether express, implied, statutory or otherwise (including the implied warranties of merchantability and fitness for a particular purpose) including warranties or representations that material on this website will be complete, accurate, reliable, timely, non-infringing to third parties; that access to this website will be uninterrupted or error-free; that this website will be secure; that any advice or opinion obtained from the Exaltech Malaysia through this website is accurate or to be relied upon and any representations or warranties thereto are expressly disclaimed. We reserve the right to restrict or terminate your access to this website or any feature of this website or any feature or part thereof at any time.
The Exaltech Malaysia nor any other party involved in the creating, producing or delivering this site on our behalf shall have no liability or any responsibility whatsoever for any direct, incidental, consequential, indirect or punitive damages, costs, losses or liabilities whatsoever arising out of your access to, use, inability to use, change in content of this website or arising from any other website you access through a link from this website or from any actions we take or do not take as a result of any electronic mail messages you send us.
The Exaltech Malaysia nor any other party involved in the creating, producing or delivering this website shall have no responsibility to maintain the material and services made available on this web site or to supply any corrections, updates, or releases in connection therewith. Any material on this website is subject to change without notice.
Further, the Exaltech Malaysia shall have no liability or any responsibility whatsoever for any losses or damages suffered or caused by viruses that may infect your computer equipment or other property by reason of your use of, access to or downloading of any material from this website. If you choose to download material from this website you do so at your own risk.
You are prohibited from doing any act that the Exaltech Malaysia in its reasonable discretion may deem to be inappropriate and/or would be deemed to be an unlawful act or is prohibited by any laws applicable to this website including but not limited to:
• Any act that would constitute a breach of either the privacy (including uploading private information without the concerned individual's consent) or any other of the legal rights of individuals;
• Using this website to defame or libel the Exaltech Malaysia, its employees or other individuals or acting in such a way that brings into disrepute the good name of Exaltech Malaysia;
• Uploading files that contain viruses that may cause damage to the property of Exaltech Malaysia or the property of other individuals.
You and Exaltech Malaysia agree that any controversy or claim arising from or pertaining to the use of this website shall be governed by Malaysian law and be submitted to the exclusive jurisdiction of the courts of Malaysia.
LEGAL NOTICE UPDATE
We reserve the right to make any changes and corrections to this notice. Please refer to this page from time to time to any new additional updated information.
APPLICABLE LAW AND JURISDICTION
These Terms and Conditions shall be interpreted and governed by the laws in force in Malaysia. Subject to the Arbitration section below, each party hereby agrees to submit to the jurisdiction of the courts of Government of Malaysia to waive any objections based upon venue.
Any controversy, claim or dispute arising out of or relating to these Terms and Conditions will be referred to and finally settled by private and confidential binding arbitration before a single arbitrator held in Malaysia in English and governed by Malaysian law. The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Malaysia and is independent of either party. Notwithstanding the foregoing, the Site reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts.
In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Terms and Conditions or revoke any or all of your rights granted under the Terms and Conditions. Upon any termination of this Agreement, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of this agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination. You furthermore agree that the Site shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with the Site or with any terms, conditions, rules, policies, guidelines, or practices of Exaltech Sdn. Bhd. (618165-W), in operating the Site, your sole and exclusive remedy is to discontinue using the Site.
Exaltech Sdn. Bhd. is the owner and operator of the Eubiq Online Store. The Eubiq Online Store is www.eubiq.com.my.
The mailing address for Exaltech Sdn. Bhd. is No. 11, Jalan PJU 3/46, Sunway Damansara Technology Park, 47810 Petaling Jaya, Selangor Darul Ehsan, Malaysia.
TERMS OF USAGE
Tampering with the site, misrepresenting the identity of a user, using buying agents or conducting fraudulent activities on the site are prohibited.
1.1 In these terms and conditions, "we" and "us" means Exaltech and "you" means the person, firm or corporation purchasing the Goods indicated in your Sales Order. Unless the context requires otherwise, words spelt with initial capitalized letters are defined terms and shall bear the meanings set out in these terms and conditions. Except to the extent that the subject matter or context may otherwise require in these terms and conditions:
i. expressions including the singular may indicate the plural and vice versa,
ii. expressions indicating any particular gender may indicate all other genders and
iii. expressions indicating bodies corporate may also indicate natural persons and vice versa.
1.2 In these Conditions:
a. "Acknowledgement" means our email acknowledgement of receipt of your Sales Order.
b. "Agreement" means these terms and conditions together with your Sales Order and the Sales Confirmation;
c. "Exaltech" means Exaltech (Malaysia) Sdn. Bhd.;
d. "Buyer" means the person who accepts a quotation of Exaltech for the supply of Goods or who otherwise enters into a contract for the supply of Goods with Exaltech;
e. "Conditions" mean the general 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 Exaltech;
f. "Contract" means the contract for the purchase and sale of Goods, howsoever formed or concluded;
g. "Invoice" means the invoice issued by us to you showing the price of your Goods and which is your proof of purchase;
h. "Goods" means any product listed on the Eubiq Online Store and for the purposes of these terms and conditions includes services (including any installation of the goods or any parts for them) which Exaltech is to supply in accordance with a Contract;
i. "Price" means the price ascribed to any Goods as set out in the Eubiq Online Store or as intended by Exaltech to be set out in the Eubiq Online Store, as appropriate
j. "Sales Order" means the electronic purchase you made on www.eubiq.com.my
k. "Sales Transaction Number" means your Goods confirmation number issued by us to you upon our acceptance of your Sales Order.
l. "Writing" includes electronic mail facsimile transmission and any comparable means of communication.
m. “Exaltech”, “Exaltech Malaysia” means Exaltech Sdn Bhd, a company incorporated in Malaysia under registration number 618165-W and having its registered address at (29A, Lorong P. S. 1, Bandar Perda, 14000 Bukit Mertajam, Pulau Pinang, Malaysia).
1.3 Only persons aged 18 years and above may submit the Sales Order or make any orders, purchases or any other form of request on the Eubiq Online Store.
1.4 Any reference in these 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.
1.5 The headings in these Conditions are for convenience only and shall not affect the interpretation of any parties.
2. BASIS OF THE CONTRACT
2.1 The supply of Goods by Exaltech to the Buyer under any Contract shall be subjected to these Conditions which shall govern the Contract to the exclusion of 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.
2.2 Any information made available in Exaltech’s website connection with the supply of Goods, including photographs, drawings, data about the extent of the delivery, appearance, performance, dimensions, weight, consumption of operating materials, operating costs, are not binding and for information purposes only. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim based on any such representations or information not so confirmed.
2.3 No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and Exaltech.
2.4 Any typographical clerical or other error or omission in any quotation, invoice or other document or information issued by Exaltech in its website shall be subject to correction without any liability on the part of Exaltech.
2.5 Exaltech may provide Buyer with electronic documents such as tax invoice, receipt, credit note, debit note, or any other document.
3. ORDERS AND SPECIFICATIONS
3.1 Order acceptance and completion of the contract between the Buyer and Exaltech will only be completed upon Exaltech issuing a confirmation of dispatch of the Goods to the Buyer. For the avoidance of doubt, Exaltech shall be entitled to refuse or cancel any order without giving any reasons for the same to the Buyer prior to issue of the confirmation of dispatch. Exaltech shall furthermore be entitled to require the Buyer to furnish Exaltech with contact and other verification information, including but not limited to address, contact numbers prior to issuing a confirmation of dispatch.
3.2 No concluded Contract may be modified or cancelled by the Buyer except with the agreement in writing of Exaltech and on terms that the Buyer shall indemnify Exaltech 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 Exaltech as a result of the modification or cancellation, as the case may be.
The price of the Goods and/or Services shall be the price stated in Exaltech’s website at the time which the Buyer makes its offer purchase to Exaltech. The price excludes the cost of packaging and delivery charges, any applicable goods and services tax, value added tax or similar tax which the Buyer shall be liable to pay to Exaltech in addition to the price, unless stated otherwise.
5. PAYMENT PROCESSING
5.1 The Buyer shall be entitled to make payment for the Goods pursuant to the various payment methods set out in Exaltech’s website. The terms and conditions applicable to each type of payment, as contained in Exaltech's website, shall be applicable to the Contract.
5.2 In addition to any additional terms contained in Exaltech’s website, the following terms shall also apply to the following types of payment:
5.2.1 Credit Card
Credit Card payment option is available for all Buyers. Exaltech accepts all Visa and MasterCards, both Credit and Debit, and is 3D Secure (Verified by Visa, and MasterCard Secure) enabled. All your credit card information is protected by means of industry- leading encryption standards.
Please take note that additional charges may be incurred if you are using a non-Malaysian issues card due to Foreign Exchange.
5.2.2 Debit Card
Exaltech accepts all Malaysian Visa and MasterCard debit cards where subject to bank availability. All debit card numbers shall be protected by means of industry-leading encryption standards.
5.2.3 Online Banking
a) By choosing this payment method, the Buyer shall transfer the payment for the Goods to Exaltech’s account for the total amount of the Buyer’s purchase (including any applicable taxes, fees and shipping costs). The transaction must be payable in Ringgit Malaysia. Exaltech, in its sole discretion, may refuse this payment option service to anyone or any user without notice for any reason at any time.
b) For the time being, Exaltech accepts online bank transfers from Maybank2U, CIMB Clicks, Alliance Bank, AmBank, Hong Leong Bank, RHB, Bank Islam, Public Bank and MEPS Affiliate Banks.
5.2.4 Promotional Codes & Digital Coupons
We may from time to time offer promotional discount codes which may apply in respect of any, or certain specified, purchases made through this Eubiq Online Store. Only one promotional discount code can be applied to an order. Promotional discount codes reflected on digital coupons are debited at the time an order is placed. Digital coupons will automatically be redeemed against purchase totals, up to the total purchase amount. Digital coupons must be used prior to their noted expiration date and within a single transaction. Coupon cannot be replaced if it is lost, stolen, deleted, or if you cancel or return your purchase. In the event where the total purchase value is below the coupon value, the excess value of the coupon will not be refunded. Coupon will not be applicable with any other promotions that may be promoted in Eubiq Online Store, unless otherwise stated. The terms and conditions stated in each digital coupon shall be final and conclusive.
6.1 Delivery of the Goods shall be made to the address specified by the Buyer in its order.
6.2 Exaltech 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.
6.3 Any dates quoted for delivery of the Goods are approximate only. The time for delivery/performance shall not be of the essence, and Exaltech shall not be liable for any delay in delivery or performance howsoever caused.
6.4 If Exaltech has failed to deliver the Goods in accordance with the Contract or within a reasonable time, the Buyer shall be entitled, by serving written notice on Exaltech, to demand performance within a specified time thereafter, which shall be at least 14 days. If Exaltech fails to do so within the specified time, the Buyer shall be entitled to terminate the Contract in respect of the undelivered Goods and claim compensation for actual loss and expense sustained as a result of Exaltech’s non-performance, which was foreseeable at the time of conclusion of the Contract and resulting from the usual course of events, subject always to the limitations set out in Condition 12.4.
6.5 If the Buyer fails to take delivery of the Goods (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of Exaltech's fault) then without prejudice to any other right or remedy available to Exaltech. Exaltech may:
6.5.1 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract provided the price has been paid in cleared funds in full or charge the Buyer for any shortfall below the price under the Contract; or
6.5.2 terminate the Contract and claim damages.
7. RISK AND PROPERTY OF THE GOODS
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods, the time when Exaltech has tendered delivery of the Goods.
7.2 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 Exaltech 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 Exaltech to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Exaltech's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer.
7.4 The Buyer agrees with Exaltech that the Buyer shall immediately notify Exaltech of any matter from time to time affecting Exaltech’s title to the Goods and the Buyer shall provide Exaltech with any information relating to the Goods as Exaltech may require from time to time.
7.5 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) Exaltech shall be entitled at any time to demand the Buyer to deliver up the Goods to Exaltech and in the event of non-compliance Exaltech reserves it’s right to take legal action against the Buyer for the delivery up the Goods and also reserves its right to seek damages and all other costs including but not limited to legal fees against the Buyer.
7.6 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 Exaltech but if the Buyer does so all moneys owing by the Buyer to Exaltech shall (without prejudice to any other right or remedy of Exaltech) forthwith become due and payable.
7.7 If the provisions in this Condition 7 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.
7.8 The Buyer shall indemnify Exaltech against all loss damages costs expenses and legal fees incurred by the Buyer in connection with the assertion and enforcement of Exaltech's rights under this condition.
8. WARRANTIES AND REMEDIES
8.1 Subject as expressly provided in these Conditions all other warranties conditions or terms, including those implied by statute or common law, are excluded to the fullest extent permitted by law.
8.2 Subject to this Condition 8, Exaltech warrants that the Goods will correspond with their specification at the time of delivery, and agrees to remedy any non-conformity therein for a period of 12 months (applicable to Adaptors and Accessories), and 36 months (applicable to Power Tracks) commencing from the date on which the Goods are delivered or deemed to be delivered/received ("Warranty Period"). Where the Buyer is dealing as a consumer (within the meaning of the Sale of Goods Act and the Consumer Protection Act), Exaltech further gives to the Buyer such implied warranties as cannot be excluded by law.
8.2.1 Exaltech’s above warranty concerning the Goods is given 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 Exaltech.
(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) Exaltech 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 Exaltech's opinion in that behalf. Exaltech does not give any warranty as to the quality state condition or fitness of the Goods.
(d) Exaltech shall be under no liability 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 agreement of Exaltech, addition and insertion of parts, in particular of spare parts which do not come from Exaltech.
(e) Exaltech shall be under no liability 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, willful 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 Exaltech's instructions (whether oral or in writing) misuse or alteration or repair of the Goods without Exaltech's approval.
(f) Exaltech 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 Exaltech’s prior written approval and the Buyer shall indemnify Exaltech against each loss liability and cost arising out of such claims.
(g) Exaltech shall be under no liability 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) Exaltech shall be under no liability whatsoever in respect of any defect in the Goods arising after the expiry of the Warranty Period.
8.2.2 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 to Exaltech within three (3) working days from 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. During use, the Goods shall be monitored constantly with regard to safety and defects. If there are even slight reservations concerning the suitability for use or the slightest reservations concerning safety, the Goods must not be used. Exaltech 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 Exaltech had contracted to deliver.
8.2.3 If the Buyer does not give due notification to Exaltech in accordance with the Condition 8.2.2, Exaltech shall have no liability for any defect or failure or for any consequences resulting therefrom. 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 is notified to Exaltech in accordance with Condition 8.2.2, the non-conforming Goods (or part thereof) will be repaired or replaced free of charge as originally ordered. Where the Goods have not been repaired or replaced within a reasonable time, despite written warning from the Buyer, the Buyer shall be entitled to a reduction of the price in proportion to the reduced value of the Goods, provided that under no circumstance shall such reduction exceed 15% of the price of the affected Goods. In lieu of repair or replacement, Exaltech may, at its sole discretion, grant such a reduction to the Buyer. Upon a repair, replacement or price reduction being made as aforesaid, the Buyer shall have no further claim against Exaltech.
8.2.4 When Exaltech has provided replacement Goods or given the Buyer a refund, the non-conforming Goods or parts thereof shall become Exaltech’s property.
9. FORCE MAJEURE
9.1 Exaltech 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 Exaltech's obligations if the delay or failure was due to any cause beyond Exaltech's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Exaltech's reasonable control:
9.1.1 Act of God, explosion, flood, tempest, fire or accident;
9.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.1.3 acts of restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
9.1.4 import or export regulations or embargoes;
9.1.5 interruption of traffic, strikes, lock-outs, other industrial actions or trade disputes (whether involving employees of Exaltech or of a third party);
9.1.6 interruption of production or operation, difficulties in obtaining raw materials labour fuel parts or machinery;
9.1.7 power failure or breakdown in machinery.
9.2 Upon the happening of any one of the events set out in Condition 9.1 Exaltech may at its option:-
9.2.1 fully or partially suspend delivery/performance while such event or circumstances continues;
9.2.2 terminate any Contract so affected with immediate effect by written notice to the Buyer and Exaltech shall not be liable for any loss or damage suffered by the Buyer as a result thereof.
10. INSOLVENCY OF BUYER
10.1 This condition applies if:
10.1.1 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
10.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases - or threatens to cease - to carry on business; or
10.1.4 Exaltech reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this condition applies then without prejudice to any other right or remedy available to Exaltech, Exaltech shall be entitled to cancel the Contract or suspend any further delivery/performance under the Contract without any liability to the Buyer and if 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.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed, if to Exaltech, to its registered office or principal place of business and if to the Buyer, to the address stipulated in the relevant offer to purchase.
12.1 Exaltech shall accept liability to the Buyer for death or injury resulting from its own or that of its employees' negligence. Save as aforesaid, Exaltech’s liability under or in connection with the Contract shall be subject to the limitations set out in this Condition 12.
12.2 Exaltech shall be under no liability whatsoever where this arises from a reason beyond its reasonable control as provided in Condition 9 or from an act or default of the Buyer.
12.3 In no event shall Exaltech 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 Exaltech had been advised of the possibility of the Buyer incurring the same.
12.4 Where time of performance has been agreed by Exaltech becomes the essence of the Contract by means of notice by the Buyer to Exaltech, as provided for in Clause 6.4, and Exaltech fails to comply with its obligations in due time, so that the Buyer becomes entitled to compensation in accordance with Condition 6.4, Exaltech’s liability shall be limited to an amount of ½% for each full week of delay, in total to a maximum cumulative amount of 5%, of the value of the delayed Goods.
12.5 The remedies set out in Condition 8 are the Buyer’s sole and exclusive remedies for non-conformity of or defects in the Goods or Services and Exaltech’s liability for the same shall be limited in the manner specified in Condition 8.
12.6 Without prejudice to the sub-limits of liability applicable under this Condition 12 or elsewhere in these Conditions, Exaltech’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 Contract price.
12.7 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 Conditions.
12.8 No action shall be brought by Exaltech later than 12 months after the date it became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become aware, and in any event, no later than 12 months after the end of the Warranty Period.
13.1 On or at any time after the occurrence of any of the events in condition 13.2 Exaltech may stop any Goods in transit, suspend further deliveries to the Buyer and exercise its rights under Condition 7 and/or terminate the Contract with the Buyer with immediate effect by written notice to the Buyer.
13.2 The events are:-
13.2.1 the Buyer being in breach of an obligation under the Contract;
13.2.2 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;
13.2.3 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;
13.2.4 the Buyer making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors.
14.1 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 Conditions but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
14.2 No waiver by Exaltech 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.
14.3 If any provision of these 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 Conditions and the remainder of the provision in question shall not be affected thereby.
14.4 No person who is not a party to this Contract (including any employee officer agent representative or sub-contractor of either party) shall have any right under the Contracts (Rights of Third Parties) Act to enforce any terms of this Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties, which the agreement must refer to Condition 3.2.
14.5 The Contract shall be governed by the laws of Malaysia and the Buyer agrees to submit to the non-exclusive jurisdiction of the Courts in Malaysia, as provided for in Clause 14.7.
14.6 Except as provided for in Clause 14.7, any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Rules for Arbitration of the Kuala Lumpur Regional Centre for Arbitration (KLR-CA). The arbitral tribunal shall consist of a sole arbitrator, to be appointed by the Chairman of the KLRCA. The place of arbitration shall be Kuala Lumpur. Any award by the arbitration tribunal shall be final and binding upon the parties.
14.7 Notwithstanding Clause 14.6, Exaltech 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.
14.8 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Contract for the sale of Goods.
14.9 Exaltech reserves their right to these terms and conditions of sale at any time.
14.10 No "change of mind" request will be entertained. You are fully responsible on ensuring that the product is your intended purchase. Any return/refund or cancellations are not allowed.
14.11 To ensure that you are satisfied with the product you received, please inspect the contents as soon as your order arrives.