These terms and conditions of sale (the “Terms and conditions”) constitute a legally binding contract between Wingate Electronic Sdn. Bhd. (“Seller”) and the customer (the “Customer”) identified on a purchase order that has been issued by the Customer and accepted by Seller (the “Order”). These Terms and Conditions shall govern Seller’s sale to Customer of the products specified on the Order (the “Products”).
- CONTRACT TERMS; ACCEPTANCE BY CUSTOMER.
The applicable order shall be deemed to be incorporated herein by reference; provided, however, that Seller hereby expressly rejects any terms or conditions that are different from these Terms and Conditions, whether such different terms are set forth on the order or in any other document exchanged by the parties. Neither Seller’s delivery of the products nor any other action, conduct, or performance shall constitute acceptance of terms or conditions different from these Terms and Conditions. Customer shall be deemed to have accepted these Terms and Conditions by issuing an order or by any other statement or e-mail, act, dealing or performance constituting acceptance under applicable law, including failure to object in writing to these Terms and Conditions within a reasonable time or by acceptance of the products.
- PRICE AND PAYMENT TERMS.
- Payment of the price shall be made within thirty (30) days from the date of invoice unless the Seller has agreed in writing to a variation of the term notwithstanding that delivery of the goods or materials may be prevented or delayed by the Customer payment shall be made by the due date of all sums payable under the Order as if there had been no such prevention or delay.
- The Seller reserves the right to assess an interest charge on any invoice remaining unpaid for more than 30 days from the Invoice date. If the Seller has agreed inwriting to grant the customer more than a 30 days payment period, interest will be charged as stated above on the first day the extended payment terms are exceeded.
- If the Customer default making payment on the due date of any sum due to the Seller on any account the Seller may suspend deliver as (in which event the Customer will be liable for any damage, loss or expense which the Seller may thereby suffer) and if such default continues for seven days after written notice of the company’s intention to invoke the provisions of this condition the Seller may determine the contract.
- If the Customer commits an act of bankruptcy or being a company goes into liquidation (otherwise than a voluntary liquidation for the purposes of reconstruction) or has a Receiver appointed the Seller may suspend deliveries and/or determine the contract.
- In the event of determination of the contract for any reason the Customer will be liable to payment forthwith for all work done and materials supplied and may also be liable in damages as for wrongful repudiation.
- If goods are returned through no fault of the Seller, the Seller reserves the right to impose a handling charge.
- TITLE AND RISK.
The goods shall be at the risk of the Customer from the time of delivery. However, the Seller shall remain the owners of the goods forming the subject of each delivery until such time as all payments referring to that delivery have been completed. The Customer shall neither sell, pledge, assign nor in any way part with possession of the goods forming the subject of any delivery until such time as the Seller has received payment thereof.
- ORDER CHANGES.
Customer may cancel an Order or modify the delivery dates, quantities, specification, or other terms of an Order, Only with the prior written consent of Seller.
Seller will arrange for shipments to Customer as nearly in accordance with Customer’s shipping instructions set forth in the Order as is permitted by Seller’s ability to schedule manufacturing and shipping. Seller shall not be responsible to Customer for any failure to meet Customer’s shipping instructions. On sales made F.O.B origin manufacturing location, no allowances for shortage or damage will be made by seller unless Customer furnishes acknowledgment from carrier that same occurred in transit in accordance with the timeframes set forth is section 6. On all sales made F.O.B origin, Customer will, in the event of loss or damage in transit, file its own claim with carrier.
- INSPECTION AND ACCEPTANCE.
Customer shall inspect, within thirty (30) days of receipt, each shipment of product sold hereunder, for any damage, defect, or shortage. All claims by Customer or others for alleged damage, defect, shortage, non-delivery, negligence or any other cause, whether or not enumerated, (“Defective Performance”) shall be deemed waived unless made in writing and received by Seller within thirty (30) days after Seller’s delivery of the product in accordance with the Order; provided, however, that as to any Defective Performance not reasonable discoverable within said thirty (30) day period, all such claims shall be deemed waived unless made in writing and received by Seller within ninety (90) days after Seller’s delivery of the products in accordance with the Order or Customer’s non-receipt of the products or within thirty (30) days after Customer learns of the facts giving rise to the claim, whichever shall first occur. Failure of Customer to give notice of any claim within the applicable time period specified above shall be deemed an absolute and unconditional waiver of such claim. At Seller’s request, Customer shall promptly forward to Seller a representative sample of any allegedly nonconforming Product. Transportation charges for the return of goods shall not be paid by Seller unless authorized in advance by the Seller.
- LIMITED WARRANTY.
- Seller warrants to Customer goods and free title to the products and that the products supplied will conform to the agreed written or published specification at the time Products are shipped.
- Seller has based any recommendation to Customer for the use or application of the Products as well as any services provided by Seller upon information supplied by Customer, but Seller gives no warranty with respect to results Customer might obtain based on such recommendations or services and any use or application for the Products. Except to the extent attributable to the Products sold hereunder failing to meet the express warranties set forth in section 7(l), Customer will indemnify, defend and hold Seller harmless from all costs, expenses, damages, judgments or other loss, including costs of investigation, litigation and reasonable attorney’s fees, arising out of Customer selection, use, sale, applications or further processing of the Products.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, THE PRODUCT PROVIDED HEREUNDER ARE PROVIDED “AS IS”, AND SELLER MAKES AND GIVES NO OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WOTHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, CONSEQUNTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES OR BUSINESS, COST OF CAPITAL, COST OF PURCHASE, COST OF RECALL, OR COST OF REPLACEMENT GOODS) WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE, OR OTHER TORT, OR OTHERWISE. FUTHER, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE OF PARTICULAR PRODUCT SPECIFIED ON AN ORDER THAT IS THE SUBJECT MATTER OF A DISPUTE.
Customer shall indemnify, defend, and hold harmless Seller and its affiliates and their respective officers, directors, employees, and agents from and against any and all liabilities, damage, awards, settlement payments, costs, and expenses (including reasonable attorney fees) in connection with any third-party claim arising from or relating to Customer’s handling, possession, use, or resale of any Products, whether used alone or in combination with other goods.
- SALE OF GOODS OUTSIDE MALAYSIA.
Regardless of terms of shipment, title to and risk of loss of Product shall pass to Customer upon clearance through customs in the country of delivery.
In addition to any remedies that may be provided under these Terms, Seller may terminate any sale agreement with immediate effect upon written notice to Customer, if Customer (i) fails to pay any amount when due and such failure continues for 15 days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, assignment for the benefit of creditors or similar event.
- GENERAL PROVISIONS.
- Entire Agreement. These Terms and Conditions are the sole and complete agreement between Seller and Customer with respect to the subject matter hereof, and supersedes any and all prior oral and written understandings with respect to such subject matter. Seller’s representatives may have made oral statements about the Products. Those statements are not warranties, should not be relied upon by Customer, and are not part of these Terms and Conditions.
- Modification and Waiver. No amendment to, or modification or waiver of, any provision of these Terms and Conditions shall be binding upon the parties unless set forth in a written document signed by both parties.
- Assignment; Binding Effect. Neither party may assign or transfer any of the rights, duties, or obligation herein without the prior written consent of the other, and purported attempt to do so shall be null and void. Notwithstanding the foregoing, either party may, without the other party’s consent, assign or transfer these Terms and Conditions to a successor in the event of a merger, sale of equity interests, sale of all or substantially all assets, or other change of control transaction involving such party; provided, however, that the assignee shall be at least as credit worthy as the assignor.
- No Third-Party Beneficiaries. Nothing contained herein shall give to any other person any benefit or any legal or equitable right, remedy, or claim.
- Governing Law and Jurisdiction. All sales of the Products and these Terms shall be governed by the laws of Malaysia, without reference to its principles of conflict of laws. Any dispute arising from the execution, implementation or interpretation of a sale agreement between Customer and Seller shall be subject to the exclusive jurisdiction of the courts of Malaysia. Without prejudice to the above Seller may choose to bring a dispute before the court of the country of establishment of Customer.
- Language and Translation. In the event these Terms are for convenience translated from English into another language, the parties agree that, to the extent permitted by law, the English version shall prevail.
- Miscellaneous. The invalidity or unenforceability for any reason of any part of these Terms shall not prejudice or affect the validity or enforceability of the remainder. Customer shall not assign any contract for the purchase/sale of Goods or any rights hereunder in whole or in part to any third party without the prior written consent of Seller. All trade mark, copyright, design right and other intellectual property in any design, specification, process, method of working or other information relating to the Goods shall remain vested for all time in Seller. Any Sale of Goods, or suggestions Seller makes about possible applications, designs or uses of Seller’s Goods shall not, by implication or otherwise, convey any license to or transfer of any intellectual property rights related to Goods.