General Terms & Conditions
1 DECEMBER 2020
GENERAL TERMS & CONDITIONS
The General Terms and Conditions herein shall form an integral part of the Agreement(s) entered into by the Company and the Customer (each a “Party” and collectively the “Parties”), shall be valid and binding on both parties hereto. The Customer has read and understands these General Terms and Conditions and agrees that Customer's written acceptance of or its performance in relation to Agreement(s) shall constitute the Customer's acceptance of these General Terms and Conditions.
1.1 In relation to the General Terms and Conditions set out below, the following words shall have the following meanings:-
(a) “Affiliates” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with that Person. For the purposes of this definition, “control” means direct or indirect ownership of the majority of the outstanding capital stock of a legal entity or other equity interests having voting power, and/or the ability to appoint the majority of the members of the board of directors (or any equivalent body of governance), and/or the ability to impose its decision in the board of directors (or any equivalent body of governance), and/or has the ability to impose or cause the direction of management or policies of such legal entity in any another manner. For the purposes of this definition, “Person” means individual, corporation, partnership, association, unincorporated organization, joint venture or Governmental Agency;
(b) “Agreement(s)” means the agreement(s) for the purchase and sale of goods and/or services entered into by the Company and the Customer including but not limited to the [sale of vehicles agreement, driver services agreement, maintenance agreement, repair and maintenance agreement and etc];
(c) “Business Day’ means any day other than Saturday, Sunday or a public holiday in the states of Kuala Lumpur and Selangor of Malaysia;
(d) “Company” means Scania (Malaysia) Sdn Bhd, a duly incorporated company with registered company number 200001015999 (518606-D), whose registered office is at No. 1, Jalan Tiang U8/93, Bukit Jelutong Industrial Park 40150, Shah Alam, Selangor, Malaysia;
(e) “Confidential Information” means any information, including technical, commercial or corporate information, know-how, analyses, studies, opinions of professional advisors, compilation of commercial and other data, pricing and other commercial sensitive information, and other confidential and/or proprietary information provided by one Party to the other Party pursuant to the Agreement(s), whether said information disclosure is oral, visual or written;
(f) “Customer” means the individual(s), entity and/or company that contracts with the Company for the order of goods and/or provision of services.
(g) “Data Processor” means the processer (located within Malaysia or elsewhere) who processes the Personal Data on behalf of the Company, and does not process the Personal Data for any of his own purposes.
(h) “Data Subjects” means an individual(s) who is the subject of the Personal Data.
(i) “Force Majeure” means any event or cause beyond a Party’s reasonable control such as, but not limited to: i) acts of God, explosion, flood, tempest, fire or accident; ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition, act of terror ism or civil unrest; iii) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority prohibiting either party fromb performing its duties and obligations under this Agreement; iv) import or export regulations or embargoes affecting the importation and exportation of products or services; v) interruption of traffic, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party); and vi) health epidemics declared by the World Health Organization.
(j) “Governmental Agency” means with respect to any country (or state), such country (or state) and any ministry, department, instrumentality, agency, corporation or commission under the direct or indirect control of such country (or state);
(k) “Intellectual Property” means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to any business names, computer software, confidential information, copyright, design, domain names, inventions, know-how, patents, trademarks, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right;
(l) “Losses” means any and all losses, liabilities, damages, deficiencies, demands, claims, actions, judgments or causes of action, assessments, costs or expenses (including interests, fines, penalties and reasonable legal fees and disbursements);
(m) “Personal Data” shall have the same meaning as ascribed to it in the Malaysian Personal Data Protection Act 2010;
2. PURCHASE ORDER AND CONCLUDING A CONTRACT
2.1 All purchase order issued to the Company by the Customer shall always be subject to confirmation and acceptance by the Company.
2.2 Upon confirmation and acceptance of the purchase order by the Company, the Company may request the Customer to execute the Agreement(s).
2.3 In the event of any inconsistency between the specific terms and conditions for the purchase of goods and/or subscription of service(s) (as applicable), purchase order and these General Terms and Conditions, the following order of precedence will apply:
(a) the specific terms and conditions for the purchase of goods and/or subscription of services (as applicable), together with its schedule and appendix (as the case maybe);
(b) these General Terms and Conditions; followed by
(c) the purchase order and/or quotation.
3. PRICING, PAYMENT TERMS AND INTEREST
3.1 The price list applicable to an order made by the Customer depends on the products and services ordered by the Customer. Charges for products and services shall be invoiced in the manner as agreed between the Parties as stated in the Agreement(s).
3.2 The Customer shall be liable to pay the Company interest for all overdue payments at the rate of 1.5% per month from the payment due date as stated in the Agreement(s) or invoice(s) issued pursuant to the Agreement(s).
3.3 Where tax is imposed by the relevant authorities at any time and from time to time that is applicable to any supplies of goods or services made by the Company under the Agreement(s), the Company is entitled to charge such taxes on the payment of such supply of goods and services.
4. REPRESENTATIONS AND WARRANTIES
4.1 Each Party hereby represents and warrants to the other Party that:-
(i) such Party has the full power and authority to execute, deliver and perform the Agreement(s) and to carry out the transactions contemplated thereby;
(ii) the execution, delivery and performance by such party of the Agreement(s), does not and will not materially conflict with any legal, contractual, or organizational requirement of such party;
(iii) there are no pending or threatened legal, administrative, or other proceedings that if adversely determined, could reasonably be expected to have a material adverse effect on such
Party's ability to perform its obligations under the Agreement(s);
(iv) its obligations under the Agreement(s) constitute legal, valid and binding obligations, enforceable in accordance with their respective terms; and
(v) they are familiar with the anti-corruption legislation applying to the Agreement(s) and that they shall act in accordance with all such laws and that neither they nor their employees, officials, representatives have given, offered or authorised nor will they give, offer or authorise any payment, gift, promise or other benefit, either directly or through any other person or entity for or for the use or benefit of any state official or any person in whose case such payment, gift, promise or other benefit that would represent payment of a bribe or violate the anti-corruption legislation in force.
4.2 The Company makes no warranty or condition, express, implied or statutory, as to the specifications, fitness or suitability of the goods and/or services for any particular purpose and/or use and/or the merchantable quality thereof unless it is expressly stipulated.
5. DISPUTE RESOLUTION
5.1 Amicable Settlement
Any dispute, controversy or claim arising out of or in relation to the Agreement(s), or the breach, termination or invalidity thereof shall be settled, insofar as it is possible, by mutual consultation and consent. If the Parties are unable to reach mutual consent within thirty (30) days after the notice by either Party of the dispute, the question shall be settled by arbitration in accordance with Clause 5.2 (Arbitration).
(a) In the event the Parties fail to resolve the dispute amicably within the specified period, such dispute shall be decided by arbitration in accordance with the Rules for Arbitration of the Asian International Arbitration Centre (“AIAC”) before one (1) arbitrator.
(b) The venue of arbitration shall be in Kuala Lumpur at the AIAC using the facilities and system available at the AIAC or at such other venues as may be specified by the arbitrator.
(c) The arbitration shall be conducted wholly in the English language.
(d) The decision of the arbitrator shall be final and binding on the Parties.
(e) All costs incidental to such reference to arbitration, the award and tax payable including the manner of payment thereof shall be determined by the presiding arbitrator.
(f) Notwithstanding any reference to arbitration, the Parties shall not be released from performing or continuing to perform their obligations under this Agreement by reason of any arbitration.
6.1 All information disclosed or communicated by one Party to the other in connection with the Agreement(s) and the terms of the Agreement(s) shall be treated as Confidential Information unless the information:
(a) is or becomes publicly available through no fault of the other Party;
(b) which the receiving Party can prove was in its possession or known to it prior to its receipt from the Party disclosing the information;
(c) is or was rightfully received by the other Party from a third party without a duty of confidentiality being owed by the other Party to the third party, except where the other Party has knowledge that the third party has obtained that information either directly or indirectly as a result of a breach of any duty of confidence owe to the first mentioned Party; or
(d) is required by law to be disclosed.
6.2 Each Party’s Confidential Information shall be held in strict confidence by the other Party, using no lesser precautionary or security measures and degree of care as it uses to protect its own confidential information. The Confidential Information shall not be used, copied, reproduced, distributed or disclosed by the other Party for any purpose except to its Affiliates, directors, officers, employees, representatives, agents or professional advisors for the sole purpose of the performance of the Agreement(s) on a strictly need to know basis only, provided always that the receiving Party shall ensure that its Affiliates, directors, officers, employees, representatives, agents or professional advisors to whom the Confidential Information has been provided shall maintain the same confidential obligation to the disclosing Party under the Agreement(s).
6.3 In case the receiving Party is obligated to disclose any disclosed Confidential Information in order to comply with applicable laws or regulations, or with a court or administrative order, the receiving Party shall promptly notify the disclosing Party, and cooperates reasonably with the disclosing Party’s efforts to contest or limit the scope of such disclosure.
6.4 The obligations in this clause shall survive the termination or expiry of the Agreement(s) and continue to be in force at all times until such information becomes part of the public domain other than by a breach by the receiving Party.
6.5 All documents and other tangible objects containing or representing the Confidential Information which have been furnished by a disclosing Party to a receiving Party, and all copies thereof which are in the possession of such receiving Party, shall be and remain the property of the disclosing Party and shall at the disclosing Party’s written request, be promptly returned to the disclosing Party or destroyed and/or deleted at such receiving Party’s option. Such receiving Party will in writing confirm that such Confidential Information has been destroyed.
7. INTELLECTUAL PROPERTY
7.1 All Intellectual Property adopted by the Company on the goods and in the provision of the services shall remain the exclusive property of the Company and the Customer may not use, infer or amend the trademarks and/or tag lines of the Company for whatever purposes unless expressly stated or agreed to in writing by the Company.
7.2 The Customer shall not publish nor use any advertising, sales promotions, press releases or other publicity which use Company’s Intellectual Property without the prior written approval of Company.
7.3 The Customer will inform the Company forthwith of all Intellectual Property infringements or suspected infringements of which the Customer or its agents, officers, employees, representatives and servants became aware.
8. FORCE MAJEURE
8.1 No Party shall be deemed in default of the Agreement(s) for any delay or failure to fulfil any obligation (other than a payment obligation) hereunder or thereunder so long as and to the extent to which any delay or failure in the fulfilment of such obligation is prevented, hindered or delayed as a consequence of circumstances of Force Majeure.
8.2 In the circumstances of Force Majeure, the Parties shall use all reasonable endeavours to resume performance of the relevant obligations at the earliest practicable time.
8.3 If the Company’s obligations under the Agreement(s) have become impractical due to the circumstances of Force Majeure and such impracticality due to such event continues for a period in excess of three (3) months, then either party may terminate the Agreement(s) immediately by giving a written notice to the other Party.
9. INDIRECT/CONSEQUENTIAL LOSSES
9.1 The Company is not responsible for any loss of profit (actual or anticipated), contingent, indirect or consequential loss or damage suffered by the Customer which may arise under any circumstances whatsoever.
10.1 The Customer agrees to indemnify and keep indemnified the Company, its agents, servants, officers, directors, employees, distributors, dealers and all entities which sell the goods and services to the Customer against all costs, claims, damages, demands or loss whatsoever caused wholly or partly by any of the following:-
(a) any breach of the Customer’s obligations or provisions under the Agreement(s); or
(b) any modification or alteration made to the goods carried out without the prior consent and approval of the Company by or on behalf of the Customer, including but not limited to the installation or fitting of any equipment, accessories or parts that are not expressly approved for use by the Company, or not fully equivalent in specification and/or quality equipment, accessories or parts so approved by the Company.
10.2 Save to the extent that such liability is the result of the gross negligence or wilful misconduct of the Company, in no event will the Company be liable to the Customer for any loss of profits, loss of business, loss of use, loss of goodwill, loss of savings, business interruption or consequential, special, incidental, indirect, exemplary or punitive damages suffered by the Customer. The Company shall not be liable to the Customer in connection with fraud, negligence, act, failure, omission or wilful act of independent contractors or their employees, contractors or representatives engaged by the Company.
11. NON-SOLICITATION CLAUSE
11.1 During the term of the Agreement(s), and for a period of one (1) year immediately thereafter, the Customer shall not directly and/or indirectly solicit any employees and/or independent contractors of the Company and its Affiliates.
12.1 Any notice, request, instruction or other document to be served under the Agreement(s) shall be delivered, given or sent to the addressee at the address set out in the Agreement(s), or at such other address as the addressee may give notice of to the other Party from time to time
12.2 Any notice and communications to be given under or in respect of the Agreement(s) shall be deemed to have been duly served upon and received by the addressee:-
(a) if by personal or courier delivery, upon written acknowledgement of receipt;
(b) if by prepaid post, on the 3ʳᵈ Business Day following the date of postage for national postage and 10ᵗʰ Business Day following the date of postage for international postage; and
(c) if transmitted by way of facsimile transmission or other instantaneous electronic media twenty-four (24) hours following the date and time of such transmission.
12.3 If a Party changes its contact information or address, it must notify the other Party in writing within five (5) Business Days from the change. If either Party fails to notify the other Party of an address change in due time, all notifications and documents shall be deemed to have been received if sent to the address indicated in the Agreement(s).
13. PERSONAL DATA PROTECTION ACT (ONLY APPLICABLE IF THE CUSTOMER IS AN INDIVIDUAL)
13.1 The Company respects the privacy of individuals and only collects or manages any personal data that has been provided to the Company voluntarily by the Customer. By entering into the Agreement(s), the Customer hereby expressly consents to the Company’s collection, recording, holding, storing, and use of the Customer’s Personal Data.
13.2 The Customer’s Personal Data may be given to third parties (including but not limited to the Company’s Affiliates), for the purposes such as responding to an enquiry or soliciting Customer’s feedback for product and service improvement. Personal Data will otherwise only be used to follow up on sales and product development including periodic updates.
13.3 The Parties shall assist each other as relevant and necessary for compliance with obligations towards Data Subjects. This shall include, but not be limited to, the following:
(i) The Company shall request from the Customer, and the Customer shall without undue delay upon such request provide to the Company, any information requisite for fulfilment of the Company’s above responsibilities.
(ii) Each Party shall immediately inform the other of any identified risk of breach of obligations towards Data Subjects.
(iii) All and any requests received by either Party from Data Subjects relating to the processing of Personal Data by the other Party shall immediately be forwarded to that other Party.
13.4 The Company may engage Data Processor for processing the Personal Data on behalf of the Company and the Customer hereby agrees to such engagement by the Company.
13.7 The Customer acknowledges and agrees that the Company may transfer the data outside of Malaysia to the Affiliates of the Company for the purpose as stated herein.
13.8 The Customer may at any time update its Personal Data or may withdraw its consent by emailing the Company at firstname.lastname@example.org.
14. ENTIRE AGREEMENT
14.1 The General Terms and Conditions herein shall form an integral part of the Agreement(s) entered into by the Parties. The General Terms and Conditions as well as all the terms under the Agreement(s) shall constitutes the entire agreement between the Parties and replaces and supersedes all previous proposals, quotations and agreements pertaining to the subject matter of the Agreement(s), whether written or oral.
15. MODIFICATION TO THESE GENERAL TERMS AND CONDITIONS
15.1 The General Terms and Conditions contained herein may be modified from time to time. Notice of such modification will be served to the Customer or by such other means of communication deemed suitable by the Company. The provisions in respect of such modification thereof shall be supplemental to and be read as integral part of the Agreement(s) which shall remain in full force and effect as between both Parties.
16.1 In the event that any one or more of the provisions contained in the Agreement(s) shall for any reason be held to be unenforceable, illegal or otherwise invalid in any respect under any law, such unenforceability, illegality or invalidity shall not affect or impair any other provisions of the Agreement(s).
17.1 No failure or delay on the part of a Party in exercising any rights or remedies under the Agreement(s) at any time or for any period of time nor any knowledge or acquiescence by a Party of, or in, breach of any provision of the Agreement(s) shall operate as or be deemed to be a waiver thereof nor shall a waiver by that Party of any breach constitute a continuing waiver in respect of any subsequent or continuing breach.
18.1 The termination of the Agreement(s) howsoever arising shall not affect the provisions of the Agreement(s) as are expressed to survive, operate or have effect thereafter.
19. RELATIONSHIP OF THE PARTIES
19.1 Nothing in the Agreement(s) shall constitute or deemed to constitute a partnership between the Parties and no Party shall have any authority to bind the other Party in any way nor shall the Agreement(s) be construed to constitute any party as the agent of the other Party thereto.
20. SUCCESSORS AND ASSIGNMENT
20.1 The Agreement(s) shall remain valid and binding throughout the duration of the Agreement(s) on the Parties including their successors in title and permitted assigns.
20.2 The Customer shall not assign the Agreement(s) or any rights or obligations under the Agreement(s) without obtaining prior written consent of the Company.
20.3 The Company may, in its sole discretion and without the consent of the Customer assign, pledge or transfer its rights, interests or obligations under the Agreement(s).
21. STAMP DUTY
21.1 All the costs and expenses including the stamp duty for the Agreement(s) shall be borne by the Customer.
22. GOVERNING LAW
22.1 The Agreement(s) shall be construed and governed in accordance with the laws of Malaysia.
23. TIME OF THE ESSENCE
23.1 Time wherever referred to in the Agreement(s) shall be of the essence.
24.1 The Agreement(s) may be signed in any number of counterparts, each of which is an original and all of which, taken together, constitutes one and the same instrument.
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