Maintenance Terms & Conditions
1 FEBRUARY 2021
Maintenance Terms & Conditions
1.1 Definitions: In this Agreement, unless the context otherwise requires:
Additional Work means any Work of the nature described in clause 2.2;
Agent means an authorised dealer or other approved repair and maintenance service provider as appointed by the Company;
Agreement includes the Schedule, the Addendum this Specific Terms for Maintenance Agreement, the Appendices and the General Terms and Condition;
Annual Distance means the distance specified as such in the Schedule under the heading Operational Details or, if not so specified, 200,000 kilometres;
Annual Hours means the hours specified as such in the Schedule under the heading Operational Details or, if not so specified, 1,667 hours;
Appendix and Appendices means an appendix or the appendices of this Specific Terms for Maintenance (as the case may be);
Certificate of Fitness means the Certificate of Fitness required for the Vehicle and issued by the Land Transport Safety Authority;
Commencement Date means the commencement date specified in the Schedule under the heading Commencement Date and Charges;
Company means Scania (Malaysia) Sdn Bhd, a duly incorporated company with registered company number 518606 D, whose registered office is at No 1 Jalan Tiang U8/93, Bukit Jelutong Industrial Park 40150, Shah Alam ,Selangor; Malaysia;
Contract Period means the contract period specified in the Schedule under the heading Contract Terms and Period, the commencement of which shall be in accordance with the respective Commencement Date of the respective Vehicle(s) under the Addendum;
Excess Charges means the charges specified in the Schedule under the heading Excess Charges and as calculated and payable in accordance with clause 7;
Excluded Items means the items listed in clause 2.4 of this Agreement;
Law means those laws, statutes, ordinances, rules and regulations, decrees, by-laws, guidelines, circulars, directives, policies, permit, licenses or other approvals required by the relevant authority affecting the Vehicle or affecting the rights or obligations to be performed by the parties to this Agreement and Law Change shall mean any Law which comes into force after the Commencement Date;
Monthly Charges has the meaning in clause 6.2;
Customer means the Customer named in the Schedule;
Operation Type means the operation type for the Vehicle and designated by a number between 0 and 4 as follows:
0 – light haul transport vehicles less than 40 tonnes Gross Trailer Weight on road, intercity buses, tourist coaches;
1 – line or general haul transport vehicles less than 44 tonnes Gross Trailer Weight on road;
2 – heavy haul transport vehicles equal or exceeding 44 tonnes Gross Trailer Weight on road;
3 – construction vehicles and vehicles with off road application;
4 – distribution vehicles and city buses;
Personal Data shall have the same meaning as ascribed to in the Personal Data and Protection Act 2010;
RM means Ringgit Malaysia, the lawful currency of Malaysia;
Routine Maintenance means all work or adjustments (not being Repairs and not being Excluded Items) stated under the Scania Maintenance Programme or otherwise to maintain or put the Vehicle in a sound and roadworthy condition including where appropriate the replacement of any parts or components to the Vehicle deemed by the Company in its absolute discretion to be reasonably necessary whether the same be defective or not;
Scania means Scania CV Aktiebolag, Sweden;
Scania Maintenance Programme means the Scania maintenance programme from time to time in force for the Vehicle to be carried out at the service intervals set out in Appendix 3 or such other service intervals as may be notified by the Company to the Customer from time to time;
Scania Warranty means the standard form of warranty provided by Scania in respect of the purchase of new Scania products as may be amended from time to time;
Schedule means the Schedule to this Agreement;
ST means the services tax within the meaning of the Services Tax Act 2018 and any other relevant taxes and duties in force at the relevant time;
Termination Date means the earlier of:
a) if the Contract Period is specified in years, the date which is the number of years so specified after the Commencement Date;
b) if the Contract Period is specified in kilometres, the date on which the number of kilometres so specified (as shown on the Vehicle’s tachometer, odometer or hubometer, as applicable) is achieved over and above and excluding initial odometer reading;
c) if the Contract Period is specified in hours, the date on which the number of hours so specified (as shown on the Vehicle’s hourmeter) is achieved over and above and excluding initial hourmeter reading;
d) the date this Agreement otherwise terminates in accordance with clause 8;
Vehicle means the truck, trailer, bus or coach or any other item of equipment, the full details of which are set out in the Addendum and any other vehicle which the parties hereto may subsequently mutually agree in writing as covered and governed by this Agreement;
Work includes maintenance (including Routine Maintenance), adjustments, Repairs (where applicable), repair or replacement of any Excluded Item (where applicable), inspections and test inspections to the Vehicle and all incidental time and attendances;
Work Premises means the premises specified in Appendix 1 to this Agreement as may be amended by the Company from time to time.
1.2 Construction of certain references: In this Agreement unless the context otherwise requires, any reference to:
a “person” includes any individual natural person, company, corporation, partnership, firm, joint venture, association (whether corporate or unincorporated), trust, organisation, Government department, Minister of the Crown, state or agency of a state (in each case, whether or not having separate legal personality), and includes, in each case, a person's executors, administrators, successors and permitted assigns;
a “working day” means a day (other than Saturday or Sunday or public holiday) on which registered banks are open for general banking business in the location of the relevant Work Premises.
a "working hour" means 8.00 am to 5.15 pm on a working day or such other hours as prescribed by the Company from time to time.
1.3 General construction: In interpreting this Agreement the following rules must be applied unless the context otherwise requires:
a. Headings: clause and other headings are for reference only and are not an aid in interpretation;
b. Statutes: references to statutory provisions will include references to all regulations, orders, rules or notices made under that statute and references to a statute or regulation will be construed as references to those statutes or regulations as they may be amended or re-enacted or as their application is modified by other provisions from time to time;
c. Currency: references to currency and a reference to “$” or “Ringgit” are, unless otherwise stated, to Malaysia currency;
d. Parties: references to a party is to a party to this Agreement and includes that party's executors, administrators, successors in title and permitted assigns;
e. Number and Gender: words importing the plural include the singular and vice versa and words importing gender include all genders;
f. Joint Obligations: all warranties, representations, indemnities, covenants, agreements and obligations given or entered into by more than one person will be deemed to have been given or entered into jointly and severally.
a. This Agreement is conditional in all respects upon the Company conducting such credit and other checks on the Customer as the Company may require and the Company being satisfied with the results of such checks.
b. The Company’s obligations under this Agreement are conditional upon the Company receiving from the Customer such signed and completed automatic payment or direct debit forms as may be required by the Company at or about the time of entry into this Agreement and such forms being accepted and processed by the Customer’s bank.
2. Obligations of Company
2.1 Routine Maintenance: The Company shall carry out Routine Maintenance and inspections on the Vehicle at such intervals and/or in the manner as the Company may reasonably determine from time to time and as prescribed in the Scania Maintenance Programme.
2.2 Additional Work: If the Customer requests the Company to carry out any Work other than Routine Maintenance (for example, Work in connection with any Excluded Item) then the Company may, in its sole discretion, carry out the requested Work and such Work shall be charged at the Company’s then current time and expense rate or, if agreed, on a quoted fixed fee basis. All such additional Work shall be carried out subject to the Company’s ordinary terms of trade.
2.3 Genuine Parts: The Company shall use Scania approved genuine parts and components and factory approved lubricants except where any such parts, components or lubricants are not readily available, or not available at a reasonable price (as determined by the Company), in which case the Company may use such other parts, components or lubricants which are of a similar quality (as determined by the Company, acting reasonably) provided that the use of such parts, components or lubricants will not cause any current Scania warranty in respect of the Vehicle to be voided or voidable.
2.4 Excluded Items: Except as otherwise agreed by the Company, the Work carried out by the Company does not include any Work in connection with any of the following, which may be amended from time to time by the Company:
a) tyres and rims;
b) wheels and wheel alignments;
c) trim-work, upholstery, floor mats, paintwork, chrome, glassware and panels, wiper blades, tail lights, aerials, stone guards, bull bars and air deflectors;
d) Work associated with normal wear and tear including brake linings/pads, clutch drive plates, drive belts, in-line injection pumps, fuel injectors, fuel injection nozzles;
e) automatic gearboxes, parts and components not purchased from the Company, parts other than Scania approved genuine parts or parts fitted in accordance with clause 2.3, obsolete genuine parts, service exchange units or to defects caused by such parts or components;
f) light bulbs, reflectors and lenses;
g) antifreeze, coolant inhibitor, oils and lubricants (top ups) used between services;
h) washing fluids;
i) software upgrades for any on-board computer system due to operational changes;
j) any Work on the Vehicle’s body/tank;
i) unscheduled filter and lubricant changes due to contamination;
n) repair of damage resulting from faults in, or incorrect fitting of, the body or any other ancillary or additional equipment;
o) the fitment, service or repair of any additional equipment that becomes a requirement under any Law or as a result of a Law Change;
p) any Work necessary as a result of any breach of any of the Customer’s obligations under this Agreement;
q) any Work necessary as a result of use of the Vehicle otherwise than in accordance with Scania’s operational recommendations;
r) any structural Work to the chassis necessary as a result of misuse, overloading, chemical contamination or unscheduled off-road use;
s) repair of damage due to the Vehicle being subject to accident, fire, flood, theft, explosion or natural disaster;
t) repair of damage due to use of poor or substandard fuel or other additive, coolant or lubricant;
u) trailer air lines, trailer hydraulic lines and trailer electrical lines/connectors (Suzies);
v) any part or component which has been stolen or been removed without authorisation from the Vehicle;
w) any Work which in the Company’s reasonable opinion has become necessary due to inadequate or substandard work or testing or inspection carried out by any third party or the Customer;
x) towing and vehicle recovery fees or charges or fees or charges in connection with a replacement vehicle;
y) non-manufacturer approved mud-guards;
z) vehicle registration, licensing or other fees or charges for the Vehicle, including fees and charges payable in connection with obtaining a Certificate of Fitness for the Vehicle;
aa) any Work covered by insurance held by or for the benefit of the Customer;
bb) urnishing consumable supplies or accessories, painting or refurbishing the Vehicle or making specification changes;
cc) any Work which is rendered impractical due to any modifications or alterations made to the Vehicle without the Company’s prior written consent;
dd) the repair of any damage, defect or malfunction which in the Company’s reasonable opinion has become necessary as a result of any one or more of the following:
i. any electrical work external to the Vehicle or part thereof;
ii. any transportation or relocation of the Vehicle not performed by an Agent or authorised by the Company;
iii. any error or omission relating to the use or operation of the Vehicle;
iv. any modification, adjustment or repair to the Vehicle or any part thereof which is made by any person without the prior written consent of the Company;
v. the Customer allowing the Vehicle or any part thereof to be subjected to unusual physical, electrical or mechanical stress;
vi. the neglect or misuse of the Vehicle or wilful default or omission in relation to the Vehicle, by the Customer or any third party;
vii. any failure or fluctuation of electrical power, fuel supply or other environmental controls;
viii. the adjustment of any electrical or electronic devices or speed limiters by any person other than the Company including “chipping” or “superchipping” of the electronic control units;
ix. seals or other settings made by the Agent, the Company or its suppliers being broken.
ee) any Work which but for a Law Change would have been Work excluded under this clause 2.4.
3. Obligations of the Customer
3.1 Scheduling Routine Maintenance: The Customer shall be responsible for the scheduling of Routine Maintenance and inspections on the Vehicle at the intervals and in the manner prescribed by the Company or the Agent or at such intervals as may be required by Law. In addition, the Customer will notify the Company of any changes in its inspection interval and should the number of inspections during the Contract Period increase the Customer shall bear the consequential costs. The Customer shall ensure that Routine Maintenance and inspections are arranged with and carried out by the Company or an Agent. Failure to present the Vehicle for Routine Maintenance could result in termination of this Agreement.
3.2 Condition of Vehicle: The Customer shall ensure that the Vehicle is, at the time of delivery to the Work Premises or other location any Work is to be carried out, in a condition that does not impede the carrying out of any Work.
3.3 Defect Reporting: The Customer shall comply with any reasonable reporting procedure in relation to the Vehicle which may be introduced either by the Company or by any Law made under any Law Change.
3.4 Daily Checks: The Customer shall carry out all Scania’s recommended or required daily Customer/driver checks, lubrication and adjustments to the Vehicle and any fitted ancillary equipment, including but not limited to those set out in Appendix 2.
3.5 Change of Use: The Vehicle shall be used in accordance with Scania’s recommendations and as is specified in the Schedule. The Customer shall notify the Company of any change of use or operation such as off-road use, changes in operating weight or alterations to the Vehicle such as power take-off facilities, or any other change which could affect the Vehicle’s normal operating environment or Routine Maintenance requirements. The Company reserves the right:-
a. on receipt of such notification; or
b. If the Company discovers any change of use or operation type by the Customer; or
c. If the Customer has misrepresented to the Company the nature of use or operation type of the vehicle
to amend the charges or terminate this Agreement in accordance with clause 8.2.
3.6 Customer: The Customer shall ensure that the Vehicle is operated only by its authorised, qualified and competent personnel.
a. The Customer will inform the Company immediately of any changes made to the tachograph, odometer or associated equipment including the hub-odometers or hourmeters, and will allow (if requested) periodic examinations of the equipment and data and testing and calibration of the equipment, by the Company or the Agent.
b. In the event of the Vehicle’s tachograph, odometer, hubometer or hourmeter failing to function properly, the Customer shall immediately inform the Company in writing specifying the date of such failure and the estimated distance or hours (as appropriate) that the Vehicle has travelled for the period elapsed since the last reading notified to or taken by the Company or the Agent (the “reading date”). If a new tachometer, odometer, hubometer or hourmeter is fitted as a consequence of failure it is the responsibility of the Customer to instruct the repairer to wind on the reading of the new component to the estimated distance or hours (as appropriate) since the last reading date.
c. The Customer will inform the Company of the monthly tachograph, odometer or associated equipment including the hub-odometer or hourmeter readings of the Vehicle on the last week of each month, or otherwise as specified by us. The purpose is to monitor the maintenance schedule for the Service Interval and for invoicing.
a. The Customer shall ensure that it delivers the Vehicle to the Work Premises, where appropriate prior to expiry of the relevant service interval, and collects it from the Work Premises and shall make the appropriate arrangements with the Company or the Agent for such work to be carried out.
b. If the Customer fails to collect the Vehicle after being informed by Scania that the Work has been completed, the Customer shall be liable to pay Scania for storage charges for the vehicle at the rate of RM100.00 per day (for vehicle stores in Scania premises) until the date of collection of vehicle.
3.9 Use: The Customer shall not make any alterations or modifications to the Vehicle and shall not use the Vehicle in any other way than that for which it was originally designed. The Customer shall take proper care of the Vehicle and shall use all reasonable endeavours to keep the Vehicle in good roadworthy condition.
3.10 Location: The Customer shall inform the Company immediately of any changes to the Vehicle’s resident location.
3.11 Access to Vehicle and Records:
a. The Customer will provide the Company and the Agent with full and unimpeded access to the Vehicle and any records relating to the Vehicle as the Company or the Agent may reasonably request to permit the Company or the Agent to carry out any Work.
b. The Customer shall supply the Company and the Agent with such information concerning the Vehicle, its use, location and environment as the Company or the Agent may reasonably request in connection with any Work to be performed by the Company or the Agent.
c. The Customer shall inform the Company immediately of any sale, lease, transfer or other disposition, theft, accident, damage or total loss of the Vehicle.
3.12 Statutory Requirements: The Customer shall ensure that the Vehicle complies with all relevant Laws including, but not limited to, ensuring the Vehicle is properly registered, licensed and taxed, free from defects, has a current Certificate of Fitness and is fitted with the appropriate tyres within the legal limits.
4.1 Term of Agreement: This Agreement shall commence on the Commencement Date and will continue until the Termination Date unless terminated earlier in accordance with this Agreement.
4.2 Territorial Scope of Agreement: The Company’s obligations under this Agreement shall only extend to a Vehicle within Malaysia.
4.3 Where Routine Maintenance to be Carried Out: All Routine Maintenance shall be carried out at the Work Premises or at such other location as the Company or the Agent deems expedient.
The Company may add or remove Work Premises specified in Appendix 1 by notice in writing to the Customer or by notice posted on the Company’s website provided that all Work Premises must be in Malaysia.
4.4 When Work is to be Done: All Work will be carried out during normal working hours on working days unless otherwise agreed with the Company or the Agent. Neither the Company nor the Agent is required to give any priority to the Customer in respect of any Work or to undertake any Work outside of normal working hours or on a non-working day, but if the Company or the Agent does agree at the Customer’s request to undertake any Work on an urgent basis or outside normal working hours or on a non-working day, then the Company or the Agent may charge, and the Customer must pay, an additional fee based on the Company’s or the Agent’s usual surcharge for such Work.
5.1 The Customer shall promptly pay all fees and other amounts invoiced by the Company from time to time in accordance with this Agreement and in any event within the period required by this Agreement or as otherwise agreed in writing between the Company and the Customer.
5.2 The Customer shall pay in such manner as the Company may reasonably require, the monthly payments as specified in the Schedule under the heading Commencement Date and Charges as may be adjusted during the Contract Period under clause 7 of this Agreement (“Monthly Charges”). The first payment shall be due on the date specified in the Schedule with subsequent payments due monthly thereafter. If the due date for any payment is not a working day, the payment must be made on the following working day. The Monthly Charges are in addition to any other payments or other service charges or fees due from time to time under this Agreement.
5.3 All parts and components:
a. which are used to carry out Routine Maintenance shall be covered by the Monthly Charges and shall not be separately invoiced to the Customer;
b. which are used to carry out any Additional Work requested by the Customer shall be invoiced to the Customer at the Company’s list price as calculated by the Company.
5.4 Where the Customer requests any Work to be carried out by the Company:
a. on an urgent basis and that request is, at the sole discretion of the Company, accommodated, then the Customer will pay a separate charge over and above the Monthly Charges of an amount which the Company determines is reasonable to compensate the Company for the impact on its business or operations (or those of the Agent);
b. and the Customer fails to keep an appointment or fails to deliver the Vehicle to the Work Premises or, if agreed, other location, then the Customer shall be liable for any costs incurred by the Company or the Agent as a result of such failure;
c. at a time or times which would result in the Company or the Agent being liable to pay overtime or penalty rates to any staff or contractors carrying out such Work, then the Customer shall pay the Company a separate charge over and above the Monthly Charges of an amount which the Company determines is reasonable to compensate the Company for the overtime or penalty rates so incurred.
5.5 Subject to clause 5.2, the Customer shall pay all fees and charges payable under this Agreement within the prescribed period specified under the Company’s Parts & Services Credit Sales Agreement. If an invoiced amount is disputed by the Customer, the Customer shall dispute in writing within 30 days of receipt of invoice/s for whatever reason. Otherwise in absence of any written dispute within 30 days the invoice (s) is/are deemed to be correct and the debt equivalent to the invoice(s) is deemed admitted by the Customer.
5.6 In the event that the Customer requests a change to this Agreement, for example in regard to the Annual Distance, the Annual Hours, operation, use, additions or any other change, the Company reserves the right to raise an administration charge for dealing with each such request and that charge shall be paid for by the Customer within the period specified in clause 5.5.
6. Excess Distance and Hours
6.1 On the Commencement Date the Customer shall provide to the Company the Vehicle’s odometer or hourmeter readings (as appropriate) as at that date, which readings shall be recorded as the start distance or start hours (as appropriate) for the purposes of this Agreement.
6.2 Excess Charges:
a. If in any consecutive 12-month period from the Commencement Date the Vehicle exceeds the Annual Distance or Annual Hours (as applicable), the Customer will notify the Company forthwith and pay to the Company on demand the Excess Charges according to the number of kilometres or hours travelled in excess of the Annual Distance or Annual Hours (as appropriate).
b. If at any time the Vehicle exceeds the Annual Distance or Annual Hours (as applicable) by more than 20% then the Company, in addition to its right to raise an Excess Charge, may in its absolute discretion either terminate this Agreement under clause 8.2 or amend its charges.
6.3 In the event the Vehicle’s tachograph, odometer, hubometer or hourmeter failing to function, the Customer shall comply with its obligations under clause 3.7(b). If the Customer fails to do so then the Company may for the purposes of this clause estimate the distance or hours (as the case may be) covered by the Vehicle.
7. Adjustment of Monthly Charges
7.1 The Company reserves the right to increase the Monthly Charges and the Excess Charges which shall be increased annually with effect from the expiry of each calendar year to reflect any increase over and above 5%, during the year, in the Consumer Price Index (All Groups) as published by Department of Statistics Malaysia (or any replacement index). The amount of such increase and the new applicable Monthly Charges and Excess Charges will be calculated by the Company in accordance with this clause 7.1 and notified in writing to the Customer as soon as practicable following the end of each calendar year. The Company’s determination of any increase under this clause shall, in the absence of manifest error, be final and binding on the Customer. The new Monthly Charges and Excess Charges will apply with effect from and including the month following the month in which such notice is given.
7.2 In addition to any increases under clause 7.1, the Monthly Charges and the Excess Charges shall be subject to increase if there is an increase of 10% or more in:
a. the labour costs incurred by the Company or the Agent in connection with the performance or conduct of Work, from the labour costs which applied on the Commencement Date or, if the Monthly Charges or Excess Charges has or have previously been adjusted under this clause 7.2, from the date of the last adjustment; or
b. the cost of any parts, components or lubricants used by the Company or the Agent in carrying out any Work from the cost which applied on the Commencement Date or, if the Monthly Charges or Excess Charges has or have previously been adjusted under this clause 7.2, from the date of the last adjustment; or
c. the Malaysian Ringgit cost of purchasing US Dollar (using the prevailing exchange rates offered by the Company’s principal bank from time to time) from the cost which applied on the Commencement Date, or if the Monthly Charges or Excess Charges has or have previously been adjusted under this clause 7.2, from the date of the last adjustment,
in which event the following provisions of this clause 7.2 shall apply:
d. the Company may increase the Monthly Charges and/or Excess Charges by such amount as is reasonably necessary to off-set the increased costs to the Company or the Agent of carrying out Work as a result of the occurrence of the relevant circumstance(s) described above (after taking into account any increases in the Monthly Charges and Excess Charges under clause 7.1);
e. such increase shall be effected by the Company giving written notice to the Customer specifying the relevant circumstance(s) as described above, the new Monthly Charges and Excess Charges (which shall apply with effect from and including the month following the month in which such notice is given) and details of the effect of the relevant circumstance(s) on the Company’s costs of carrying out Work;
f. the Company’s notice under clause 7.2e. shall, in the absence of manifest error, be final and binding on the Customer.
g. if, following a notice under clause 7.2e., the difference between the new Monthly Charges or Excess Charges and the Monthly Charges or Excess Charges which applied at the latter of the Commencement Date or the last increase under any of clauses 7.1 to 7.3 would be greater than 15% of the latter, then either party may require the parties’ representatives to meet within 30 days of the notice and use their good faith best endeavours to find a mutually acceptable solution to address the impact of the increase of costs affecting the Company or the Agent. If, despite using their good faith best endeavours, the parties are unable to find a mutually acceptable solution, then either party may terminate this Agreement on 60 days’ written notice.
7.3 If in the reasonable opinion of the Company the cost to provide Routine Maintenance has been materially increased by any Law Change then the Company may give written notice to the Customer of that state of affairs and provide the Customer with background information relating to its increased costs, the relevant change and a suggested new Monthly Charges and Excess Charges. The parties’ representatives will meet within 30 days of the notice and will use their good faith best endeavours to find a mutually acceptable solution to address the impact of the increase of costs affecting the Company or the Agent. If despite using their good faith best endeavours the parties are unable to find a mutually acceptable solution, then either party may terminate this Agreement on 60 days’ written notice. For the purposes of this clause 7.3 only, a material increase in costs means an increase which would, in the reasonable opinion of the Company, have the effect of increasing the costs of the Company or the Agent carrying out Routine Maintenance by 10% or more. Where any new Monthly Charges and/or Excess Charges are agreed under this clause 7.3, the new Monthly Charges and/or Excess Charges shall operate and be effective from the month following the month in which the parties agree any adjustment to the Monthly Charges and/or Excess Charges under this clause 7.3.
Termination by Company
a. the Vehicle becomes a total loss either through failure, damage or theft; or
b. the Customer has passed a resolution for its winding up (other than for purposes of a reconstruction or amalgamation consent with prior written consent) or an order is made for the winding up, dissolution, insolvency, bankruptcy, administration, reorganisation, reconstruction, judicial management or similar order for the benefit of creditors; or
c. a provision liquidator, receiver, receiver and manager, judicial manager, or similar officer appointed in respect of all or any part of the Customer’s business assets; or
d. the Customer stops or suspends payments to its creditors generally or is unable to pay its debts as they fall due or seeks to enter into any composition or other arrangement with its creditors or is declared or becomes bankrupt or insolvent; or
e. the Customer enters into any arrangement or composition with its creditors generally; or
f. a creditor takes possession of all or any part of the business or assets of the Customer or any execution or other legal process is enforced against the Customer and is not discharged within fourteen (14) days; or
g. the Customer ceases or threatens to cease to carry on its business or if the Customer disposes of or threatens to dispose of or any governmental or other authority expropriates or threatens to expropriate all of its business or assets;
then this Agreement may be terminated at any time by the Company at any time with immediate effect by giving written notice to the Customer.
8. If the Customer:
a. fails to punctually make payment of any fee, charge or other amount which may from time to time become due to the Company, whether under this Agreement or otherwise and whether or not demand has been made by the Company and such failure continues for more than 10 working days; or
b. exceeds the Annual Distance or Annual Hours by more than 20%;
c. fails to comply with any other term of this Agreement and either such failure is not capable of remedy (as determined by the Company in its sole discretion) or, if such failure is capable of remedy (as determined by the Company in its sole discretion), the Customer fails to remedy such failure within 30 days of written notice of such failure being given to the Customer by the Company,
the Company shall be entitled to terminate this Agreement by giving seven (7) days’ notice in writing to the Customer.
8.3 The Company may also terminate this Agreement by written notice in the circumstances specified in clause 7.2 or 7.3.
Termination by Customer
8.4 Subject to clauses 8.5 and 8.6 below, the Customer shall not be entitled to terminate this Agreement within the first six (6) months after the Commencement Date (“Lock-in Period”). In the event the Customer terminates this Agreement during the Lock-in Period, the Customer shall pay the Company the Monthly Charges and Excess Charges under this Agreement for the duration of the Lock-in Period.
8.5 If the Company fails to comply with any term of this Agreement and either such failure is not capable of remedy or if such failure is capable of remedy, the Company fails to remedy such failure within 30 days of written notice of such failure being given to the Company by the Customer, the Customer may terminate this Agreement by giving seven (7) days’ notice in writing to the Company.
8.6 The Customer may terminate this Agreement by written notice in the circumstances specified in clause 7.2 or 7.3.
Consequences of Termination
8.7 The Company shall be under no obligation or responsibility to continue to carry out any Work once this Agreement terminates or expires. In that event, the Company shall, at its sole discretion, be entitled to determine whether or not to suspend or cease carrying out Work. If the Company decides to continue to carry out any Work after expiry of this Agreement, then the terms must be mutually agreed in writing by both parties.
8.8 Any termination under clause 8.1, 8.2, 8.3 shall be without prejudice to any claim which the Company may have against the Customer for any amount payable under this Agreement or damages for breach of this Agreement, including any claim for interest.
8.9 On any termination of this Agreement (other than as a result of the expiry of the term of this Agreement), the Customer shall pay to the Company:
a. any deposit and/or down payment paid by the Customer shall be forfeited by the Company;
b. all arrears of Monthly Charges and Excess Charges and fees, charges and other amounts outstanding under this Agreement, including interest in respect of such arrears;
c. an apportioned Monthly Charges for any broken monthly period, such apportionment to be computed on a daily basis up to the date of termination; and
d. such other sums as may be due and payable under this Agreement together with interest.
8.10 Upon expiry of the Lock-in Period, either Party may terminate this Agreement by giving ninety (90) days’ prior written notice (“Early Termination”). On Early Termination of this Agreement, clause 8.9 above shall apply.
9. Liability of the Company
9.1 So long as the Customer is complying with this obligations under this Agreement, if any Routine Maintenance carried out by the Company or the Agent is not performed in accordance with this Agreement, the Company shall promptly cause such Routine Maintenance to be carried out again at no extra charge to the Customer.
9.2 Subject to clauses 9.3 and 9.4, the total liability of the Company for any foreseeable loss of the Customer arising in any year of this Agreement shall not exceed the 10% of the total Monthly Charges payable for that year irrespective of the number of claims, subject to strict proof thereof. In this clause, “loss” includes any loss, damages, costs or other compensation and expenses incurred by the Customer as a result of any act or omission of the Company.
9.3 In no circumstances will the Company be liable for:
a. any loss of profit or other consequential loss of the Customer;
b. any direct or indirect costs incurred by the Customer through its failure to keep an appointment for Work or failure to deliver a Vehicle to the Work Premises or as a result of a request that any Work be done urgently, on a non-working day or outside ordinary business hours;
c. direct or indirect costs incurred by the Customer as a result of the unavailability of a Vehicle while undergoing any Repairs (where applicable), Routine Maintenance or other Work which the Company has been requested to carry out, including Work as a result of a vehicle recall.
9.4 If the Customer becomes aware of any default in the performance of this Agreement by the Company, it shall firstly notify the Company of the default and give the Company a reasonable opportunity to remedy the default. If the Company remedies the default, the Customer shall not have any claim against the Company for the consequences of the default.
10. Implied Terms
10.1 Where conditions, warranties or other rights for the benefit of the Customer are implied or given in respect of this Agreement by the Sale of Goods Act or other laws and it is not lawful or possible to exclude the same, then such conditions, warranties or other rights shall (but only to the extent required by Law) apply to this Agreement but, save as aforesaid, all such implied conditions, warranties and rights are hereby excluded.
10.2 To the extent that under any such Laws the Company may limit its liability for breach of implied conditions and warranties, the Company's liability for any breach of any such condition or warranty shall be so limited. Without limiting the generality of the foregoing, subject to the qualifications in the Sale of Goods Act (if any) or in such other Laws, the Company's liability for any breach of any such implied condition or warranty shall be limited:
a. in the case of goods supplied, to any one or more of the following (as the Company may determine);
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
ii. the payment of the costs of replacing the goods or of acquiring or hiring equivalent goods; or
iv. the payment of the costs of having the goods repaired; and
b. in the case of services supplied, to one of the following (as the Company may determine):
i. the supplying of the services again; or
ii. the payment of the costs of having the services supplied again,
11. Ownership of Removed Parts
11.1 All Scania parts or components permanently removed from the Vehicle in the course of carrying out any Work, shall upon removal become the property of the Company.
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