VSTECS Astar Sdn. Bhd. / VSTECS Pericomp Sdn. Bhd. / VSTECS KU Sdn.
Bhd. (VSTECS)
Terms and Conditions of Sale
All sales made by
VSTECS to the Purchaser shall be subject to the following Terms and Conditions
(T&C). The Purchaser’s unequivocal acceptance of these T&C shall be
deemed by any of the following actions:
i.
Purchaser’s signed
acknowledgement and acceptance of these T&C which shall remain in effect
indefinitely until Purchaser explicitly revokes such acceptance in writing to VSTECS;
ii.
Purchaser’s
issuance of a Purchase Order to VSTECS; or
iii.
Purchaser’s
acceptance of and Product or Service from VSTECS;
in no particular order.
1. DEFINITIONS:
1.1. “Confidential Information” means any confidential information of
VSTECS or its Vendors and Suppliers relation to the Products, marketing
information, maintenance services, software licenses and technical
specifications.
1.2. “VSTECS” means VSTECS Astar Sdn. Bhd., VSTECS Pericomp Sdn. Bhd., or
VSTECS KU Sdn. Bhd. Either individually or collectively within the appropriate
context based on the issue quotation to the Purchaser and the Purchaser’s
Purchase Order to VSTECS.
1.3. “Intellectual Property” means all copyright, patents, utility
innovations, trademarks and service marks, geographical indications, domain
names, layout design rights, registered designs, design rights, database
rights, trade or business names, rights protecting trade secrets and
confidential information, rights protecting goodwill and reputation, and all
other similar or corresponding proprietary rights and all applications for the
same, whether presently existing or created in the future, anywhere in the
world, whether registered or not, and all benefits, privileges, rights to sue,
recover damages and obtain relief or other remedies for any past, current or
future infringement, misappropriation or violation of any of the foregoing
rights.
1.4. “Purchaser” means the person, business or company that is the
purchaser of the Products.
1.5. “Products” means any products (including software), services, or
services accompanying any products where applicable, supplied to the Purchaser
by VSTECS and described in VSTECS's invoice to the Purchaser.
1.6. “Services” means any services
supplied to Purchaser by VSTECS or its Supplier and described in VSTECS’
quotation and invoice, including but not limited to technical services,
installation services, educational services (such as educational or training
courses, and examination or certification services), or such other services
provided by VSTECS or a Supplier and includes supply of materials, software, tools and information related to such services (“Deliverables”).
1.7. “Supplier” or “Vendor” or “Principal” or “Brand Principal” means the
manufacturer or publisher of the Products or Services, or the service provider,
manufacturer or publisher providing the Products or Services, which for the
avoidance of doubt shall not mean VSTECS unless VSTECS is the sole party
providing the service. These labels may be used interchangeably and shall mean
the same thing.
1.8. “Supplier’s Warranties” means the warranties, if any, provided by the
applicable Supplier relating to a particular Product.
1.9. “Territory” means the country of Malaysia.
2. ORDERS AND DELIVERIES
2.1. All orders for Products placed by Purchaser:
a)
must be made in
accordance with VSTECS’ order process as notified to Purchaser from time to
time; and
b)
are subject to
acceptance by VSTECS,
and no order will be deemed to have been accepted
by VSTECS unless Products are supplied or a back-order
or delivery delay is confirmed in writing by an authorised representative of
VSTECS to Purchaser.
2.2. Deliveries for orders placed by Purchaser shall only be to the
delivery address so indicated at the time of VSTECS accepting the Purchaser’s
order. Any request from the Purchaser for a Change of Delivery Address (“COA”)
after an order is accepted by VSTECS shall be based on VSTECS’ sole discretion
and subject to the condition that Purchaser accepts all risks and shall fully indemnify VSTECS at all times against any losses or
liability arising from the COA request.
2.3. VSTECS may reject any order placed by Purchaser if there is an
insufficient supply of Products which prevents VSTECS from being able to fulfill such order.
2.4. All Products sold to the Purchaser ARE STRICTLY FOR RESALE TO END
USERS IN THE TERRITORY ONLY or such countries as authorised in writing by the
Supplier.
2.5. For Products sold by VSTECS to the Purchaser based on Supplier’s
special conditions including (but not limited to) special project bids,
educational institutions, specific sale conditions, drop-ship deliveries, and
any other programs campaigns or promotions offered by the Supplier, the Purchaser
warrants that it shall fully adhere to the necessary requirements and
conditions imposed by the Supplier. Furthermore, the Purchaser shall fully indemnify VSTECS at all times arising from the Purchaser’s
non-compliances of the Supplier’s sale requirements.
2.6. Purchaser shall be solely liable to the end-user for any drop-ship
delivery arrangements if so requested by the Purchaser
and agreed to by VSTECS.
2.7. Delivery to a local address shall be by way of ground transportation,
unless specifically requested by the Purchaser where the Purchaser shall agree
to bear any and all additional special delivery
charges incurred by such requests.
2.8. Any delivery times advised by VSTECS shall be construed as estimates
only and VSTECS shall not be liable for any delay or losses suffered by the
Purchaser arising from late or non-delivery of the Products.
2.9. VSTECS reserves the right to deliver partial shipment of any orders,
and such partial shipments shall be deemed a separate supply of the Products
upon these terms.
2.10. Where Purchaser has indicated to self-collect any ordered Products
from VSTECS, failure to collect such Products within three (3) working days
shall be subject to order cancellation and the Purchaser shall be liable to a
restocking-fee amounting to 10% of the order value. Any grant of postponement
on self-collection by the Purchaser shall be subject to VSTECS’ sole
discretion.
3. PRICE, PAYMENT AND CREDIT FACILITIES
3.1. VSTECS's quoted prices shall be in Ringgit Malaysia (RM) and are
subject to change without prior notice.
3.2. Unless the Purchaser has been granted credit terms by VSTECS and keeps
in good standing, payment is required prior to delivery of the Products unless specifically
so authorised in writing by an authorised officer of VSTECS.
3.3. If Purchasers fails on its payment obligations to VSTECS, the
Purchaser shall be liable for the following:
a) All amounts owing by the Purchaser to VSTECS shall immediately become
due, including (but not limited to) restocking fees, non-delivery charges, and
legal costs of enforcement;
b) Suspension of any Product deliveries from VSTECS to the Purchaser; and
c) Suspension, revision or withdrawal of credit
facilities granted by VSTECS to the Purchaser.
3.4. Purchaser will be liable to pay interest on any overdue amount at the
rate of 1.5% per month or the maximum amount allowed by law will be charged on
all past due balances commencing on the date payment is due, whichever is
higher. Interest will accrue daily from the date payment becoming overdue until
VSTECS has received payment of the overdue amount, together with any interest
accrued. The Purchaser’s obligation to effect timely payments is a material element of business transactions between VSTECS and
the Purchaser AT ALL TIMES.
3.5. VSTECS does not grant nor accept any right of
set-off to the Purchaser at all times.
3.6. Purchaser shall not deduct from the purchase price any tax amount
incurred on the purchase of any Products from VSTECS. Furthermore, Purchaser
shall reimburse VSTECS for any taxes that VSTECS has paid or is liable to pay
on behalf of the Purchaser.
3.7. Unless stated otherwise, all prices quoted by VTECS are excluding
taxes, handling, delivery, agents’ charges and any other charges, duties and impost.
3.8. Purchaser must pay VSTECS, on demand, any tax (excluding income tax)
payable under these Terms, any matter or thing done under these Terms or any payment, receipt or other transaction
contemplated by these Terms, including (but not limited to) any goods and
services tax, customs duty, excise duty, stamp duty, other duty, governmental
charge, fee, levy or impost, together with any fine, penalty or interest
payable because of a default by Purchaser.
3.9. VSTECS may request from the Purchaser its financial records, audited
accounting records or any other relevant information for the purpose of
creditworthiness evaluation. Purchaser further fully agrees that any and all information provided may be subject to
disclosure to VSTECS’ external service providers including (but not limited to)
financial institutions and insurers. Failure to provide such requested
information may result severe degradation or even withdrawal of credit
facilities granted to the Purchaser.
3.10. VSTECS RESERVES ITS SOLE RIGHT to adjust, revise or
withdraw its credit facilities to the Purchaser AT ALL TIMES without any
given reason whatsoever.
3.11. Any obligation of VSTECS under these terms and conditions to deliver
Deliverables on credit terms shall terminate without notice and without
liability to VSTECS if Purchaser files a voluntary petition under a bankruptcy
statute or any other statute relating to insolvency or protection of the rights
of creditors, or makes an assignment for the benefit of creditors, or if an
involuntary petition under a bankruptcy statute or any other statute relating
to insolvency or the protection of rights of creditors is filed against
Purchaser, or if a receiver, manager, liquidator or trustee is appointed to
take possession of the assets of Purchaser.
3.12. In conjunction with Clause 2.5 above, where the Purchaser is offered
special pricing for certain orders and such pricing is made available to VSTECS
from its Suppliers ("Special Bids"), the Purchaser shall
adhere to the specific terms applicable to Special Bids (“Special Terms”)
and other terms and conditions of such Special Bids. Purchaser agrees to
indemnify VSTECS for any breach of these terms or any claims made against
VSTECS by the Suppliers for Purchaser's non-compliance with the Supplier's
terms and conditions. Purchaser agrees to pay any service fees charged for
VSTECS’ pass-through of Special Bids and other Supplier driven benefits the
Purchaser may receive, including any marketing funding, price protection and
individual rebates, and agrees that pass-through and payment of such benefits
will be subject to VSTECS having received the benefits from its Supplier. The
Special Terms may oblige the Purchaser to comply with certain requirements
including (but not limited to):
a) the sale of the Products only to specifically named end-users;
b) sale of the Products within the approved Territory only;
c) the disclosure of end-user information to VSTECS and its Suppliers for
the purpose of end-user verification; and
d) the submission of copies of end-user’s purchase orders, Purchaser’s
invoices to the intended end-user, proof-of-delivery to the intended end-user,
or end-user’s proof-of-receipt documents to VSTECS and its Suppliers.
Subject to the Special Terms applicable for the
individual Suppliers and Products, non-compliance with the Special Terms may
entitle VSTECS and/or its Suppliers to reclaim and invoice the Purchaser in
full for all discounts, rebates and other special price conditions granted to
the Purchaser under the special price.
4. SOFTWARE
4.1. Where any Product or portions of a Product supplied by VSTECS contains
software, then in addition to these terms, such software shall be supplied
subject to the terms and conditions of the software’s license agreement where
applicable.
4.2. The Purchaser agrees to be bound by any terms, conditions or
restrictions so indicated in the software’s license agreement where applicable, and shall wholly indemnify VSTECS arising from
any of the Purchaser’s breach of such terms, conditions and restrictions.
4.3. It shall be the Purchaser’s sole responsibility to indicate acceptance
of the software’s license terms, conditions and restrictions where applicable.
Furthermore, the Purchaser shall indicate the same to the end-user is the same
acknowledgement and acceptance is required from the end-user.
5. RECEIVING OF PRODUCTS
5.1. The Purchaser shall be solely responsible to inspect, verify on the
accurateness and condition of the Products and goods delivered by VSTECS,
either to the Purchaser’s premises, or the Purchaser’s indicated place of
delivery whichever the case may be.
5.2. If the Purchaser discovers any inconsistencies arising from defect of
physical condition, differences in quantity or any other deviations from the
documented bills, the Purchaser shall promptly raise such discrepancies to
VSTECS no later than three (3) working days from the date of delivery.
5.3. Failure to give notice to VSTECS in the manner stated in Clause 5.2
and to the extent permitted by law, the Products shall be deemed to have been
accepted by the Purchaser.
6. TITLE AND RISK
6.1. The Purchaser shall bear all Risk of the Products upon the following:
a) Completed physical delivery of the Products to the Purchasers
premises, Purchaser’s agent(s), or the drop-ship locations indicated by the
Purchaser; and
b) Collection of the Products by the Purchaser, its agents or its
nominated carrier or logistics service provider.
6.2. Risk of Products returns by the Purchaser to VSTECS remains
with the Purchaser at all times until a credit-note or equivalent is
granted by VSTECS to the Purchaser.
6.3. Title of the Products supplied by VSTECS to the Purchaser remains with VSTECS at all times until the Purchaser has
fully paid all monies due to VSTECS in relation to any account.
6.4. Title to such Products which are Deliverables or software in nature
remains with VSTECS, supplier or the vendor licensor at all
times.
6.5. Until the Products have been paid for and the title has passed from
VSTECS to the Purchaser,
a) the Purchaser grants VSTECS the right to enter the Purchaser’s
premises to repossess and recover the Products; and
b) the Purchaser may sell the Products and shall keep a record of the
sale of the Products in the ordinary course of business as a fiduciary agent
for VSTECS and the Purchaser agrees to remit all proceeds from any such sale to
VSTECS as part of the Purchaser’s dues to VSTECS.
7. PRODUCT RETURNS
7.1. Purchaser shall not return Products to VSTECS without prior obtaining
a Return Merchandise Authorisation (“RMA”) from VSTECS.
7.2. The cost of Product RMA returns to VSTECS for cause under warranty
conditions set forth by the supplier shall be borne by VSTECS. The cost of
Product RMA returns to VSTECS for any other purpose shall be borne by the
Purchaser.
7.3. Product RMA returns without cause shall be subject to a restocking fee
of 15% of the Product value subject to all of the
following conditions:
a) the original seal of the Product packaging has not been broken or
tampered with;
b) the Product is not damaged, either visually or functionally;
c) the Product is in a sellable and tradable condition; and
VSTECS reserves its sole right and discretion in
assessing the conditions stated above.
8. ORDER CANCELLATIONS
8.1. Purchaser shall not cancel on order which has been accepted by VSTECS
unless otherwise agreed in writing by an authorised officer of VSTECS.
8.2. For back-to-back order and indent order Products where Purchaser’s
request for order cancellation has been accepted by VSTECS, such act must be
exercised no shorter than twenty-one (21) calendar days from the date of
Product shipment from the Supplier to VSTECS.
8.3. For specific customized Products or build-to-order Products, VSTECS
may at its sole discretion to grant an order cancellation request from the
Purchaser provided always that the Purchaser shall be liable for fifty percent
(50%) of the cancelled order value.
8.4. For specific customized Products or build-to-order Products where the
Purchaser has paid a deposit value to VSTECS for the same, any cancellation of
such orders shall result in complete forfeiture of the paid deposit by VSTECS.
8.5. Any indulgence granted by VSTECS to the Purchaser in any particular instance within Clauses 8.3 and 8.4 shall not
constitute a waiver of such conditions.
9. DEFAULT OF PURCHASER
9.1. Without prejudice to any of VSTECS’ other rights under these T&C,
if the Purchaser breaches any of these T&C, VSTECS may at its sole
discretion and without any liability to the Purchaser;
a) Withdraw any credit facilities to the Purchaser;
b) Refuse to supply Products and Services to the Purchaser; and
c)
Terminate the
business relationship and any existing agreement or arrangement with the
Purchaser, without prior notice.
10.WARRANTIES
10.1. Certain statutory provisions may impose or restrict certain conditions
which cannot be excluded, limited or modified by
VSTECS or the Supplier, therefore all clauses within this section are to be
read subjected to those statutory provisions.
10.2. Products supplied by VSTECS to the Purchaser are covered by the
Supplier’s Warranty. Where so required, the Purchaser shall indicate
the same to the end-user at all times.
10.3. Fulfillment of warranty claims shall be subject to the Supplier’s process and
procedures always. Unless VSTECS has been appointed as an authorised Service
Representative or Agent of the Supplier for warranty events, all warranty
claims shall be referred back to the Supplier or the
Supplier’s official Service Representative at all times.
10.4. Unless specifically so instructed by the Supplier, the Purchaser
warrants that the purchase of Products from VSTECS is for the purposes of
trade, and that the Purchaser is not acquiring the Products for internal, domestic or personal consumption.
10.5. Unless specifically so permitted by the Supplier, the Purchaser
warrants that the purchase of Products from VSTECS shall be solely resold
within the Territory only. The Purchaser shall wholly indemnify VSTECS arising from any breach of this clause at all times.
10.6. To the extent permitted by law, VSTECS’ involvement for any Products
found to be non-confirming shall be as a facilitator or coordinator between the
Purchaser and the Supplier for any rectification, repair
and replacement of the affected Products.
11.LIABILITY
11.1. The Purchaser will be liable for all orders placed with VSTECS through
the Purchaser's account, regardless of whether those orders were placed in
accordance with the Purchaser's authorisations or instructions. It is the
Purchaser's SOLE RESPONSIBILITY to ensure that its account is only accessed and
used by authorised personnel pursuant to, and in accordance with, any limits on
their authority, and safeguarded from misuse by authorised or unauthorised
individuals.
a) The Purchaser will defend, indemnify and hold harmless VSTECS, its
related bodies corporate, affiliates and subsidiaries and each of their
respective officers, directors, employees and agents from and against any and
all claims, demands, proceedings, actions, liabilities, losses, damages, costs
or expenses of any kind (including reasonable attorney's fees and
disbursements) incurred or sustained as a result of, or arising out of, or
relating to any actions taken by VSTECS regarding the Products at the request
of, and consistent with, instructions provided by the Purchaser, the
Purchaser’s infringement of VSTECS’ or any third party’s intellectual property
rights, any breach of these Terms or any acts or omissions of the Purchaser or
its employees, related bodies corporate, affiliates or agents, arising from the
manner in which the Purchaser markets and sells the Products, supply by the
Purchaser of any goods or services for use in conjunction with or in relation
to the Products, or any breach or alleged breach of any applicable laws or
regulations relating to the storage, marketing or sale by the Purchaser of the
Products.
11.2. Neither party shall be liable to the other party or any other person
under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any indirect, incidental or
consequential damages sustained or incurred by the other party, whether such
liability arises directly or indirectly as a result of:
a) any negligent act or omission or willful
misconduct of such party or its employees or agents;
b) any failure to deliver Products within a specified time period;
availability and/or delays in delivery of Products; discontinuation of
Productions, product lines or any part thereof; cancellation of any orders by
the Purchaser;
c) the supply, performance or fit-for-use of any Products or Services;
d) the supply or performance of any services provided by a third party
who is not an agent of VSTECS; and
e) any breach of VSTECS’ obligations under these terms.
The limitation of liability provided herein shall
not apply to the Purchaser’s obligations stated in all other clauses contained
in this T&C.
11.3.
In no event shall
VSTECS’ liability exceed the amount of value paid by the Purchaser to VSTECS
within the last twelve (12) months and/or with the reduced amount which the
Purchaser has contributed to the loss or damage.
12.FORCE MAJEURE
12.1. If the performance of VSTECS is hindered, restricted
or prevented by any acts of God, pandemic, riots, strikes and civil commotions,
supply chain interruptions, breakdown of plant, electrical blackouts,
telecommunications outages, or any other causes beyond the control of VSTECS,
VSTECS will give notice of such cause to the Purchaser. VSTECS shell not be held in default of its obligations hereunder or held
liable for any non-deliverable of Products or Services. If the duration of such
events exceed sixty (60) days, either party may give
notice to terminate any affected orders without incurring any penalty. The
Purchaser remains obligated for all payments due for Products that have been delivered at all times.
13.CONFLICT OF INTEREST
13.1. The Purchaser hereby declares that it is not aware of any potential or
actual conflict of interest (“COI”) and promptly undertakes to disclose
to VSTECS, any potential or actual COI situation as soon as it is aware of the
same.
13.2. For the purposes of this T&C, a COI arises if:
a) any of the Purchaser’s employee, company director, or shareholder is
employed within VSTECS;
b) any of the Purchaser’s employee, company director, or shareholder is
an immediate family member of an employee of VSTECS;
c) any of the Purchaser’s employee, company director, or shareholder is
in any way related to an employee of VSTECS;
d) the Purchaser is an entity owned or controlled by an employee of VSTECS;
e) the Purchaser is an entity owned or controlled by an immediate family
of an employee of VSTECS;
f) the Purchaser has a prior standing agreement or contract of any nature
with an employee of VSTECS;
g) the Purchaser has a prior standing agreement or contract of any nature
with an entity owned by an employee of VSTECS; and
h) the Purchaser has any relation or affiliation with an employee of
VSTECS in any manner whatsoever that falls within the generally accepted term
of related-party-transactions defined in existing statute or law.
The term “immediate family member” means spouse,
children (both step and biological), siblings, siblings-in-law, parents and parents-in-law.
14.TRADE RESTRICTIONS AND SANCTIONS IMPOSED BY SUPPLIER OR SUPPLIER’S
COUNTRY OF ORIGIN
14.1. Purchaser shall be solely responsible in ensuring compliance in the
resale and use of the Products within the terms, conditions and restrictions
imposed by the Supplier, or the Supplier’s country of origin (“SCOO”).
14.2. Where the Purchaser is the subject of sanction or blacklist by the
Supplier or the SCOO, VSTECS reserves the right to refuse sale the Purchaser.
Furthermore, unless specifically stayed by a court of competent jurisdiction,
VSTECS reserves the right of disclosure to the Supplier the historical purchase
records between the Purchaser and VSTECS.
14.3. Where the Supplier or the SCOO imposes any limitations on resale,
terms of use, or any other restrictions, the Purchaser shall fully comply with the said restrictions at all times and wholly
indemnify VSTECS arising from the Purchaser’s breach of such terms.
15.GENERAL TERMS
15.1. The parties agree that each instance or a purchase order and delivery forms a separate contract on the presently current version
of VSTECS’ Terms and Conditions of Sale. It is the sole responsibility of the
Purchaser to keep informed on the latest version of this T&C, which is made
accessible on VSTECS’ website link: https://www.vstecs.com.my/
at all times. The latest version of this T&C shall supersede all
previous versions.
15.2. All notices and forms of communications that either party
may desire shall be given in writing either by mail to:
VSTECS
Astar Sdn. Bhd. / VSTECS Pericomp Sdn. Bhd. / VSTECS KU Sdn. Bhd.
Lot
3, Jalan Teknologi 3/5, Taman Sains Selangor, Kota
Damansara, 47810 Petaling Jaya, Selangor, Malaysia
Attn.:
General Manager or Assistant General Manager
Or
via e-mail to General Manager or Assistant General Manager in VSTECS at gm@vstecs.com.my effecting
the same.
15.3. VSTECS reserves the right to vary, amend, include or omit any part of this T&C which shall then
take effect on the date of availability of the new T&C being made available
on VSTECS’ website.
15.4. VSTECS reserves the right to disclose information relating
to the Purchaser’s business activities with VSTECS as part of VSTECS’
obligations to the Supplier under the same or similar requirements. The
Purchaser is obligated to provide information to the Supplier or any body authority of the SCOO in compliance and controls
related to the following:
·
US
Foreign Corrupt Practices Act;
·
UK
Bribery Act;
·
Malaysia
Anti-Money Laundering Act;
·
Malaysia
Anti-Corruption Commission Act,
and the Purchaser shall retain such
transaction records up to seven (7) years for the purposes of disclosure under
the above statutes.
15.5. The Purchaser agrees that any failure, delay
or specific indulgence granted by VSTECS to exercise VSTECS’ rights in this
T&C does not constitute a waiver of the same.
15.6. The Purchaser shall not assign or novate its rights
obligations under this T&C. VSTECS may assign any purchaser order received
from the Purchaser to any third party by giving notice to the Purchaser in
which the consent is then deemed to have been obtained.
15.7. This T&C shall be construed, interpreted
and otherwise governed and enforced under the laws of Malaysia. Both parties
hereby agree to submit to the Courts of Malaysia. The United Nations
Convention on Contracts for the International Sale of Goods and the International
Commercial Terms (INCOTERMS) shall NOT apply to this T&C.
15.8. The T&C stated in this document and any other
documents referenced to shall constitute the entire agreement about VSTECS’
sale of Products and Services to the Purchaser and shall override and supersede
all prior understandings, arrangements and agreements.
UNLESS EXPRESSEDLY AGREED IN WRITING AND EXCEPT AS PROVIDED IN CLAUSE 14, ANY
INCOMPATIBLE OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR ANY
OTHER DOCUMENT SUBMITTED BY THE PURCHASER ARE HEREBY EXPRESSLY REJECTED AND
SHALL HAVE NO FORCE OR EFFECT.
Version Date: May 2024
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