General Terms and Conditions for The Sale of Products or Services - NTK Industrial Sdn. Bhd.
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General Terms and Conditions for The Sale of Products or Services

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Definitions

1.1 “Terms and Conditions” means these “General Terms and Conditions for the Sale of Products or Services”, together with any modifications or additional provisions specifically stated in The Company’s final business order documents or specifically agreed upon by The Company in writing.
1.2 “The Company” means NTK Industrial Sdn Bhd, together with its Affiliates.
1.3 “Order” means an order placed with the company for the supply of goods.
1.4 “Customer” means the person, firm or company from whom an Order is received.
1.5 “Goods” means the articles, items or things or any of them described in an Order.
1.6 “Contract” means the contract constituted by any Order and its acceptance.

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Preamble

2.1 Sale of any Products or Services is expressly conditioned on Customer’s assent to these Terms and Conditions. No Customer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of The Company.
2.3 Any advice or recommendation given by the Company or its employees to the customer as to the storage, application or use of the Goods which is not confirmed in Writing by the Company is followed or acted upon entirely at the customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.4 Any bona fide typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.5 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

Orders, Acceptance, and Contracts

3.1 All Order, Acceptances and Contracts are subject to these Conditions and nothing is to vary or over-ride them unless agreed to in writing signed on the Company’s behalf. By placing the order and accepting the goods supplied by us, the Customer confirms its agreement with the Company’s Conditions.
3.2 All brochures, catalogues, manuals and other like material are issued by way of general description only and nothing contained therein, nor any representation of whatever kind shall be binding upon the Company.

 

Intellectual Property Rights

4.1 In the absence of written agreement to the contrary, The Company holds the copyrights and all rights of (industrial) property to the offers it has made and the designs, images, drawings, prototype, tests models, software, templates and other goods that it has issued.

Confidentiality

5.1 The Customer is obliged to treat all information, knowledge and other industrial secrets in connection with the execution of the respective order in strict confidence and not to pass on or make available any information, documents, documentation, drawings, sketches or other papers to third parties without the express permission of the Company. The Company shall also treat all Customer documentation in confidence.

Force Majeure And Excusable Delay

6.1 The Company shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to:

  • Customer, including omissions or failure to act on the part of Customer or its agents or employees;
  • An Event of Force Majeure, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization;
  • Causes beyond The Company’s reasonable control, including severe accidents at Supplier’s plant, unforeseen production or engineering delays or inability of The Company or its vendors to secure adequate materials, manufacturing facilities or labour, or any other acts and causes not within the control of Supplier, which by the exercise of due diligence and reasonable effort, Supplier would not have been able to foresee, avoid or overcome.

Governing Law & Jurisdiction

7.1 All contracts and order processing entered into by the Company shall be governed by Malaysian Law (Law of Singapore for Affiliates in Singapore), of which the Customer and the Company hereby submit to the exclusive jurisdiction of the appropriate courts in Malaysia/ Singapore (for affiliates in Singapore).

Quotation

(I) The price set for in Quotation (“Price”) are in Malaysian Ringgit (Singapore Dollar for Affiliates in Singapore). Quotations may be changed due to quantity adjustment, currency fluctuations, prior sale, manufacturer price revision or product withdrawal, with prior notice to the Customer.
(II) Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted Prices, quantities, and/or the scope of Products offered, unless such modification or addition is agreed to in writing by Supplier prior to the Purchase Order.

 
(III) The Company reserves the right to make design changes and other changes to technical data and performance characteristics if they are in the interests of technical progress. The Company will also announce such changes, as well as product discontinuations with a reasonable notice period.
(IV) All quotations are made on the understanding that the whole of the quantity quoted for will be ordered; otherwise, the Company reserves the right to revise the quotation.
(V) The Company reserves the rights, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase of the cost to the Seller which is due to:

  • any factor beyond the control of the Company (such as without limitation any foreign exchange fluctuation, currency regulations, alterations of duties significant increase in the costs of labour, materials or other costs of manufacture); or
  • any change in the delivery dates, quantities or specifications for the Goods which is requested by the Customer or any delay caused by any instructions of the Customer to give the Seller the adequate information or instructions.

Sales Order

(I) The Company’s provision of services are strictly quoted based on normal working hours (Monday – Friday from 8.30am to 5.30pm) only, excluded for Saturday and Sunday, night shift, public holidays and other special working hours.
(II) Each order will constitute a separate contract for the supply of goods or services on the Standard Terms herein. No order in whole or in part which The Company has accepted may be cancelled or changed by Customer, except by The Company’s express written consent, which may be conditioned upon a cancellation fee.
(III) Customer may cancel its order only with the prior written consent of The Company, which The Company may withhold in its sole discretion. All cancellations will be subject to payment to The Company of reasonable and proper cancelation charges. Customer may return Products at its sole cost and only with the prior written authorization of The Company, subject to a restocking fee as agreed by the parties. No returns of special, custom, or made-to-order Products will be permitted.
(IV) Any time quoted for delivery is an estimate only. Title and Risk in each order passes to Customer upon delivery of that order to Customer or collection of that order by Customer’s agent or any courier as the case may be.
(V) Where services, repairs and maintenance work are required to be carried out at Customers premises with respect to The Company’s products, the Customer shall ensure that all laws, rules and regulations on occupational safety and health standards are complied with and a safe environment for The Company’s employees to work. Customer shall always inform The Company of any potential hazards which may be encountered by The Company’s employees prior to the services, repair and maintenance works.
(VI) Customer shall indemnify, defend and hold harmless The Company, its officers, directors, employees, servants or agents from and against any and all claims (in whatever form and to the fullest extent permitted by law), damages or losses arising out of or in any way connected with carrying out the said services, repairs and maintenance at Customer’s premises but only to the extent of, any negligence, omissions or defaults of Customer or anyone acting on Customer’s behalf or under its instructions.

Delivery

(I) The Company shall pack all products in accordance with its standard commercial practices. If the customer has any special shipping or handling requirements, customer shall notify the Company in a timely manner regarding any such special requirements, and customer shall be responsible for any additional packing cost in accordance with the special requirement.
(II) The Company’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. The company shall have no liability for delay or any damages or losses sustained by Customer as a result of such estimate not being met.
(III) In relation to the shipment arrangement, customer may opt for either of the following options:

  • Net Delivered in which The Company is at its cost, responsible for arranging carriage and for delivering the goods, ready for unloading from the arriving means of transport, at the customer’s named destination. Subsequently, risk transfers from The Company to customer when the goods are available for unloading at the destination.
  • Ex-NTK/ Ex- NTKSG/ Ex-NTKG in which The Company makes the product available and readily packed at NTK Industrial, NTK Global Engineering or its affiliates, in accordance with customer’s designated method of transport and transport costs.
    • Customer shall appoint own transporter for collection of goods, meanwhile to notify The Company on the transporter particulars and truck details one day before the collection of goods.
    • During the reverse pick up, customer’s appointed transporter shall prove the identity by showing the packing list to The Company for goods collection.
    • As soon as the goods is released by The Company, the customer’s appointed transporter whom receive the goods is conclusively presumed to be authorized to receive the delivery. Above all, the process is verified complete, and the Invoice will be valid with immediate effect.
(IV) Upon receipt of the goods, the customer shall examine them for defects (if any) without undue delay. Any notification of defects must be in writing and shall precisely specify the type and extent of the defect within 24 hours of goods receipt. Failure to report at the time of any inspection or test and / or the approval given during or after such inspection or test shall not constitute a waiver by The Company of any rights or remedies in respect of the Goods.

Warranty

(I) Every effort is made to sure sound material and good workmanship but the Company gives no warranty expressed or implied of materials, workmanship, fitness of goods for any particular purpose whether such purpose be known to the Company or not.
(II) The Company warrants that the Products shall be free from defects, including latent defects, in material and workmanship under normal use and service when operated in accordance with its operating instruction for 12 months from shipment for Products.
(III) The Company provides repair and maintenance warranty limited to parts provided by The Company for the products. Such warranty period is strictly one hundred and eighty (180) days from date of delivery. The warranty does not cover equipment’s performance, i.e. flow rate, discharge
(IV) The Company shall assume no liability for losses or damages incurred as a result of:

  • Inappropriate of improper use or storage prior to commencement of operations
  • Incorrect assembly or repairs by the customer of third parties
  • Natural wear and tear, incorrect or careless treatment, unsuitable operation techniques
  • Unqualified construction work
  • Factors of a chemical, electrochemical or electrical nature beyond the Company’s Control
  • Obvious mistakes, print, calculation, typing and costing errors
(V) Customer shall provide prompt written notice of the Product’s failure within the Warranty period, and ensure the failed Product is properly packed and returned to Supplier transportation and insurance prepaid upon approval attained by the Company for return, and the company shall make the final determination as to the existence and cause of any alleged defect.
(VI) The Company’s liability in respect of or consequent upon any such defects (whether in original or replacement goods) is limited as above mentioned and in no circumstances whatsoever will the Company be liable for loss of profit or other consequential damage howsoever caused.

Invoice

(I) Customer shall pay for all Products delivered or date services performed in accordance with the payment term and due date as stipulated on the Invoice. Payment shall be deemed to have been made when a check is received by The Company or payment is received by an electronic transfer in The Company’s bank account
(II) The Company reserves the right to assess interest on any late payments from the date due until receipt of payment in full at the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse The Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs.
(III) In addition to any remedies under law, The Company may at its sole discretion suspend future deliveries or services until all delinquent payments due are received. The Company may require an advance payment or milestone payments prior to beginning performance of the Purchase Order, whereas a letter of credit may be required for international orders on case basis. All payments hereunder shall be paid without any deductions, set-off, or counter-claims including for any Taxes.
(IV) If customer disputes any invoice or portion thereof, it shall notify The Company in writing within seven (7) working days of receipt for the said invoice, detail the reason for the dispute, and pay all undisputed amounts in accordance to the payment terms. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
(V) Any credit granted to Customer may in the sole discretion of The Company be reduced or withdrawn at any time, any previously approved payment terms to the contrary notwithstanding. Seller reserves the right to withhold, suspend or stop in transit any shipment should any doubt arise as to Customer’s credit or financial responsibility.

Supplier Terms & Conditions for The Supply of Goods

Whereas “Seller” is defined as the supplier of products and services required by the Buyer, while “Buyer” defined herein as NTK Industrial Sdn Bhd, together with its Affiliates.

(I) Price. This is a firm price order.
(II) Changes. The Buyer reserves the right at any time to issue a written change order or amendment to the Purchase Order concerning any of the following:

  • specifications, drawings, and data incorporated in the Purchase Order where the items to be furnished are to be specially manufactured for the Buyer
  • quantity
  • methods of shipment or packaging
  • place of delivery
  • time of delivery, or any other matters affecting this Purchase Order.
(III) Assignment. Seller may not assign, transfer, or subcontract this Purchase Order or any right or obligation hereunder without Buyer’s written consent.
(IV) The Goods. The Supplier shall supply the Goods in accordance with the terms set out in the Purchase Order. The Goods shall:

  • be to the reasonable satisfaction of the buyer;
  • be fit and sufficient for all purposes for which such Goods are generally used and for any specific purpose made known to the seller by the buyer
  • be of the same quality and description as any sample provided
  • comply with any requirements or specifications given on the Purchase Order.
(V) Packaging, packing list, and bill of lading and delivery. Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation. Delivery to Buyer shall be construed as the on-dock date at Buyers facility (required date) as noted on Purchase Order.
(VI) All goods and services furnished hereunder will be subject to inspection and test by Buyer at all times and places and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. It is the supplier’s responsibility to ensure that all product, assembly, material and process specifications reflect the latest revision levels. If Seller delivers non-conforming goods, Buyer may at its option and at Seller’s expense:

  • reject and return the goods for credit or refund;
  • require Seller to promptly correct or replace the goods;
  • Repair, replacement and other correction and redelivery shall be completed within the original delivery schedule or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this purchase order or another. Payment for any goods or services shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected goods or services.
(VII) Warranties.By accepting this Purchase Order, Seller warrants that the goods and services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data, and Seller’s descriptions, promises, or samples, and that such goods will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, and that Seller will convey good title to the goods, free and clear from all liens, claims, and encumbrances. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all liability, loss, damage and expense, including reasonable counsel fees and costs of litigation, resulting from any claim of infringement and any litigation relating thereto.
(VIII) Confidentiality; Limited Use. Unless otherwise agreed by Buyer in writing, Seller shall keep confidential and not disclose to any third party, any confidential and/or proprietary materials provided by Buyer to Seller in connection with Seller’s performance of this Purchase Order or prepared by Seller specifically for Buyer pursuant to this Purchase Order, including but not limited to any drawings, masters, software, specifications, raw materials, components, data, business information or plans, customer lists or other customer information (“Confidential Information”). Seller shall not make any copies of Confidential Information except as specifically authorized by Buyer in writing. At the completion of this Purchase Order, or upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information not consumed in the performance of this Purchase Order, together with any copies in Seller’s Possession. Seller shall use Confidential Information solely for Seller’s performance of this Purchase Order for Buyer, and Seller shall not, without Buyer’s written consent, directly or indirectly use Confidential Information or information derived there from in performing services or providing goods for any other customer of Seller, or any other person or entity.
(IX) Resolution of conflicts or inconsistencies occurring in the order. It is Seller’s responsibility to comply with this Purchase Order and all referenced documents, and to clarify with Buyer any inconsistencies or conflicts in any parts of the Purchase order or referenced documents. Should Seller fail to contact Buyer to resolve conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.
(X) Buyer’s terms and conditions apply. Acknowledgment of the Purchase Order, shipment of any goods, or commencement of work pursuant to the Purchase Order shall be deemed an acceptance of the General Terms and Conditions. No modification of or release from this Purchase Order shall be binding unless agreed to in writing by the parties and specifically labelled as a modification or release.
(XI) Extra Charges. No charges for extras or for cartage or boxing or storage will be allowed unless the same has been agreed upon in writing by Buyer. All goods must be forwarded in accordance with Buyer’s shipping instructions, otherwise the difference in freight rate will be charged to Seller.