Terms and Conditions of Sale
In these Terms and Conditions, the following expression shall have the meaning as herein set out:
(a) “Customer” means the customer who has ordered the Goods from the Seller or any person acting on behalf of and with the authority of the customer;
(b) “Conditions” means these Terms and Conditions;
(c) “Contract” means the contract for the purchase and sale of the Goods;
(d) “Goods” means the goods ordered and/or purchased by the Customer from the Seller which the Seller is to supply in accordance with these Conditions;
(e) “Price” means the price of the Goods as stipulated in the Sales Order;
(f) “Seller” means Forest Contemporary Furnishing Design Sdn Bhd or any of the affiliates within its group of companies.
2.1 The Customer accepts that these Conditions shall apply to all legal relations between itself and the Seller to the exclusion of any other terms including any conditions, warranties or representations written or oral expressed or implied, even if contained in any of the Customer’s documents which purport to provide that the Customer’s own terms shall prevail. Such conditions, warranties or representations are hereby expressly excluded. Any variation from these conditions as well as verbal, telegraphic or telephone statements made by representatives of the Seller or its agents are always provisional and require a confirmation by the Seller in writing, signed by a person authorized to act on behalf of the Seller.
2.2 No person employed by the Seller, nor any agent of the Seller have any authority to make or give any representation of warranty whatsoever, whether verbal or in writing in relation to the Goods. The provision of any quotation or estimate by the Seller does not form part of any offer or representation made by the Seller.
2.3 All specifications, drawing descriptions and catalogues issued by or on behalf of the Seller are intended merely to give a general description of the items that the Seller is able to supply and any person reading them may not rely on anything contained therein as being a representation of fact concerning the goods sold by the Seller or a warranty relating thereto whether as to their condition or otherwise.
3.1 No order placed by the Customer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative.
3.2 The Customer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) placed by the Customer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the sales order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification requested by the Customer the Customer shall indemnify the Seller against all loss damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Customer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Customer except with the agreement in writing of the Seller and the Customer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. Without prejudice to the generality of the foregoing, should the Customer purport without the agreement in writing of the Seller to cancel any order which has been accepted by the Seller or refuse to accept delivery of any of the Goods such action shall constitute a breach of the Contract and, at the option of the Seller, the Seller shall be entitled to require the Customer to:- (a) pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value/total Price of the order so purported to be cancelled, which the Seller and the Customer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Customer; or (b)
pay to the Seller the full Price of the Goods delivery of which is so refused (as the case may be) upon receipt of which the Customer shall be entitled to the ownership of the Goods. In the event of the Seller so requiring the Customer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. For the avoidance of doubt, in the event that the Seller opts to require the Customer to pay liquidated damages as set out above, and the Customer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the Goods in respect of which such liquidated damages are paid.
4.1 All prices for the Goods are in Ringgit Malaysia.
4.2 Delivery charges may be charged by the Seller in addition to the Price and payable by the Customer. The delivery charges are due and payable by the Customer upon notification by the Seller.
5.1 The Customer shall pay the full Price of the Goods to the Seller before the delivery of the Goods.
5.2 The Seller may charge and collect a deposit at the time of placing the order.
5.3 Payment may be effected by:
(b) Cheque – Payment by company or personal cheque shall be received by the Seller and cleared before the delivery of the Goods;
(c) Credit Card – Upon placing of order, the Seller will carry out a pre-authorisation check on the payment card to ensure there are sufficient funds to fulfill the transaction. Goods will not be dispatched until the pre-authorisation check has been completed.
6.1 The Seller will endeavour to deliver the Goods by the estimated delivery date as stated in the sales order. For avoidance of the doubt, the estimated delivery date is for all intents and purposes, a mere estimation of the delivery date and the Seller provides not guarantee or assurance that the Goods will be delivered by the estimated delivery date.
6.2 The Customer is liable for payment of all delivery charges, including but not limited to any additional charges incurred as a result of difficulties with access.
6.3 The Customer shall ensure correct delivery address is provided to the Seller at the time of placing the order and shall notify the Seller in advance if there will be difficulties accessing the
Customer’s premises at the delivery address. The Customer is responsible to ensure there is adequate access and entry to the premises at the delivery address to allow for the delivery of the Goods.
6.4 The Seller reserves the rights to make part deliveries of any order. Failure to deliver all the Goods at any one time shall not invalidate the order placed by the Customer.
6.5 If the Customer do not accept the delivery or collect the Goods within fourteen (14) days upon notification of readiness of the Goods, the Customer becomes immediately liable to:
(a) pay the full Price for the Goods;
(b) arrange for the Goods to be delivered to a storage facility of the Customer’s choosing
and the Customer is liable to all incidental charges including but not limited to the delivery costs and storage fees.
6.6 If a delivery is delayed by the Customer after being notified by the Seller of the readiness, the Seller shall be, without prejudice and in addition to its rights under clause 6.7, entitled on the
expiry of fourteen (14) days after notifications of readiness of the Goods for delivery, to invoice the Customer for storage costs if the Goods are stored in the warehouse of the Seller or by an
authorized agent. In any case the Seller reserves the right to invoice at least 1% of the invoice amount for every calendar month or a minimum charge of RM200 per month. This rate shall
be higher if the Seller incurs higher costs. The Seller shall be entitled to fix appropriate extended period of grace and on its expiry without delivery having been taken, to dispose otherwise of
6.7 In the event that the Customer fails to perform its obligation under this clause, the Seller shall be entitled at its discretion, to rescind the Contract in which event:
(a) the Seller is entitled to forfeit all payment received by the Seller from the Customer;
(b) the Customer shall waive all its claims and rights to the Goods.
7. Cancellations, Variations, Replacements & Returns
7.1 No cancellations or variation of sales order are allowed. Goods sold are not returnable and deposit/payments are non-refundable.
7.2 The Seller reserves the right, at its discretion and without the need to give reasons, not to accept any offer at any time before it has been accepted.
7.3 No variation of orders are allowed unless agreed by the Seller. The Customer is responsible to pay variation charges as imposed by the Seller.
7.4 The Seller reserves the right to refund the Customer should the Goods ordered be discontinued or unavailable by any reasons whatsoever before delivery
8.1 Seller warrants that all Goods manufactured by Seller shall, at the time of sale, comply with applicable Seller specifications. All Goods not manufactured by Seller are sold only with the
warranties provided by the manufacturer of the Goods, if any, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.2 The Seller expressly excludes liability arising from:
(a) failure to comply with the Seller instructions of fitting or installation; or
(b) use of Goods in excess of performance or load bearing specifications stated in the Seller’s catalogues, drawings or descriptions; or
(c) any modifications or adaption made to the Goods by the Customer or any third party; or
(d) damages due to the negligence of the Customer; or
(e) any defect in the Goods arising from any drawing, design or specification supplied by the Customer; or
(f) any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alternation or repair of the Goods without the Seller’s approval.
8.3 Without prejudice to the above sub clauses, the Seller’s liability for any defect shall be limited to replacing the defective Goods due to manufacturing defects or refunding to the Customer the Price of those Goods against redelivery of those Goods from the Customer to the Seller. Under no circumstances shall the Seller be liable for any indirect or consequential loss of any nature suffered by the Customer and arising out a defect.
8.4 Unless any complaint about quality of the Goods are received in writing by the Seller within two (2) days from the actual delivery thereof the Customer shall be deemed to have accepted
the Goods as being free from defects and in accordance with contractual quantity.
9.1 The Seller shall not be responsible for any delay in performing any of its obligations where the delay is caused by factors beyond the Seller’s control including but not limited to delay caused by the supplier or manufacturer, production delay or shipping and transportation delay
10. Force Majeure
10.1 The Seller shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God,
flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency,
revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability
or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (hereinafter collectively referred to as “Force Majeure Events”).
10.2 The time for performance of the Contract by the Seller shall extended by an appropriate period equivalent and/or correspond to the period of subsistence of the relevant Force Majeure Events.
11. Risk and Title
11.1 All risks in the Goods are passed to the Customer on delivery of the Goods. Delivery occur at the earlier of:
(a) where the Seller deliver the Goods to the Customer at the delivery address, when the Goods are unloaded at the delivery address;
(b) where the Customer arranges to collect the Goods from the Seller, when the Seller load the Goods onto the transportation of the Customer or its agent.
11.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Seller has received
in cash or cleared funds payment in full of the Price of the Goods and payment in full of all sums due from the Customer to the Seller whether under the Contract or by virtue of any other liability of the Customer to the Seller.
11.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored protected and insured and identified as the Seller’s property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for such part of the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, as is equivalent to the invoice value/Price of the Goods and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
11.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require
the Customer to deliver up the Goods to the Seller and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
11.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Customer does so all moneys owing by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) become due and payable.
11.6 For the avoidance of doubt, nothing contained in this Clause shall entitle the Customer to return any of the Goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Customer.
12. Intellectual Property
12.1 All intellectual property rights including but not limited to trademarks (whether registered or unregistered), logos, brand names, copyrighted material, techniques, methods of manufacture,
photographs, specifications, artwork, text, patented inventions, utilities innovation and designs remain the property of the Seller.
12.2 The Customer shall not allow any intellectual property of the Seller to be reversed engineered, copied or infringed in any other manners.
12.3 The Seller reserves the rights to claim compensation from the Customer for all losses or damages suffered arising from the infringement of the Seller’s intellectual property rights.
13.1 The Customer agrees to indemnify the Seller against all liabilities, losses, damages, costs, claims, fines or expenses which the Seller may suffer as a result of the breach of the Contract and/or these Conditions by the Customer including its directors, officers, employees, agents, contractors, franchisees, successors or assigns.
14. Personal Data Protection Policy
14.1 The Customer authorizes and consents to the collection of its personal information by the Seller.
The Seller will abide by its Personal Data Protection Policy, a copy of which is available by request.
14.2 The Customer authorize and consent to the transfer of its personal information to the Seller’s supplier and/or manufacturer of the Goods as and when necessary or to any third party to allow the Seller to conduct its business to the extent permitted under its Personal Data Protection Policy.
15. Governing law
15.1 The Contract and these Conditions shall be construed in accordance with the laws of Malaysia.
16.1 All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) required to be in writing under these Contracts shall be addressed to the parties at the addresses or the contact number provided or to such other address or contact number that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, courier, facsimile, certified or registered mail, WhatsApp, WeChat, Line.
Except as otherwise provided in these Condition.
17.1 If one or more of the provisions of the Contract or these Conditions shall be invalid, illegal or unenforceable in any respect under any applicable law or decision, the validity, legality or enforceability of the remaining provisions contained herein shall not be affected or impaired in any way.
18.1 Waiver of any breach of this Contract or Conditions or of any right, power, authority, discretion or remedy arising upon a breach of or default under this Contract or Conditions, must be in writing and signed by the party granting the waiver. A breach of or default under this Contract or Conditions or is not waived by any failure or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under this Contract or Conditions.
19. Successors bound
19.1 This Customer’s obligations, undertakings, covenants under the Contract or Conditions shall be binding on their respective heirs, personal representatives, and successors in title.