1.1 These General Terms and Conditions shall apply to all offers by and agreements with the Company and its legal successors, as well as to associated companies or with said successors (together as well as individually hereinafter called “the Company”), relating to the delivery of goods by the Company to the party the offer is addressed to or the other party concerned (hereinafter called “the Customer”).
1.2 The applicability of the Customer’s general terms and conditions is hereby explicitly rejected.
1.3 Any stipulations deviating from these General Terms and Conditions shall only apply in the event that and insofar as they have been accepted by the Company in writing.
Any offer made by the Company shall be without prejudice and subject to contract; this shall also apply in the event that said offer includes a period for acceptance, unless explicitly provided for to the contrary in writing.
3.1 An agreement, in this article, including any changes and/or additions thereto, shall not be binding upon the Company until and agreed upon in writing by the Company.
3.2 An agreement is concluded in writing at the moment when the contract is signed by the board of management of the Company and by the Customer, or on the date of dispatch (by post and/or by telefax) by the Company of the written order confirmation signed by its board of management, or of the Company’s invoice. Any promises made by and/or any arrangements with subordinates of the Company shall not bind the Company, unless these have been confirmed by the board of management of the Company in writing.
3.3 The contract represents the contents of the agreement completely and correctly. The order confirmation by the Company or the Company’s invoice shall be deemed to represent the contents of the agreement correctly, unless the Customer protests against its contents forthwith in writing and motivated.
3.4 Slight deviations with customary tolerances shall be permitted at the execution of the agreement.
3.5 Unilateral cancellation by the Customer shall be null and void unless the Company agrees to such cancellation in writing.
4. Notices, Information and Statements
Any notices, information, statements and samples made or supplied by the Company in whatever form or nature shall only be indicative and shall never bind the Company, unless the agreement explicitly provides for the contrary.
The Customer shall observe confidentiality towards any third party in the broadest sense of the word regarding any and all business information relating to the Company, which has been brought or come to his knowledge by the Company and/or within the framework of the offer or the agreement.
6.1 The prices stated and/or agreed upon by the Company shall be exclusive of taxes – including Sales and Service Tax (SST) unless stated herein otherwise and levies, and shall be based on the Terms and Conditions (of delivery) as mentioned in the following articles.
6.2 The Company shall have the right to increase the stated and/or agreed prices in the event of an increase in prices of goods, raw materials or parts to be obtained from third parties, wages, national insurance contributions, freight, insurance premiums or other cost price factors (including changes in foreign exchange) and charges (including import and transit duties). In the event that a price increase takes place after the conclusion of the agreement, the Customer shall be entitled at his discretion to proceed or to dissolve the agreement.
- Delivery, Delivery period, Delivery time
7.1 Unless explicitly agreed upon otherwise, the delivery shall be made “Ex Works” (EXW) from the premises of the Company. The interpretation of the terms and conditions of delivery shall be determined by the most recent edition at the time of conclusion of the agreement of the Incoterms, as issued by the International Chamber of Commerce.
7.2 The delivery period shall commence at the latest on:
– the date of conclusion of the agreement;
– the date at which the Company has at its disposal all the documents, information, permits, exemptions, approvals, allocations, etc, needed for the delivery of the goods;
– the date of receipt of a prepayment by the Company and/or the date of provision of a security the Company is entitled to in accordance with the agreement.
7.3 The delivery period shall be based on the circumstances applicable at the time of conclusion of the agreement and on the timely delivery of the materials and goods ordered by the Company for the execution of the agreement. In the event that any delay arises as a result of changes in these circumstances or because the materials and/or goods timely ordered for the execution of the agreement have not been delivered in time, the delivery period shall be extended to such a degree as is reasonable, taking all circumstances into consideration.
7.4 The delivery date of the goods shall be the moment in time when the goods, with the exception of unimportant parts, are ready for shipment, and the Company has informed the Customer thereof, or the time when the goods have left the premises of the Company to be forwarded to the Customer.
7.5 The Company shall be entitled at all times to make partial deliveries, unless explicitly agreed upon otherwise.
7.6 The delivery date shall not be considered to be a firm date, unless explicitly agreed upon otherwise. In the event of attributable exceeding of the delivery date, a notice of default shall always be required. The Customer cannot derive any rights from attributable exceeding of the delivery date insofar as a term of one (1) month is not exceeded.
7.7 In the event that the Company is in default with regard to the delivery date, the Customer shall only have the right to dissolve the agreement. In that case prepaid amounts shall be refunded, without any compensation for interest, however.
8.1 In all cases and irrespective of the agreed terms and conditions of delivery, the Company shall be entitled to have the goods transported, unloading inclusive, at the expense and risk of the Customer, in a manner to be determined by the Company and using means of transportation at the Company’s option.
8.2 The Company shall not be responsible for (the use by the Customer of) any documents (provided by the Company) for the transportation of the goods to the place of destination.
8.3 Upon the request of the Company, the Customer shall provide all necessary securities for the documents needed to transport the goods to the place of destination.
8.4 In the event that circumstances beyond the control of the Company prevent the goods from being transported to or onto respectively delivered at the agreed place, or in the event that the Customer fails to take delivery of the goods, the Company shall have the right – at its option – either to take the products back or to store the goods (or have them stored) at the expense and risk of the Customer. Any costs of return shipment and storage shall be payable by the Customer, while the Customer shall furthermore be obliged to fulfill his obligations to the Company as if delivery had taken place. The costs referred hereto shall be determined in advance by the Company and the Customer jointly at twenty (20) per cent at least of the agreed price, without prejudice to the right of the Company to compensation of the actual costs should these be higher.
9. Risk and Transfer of Property
The Customer shall bear the risk of any and all direct and indirect damage that may be caused to the goods, immediately after the goods are considered as delivered.
10.1 Unless explicitly agreed upon otherwise in writing, payment of the agreed price shall be made at the time of formation of the agreement.
10.2 Any and all payments shall be made without deduction or settlement, effectively in the currency as stated on the invoice. In the event that the Customer alleges to have a claim on the Company with regard to the performance of the agreement, he will not be discharged from his obligation to pay in the manner agreed.
10.3 In the event that the Customer has not paid at the time or within the period of time referred to in paragraph 1 of this article, he shall be in default by operation of law and without any prior notice of default being required, and he shall owe the statutory interest on the amount due and payable from the date at which the payment should ultimately have been made, without prejudice to any other rights of the Company (explicitly including the right to compensation of loss on exchange).
10.4 Any costs, both in and out of court, made by the Company with regard to non-fulfillment, overdue or non-sufficient fulfillment of his obligations by the Customer, including extrajudicial collection costs and costs of legal assistance shall be compensated by the Customer to the Company on solicitors-clients basis. The Company and the Customer jointly shall determine the extrajudicial collection costs in advance at twenty (20) per cent of the principal sum due, without prejudice to the right of the Company to compensation of the actual costs should these be higher.
11. Return Shipments
It shall not be permitted to return any goods delivered by the Company without the Company’s prior written consent. Should any return shipments take place, then this shall at all times be done at the expense and risk of the sender.
- Complaints and Guarantees
12.1 Complaints can only be made in respect to the quantity, weight as well as to non-conformity of the delivered goods.
12.2 The Customer shall check forthwith the goods ultimately on arrival.
12.3 Any complaints with regard to relevant defects observable at inspection of the goods, as well as complaints in connection with quantity and weight shall be made in writing within 24 hours after the delivery, and include a complete description of the alleged defects, on default of which any claim in this respect shall become void.
12.4 Any claim of the Customer with regard to delivered goods shall also become void in the event
(a) the goods have been processed or the goods are otherwise not (or no longer) identifiable as originating from the Company;
(b) the defects are (also) caused by inexpert and/or incorrect treatment, use and/or storage or maintenance of the goods;
(c) the Customer has not forthwith given the Company the opportunity to investigate the complaints and to fulfill its obligations;
(d) the Customer has not in time or sufficiently fulfilled any obligation to be fulfilled by him.
12.5 Without prejudice to the provisions in the previous paragraphs of this article, in the event of timely and justifiable complaints, the Company shall only be obliged at its absolute discretion to either replace the goods or to refund the Customer for the defective goods. These General Terms and Conditions shall apply unimpaired to redelivery.
13.1 The Company’s liability under the agreement shall be limited to fulfillment of the obligations described in the agreement, in particular the obligations described in the previous article.
13.2 The Company’s liability shall never include business damage or any other indirect damage or consequential losses.
13.3 With the exception of gross negligence or intent, the Company shall never be liable for direct or indirect damage, including business damage or consequential losses, resulting from the infringement of any intellectual or industrial property rights, licenses or any other rights of third parties.
13.4 Should the Company be held liable by any third party/parties for any damage for which the Company is not liable pursuant to these General Terms and Conditions or otherwise, then the Customer shall be obliged to hold harmless and indemnify the Company against such damage and liability and to compensate it for any possibly ensuing costs, damage and interest.
13.5 The limitations and exclusions of liability, as well as indemnity stipulated herein for the Company in the above paragraphs are also stipulated for and on behalf of its employees and personals, any other person employed by it within the framework of the agreement.
14. Force Majeure
14.1 The term force majeure in these terms and conditions shall mean any circumstance beyond the Company’s control, whether or not foreseeable at the time of conclusion of the agreement, which permanently or temporarily prevents fulfillment of the contract, and, insofar as these are not yet included, war, danger of war, civil war, revolt, strike, employees’ lock-out, freight problems, fire, weather conditions preventing work and other interruptions of the Company’s operations or of the operations of the Company’s suppliers, as well as default of the Company’s suppliers.
14.2 In the event of impediment to the performance of the agreement as a result of force majeure, the Company shall have the right at his absolute discretion without any judicial intervention, either to suspend the execution of the agreement for a maximum of three (3) months or to wholly or partially dissolve the execution of the agreement, without the Company being obliged to pay any compensation.
Any term condition stipulation provision covenant or undertaking in this Agreement which is illegal void prohibited or unenforceable shall be ineffective to the extent of such illegality voidness prohibition or unenforceability without invalidating the remaining provisions hereof.
16. Dispute Resolution and Applicable Law
16.1 With regard to any and all disputes in connection with the agreement, the court in Malaysia shall have exclusive jurisdiction.
16.2 The agreement, as well as any and all further agreements arising or resulting from or in connection with said agreement, shall be governed by and construed in accordance with the laws of the Malaysia.
- Registration and Account Security
17.1 All users of YKherbs.com.my shall provide their real names and information upon registration and maintenance of their account subject to the following: –
(a) No false personal information on YKherbs.com.my or creation of accounts for others without permission.
(b) Only one (1) account for each user.
(c) All personal information and contact particular shall be accurate and up-to-date.
- Personal Data Protection Act
18.1 The Personal Data which is controlled, processed and/or used by the Company including but not limited to your name, age, date of birth, identity card number, contact details, occupation, preferences, interests, other information relevant to the purposes stated herein.
18.2 Your Personal Data is collected directly from information and/or documents which you have provided to us and where necessary, from third parties and from the public domain or online platforms.
18.3 Your Personal Data may be controlled, processed and/or used by us for the following purposes:
(a) Respond to queries or requests submitted by you
(b) Process orders or applications submitted by you
(c) Administer or otherwise carry out our obligations in relation to any agreement you have with us
(d) Anticipate and resolve problems with any goods or services supplied to you
(e) Create products or services that may meet your needs.
18.4 To optimize our services we may wish to use your personal data for direct marketing. As we respect your privacy we will only use your personal data for this purpose when you are aware thereof and if required we will request your consent prior to using your personal data for direct marketing. Please note that the supply of personal data by online form by you is voluntary.
18.5 If hereafter you do not wish to provide your consent to us for the processing of your Personal Data in relation to the purposes listed herein above or hereafter wish to opt out, you may do so by notify us as set out below. We will stop the use of your information for such purposes as soon as it is reasonably possible to do so.
18.7 The provision of your Personal Data to us is on voluntary basis. You may at any time hereafter withdraw your consent for us to collect, process, use, store or limit the processing of your Personal Data for any of the purposes mentioned above by notifying us in writing.
18.8 If you do not provide your Personal Data or if insufficient Personal Data is supplied to us when requested, we may not be able to communicate with you and this may affect our ability to fulfill the purposes mentioned above.
18.9 If you do not wish for your Personal Data to be collected via cookies on our website, you may deactivate the cookies.
18.10 We may disclose your Personal Data to our employees, our affiliates, our strategic partners, our service providers/vendors, our appointed agents, our consultants, our legal advisors, our external auditors and any person who is under a duty of confidentiality to our company.
18.11 If necessary and expedient, we may also disclose your Personal Data to any other third parties including but not limited to professional bodies, training institutions, banks, financial institutions, any governmental and/or non-governmental authorities, agencies, bodies or departments.
18.12 We shall disclose your Personal Data to whom we are compelled or required to under the law.
18.13 Your Personal Data may be transferred for any of the purposes mentioned hereinabove to any of the above-mentioned parties who are located within or outside Malaysia.
18.14 Any Personal Data supplied by you will be retained by us as long as it is necessary and expedient for the fulfillment of any purpose as stated above pursuant to our internal practices, regulatory requirements, legal and accounting requirements.
18.15 We are committed to ensuring that your Personal Data is stored securely in our databases and in our offices.
18.16 All reasonable efforts and practical steps are made to ensure that any Personal Data held by us is protected against any loss, misuse, modification, unauthorized or accidental access or disclosure, alteration or destruction.
18.17 To ensure that your Personal Data in our retention is accurate and up-to-date, you are advised to notify us promptly in the event of any inaccuracy or any changes to your Personal Data.
18.18 We may request for new Personal Data from you from time to time. By providing us with your Personal Data or continuing to communicate with us, we shall regard that you have consented to the processing of such data.