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TERMS AND CONDITIONS

TERMS AND CONDITIONS

1. INTERPRETATION

  1. In these conditions:
    “Buyer” means the person who accept a quotation of KEYENCE for the sale of the Products or whose order for the Products is accepted by KEYENCE.
    “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and KEYENCE.
    “Products” means the goods (including any trial units, instalment of the goods or any parts for them) which KEYENCE is to supply in accordance with these Conditions.
    “Services” means the services to be provided by KEYENCE set out in the invoice (if any) and any related services, functions or responsibilities which are reasonably required for the proper performance of the Products make available upon request by the Buyer;
    “Goods and Services Tax (“GST”)” means any tax imposed or tax of similar nature enforced by the Malaysian authorities on the supply of Products or services within the meaning of the GST Act.
    “GST Act” means the Goods and Services Tax Act 2014 and all related ancillary legislations which provides a broad based consumption tax on the supply of Products and services which become operative in respect of the provisions of these Conditions.
    “KEYENCE” means KEYENCE (Malaysia) Sdn Bhd.
    “Writing” includes electronic data interchange, electronic mail, telex, cable, facsimile transmission and comparable means of communication.
  2. 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 to the relevant time.
  3. The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. BASIS OF THE SALE

  1. KEYENCE shall sell and the Buyer shall purchase the Products in accordance with any written quotation of KEYENCE which is accepted by the Buyer, or any written purchase order of the Buyer which is accepted by KEYENCE, subject in either case to these Conditions, which shall govern such sale and purchase to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.
  2. No variation to these Conditions shall be binding unless agreed in Writing between the Buyer and KEYENCE.

3. ORDERS

  1. No purchase once submitted by the Buyer shall be deemed to be accepted by KEYENCE unless and until confirmed in Writing by KEYENCE or its authorised representative.
  2. No order which has been accepted by KEYENCE may be cancelled by the Buyer except with the agreement in Writing by KEYENCE and on terms that the Buyer shall indemnify KEYENCE 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 KEYENCE as a result of cancellation.

4. DELIVERY; RE-STOCK CHARGE

Delivery of the Product shall be subject to stock availability and partial delivery shall be allowed. Each delivery shall constitute a separate contract. The Buyer waives the right to make any deduction from payments due to KEYENCE in respect of any set-off or counter-claim unless KEYENCE agrees in Writing. The products are sold Ex-Works and Buyer assumes all risk of loss or damage to the Products. Any return for exchange or credit must be made within seven (7) days of the invoiced date and Buyer must pay a restocking charge equivalent to 25% of the original quoted price of the Products in question to KEYENCE for such return.

5. PRODUCT MODIFICATION; DISCONTINUANCE

  1. The Products shall be supplied in accordance with the description contained in KEYENCE’s quotation.
  2. KEYENCE may from time to time modify or discontinue the supply of the Products, provided that any Products for which any purchase order has already been accepted and confirmed by KEYENCE before such a proposed modification or discontinuance shall still be delivered by KEYENCE.

6. PRICES AND PAYMENTS

  1. The price of the Products shall be at KEYENCE’s quoted price and the price is exclusive of any applicable GST which the Buyer shall be additionally liable to pay to KEYENCE. All payments are due next 30 days of invoice dates unless otherwise expressly stated in the invoice.
  2. The prices and terms of payment stated in the invoice are not subject to any discount, rebate or modification. Notwithstanding the foregoing, where at anytime between the invoice date and the payment date, there is an increase in the Products’ cost to Keyence due to:
    • (a)any new legislation or regulations;
    • (b)any additional duties or tariffs; or
    • (c)any change in the foreign currency exchange rates;
    then, in the case of (a) and (b), such an increase shall be added to the invoice and be payable by the Buyer, and in the case of (c), the invoice may be adjusted by the mutual consent of KEYENCE and the Buyer or cancelled at KEYENCE’s option without any liability to the Buyer and/or penalty whatsoever.
  3. If the Buyer fails to make any payment to KEYENCE when payment is due, then without prejudice to any other rights and remedies KEYENCE may have:
    • (a)Interest shall accrue daily from the date when payment becomes due at the rate of 5% per annum; and
    • (b)The Buyer shall be liable to reimburse KEYENCE for all costs and legal fees incurred by KEYENCE in recovering such amounts from the Buyer.
  4. KEYENCE shall be entitled to alter or suspend credit to the Buyer, cancel any order by the Buyer and/or suspend further deliveries to the Buyer whenever the payment history or financial status of the Buyer is deemed by KEYENCE to warrant such actions.

7. SHORTAGE

Credit will not be given for shortage in the ordered quantities unless the Buyer notified KEYENCE in Writing of such shortage within seven (7) days of delivery of the Products.

8. FORCE MAJEURE

  1. KEYENCE shall not be liable for any loss or damage due to delayed delivery or non-delivery due, in part or in whole, to any acts of God, fire, strikes, floods, accidents, riots, lockouts, damages or losses in transportation, quotas, blockage, embargoes, insurrections, mobilization or any other actions of governmental authorities, any non-governmental restrictions, curtailment of production at KEYENCE’s factory, equipment failures, power failures, non-performance by third parties or any other causes beyond KEYENCE’s control, whether at shipping point or destination point, in transit or wherever such an event takes place.
  2. Upon the occurrence of any force majeure event, KEYENCE may extend the quoted, requested or agreed delivery date or deliver part of an order or suspend delivery for a period equivalent to the entire period of that event or cancel a sale without any liability to the Buyer and/or penalty whatsoever.
  3. In the event the Buyer is unable to accept delivery of the Products by reason of any force majeure event, KEYENCE may, at its own option, cancel the sale of the Products without any liability to the Buyer and/or penalty whatsoever, or extend the quoted, requested or agreed delivery date for a period equivalent to the entire period of that event.

9. WARRANTIES AND DICLAIMERS

  1. KEYENCE warrants the Products to be free from defects in material and workmanship for one (1) year from date of delivery. Any Products found to be defective by the Buyer must be shipped to KEYENCE, freight prepaid, or delivered to KEYENCE for inspection and examination. Upon examination, KEYENCE shall, at its sole option, refund the purchase price of, or repair or replace at no charge any Products found to be defective and such a defect is attributable to KEYENCE. A Product repaired or replaced under this warranty will be warranted only for the remainder of the original warranty period. This warranty extends to the original Buyer only, and does not apply to:
    • (a)any defects resulting from the improper conditions, improper environments, improper handling or improper usage contrary to the recommendations contained in the instruction manual, the user’s manual, or the specifications specifically arranged between the Buyer and KEYENCE;
    • (b)any defects resulting from factors other than a defect in the Products, such as the Buyer’s equipment or the design of the Buyer’s software;
    • (c)any defects resulting from modifications or repairs carried out by any person other than KEYENCE staff;
    • (d)any defects that can certainly be prevented when the expendable part(s) is maintained or replaced correctly as described in the instruction manual, the user’s manual, etc;
    • (e)any defects cause by a factor that cannot be foreseen at a scientific/technical level at the time when the Products are delivered; and
    • (f)any disaster such as fire, earthquake, and flood, or any other external factor such as abnormal voltage, for which KEYENCE is not liable.
  2. The warranty scope is limited to the extend set forth in Clause 9.1 above and KEYENCE assumes no liability for the Buyer’s secondary damage (damage of equipment, loss of opportunities, loss of profits, etc) or any other damage resulting from a failure of the Products. For the avoidance of doubt, any Product that fails or is damaged as a result of fair wear and tear is not covered by this warranty.
  3. The products are designed and manufactured as a general-purpose product for general industries. KEYENCE may offer suggestions on the use of the various Products, but the assessment of usefulness and suitability of the Products for each application rests solely with the Buyer. KEYENCE shall not be responsible for any damages that may result from the use of the Products in the Buyer’s application. The Products and any trial units supplied to the Buyer are not to be used internally in humans, for human transportation, as safety devices or fail-safe system, unless their written specifications state otherwise. Should any Products be used in such a manner or misused in any way, the Buyer undertakes to indemnify KEYENCE against and hold KEYENCE harmless from any resulting liability or damage.
  4. Other than as stated herein, the Products are provided with no other warranties whatsoever. All other warranties, conditions of terms, including without limitation, those relating to merchantability, fitness for purpose and non –infringement of proprietary rights, whether implied by statute or common law or otherwise are excluded in no event shall KEYENCE, its agents and/or its related companies be liable to the buyer or third parties for any direct, indirect, incidental, punitive, special or consequential damages (including, without limitation, any damages resulting from loss of use, business interruption, loss of information, loss or inaccuracy of data, loss of profits, loss of savings, the cost of procurement of substituted goods, services or technologies), or for any matter arising out of or in connection with the use or inability to use the Products.

10. EXPORT TERMS

  1. In these Conditions “Incoterms” means the international rules for the Interpretation of trade terms of the International Chamber of Commerce as in force as at the date when the contract is made. Unless the context otherwise requires, any terms of expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
  2. The sale and purchase of the Product is subject to the export control laws and regulations of Malaysia and countries into which the Products are delivered. The parties shall ensure strict compliance and any violation of such export control laws and regulation shall be prohibited.
  3. For the avoidance of doubt, the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties on them.

11. BUYER’S TRANSFER OBLIGATIONS

If the Products purchased by the Buyer are to be resold or redelivered to a third party, Buyer must provide such third party with a copy of this document, all specifications, manuals, catalogs, leaflets and written information provided by KEYENCE to the Buyer in relation to the Products.

12. INFRIGEMENT OF PROPERTY RIGHTS

  1. Nothing in these Conditions confers or is deemed to confer on the Buyer any licence, right or other interest in any intellectual or other property or rights comprised in the Products on in any designs, drawings, or specification relating to the Products, which at all times as between KEYENCE and the Buyer, are vested in KEYENCE.
  2. If the Buyer becomes aware of any infringement or potential infringement of any of KEYENCE’s intellectual or other property or other rights (in the Products or if the Buyer becomes aware of any claim by a third party that a product supplied by KEYENCE infringes the intellectual) or other property or other rights of that third party, it will immediately notify KEYENCE of the infringement or potential infringement or claim and will give every assistance to KEYENCE in that connection that KEYENCE may reasonably require.

13. SERVICES

Upon request by the Buyer, KEYENCE will make available to the Buyer Services at the address specified in the invoice or any other places agreed in Writing between the Buyer and KEYENCE. KEYENCE reserve the rights to impose charges for providing the Services to the Buyer.

14. GENERAL

  1. Any notice of communication under or in connection with these Conditions shall be in Writing and shall be delivered personally by hand or personal courier, or by certified post, or facsimile to the registered office address of the recipient or at such other address as the recipient may have notified from time to time to the other Party in Writing. Proof of posting or dispatch of any notice of communication shall be deemed to be proof of receipt:
    • (a)if sent by hand or personal courier, on the date of receipt;
    • (b)if sent by certified post, on the third business day after posting; and
    • (c)if sent by facsimile, on the day of despatch.
  2. No omission or delay on the part of any Party in exercising its rights under these Conditions shall operate as a waiver thereof, nor shall any single or partial exercise by any Party of any other right preclude the further or other exercise thereof or the exercise of any other right which it may have.
  3. If at any time any one or more of the provisions hereof is or becomes illegal, invalid or unenforceable in any respect under the applicable laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof, nor the legality, validity or enforceability of such provision under the applicable laws of any other jurisdiction, shall in any way be affected or impaired thereby.
  4. For the avoidance of doubt, these Conditions shall apply to the exclusion of all other terms and conditions indorsed upon, delivered with or referred to in any purchase order, acceptance of order or other document delivered by the Buyer save to the extent that any amendment to or variation of these Conditions is accepted by KEYENCE in writing.
  5. These Conditions are governed and shall be construed in accordance with the laws of Malaysia.