Loading...

TERMS OF QUOTATION AND SALE – PRODUCTS AND SERVICES

THESE TERMS GOVERN OGX NETWORKS SDN BHD’S (“OGX”) QUOTATION AND ANY RESULTING SALES MADE BY OGX TO SUPPLY PRODUCTS AND SERVICES TO THE CUSTOMER. THE CUSTOMER’S UNEQUIVOCAL ACCEPTANCE OF THESE TERMS AND CONDITIONS SHALL BE DEEMED BY (i) CUSTOMER SIGNING OR AGREEING TO THESE TERMS AND CONDITIONS; OR (ii) CUSTOMER PROVIDING A PURCHASE ORDER TO OGX; OR (iii) CUSTOMER’S ACCEPTANCE OF ANY PRODUCTS AND SERVICES; WHICHEVER IS EARLIER.

  1. .  QUOTATION AND CONTRACT
    1. OGX’s quotation is valid for acceptance within 14 days from the quotation date, unless OGX has stated a different period or withdraws it earlier.
    2. The PO must be in writing and are subject to acceptance by OGX unless the PO issued exactly matches the quotation issued by OGX for the Products.
    3. In the event of conflicts, discrepancies or ambiguities, the following order of priority applies: (i) these Terms; (ii) the PO and (iii) OGX’s quotation.
    4. All PO must state OGX’s quotation number, quantities, and pricing.
    5. All Products supplied by OGX may only be sold by Customer within the Malaysia unless otherwise agreed in writing. Customer must not knowingly sell or supply the Products to any person who intends to resell or on-supply them outside Malaysia.

  2. .  CUSTOMER DUTIES
    1. Customer must in a timely manner accurately and completely, supply all information, documents and instructions OGX reasonably needs to proceed with any orders.
    2. If the acts of omissions of the Customer, Customer’s Personnel or Customer’s other contractors delay or prevent OGX from performing its obligations or increase OGX’s costs, Customer will grant extension of time to OGX and Customer will compensate OGX accordingly.

  3. .  PRICE AND PAYMENT
    1. The price of the Products will be OGX's quoted price and are subject to change without prior notice.
    2. Payment is required prior to delivery of the Products unless otherwise agreed in writing by OGX.
    3. If the Customer fails to make payment in accordance with this Clause 3, all amounts owing by Customer to OGX on any account will immediately become due and payable together with legal costs of enforcement;
    4. Customer 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 became overdue until OGX has received payment of the overdue amount, together with any interest accrued. Customer’s obligation to make timely payment is a material element of these Terms and if breached will cause damage to OGX.
    5. Customer must pay to OGX any amount Customer owed to OGX in full and Customer shall reimburse OGX for any taxes OGX pays on its behalf.
    6. Unless stated otherwise in these Terms (or in writing by OGX's authorised representative), all prices quoted for Products are exclusive of all taxes, handling, delivery, agents' charges and any other charge, duty or impost.
    7. Customer must pay OGX, on demand any tax (other than income tax) payable under these Terms, any payment, receipt or other transaction contemplated by these Terms, including 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 Customer.
    8. Customer shall furnish to OGX all financial information reasonably requested by OGX from time to time for the purpose of establishing or continuing Customer’s credit limit. Customer agrees that OGX may disclose any such information to its advisors or insurers for the purposes of, including but not limited to, evaluation of credit to be extended to Customer.
    9. To the extent the Customer is a credit customer, the Customer agrees to immediately notify OGX of any changes to any of the details contained in its credit application or as otherwise provided by Customer to OGX, and any other material changes to Customer’s ownership, shareholding, structure and/or business, trading or financial activities.
    10. Any obligation of OGX under these Terms to deliver Deliverables on credit terms shall terminate without notice and without liability to OGX if Customer 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 Customer, or if a receiver, manager, liquidator or trustee is appointed to take possession of the assets of Customer.
    11. If Customer is offered special pricing for certain orders and such pricing is made available to OGX from its Suppliers ("Special Bids"), the Customer shall adhere to the specific terms applicable to Special Bids (“Special Terms”) and other terms and conditions of such Special Bids. Customer agrees to indemnify OGX for any breach of these Terms or any claims made against OGX by the Suppliers for Customer's non-compliance with the Supplier's terms and conditions. Customer agrees to pay any service fees charged for OGX's pass-through of Special Bids and other Supplier driven benefits the Customer 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 OGX having received the benefits from its Supplier. The Special Terms may oblige the Customer to comply with certain requirements including but not limited to (i) the sale of the Products only to specifically named end-users; (ii) sale of the Products within Malaysia only; (iii) the disclosure of end-user information to OGX and its Suppliers for the purpose of end-user verification; and (iv) the submission of copies of end-user invoices, end-user purchase orders or end-user shipping documents to OGX and its Suppliers. Subject to the Special Terms applicable for the individual Suppliers and Products, non-compliance with the Special Terms may entitle OGX and/or its Suppliers to reclaim and invoice the Customer in full for all discounts, rebates and other special price conditions granted to the Customer under the special price.

  4. .  DELIVERY
    1. Delivery to a local address will be via OGX’s ground transportation and subject to freight and handling charges. Delivery to an international address will be subject to additional terms and charges.
    2. Delivery times advised to Customer are estimates only and OGX will not be liable for any loss, damage or delay suffered or incurred by Customer or its Customers/end users arising from late or non-delivery of the Products.
    3. OGX may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products upon these Terms.

  5. .  SOFTWARE
    1. To the extent that a Products supplied under these Terms is a software then, in addition to these Terms, that software Products will be supplied subject to the terms and conditions of the relevant license agreement applicable to it. Where applicable, Customer agrees to be bound by any such terms and conditions and/or restrictions and shall indemnify OGX for any liability suffered by it arising from Customer's breach of such terms, conditions and/or restrictions.
    2. Software license agreements may be packaged with the software or may be separately provided to Customer or may require on-screen acceptance by Customer. Use of the software Products shall be in accordance with the terms and conditions of the relevant license agreement.
    3. Where the term "supply" is used in these Terms to refer to a software Products, such term means the sale and purchase of a licensed copy of that software Product or a right to access a hosted copy of that software Product (regardless of whether such software is supplied in hard copy or electronically, or where access is otherwise provided to a copy of the software).

  6. .  TITLE AND RISK
    1. Products supplied by OGX to Customer will be at Customer’s risk immediately upon:
      1. (a) delivery of the Products to the Customer, Customer’s agent or nominee, or into the Customer's custody or control; or
      2. (b) collection of the Products by the Customer’s nominated carrier or agent.
    2. Title in the Products supplied by OGX to Customer will not pass to Customer and will remain the absolute property of OGX until such time as OGX has been paid by Customer all monies due and owing to it by the Customer in relation to any account. Notwithstanding payment, title to those Products which are Deliverables or software remains with OGX and/or the applicable third party licensor(s) at all times.
    3. Until the Products have been paid for and title to the Products has passed to Customer, Customer:
      1. (a) must properly segregate and store the Products in such manner as to clearly indicate that they are the property of OGX and Customer grants OGX the right to enter Customer's premises to repossess the Products and to sell or dispose of those Products.
      2. (b) Customer may sell the Products and shall keep records of the Products in the ordinary course of its business as fiduciary agent for OGX and Customer agrees to deposit all proceeds of any such sale (including any proceeds received from any insurance claims) in a separate bank account and agrees not to mix the proceeds with any other monies and hold the monies on trust for OGX and shall immediately account for such proceeds to OGX.
    4. If Customer has breached these Terms, Customer authorises OGX, at any time, to enter into any premises upon which OGX’s Products are stored to enable OGX:
      1. (a) to inspect the Products; and/or
      2. (b) to reclaim the Products and/or discontinue access to the Products.
    5. If Customer sells, disposes of or otherwise deals with Products or any part thereof before full payment has been received by OGX, Customer must advise OGX in writing, at such times as OGX may request, specifying full details of the Products sold, disposed of, utilised or otherwise dealt with.
    6. Customer acknowledges that in the case of software Products, any refusal or failure to pay may result in cancellation of the license to use the software Products.
    7. Customer agrees that the provisions of this clause apply despite any arrangement under which OGX grants credit to Customer.

  7. .  INSPECTION AND ACCEPTANCE
    1. In the case of all Products ordered, Customer must:
      1. (a) (For non-software Products) inspect such Products upon delivery to Customer's premises; and
      2. (b) (For software Product) test or inspect such software Products upon those software Products being authorised by OGX for downloading/use by Customer.
    2. If Customer alleges any matter or thing by which the Products do not accord with PO, Customer must give written notice to OGX within 3 working days of delivery or downloading (as the case may be).
    3. Failing which, and to the extent permitted by law, the Products will be deemed to have been accepted by Customer.

  8. .  RETURNS
    1. Return of Products will be subject to the returns process for the affected Product ("RMA") as notified by OGX from time to time.
    2. Customer must notify OGX in writing of any Products it wishes to return within 3 days from the date of the invoice relating to those Products or such other time period stipulated in the RMA.
    3. OGX will not be liable for any damage or defects in the Products:
      1. (a) that have been caused by the Customer's improper storage, warehousing or transport, by any neglect, abuse or improper use;
      2. (b) installation, maintenance or unauthorised repair of the Products;
      3. (c) that is not covered by Supplier's warranty;
      4. (d) the claim for a return request is not notified to OGX in writing within the period stated in Clause 8.2.

  9. .  CANCELLATIONS
    1. Unless otherwise agreed by OGX, there shall be strictly no cancellations after PO is issued to OGX.
    2. In the event such cancellation is agreed to by OGX, Customer shall bear such sums as OGX may require being compensation to OGX for such cost incurred for acceptance of such cancellations.

  10. .  WARRANTY
    1. To the extent permitted by law:
      1. (a) Products are covered by Supplier’s Warranties;
      2. (b) OGX’s entire responsibility with respect to express warranties for the Products is to pass on to Customer the benefit of any such Supplier’s Warranties to the extent it is able to;
      3. (c) the Supplier’s Warranties are in substitution for all other terms, guarantees, conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and OGX expressly excludes all such other terms, guarantees, conditions and warranties; and
      4. (d) OGX does not warrant that repair facilities or parts will be available in respect of any of the Products.
    2. Software Products are not warranted by OGX under these Terms. Such software Products are warranted in accordance with the relevant license agreements governing their use.
    3. To the full extent permitted by law and unless otherwise expressly agreed by OGX, OGX does not warrant that repair facilities or parts will be available in respect of any Products.
    4. Customer warrants that it is acquiring the Products for the purpose of use as inventory in Customer’s business, and that it is not acquiring the Products wholly or predominantly for personal, domestic or household use or consumption.

  11. .  NON-CONFORMING PRODUCTS
    1. To the extent permitted by law, OGX’s entire responsibility with respect to Non-Conforming Products where such non- conformity arises within the time frame stipulated by the Supplier, or if a time frame is not stipulated, within a period of one (1) month from delivery to an end-user, will be to arrange for:
      1. (a) a replacement or repair of the Products at OGX’s discretion; or
      2. (b) a reduction of the price of the Products (straight line depreciation basis) if so agreed by OGX.
    2. Clause 11.1 shall not be applicable if the Customer, end-user or any third party had damaged or misused the Products thereby causing the non-conformity or if the non-conformity, damage, fault or misuse is excluded under the Supplier’s warranties.

  12. .  LIABILITY
    1. Customer will be liable for all orders placed with OGX through Customer 's account.
    2. Customer will defend, indemnify and hold harmless OGX, 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 OGX regarding the Products at the request of, and consistent with, instructions provided by Customer, Customer's infringement of OGX's or any third party's intellectual property rights, any breach of these Terms or any acts or omissions of Customer or its employees, related bodies corporate, affiliates or agents, arising from the manner in which Customer markets and sells the Products, supply by Customer 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 Customer of the Products.
    3. To the extent permitted by law, OGX will not be liable to Customer 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 Customer, whether such liability arises directly or indirectly as a result of:
      1. (a) any negligent act or omission or wilful misconduct of OGX or its employees or agents;
      2. (b) any failure to deliver Products within a specified time period; availability and/or delays in delivery of Products; discontinuation of Products, product lines or any part thereof; unilateral cancellation of any orders by Customer;
      3. (c) the supply, performance or use of any Products or services;
      4. (d) any breach by OGX of its obligations under these Terms.
    4. For the avoidance of doubt, the only liability of OGX with respect to:
      1. (a) any damaged goods, defective goods and/or goods erroneously shipped will be the return rights described herein; and
      2. (b) any defective Services and/or Services not meeting any service level mutually agreed in writing will be the reperformance of such services.
    5. Notwithstanding anything to the contrary in this agreement, or even if this agreement fails its essential purpose, in no event will OGX’s cumulative liability (in tort (including negligence), contract (including under any indemnity), warranty, infringement, under statute or otherwise) to Customer under this Agreement exceed the purchase price actually paid by Customer for the supply of the affected Product that give rise to the dispute, or any defective portion thereof, whichever is the lesser amount. OGX’s liability to Customer (including in tort (including negligence), contract (including under any indemnity), warranty, infringement, under statute or otherwise) will be reduced by the extent, if any, to which Customer contributed to the loss or damage.

  13. .  INTELLECTUAL PROPERTY
    1. Customer acknowledges and agrees that:
      1. (a) Intellectual Property embodied in or in connection with the Products and any related documentation, parts or software are the sole property of OGX or its Suppliers;
      2. (b) all Intellectual Property of OGX or its Suppliers may only be used by Customer with the express written consent of OGX or its Suppliers and such consent extends only to use essential for the purposes stated in it; and;
      3. (c) if consent for use is granted by OGX or Supplier, Customer shall comply with any intellectual property use requirement or guidelines issued by OGX or Supplier.
    2. Customer will indemnify OGX against all liabilities, damages, costs and expenses which OGX may suffer or incur as a result of Customer’s breach or infringement of any third party’s intellectual property rights, Customer’s non-compliance with Supplier’s intellectual property guidelines, any work performed by OGX in accordance with Customer's specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by OGX, and which results in the infringement of any Intellectual Property of any person.

  14. .  ADDITIONAL SUPPLIER TERMS AND RESTRICTIONS
    1. All Products and Deliverables delivered to Customer hereunder may have additional terms or restrictions on their use required by the Supplier of the Products. Customer is solely responsible for ensuring its adherence to any and all such restrictions and requirements. If any Supplier prohibits OGX from selling specific Products or Deliverables to Customer, then OGX reserves the right not to sell such Products or Deliverables to Customer.
    2. In addition to these terms and conditions, and where required by Suppliers of Products, OGX may flow through to Customer additional terms imposed by such Supplier for any Product/Service which shall be binding on Customer and/or its customer. It shall be Customer’s obligation to pass through these terms, where applicable, to its customer to ensure compliance with Supplier’s terms. In the event Customer fails to do so, Customer shall indemnify OGX for any losses, damages, claims or liabilities that IM may incur as a result of Customer’s breach. For the avoidance of doubt, any term imposed on Customer by OGX’s Suppliers may be set out online or communicated in writing by OGX to Customer, or through OGX’s quotation and Customer shall be deemed to have unequivocally accepted the said terms by (i) Customer signing the terms and conditions; or (ii) Customer providing a purchase order to OGX; or (iii) Customer or its customer’s acceptance of any Products from OGX or its Supplier; whichever occurs first.

  15. .  GENERAL
    1. The Parties agree that a separate contract is formed each time Customer acquires Products from OGX on the then current version of OGX's Terms of Quotation and Sale. Customer shall check OGX’s official website for a copy of OGX's current Terms before ordering Products. By placing an order for Products with OGX from time to time or by accepting the Products or Services, Customer accepts and agrees that the current version of the Terms at the time of the order will apply to that order and that to the full extent permitted by law all other terms and conditions (whether contained in the purchase order or otherwise) will be excluded.
    2. No variation of these Terms by the Customer shall be effective unless made in writing and signed by a duly authorized officer of both parties.
    3. If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such provision shall be read down or severed to the extent of the invalidity or unenforceability and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
    4. These terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns.
    5. Customer agrees that failure or delay of OGX to exercise a right or power under these terms and conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
    6. The captions used herein are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions herein.
    7. Customer may not assign or attempt to assign any of its rights and obligations under these Terms. OGX may assign any purchase order received from Customer to a third party upon notice in writing to Customer, whose consent shall be deemed to have been obtained.
    8. These terms and conditions (and any agreement into which they are incorporated) shall be construed, interpreted and enforced under and in accordance with the laws of Malaysia, excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction. Customer agrees to exercise any right or remedy in connection with these terms and conditions exclusively in, and hereby submits to the jurisdiction of the courts of Malaysia for any dispute or controversy that arises out of these terms and conditions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions.
    9. Save as provided in clause 15 herein, these Terms and any document(s) referred to in them constitute the entire agreement about OGX's sale of the Products to Customer and supersede all prior understandings, arrangements and agreements.

  16. .  DEFINITIONS
    1. “Customer” means the person, business or company that is the Customer of the Products.
    2. “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;
    3. “Products” means any products (including software) or services, where applicable, supplied to Customer by OGX and described in OGX's invoice. Reference to “Products” herein shall, where applicable also include Services if so purchased by the Customer.
    4. “Services” means any services supplied to Customer by OGX or its Supplier and described in OGX’s 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 OGX or a Supplier and includes supply of materials, software, tools and information related to such services.
    5. “Supplier” 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 OGX unless OGX is the party providing the services.
    6. “Supplier’s Warranties” means the warranties, if any, provided by the applicable Product’s Supplier relating to a particular Product.