Conditions of Sale

All orders are accepted by Smartech subject to the Terms and Conditions of Sale set out below:

1. General

1.1 All orders for products ("Products") or services ("Services") will be accepted by Smartech Sales and Trading Sdn Bhd ("Smartech") subject to these Terms and Conditions of Sale. Any person who places orders for Products or Services with Smartech ("Customer") is bound by these terms and conditions. No other terms will apply to the supply of Products and Services by Smartech unless agreed in writing by an authorised signatory of Smartech of rank General Manager and higher. Smartech reserves the right to amend these terms and conditions at any time. The most current version of these terms and conditions can be found at www.smart-hvac.com.my. References to the "Smartech website" include Smartech's website and any other catalogue of products published by Smartech in any medium.

1.2 All descriptions of the Products and Services contained on the Smartech website or otherwise communicated to the Customer are approximate only and shall not form any part of the contract between Smartech and the Customer. Smartech shall not be liable to the Customer for any errors or omissions on its website, the product catalogue or other product advertisement. The advertising of products and services on the Smartech website is not an offer capable of acceptance; it merely constitutes an invitation by Smartech for the Customer to make an offer to purchase Products and Services. Smartech's acceptance of the Customer's order will take place when Smartech confirms pricing and delivery dates to the Customer in writing, at which point a contract will come into existence between Smartech and the Customer.

1.3 The Customer’s particular attention is required for Clause 11, which sets out certain limitations of Smartech’s liability.

 

2. Prices and Sales Tax

2.1 The prices of the Products and Services are as set out on the Smartech website. Smartech reserves the right to change prices without prior notice at any time. Customer is informed that prices and products in the printed hard copy catalogue are subject to change. Up-to-date information can be found on the Smartech website. In the event of any conflict between prices for any products listed on the Smartech website and prices listed in the physical catalogue, prices listed on the Smartech website shall prevail.

2.2 The price of an ordered Product or Service will be as set out on the Smartech website at the time of order acceptance by Smartech, except for products or services ordered for delivery at a future specified date (“forward orders”). The price for forward orders may be varied by Smartech after the date of order acceptance by written notice to the Customer.

2.3 All prices are inclusive of prevailing sales tax rate. Unless otherwise stated, prices quoted are for ex-factory delivery or shipment to be arranged by the Customer at Customer’s own expense; and exclude all transportation and site hoisting charges.

 

3. Ordering

3.1 Smartech reserves the right to decline to trade with any company or person. Smartech may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by Smartech. Further, Smartech may cancel orders which have been accepted by giving written notice of such cancellation to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by Smartech. If Smartech rejects or cancels an order for which payment has been taken, it will refund the amount to the Customer as soon as reasonably practicable.

3.2 Smartech executes orders to the Customer's requirements but may provide substitute products where requested by the Customer, or where the product has been superseded by the latest version. To the extent that orders cannot be fulfilled completely from stock, the unfulfilled balance will (at the Customer's option) either be put on back order to be fulfilled when Smartech next has available stock or be cancelled and refunded to the Customer.

4. Delivery and Collection of Order

4.1 Subject to any cancellation, substitution or non-fulfilment of Customer's orders in accordance with Clause 3 (Ordering), Smartech will deliver the products specified in the Customer's order. Smartech may use third party delivery agents to deliver products to Customers.

4.2 The Customer's delivery options, and the prices for them, are as set out on the Smartech website at the date of order or will be notified to the Customer at the time of order.

4.3 Delivery prices apply per order, irrespective of the number of products ordered. Delivery will be made to the Customer's usual business address, unless otherwise agreed in writing.

4.4 Smartech will aim to deliver products in accordance with the times and dates for delivery quoted on the Smartech website or by Smartech employees (the 'Quoted Delivery Times'), but Quoted Delivery Times are approximate only and Smartech shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. Unless specifically agreed in writing by Smartech, Smartech will not accept any late delivery penalty or liable for any damages resulting from the failure to deliver within the time stated. Customer may optionally choose to cancel a particular order or a particular item of an order if Smartech has delayed delivery by more than 30 days from committed delivery date which has been agreed in writing by Smartech.

4.5 If any delivery has not been made by the Quoted Delivery Time, then subject to the Customer notifying Smartech of such delay, Smartech will endeavour to ascertain if the product has been delivered and will inform the Customer of the status of the delivery or the new expected delivery time. Smartech may also, at its discretion, refund the total delivery charge to the Customer. If a revised delivery time is not acceptable, Smartech may also, at its discretion, offer an alternative delivery option. These are the Customer's exclusive remedies for late delivery and Smartech shall not be liable for any loss or damage (including indirect, consequential or economic) suffered or incurred by the Customer or any other party in relation to late delivery.

4.6 If Customer opts for Self-Collect option at checkout, all products in the Customer’s order are to be collected by the Customer within 14 days after agreed scheduled delivery date. If the products are not collected within the above stipulated 14 days period, Smartech shall issue an invoice for the uncollected finished goods kept in the factory premise and the invoice shall be payable in accordance to agreed payment terms. If the finished goods remain uncollected after 30 days from agreed scheduled delivery date, Smartech shall impose a storage charge of 2% per 30 days period based on the Sales Price of the products until collection takes place. Unless payment due is fully settled, if after 120 days, the Customer’s order remain uncollected, Smartech shall reserve the right to dispose the products in the Customer’s order and treat the order as cancelled and the cancellation charges of 80% of sales value of the Customer’s order shall be imposed.

5. Inspection, Transit Delays and Non-Delivery

5.1 The Customer must inspect all products as soon as is reasonably possible after delivery or collection. The Customer shall, within 10 days of the date of delivery or collection or, in the case of sub-clause iv. below, the Quoted Delivery Time or any updated estimated date for delivery, give written notice to Smartech in detail of:

  1. Any defect in a Product that is apparent on reasonable examination. In this case Smartech shall, at Smartech's discretion, replace the Product or refund the purchase price. See Clause 9 for terms of Warranty. In any event the Customer must refuse parcels delivered to it in a damaged condition;
  2. Any shortfall in Products delivered. In this case Smartech shall, at its discretion, deliver the undelivered Products or refund the price of the undelivered Products;
  3. Any delivery of Products not in accordance with the order. In this case Smartech shall, at Smartech's discretion, replace the Products or refund the purchase price; or
  4. Any non-delivery of the Products (in which case the time limit is within 10 days of the estimated despatch date). In this case Smartech shall deliver the undelivered Products or refund the price of the undelivered Products.

5.2 If the Customer fails to give any such notice, the products shall be conclusively presumed to be, in all respects, in accordance with the order and free from apparent defects, and the Customer shall be deemed to have accepted the products accordingly. Smartech's record of the products dispatched (including the quantity) shall be conclusive evidence of the products received by the Customer, unless proved otherwise by the Customer.

5.3 The remedies set out above are the Customer's exclusive remedies for non-delivery or short delivery of products, or for apparent defects in the products or delivery of products not in accordance with the order. Smartech shall not be liable for any losses, consequential or otherwise, or for costs (including legal costs), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, damages, claims, demands, proceedings, judgments or otherwise arising from these circumstances.

6. Payment

6.1 If Smartech has not granted credit to the Customer, payment terms must be made in advance prior to delivery except for orders above RM20,000.00 using the following modes:

  1. Credit Card/Debit Card
  2. Bank transfer
  3. Cheque payment (cheque must be cleared before delivery)

6.2 For orders above RM20,000.00, Customer shall make 30% down-payment upon Order Confirmation and balance 70% shall be paid by Cash or Irrevocable Confirmed Letter of Credit at Sight, to be issued at least 4 weeks before completion date of production or date of ex-factory delivery unless mutually agreed between Customer and Smartech in writing or agreement.

6.3 Credit terms (subject to satisfactory references and at Smartech's absolute discretion) are available. If credit has been granted, on acceptance of a Customer's order, Smartech will issue that Customer with an invoice. Such invoice will be sent by post unless otherwise agreed between Smartech and the Customer. The standard credit term by which payment must be made is 30 days from date of invoice. All payments must be made without any set-off, deduction or counterclaim.

6.4 If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy:

  1. All sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date;
  2. The Customer will be liable to pay all expenses and legal costs incurred by Smartech in relation to obtaining or seeking to obtain an appropriate remedy;
  3. Smartech may charge the Customer interest from the due date until payment is made in full (both before and after any judgement) on the amount unpaid at the HSBC interbank rate +1 per cent compounded monthly;
  4. Treat that and all other contracts as repudiated by the Customer if the Customer fails to pay all such unpaid amount within fourteen days of notice by Smartech; and
  5. Suspend delivery of Products or Services under that or any other contract for as long as the default continues.

7. Risk and Ownership

7.1 In the case of products to be delivered to the Customer's property, risk of loss of or damage to the products shall pass to the Customer on delivery, unless the Customer wrongfully fails to take delivery of the products, in which case such risk shall pass to the Customer at the time when Smartech has attempted to deliver the products.

7.2 Ownership of any product supplied shall not pass to the Customer until full payment of the purchase price of the products and of all other amounts owing to Smartech has been made (in cash or cleared funds). If the Customer is late in paying any sum to Smartech, then Smartech shall be entitled to the immediate return of all products where ownership has not passed to the Customer. The Customer authorises Smartech and its agents to recover any such products in such circumstance, and to enter any premises of the Customer for that purpose.

7.3 Demand for or recovery of the products by Smartech shall not of itself discharge either the Customer's liability to pay the whole of the price and take delivery of the products or Smartech's right to sue for the whole of the price.

8. Product and Availability Information

8.1 Smartech reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, or to assist product availability, and such changes may take place during the life of any catalogues available on Smartech’s website. The most up to date information on the availability and design of the products Smartech supplies is available on the Smartech website.

8.2 Unless otherwise confirmed in writing, nothing on the Smartech website or in any Smartech catalogue is to be taken as a representation of the source of origin, manufacture, or production of the products or any part of them.

9. Warranties and Remedies

9.1 Smartech warrants that all products purchased from Smartech are free from defects in material and workmanship under normal use and service during the warranty period applicable to the Product as defined below:

No.

Condition

Warranty Period

1

Purchase of HVAC General Parts

3 months from Invoice Date

2

Purchase of Standard Smartech Products

Within 12 months after the date of start-up or commissioning; and not later than 18 months after date of delivery, whichever comes earlier.

3

Purchase of Customised Smartech Products

Within 12 months after the date of start-up or commissioning; and not later than 18 months after date of delivery, whichever comes earlier.

 

9.2 To the extent permitted by law, in the event of any such Product being materially defective, and subject to the provisions of Clause 5 (Inspection, Transit Delays and Non-Delivery) surrounding defects apparent on delivery, Smartech will (at its option) replace or repair the product or refund the purchase price.

9.3 These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of Smartech.

9.4 These warranties will be voided if:

  1. The model/ serial number of product unit or compressor has been altered, tampered with, or removed;
  2. The product unit has been tampered with, subject to misuse, negligence and damaged while in transit;
  3. The product unit has not been installed, maintained or operated in accordance with instruction given by manufacturer;
  4. The product unit has undergone repairs, modifications or connections prior to authorization by Smartech;
  5. The product unit is installed in hazardous and corrosive environment unless the product ordered is specifically designed to be installed in such environment;
  6. Defects are caused by abnormal voltage or the in-coming power supply is from a generator;
  7. Defects are caused by fire, lightning and other natural disasters or where defect is due to deviation from recommended application and installation;
  8. Defects are caused by household pests such as lizards, rat, cockroach, etc.;
  9. Defects are caused by unit installed near to sources of oil mist in which may adhere to the heat exchanger and results in heat exchange reduction, water mists & spitting, etc.; or
  10. Defects are caused by chemical reaction, excessive heat, excessive dust, corrosive surroundings, such as cement factory, animal farm, etc.

9.5 To the extent permitted by law, the remedies set out in this Clause 9 shall be the Customer's sole remedies for any breach of warranty and in respect of the supply or non-supply of products and/or services.

9.6 The availability of the remedies set out in this Clause 9 is subject to:

  1. A claim being made in writing to Smartech together with proof of purchase, prior to the return of any defective product, and within the warranty periods indicated in Clause 9.1 or as indicated by Smartech for specific products or services from time to time in writing; and
  2. The Customer returning or disposing of the relevant products, or making them available for collection by Smartech, in accordance with Smartech's instructions and suitably packaged. In particular, for any returns, the Customer must obtain a returns number from Smartech and quote this on all paperwork, and state the original invoice number in respect of the products and the nature of any claimed defect.

9.7 Where the Customer returns defective products otherwise than in accordance with these provisions, Smartech may refuse such products and return them to the Customer at the cost of the Customer.

9.8 Any exchanged parts or products which are replaced by Smartech shall become the property of Smartech. Smartech reserves the right to replace defective parts with any serviceable used parts that meet the performance specifications of new parts. Title to replacement products shall pass to the Customer in accordance with the provisions of Clause 7 (Risk and Ownership), and the period of the replacement product's warranty shall be the unexpired period of the defective product's warranty.

9.9 The Customer shall have no remedy in respect of any untrue statement made to it upon which it relied in ordering products and/or services (unless such untrue statement was made fraudulently) other than any remedy it may have set out expressly in these terms and conditions of sale.

9.10 Save as expressly provided in these terms and conditions of sale, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of products and/or services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill).

9.11 Except as required by law, Smartech will not be liable to the Customer for any loss, damage or liability of any kind whatsoever which arises out of the breach of implied warranties, terms or conditions (statutory or otherwise) or breach of any other duty of any kind imposed on Smartech by operation of law. The Customer acknowledges that it is responsible for ensuring that the products and services it orders are fit for the purposes for which it intends to use them.

9.12 In giving the warranties set out above, Smartech does not exclude or limit any application of relevant law where to do so would contravene that law or cause any term of these conditions to be void ("Non Excludable Condition"). These warranties are in addition to any Non- Excludable Conditions.

10. Export Control and Limitations of Use

10.1 Certain products sold by Smartech are subject to export control regulations of Malaysia, United Kingdom, United States of America, European Union and other countries (“Export Laws”). The Customer shall comply with all such Export Laws and obtain any licence or permit required to transfer, export, re-export or import the products.

10.2 The Customer shall not, directly or indirectly, sell, permit to be sold, dispose of, export, re-export or otherwise provide products to any country or entity under sanction or embargo administered by Malaysia, United Kingdom, United States of America, European Union or other country.

10.3 The Customer certifies that products purchased from Smartech will not be used, sold or incorporated into products used directly or indirectly in the design, development, production or use of chemical, biological or nuclear weapons, delivery vehicles and systems of the same or in the development of any weapons of mass destruction.

10.4 Products sold by Smartech are not recommended or authorised for use in life support, surgical implantation, nuclear or aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.

10.5 Classifications of product for export purposes, including ECCN and Harmonised Tariff codes, are made for internal use by Smartech only. Such information is provided by Smartech in good faith based on the information available to it at the time of compilation. Smartech makes no warranty or representation that such information is up to date or correct, and shall not be liable to the Customer for any form of loss or damage suffered by the Customer as a result of reliance upon such information. Use of the information is done so at the Customer’s own risk with no recourse to Smartech. The Customer is responsible for ensuring compliance with all applicable export legislation, including determining the correct classification of an item at the time of any onward export.

11. Liability

11.1 Smartech shall not be under any liability for damage, losses (whether direct, indirect or consequential), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information (including through the Smartech technical helpline) whether or not due to its negligence or that of its employees, agents or sub-contractors.

11.2 Smartech shall not be liable for economic loss, punitive damages, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, all as may result from, or be connected with:

  1. Any express or implied terms of the contract between Smartech and the Customer, or of any order accepted by Smartech;
  2. Any duty of any kind imposed on Smartech by law arising out of or in relation to the contract between Smartech and the Customer or order;
  3. Any defect in the products or services;
  4. Intellectual property rights infringement; or
  5. Any other loss whatsoever arising out of these terms and conditions of sale.

11.3 If, notwithstanding any other provisions in these terms and conditions of sale including without limitation Clauses 9 (Warranties and Remedies), 10 (Export Control and Limitations of Use) and 11 (Liability), any liability attaches to Smartech, Smartech's liability to the Customer arising out of or in connection with these terms and conditions of sale or any order whether in contract, tort or otherwise in respect of one or more of:

  1. Any express or implied terms of the contract between Smartech and the Customer, or of any order accepted by Smartech;
  2. Any duty of any kind imposed on Smartech by law arising out of or in relation to the contract between Smartech and the Customer or the order;
  3. Any defect in the products or services;
  4. Intellectual property rights infringement; or
  5. Any other loss whatsoever arising out of these terms and conditions of sale; shall be limited in the aggregate to RM600,000 or the total value of the order, whichever is lower.

11.4 Nothing in these terms and conditions of sale (including without limitation this Clause 11) shall exclude or limit the liability of Smartech for death or personal injury caused by the negligence of Smartech or its employees, agents or sub-contractors, or for fraud or anything else which cannot by law be limited or excluded.

12. Cancellations and Returns

12.1 Cancellation is only accepted on orders for Standardised and Customised Smartech Products. Cancellation of a complete or partial order by the Customer is subject to the following cancellation charges:

  1. 20% of the sales price of the items cancelled or of complete order cancelled, within 14 days of acceptance of order;
  2. 35% of the sales price of the items cancelled between 15 to 45 days after acceptance of order;
  3. 60% of sales price of the items cancelled 46 days after acceptance of order; or
  4. 80% of the sales price of items cancelled when the unit is completed or in final stage of assembly, whichever is higher in value.

In the event, within 14 days after acceptance of order, Smartech informs Customer that the required delivery date cannot be met; in which case Customer has the option to cancel order at no charge.

12.2 All sales are final for HVAC General Parts sold on Smartech’s website. Returns for refund or exchange will only be accepted for products damaged in transit and for products incorrectly delivered by Smartech.

12.3 Products damaged in transit must be rejected upon arrival by the Customer. A claim must be submitted to Smartech (returns@smart-hvac.com.my) within 7 days of the date of delivery whereby the Customer is entitled to a replacement of the product or complete refund.

12.4 Customers may only return products incorrectly delivered by Smartech, and receive a refund or exchange on the following conditions:

  1. The Customer must email returns@smart-hvac.com.my within 7 days of the date of delivery and include proof of purchase (invoice and delivery note) and information of the incorrect item received to obtain prior consent and a returns number (to be quoted on all relevant paperwork);
  2. Return must be made within 7 days of receiving Smartech’s consent and returns number;
  3. Products must be returned to Smartech in their original condition and packaging, unused and in a condition which will enable them to be immediately fit for re-sale;
  4. The Customer must follow any specific instructions which appear on the Smartech website or with any product regarding its return to Smartech; and
  5. Products must be adequately packed and dispatched freight prepaid, clearly labelled to: Online Sales Dept., Smartech Nilai Factory, Lot 16015, Jalan Nilam 3, Bandar Nilai Utama, 71800 Nilai, Negeri Sembilan.

 

12.5 The following is a non-exhaustive list of unfit or unreasonable states:

  1. Any item not in its original packaging along with all original accessories (including manuals, warranty cards, certificate of authenticity);
  2. When sealed package is opened or packaging materials are lost (unless Smartech’s service team can ascertain that they were found defective at the time of opening);
  3. Has been used or installed or has any data inputted; or
  4. Damaged or missing parts for reasons not due to Smartech error.

 

12.6 Where the Customer returns products to Smartech not in accordance with Clause 12.4 and Clause 12.5 above (for example, after the period for returns has expired or in an unfit state), Smartech may refuse to accept the return and return the products to the Customer at the Customer's expense.

12.7 Smartech accepts no responsibility for any loss of or damage to products in transit from Customer to Smartech or for any items received by Smartech with them.

13. Force Majeure

A force majeure event is any event beyond the reasonable control of Smartech (including but not limited to government actions, war, riot, fire, explosion, flood, labour disputes, traffic congestion, the downtime of any external line, or Smartech's inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If Smartech is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then Smartech shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. Smartech shall be allowed reasonable period of time to complete manufacture and shipment of products.

14. Law and Jurisdiction

14.1 The contract between Smartech and the Customer based on these terms and conditions of sale as applicable to each Customer order shall be governed by and interpreted in accordance with Malaysian Law and the Customer submits to the non-exclusive jurisdiction of the courts of Malaysia, but Smartech may enforce the contract in any court of competent jurisdiction.

14.2 If any part of these terms and conditions of sale is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then it is the parties' express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question shall be interpreted or construed to give it full effect.

14.3 No express term of these terms and conditions nor any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act by any person who is not a party to it.

Registered Office: Smartech Sales and Trading Sdn Bhd, No.15, Jalan PJS 1/27, (Jalan Petaling Utama 6), Petaling Utama, Batu 7, Off Jalan Klang Lama, 46000 Petaling Jaya, Selangor.