1.1 In these Conditions, the following terms shall have the respective meanings specified below unless the context otherwise requires:
- “Buyer” means the person or legal entity identified in the Order as the purchaser of the Products.
- “Card” means one of the following credit cards: VISA and/or Master Card and/or Debit Card.
- “Card Company” means the applicable payment and Card processing entity for the relevant Card.
- “Conditions” means these Terms and Conditions.
- “Contract” means a contract for sale between Evergreen and the Buyer of the Products formed in accordance with Clause 3.3.1
- “Defective Product” is defined in Clause 6.2.
“Force Majeure Event” means any event or circumstance the occurrence and the effect of which Evergreen could not reasonably prevent or avoid including:
- (i) explosion, fire, flood, war, earthquake, storm or other natural disasters;
- (ii) war, declared or undeclared, sabotage, insurrection, terrorist or criminal acts, riot or civil disturbance;
- (iii) import or export regulations or embargo or requisition restrictions regulations bye-laws prohibition or any acts or measures or any intervention of any governmental or regulatory authority;
- (iv) epidemic, quarantine restrictions, outbreak of disease or any travel restrictions or bans (including bans on non-essential travel) issued by the World Health Organisation or any governmental authority;
- (v) strike, lock-out, work stoppage or other industrial action or trade dispute (whether involving employees of Evergreen or any other person); and
- (vi) any default act or omission on the part of Evergreen’s suppliers or sub-contractors.
- “Evergreen” means Evergreen Publisher Sdn. Bhd.
- “Online Store” means the Evergreen online store currently accessible at http://evergreenpublisher.com.my/shop
- “Order” means an online order placed via the Online Store by a Buyer with Evergreen for the Products in accordance with these Conditions.
- “Parties” means Evergreen and the Buyer and “Party” means any one of them.
- “Product” means a product or service listed at the Online Store for which Evergreen invites Orders in accordance with these Conditions.
- “Substitute Product” is defined in Clause 5.4.
- “Third Party Product” means a Product which is not a Evergreen branded Product.
- 1.2 Words using the singular or plural number also include the plural or singular number.
- 1.3 Any reference to a “person” or “entity” includes a reference to an individual, a sole-proprietor, a partnership, an unincorporated association and a company.
- 1.4 Any reference to a “Clause” is to a clause of these Conditions.
- 1.5 The headings in these Conditions are inserted for convenience only and shall be ignored in construing these Conditions.
- 1.6 A reference to the word “include” or “including” shall not be construed as having any limiting effect.
- 1.1 In these Conditions, the following terms shall have the respective meanings specified below unless the context otherwise requires:
Application and Effect
- 2.1 These Conditions shall govern the sale of the Products listed at the Online Store by Evergreen to the Buyer, save where Buyer has signed a separate purchase agreement with Evergreen, in which case the terms and conditions of the separate agreement shall govern.
- 2.2 By ordering the Products and/or accepting delivery of the Products described on the Invoice, the Buyer agrees to be bound by and accepts these Conditions.
Orders, Price and Payment
- 3.1 Buyer shall indicate the Products it wishes to order and the quantity required, at the price specified by Evergreen at the Online Store, by placing a Order on the designated online form at the Online Store and providing to Evergreen all necessary information as may be required by Evergreen at the Online Store.
- 3.2 All Orders made by the Buyer for one or more Product(s) shall be deemed to be an offer made by the Buyer to purchase such Product(s) upon the terms of these Conditions and for the selected Products and quantities set out in the Order. All Orders shall be subject to acceptance by Evergreen.
3.3 Evergreen may accept an Order by:
- 3.3.1 Contacting the Buyer by telephone, email or other mode of communication within a reasonable time after Buyer has made the Order, to accept and confirm the price and quantity of the Product(s) ordered by the Buyer; or
- 3.3.2 Delivering the Product(s) ordered to the Buyer, and upon such acceptance, a binding Contract shall be formed upon the terms set out in these Conditions, the terms of the accepted Order (excluding any terms which are not accepted by Evergreen), and such other terms and conditions as Evergreen may impose as a condition of its acceptance. For the avoidance of doubt, no Contract shall come into existence unless and until the Order has been accepted by Evergreen in the manner set out in this Clause 3.3. Processing of Card payment for an Order shall not in itself constitute acceptance of the Order by Evergreen, provided that where an Order is rejected by Evergreen, any payment made for such Order shall be reversed or refunded by Evergreen.
3.4 Evergreen shall be entitled to:
- 3.4.1 Decline to accept or reject the Buyer’s Order in whole or in part without assigning any reason; or
- 3.4.2 Delay or defer delivery of any Order in whole or in part due to Product unavailability, low inventory levels, or for any other reason.
- 3.5 Evergreen shall not be liable for any errors in the pricing or specification of Products ordered by the Buyer that may appear at the Online Store. The price to be paid by the Buyer for all Products shall be Evergreen’s current selling price on the date of receipt by Evergreen of the Order, which may or may not be correctly reflected at the Online Store.
- 3.6 Unless otherwise agreed by Evergreen in writing, payment for the Products shall be made by the Buyer in full by Buyer’s valid Card before physical delivery of Products.
- 3.7 The Buyer warrants that it is ordering Products for its own use only and not for re-sale or export purposes.
- 3.8 The Buyer shall bear all shipping and handling charges (where applicable), as well as all applicable taxes (including but not limited to Goods and Services Tax [if applicable]) at the prevailing rates.
- 3.9 All Card payments are subject to the approval of the Card Company and the relevant paying bank. Evergreen shall not be liable in any way if the Card Company or the paying bank refuses to process or accept any Card or Card particulars for any reason.
3.11 Evergreen reserves the right to exercise its lawful remedies if a dispute or issue arises over Card payments, or if it does not receive full payment for an Order. In particular, but without limitation to any other remedies, if the Card Company or the paying bank rejects or reverses payment for an Order, Evergreen may in its discretion:
- 3.11.1 Reject such Order, or suspend or cancel delivery of such Order;
- 3.11.2 Repossess the Products if delivered; or
- 3.11.3 Claim against the Buyer for the full price of the Order as a debt.
- 3.12 Evergreen shall be entitled to set-off and deduct from any refund due to the Buyer all sums owed by the Buyer to Evergreen under any and all Contracts and other agreements.
Title and Risk
- 4.1 Risk in the Products shall pass to the Buyer upon delivery of the Products to Buyer.
- 4.2 Subject to Clause 3.3 above, title in the Products shall not pass to Buyer until receipt by Evergreen of full and final payment for the Products.
Order Delivery and Cancellation
- 5.1 The Buyer shall designate in the Order the Buyer’s preferred delivery / collection options, and where the delivery option is selected, the place of delivery of the Products.
5.2 Subject always to Evergreen acceptance of the Order,
5.2.1 Where the delivery option is selected:
The Buyer shall bear and pay to Evergreen:
- (a)the delivery and shipment charges set out at the Online Store for all Orders;
- (b)the delivery, shipment and administrative costs of any delivery of the Product(s) which is rejected by the Buyer, where such rejection is not made pursuant to an express right of the Buyer under these Conditions.
- The Buyer shall bear and pay to Evergreen:
- 5.2.2 Where the Buyer opts for self-collection of the Products the Buyer shall collect the Products at an address designated by Evergreen.
- 5.2.1 Where the delivery option is selected:
5.3 Any shipment, delivery or collection dates provided by Evergreen are estimates only and shall not form part of the Contract. Evergreen shall not be liable for any loss, damage, cost or expense for any failure to meet any given shipment, delivery or collection date, howsoever caused. If Buyer’s Order has not been delivered within a reasonable time, the Buyer should contact Evergreen at:
Evergreen Publisher Sdn. Bhd – Online Orders Department
317, Jalan Mahkota, Taman Maluri, 55100 Cheras, Kuala Lumpur.
Tel: +603 9285 7375
Fax: +603 9283 2963
5.4 Evergreen reserves the right from time to time, without liability or prior notice, to withdraw or cease to make available any or all Products from the Online Store, or to:
- 5.4.1 Change its prices or specifications of any Product; or
- 5.4.2 Deliver a Product which has similar functionality as any Product ordered with minor differences in specifications, (each a “Substitute Product”). The Buyer shall be deemed to have accepted such changes and differences if the Buyer accepts delivery of a Substitute Product.
5.5 An Order may be cancelled by the Buyer prior to shipment of the Products by Evergreen, provided always that:
- 5.5.1 the Buyer must contact Evergreen to request Evergreen for cancellation immediately;
- 5.5.2 Evergreen will endeavour to accommodate the Buyer’s request, if the Products have not been shipped; and
- 5.5.3 the Buyer shall pay any cancellation fees which may be imposed by Evergreen.
- 5.6 If an Order has already been shipped, no cancellation or refund will be permitted.
- 5.7 The Buyer acknowledges that Evergreen’s liability to deliver the Products to the Buyer pursuant to the Contract is subject to the availability of the Products from Evergreen’s usual sources of supply. The Buyer further acknowledges that Evergreen retains absolute discretion as to the order of priorities in which any Products are delivered to Evergreen’s customers.
- 5.8 Evergreen may deliver the Products by instalments.
- 5.9 Evergreen reserves the right to make only partial delivery of an Order.
Acceptance of Products
- 6.1 Unless the Buyer notifies Evergreen in writing to the contrary within seven (7) days of the date of delivery, the Products shall be deemed to have been accepted by the Buyer as being in good condition and in accordance with the Contract.
6.2 A Product shall only be eligible for replacement if upon delivery:
- 6.2.1 It fails to function or operate;
- 6.2.2 It is damaged; or
- 6.2.3 The Product supplied is not the Product specified in the Order or a Substitute Product, (such Product being a “Defective Product”).
6.3 The Buyer must report any Defective Product to Evergreen by contacting:
Evergreen Publisher Sdn. Bhd – Online Orders Department 317, Jalan Mahkota, Taman Maluri, 55100 Cheras, Kuala Lumpur. Tel: +603 9285 7375 Fax: +603 9283 2963 Email: email@example.com
within seven (7) days of its delivery, failing which the Buyer shall not be entitled to a replacement Product.
- 6.4 If Evergreen considers the Product to be a Defective Product, Evergreen will contact the Buyer with the procedure for return and replacement. The Buyer must produce the purchase receipt together with the Defective Product in its original delivered condition and packaging.
6.5 Evergreen reserves the right to refuse any return or replacement of a Defective Product if:
- 6.5.1 The Buyer is unable to produce the Product details or purchase receipt;
- 6.5.2 The Defective Product is a Third Party Product and Evergreen is not authorised by the supplier to process returns or replacements; or
6.5.3 The defect is the result of:
- (i) Improper use or mismanagement by Buyer;
- (ii) Operation of the Product other than in accordance with the operating manual or instructions;
- (iii) Use of the Product in a manner not reasonably contemplated by Evergreen;
- (iv) Modification of the Product not authorised by Evergreen;
- (v) Use of consumables, parts, or peripherals which are not original, in conjunction with the Product;
- (vi) Subjection of the Product to unusual or unrecommended physical, environmental or electrical stress;
- (vii) Use of Product by a person other than Buyer; or
- (viii) Buyer’s failure to comply with any terms of these Conditions.
Controls and Restrictions
- 7.1 Certain countries impose censorship, customs, import, export and/or other regulatory requirements and restrictions on Products. The Buyer shall be responsible for ensuring that all Products in the Order are and will be compliant with such requirements at its own costs. Evergreen shall not be liable for any non-delivery or delay in delivery of any Product which fails to meet such requirements or which is intercepted by any government or regulatory authorities.
- 8.1 Evergreen makes no warranty in respect of any Evergreen Product, express or implied, including any implied warranties of merchantability, satisfactory quality, compliance with description and fitness for a particular purpose. Evergreen’s sole liability for any defects in any Evergreen Product is set out in Clause 6.
- 8.2 Evergreen makes no warranties in respect of any Third Party Products, and all warranties express or implied in respect of Third Party Products, including any implied warranties of merchantability, satisfactory quality, compliance with description and fitness for a particular purpose, are hereby excluded. Third Party Products including software, hardware, peripherals and accessories are covered by the warranties (if any) provided by the original manufacturer, licensor or publisher only.
Exclusion & Limitation of Liability
- 9.1 In no event shall Evergreen be liable to the Buyer or any third party for any indirect, special, consequential, exemplary or punitive loss or damage for any breach of these Conditions, including but not limited to loss of profits, loss of business or goodwill, loss of use, or any claim by any third party, even if Evergreen has been advised of the possibility of such loss or damage.
- 9.2 If any service (including but not limited to installation of any Product) is performed by any third party, Evergreen shall not be liable for any act, neglect, omission or wilful default of such third party, regardless of whether such third party is authorised by Evergreen.
- 9.3 The total liability of Evergreen to the Buyer for any and all claims whether by the Buyer or by any other person and howsoever arising in connection with or arising out of the sale, supply, delivery possession, replacement or use of a Product or resulting from the breach of the Contract and/or these Conditions by Evergreen shall not in any event exceed the price of the Product giving rise to such claims.
- 9.4 Nothing in these Conditions shall limit or exclude Evergreen’s liability for death or personal injury caused by Evergreen’s negligence.
- 10.1 Evergreen shall not be liable for or be deemed to be in breach of the Contract and/or these Conditions by reason of any failure in performing any of its obligations under the Contract and/or these Conditions during any period in which performance is delayed by any Force Majeure Event.
- 10.2 Evergreen shall notify the Buyer of any delay or failure arising through any Force Majeure Event and provide a revised delivery date as soon as practicable. The Buyer shall not terminate the Contract by reason of any such delay or failure.
- 10.3 In the event that any Force Majeure Event results in a shortage of Products, Evergreen shall be entitled to allocate its available stock of the Products among its customers in such a manner as Evergreen may consider equitable and may make partial deliveries of any Products to the Buyer.
- 11.1 Evergreen reserves the right to change these Conditions without prior written notice at any time, at Evergreen’s sole discretion, by posting a copy of the amended Conditions at the Online Store.
- 11.2 Any attempt to modify, supplement or amend these Conditions by the Buyer will be null and void, unless expressly agreed to in writing by Evergreen.
- 12.1 The Contract and these Conditions represent the entire understanding between Evergreen and the Buyer concerning the sale and supply of the Products, and shall form the exclusive statement of all the matters covered by the Contract and these Conditions. Any and all previous course of dealings, written or oral understandings, discussions, representations, correspondence and communications between the Parties relating to the matters covered by the Contract and/or these Conditions are hereby superseded.
- 12.2 Any term or condition of the Buyer’s Order which is any way inconsistent with or in addition to these Conditions shall not be applicable or binding on Evergreen, unless otherwise agreed in a written agreement signed by Buyer and Evergreen, and any failure by Evergreen to object shall not be considered a waiver of these Conditions.
- 13.1 The Buyer shall not assign or otherwise transfer the Contract or any of its rights and obligations hereunder, whether in whole or in part without the prior written consent of Evergreen. Any such unauthorised assignment shall be deemed null and void.
- 14.1 No failure on the part of Evergreen to exercise, and no delay on its part in exercising, any right or remedy under the Contract will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
- 15.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
Rights of Third Parties
- 16.1 A person or entity who is not a Party to the Contract shall have no right under Contracts Act, 1950 (Act 136) to enforce any term of the Contract, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, nothing in this Clause shall affect the rights of any permitted assignee or transferee of the Contract.
Governing Law and Jurisdiction
- 17.1 These Conditions shall be construed in accordance with, and governed by, the laws of Malaysia including without limitation the provisions of the Malaysian Evidence Act, 1950 (Act 56) and the Digital Signature Act, 1997 (Act 562), without giving effect to any principles of conflicts of law.
- 17.2 The Parties hereby submit to the non-exclusive jurisdiction of the Malaysia courts.