Last Updated: 28 Aug 2017. © 2010 DFASS (M) Sdn Bhd.
| 1 |
Definitions |
| 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.
“Credit Card” means such form of charge card(s) or credit card(s) as may be stipulated at the Online Store as being acceptable for payment for Products.
“Credit Card Company” means in respect of any Credit Card, the relevant company or companies controlling or administering payments for such Credit Card.
“Conditions” means these Conditions of Online Sale.
"Contract" means a contract for sale between DFASS and the Buyer of the Products formed in accordance with Clause 3.3.
"DFASS" means DFASS (M) Sdn Bhd.
"Force Majeure Event" means any event or circumstance the occurrence and the effect of which DFASS 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 DFASS or any other person); and |
| (vi) |
any default act or omission on the part of DFASS's suppliers or sub-contractors. |
“Online Store” means the Temptations online store, or www.mhtemptations.com, currently accessible at http://www.mhtemptations.com/index.aspx
"Order" means an online order placed via the Online Store by a Buyer with DFASS for the Products in accordance with these Conditions.
“Parties” means DFASS and the Buyer and “Party” means any one of them.
"Product" means a product or service listed at the Online Store for which DFASS invites Orders in accordance with these Conditions.
“Returns Policy” is defined in Clause 8.2.
“Substitute Product” is defined in Clause 5.3.
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| 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. |
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| 2 |
Application and effect |
| 2.1 |
These Conditions shall govern the sale of the Products listed at the Online Store by DFASS to the Buyer. |
| 2.2 |
By ordering the Products and/or accepting delivery of the Products, the Buyer agrees to be bound by and accepts these Conditions. |
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| 3 |
Orders, price and payment |
| 3.1 |
Buyer shall indicate the Products it wishes to order and the quantity required, at the price specified by DFASS at the Online Store,
by placing an Order on the designated online form at the Online Store and providing to DFASS all necessary information as may be required by DFASS. |
| 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 DFASS. |
| 3.3 |
DFASS may accept an Order by:
| 3.3.1 |
telephone, email or other mode of communication within a reasonable time after Buyer has made the Order, to accept and confirm the
price, quantity and 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 DFASS), and such other terms and conditions as DFASS
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 DFASS in the manner set out in this Clause 3.3. Processing of Credit Card payment for an Order shall not in itself constitute
acceptance of the Order by DFASS, provided that where an Order is rejected by DFASS, any payment made for such Order shall be reversed or refunded by DFASS.
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| 3.4 |
DFASS 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.
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| 3.5 |
DFASS 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 DFASS's current selling price on the date of receipt by DFASS of the Order, which may or may not be correctly reflected at the Online Store. |
| 3.6 |
Unless otherwise agreed by DFASS in writing, payment for the Products shall be made by the Buyer in full by Buyer’s valid Credit Card before physical delivery of Products.
Cash or personal cheques will not be accepted. |
| 3.7 |
The Buyer warrants that it is ordering Products for its own internal use only and not for re-sale or export purposes. |
| 3.8 |
The Buyer shall bear all shipping, delivery and handling charges, customs, import duties and postal clearance, as well as all applicable taxes
(including but not limited to Goods and Services Tax) at the prevailing rates. |
| 3.9 |
All credit card payments are subject to the approval of the Credit Card Company and the relevant paying bank. DFASS shall not be liable in
any way if the Credit Card Company or the paying bank refuses to process or accept any Credit Card or Credit Card particulars for any reason. |
| 3.10 |
The Buyer agrees to submit to DFASS and its payment service provider such Credit Card and other personal and delivery information as
may be reasonably requested by DFASS or its payment service provider to process the Order, make payment for the Order, and to arrange for delivery
and invoicing. DFASS shall require its payment service provider to keep such information confidential and not use the same for any purpose other
than to carry out its services, provided Buyer agrees that DFASS shall not be liable for any loss, damage, or liability in the event of any
unauthorised disclosure of such information by its payment service provider. |
| 3.11 |
The Buyer warrants that it is ordering Products for its own internal use only and not for re-sale or export purposes. |
| 3.12 |
DFASS reserves the right to exercise its lawful remedies if a dispute or issue arises over payment through Credit Card,
or if it does not receive full payment for an Order. In particular, but without limitation, if the Credit Card Company or
the paying bank rejects or reverses payment for an Order, DFASS may in its discretion:
| 3.12.1 |
reject such Order, or suspend or cancel delivery of such Order; |
| 3.12.2 |
repossess the Products if delivered; or |
| 3.12.3 |
claim against the Buyer for the full price of the Order as a debt. |
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| 3.13 |
DFASS shall be entitled to set-off and deduct from any refund due to the Buyer all sums owed by the Buyer to DFASS under any and all Contracts and other agreements. |
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| 4 |
Title and risk |
| 4.1 |
Risk in the Products shall pass to the Buyer upon delivery of the Products to Buyer. |
| 4.2 |
Title in the Products shall not pass to Buyer until receipt by DFASS of full and final
payment for the Products and delivery of the Products to Buyer. |
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| 5 |
Order delivery and cancellation |
| 5.1 |
Subject always to DFASS’ acceptance of the Order, DFASS shall deliver the Products to such place
of delivery as may be designated by the Buyer and agreed to by DFASS. If no one is available at the
delivery address to receive the Products, DFASS’s delivery agent will leave a delivery advice card
at the address and the Buyer should follow the directions on that card to obtain delivery of the Products. |
| 5.2 |
Any shipment, delivery or collection dates provided by DFASS are estimates only and shall not form part
of the Contract. DFASS 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 email DFASS at: [email protected] |
| 5.3 |
DFASS 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:
| 5.3.1 |
change its prices or specifications of any Product; or |
| 5.3.2 |
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.
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| 5.4 |
An Order may be cancelled by the Buyer prior to shipment of the Products by DFASS, provided always that:
| 5.4.1 |
the Buyer must contact DFASS to request DFASS for cancellation immediately; |
| 5.4.2 |
DFASS will endeavour to accommodate the Buyer's request, if the Products have not been shipped; and |
| 5.4.3 |
the Buyer shall pay any cancellation fees which may be imposed by DFASS. |
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| 5.5 |
If an Order has already been shipped, no cancellation or refund will be permitted except in accordance with the Returns Policy. |
| 5.6 |
The Buyer acknowledges that DFASS's liability to deliver the Products to the Buyer pursuant to the Contract is subject to the
availability of the Products from DFASS's usual sources of supply. The Buyer further acknowledges that DFASS retains absolute
discretion as to the order of priorities in which any Products are delivered to DFASS's customers. |
| 5.7 |
For Orders for more than one Product, DFASS may deliver the Products in one delivery or by instalments. Each separate instalment
shall be regarded as a separate Contract, and invoiced and paid for in accordance with these Conditions. |
| 5.8 |
DFASS reserves the right to make only partial acceptance or delivery of an Order. |
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| 6 |
Export control and restrictions |
| 6.1 |
Products purchased or obtained under these Conditions may be subject to government import and export control laws and regulations,
including those of Malaysia. Buyer shall comply with all such laws and regulations. |
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| 7 |
Software |
| 7.1 |
All rights, title and interests in and to any software installed in the Products shall remain with DFASS or the applicable licensor(s),
as applicable. All software provided is subject to the terms and conditions of the license agreement relating to that software.
Warranties (if any) for any software are restricted to those contained in the licence agreement. The Buyer acknowledges that DFASS makes
no warranties for any software under these Conditions. |
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| 8 |
Acceptance, Returns & Refunds |
| 8.1 |
Unless the Buyer notifies DFASS in writing to the contrary within 30 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. |
| 8.2 |
DFASS guarantees that every Product is in good condition at the time of purchase. If it is not, the Buyer must return the
Product to DFASS by registered post in its original condition and original packaging and accompanied by proof of purchase within
30 days of receipt, detailing the reason for return. Upon safe receipt of returned Products within 30 days, DFASS will in its
discretion either exchange or refund the Product. To return Products which are unsuitable gifts purchased by Buyer for delivery
to a third party, Products must be returned unworn/unused by registered post in its original packaging, in the same condition as
when sold and accompanied by proof of purchase within 30 days. DFASS will refund the cost of such Product to the Buyer’s Credit
Card account but not refund or reimburse any postal, shipping or handling costs. All purchases using any form of vouchers are
non-refundable and non-exchangeable. DFASS will not entertain any returns or requests for refunds which do not comply with the
above conditions. The foregoing shall be known as DFASS’ “Returns Policy”.
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| 8.3 |
DFASS makes no warranty in respect of any Product, and DFASS’ Returns Policy is in lieu of all other warranties express or implied,
including any implied warranties of merchantability, satisfactory quality, compliance with description and fitness for a particular purpose.
DFASS’s sole liability for defective or non-compliant Products is limited to the Returns Policy. |
| 8.4 |
DFASS reserves the right to refuse any claims under the Returns Policy if:
| 8.4.1 |
The claim does not meet any of the conditions, or falls within any of the exclusions, under the Returns Policy; or |
| 8.4.2 |
The defect is the result of:
| (i) |
improper use or mismanagement by Buyer; |
| (ii) |
operation of the Products other than in accordance with the operating manual or instructions; |
| (iii) |
use of the Products in a manner not reasonably contemplated by DFASS; |
| (iv) |
modification of the Products not authorised by DFASS |
| (v) |
subjection of the Products to unusual or unrecommended physical, environmental or electrical stress; or |
| (vi) |
Buyer’s failure to comply with any terms of these Conditions. |
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| 9 |
Exclusion & limitation of liability |
| 9.1 |
In no event shall DFASS 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 DFASS has been advised of the possibility of such loss or damage. |
| 9.2 |
The total liability of DFASS 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 DFASS shall not in any event exceed the price of the Product giving rise to such claims. |
| 9.3 |
Nothing in these Conditions shall limit or exclude DFASS’s liability for death or personal injury caused by DFASS’s negligence. |
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| 10 |
Force majeure |
| 10.1 |
DFASS 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 |
DFASS 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, DFASS shall be entitled to allocate its available stock of the Products
among its customers in such a manner as DFASS may consider equitable and may make partial deliveries of any Products to the Buyer. |
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| 11 |
Amendment |
| 11.1 |
DFASS reserves the right to change these Conditions without prior written notice at any time, at DFASS’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 DFASS. |
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| 12 |
Complete Contract |
| 12.1 |
The Contract and these Conditions represent the entire understanding between DFASS 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 DFASS, unless otherwise agreed in a written agreement signed by Buyer and DFASS, and any failure by DFASS
to object shall not be considered a waiver of these Conditions. |
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| 13 |
Assignment |
| 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 DFASS. Any such unauthorised assignment shall be deemed null and void. |
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| 14 |
No Waiver |
| 14.1 |
No failure on the part of DFASS 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. |
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| 15 |
Illegality |
| 14.1 |
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. |
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| 16 |
Rights of Third Parties |
| 16.1 |
A person or entity who is not a Party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act (Cap. 53B)
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. |
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| 17 |
Rights of Third Parties |
| 17.1 |
These Conditions shall be construed in accordance with, and governed by, the laws of Malaysia. |
| 17.2 |
The Parties hereby submit to the non-exclusive jurisdiction of the Courts of Malaysia. |