1.1 In these Conditions:
“Buyer” means the person who accepts a quotation of Cheri Cheri for the supply of Goods or who otherwise enters into a contract for the supply of Goods with Cheri Cheri;
“Conditions” mean the general terms and conditions set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between the Buyer and Cheri Cheri;
“Contract” means the contract for the purchase and sale of Goods, howsoever formed or concluded;
“Goods” means the goods (including any instalment of the goods or any parts for them) which Cheri Cheri is to supply in accordance with a Contract;
“Writing” includes electronic mail facsimile transmission and any comparable means of communication.
“Cheri Cheri” means Cap360 Ventures Sdn Bhd, a company incorporated in Malaysia under registration number 1199711-H and having its registered address at Unit 2-2, Level 2, The Trillium at Lake Fields, Jalan Tasik Utama 7, Medan Niaga Tasik Damai, Sg Besi, 57000 Kuala Lumpur, Malaysia.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect the interpretation of any parties.
- Basis of the Contract
2.1 The supply of Goods by Cheri Cheri to the Buyer under any Contract shall be subjected to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions contained or referred to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom practice or course of dealing.
2.2 Any information made available in Cheri Cheri’s website connection with the supply of Goods, including photographs, drawings, data about the extent of the delivery, appearance, performance, dimensions, weight, consumption of operating materials, operating costs, are not binding and for information purposes only. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim based on any such representations or information not so confirmed.
2.3 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Cheri Cheri.
2.4 Any typographical clerical or other error or omission in any quotation, invoice or other document or information issued by Cheri Cheri in its website shall be subject to correction without any liability on the part of Cheri Cheri.
- Orders and Specifications
3.1 Order acceptance and completion of the contract between the Buyer and Cheri Cheri will only be completed upon Cheri Cheri issuing a confirmation of dispatch of the Goods to the Buyer. For the avoidance of doubt, Cheri Cheri shall be entitled to refuse or cancel any order without giving any reasons for the same to the Buyer prior to issue of the confirmation of dispatch. Cheri Cheri shall furthermore be entitled to require the Buyer to furnish Cheri Cheri with contact and other verification information, including but not limited to address, contact numbers prior to issuing a confirmation of dispatch.
3.2 No concluded Contract may be modified or cancelled by the Buyer except with the agreement in writing of Cheri Cheri and on terms that the Buyer shall indemnify Cheri Cheri in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by Cheri Cheri as a result of the modification or cancellation, as the case may be.
The price of the Goods and/or Services shall be the price stated in Cheri Cheri’s website at the time which the Buyer makes its offer purchase to Cheri Cheri. The price excludes the cost of packaging and delivery charges, any applicable goods and services tax, value added tax or similar tax which the Buyer shall be liable to pay to Cheri Cheri in addition to the price.
- Terms of Payment
5.1 The Buyer shall be entitled to make payment for the Goods pursuant to the various payment methods set out in Cheri Cheri’s website. The terms and conditions applicable to each type of payment, as contained in Cheri Cheri’s website, shall be applicable to the Contract.
5.2 In addition to any additional terms contained in Cheri Cheri’s website, the following terms shall also apply to the following types of payment:
5.2.1 Credit Card
Credit Card payment option is available for all Buyers. Cheri Cheri accepts all Visa and MasterCards, both Credit and Debit, and is 3D Secure (Verified by Visa, and MasterCard Secure) enabled. All your credit card information are protected by means of industry- leading encryption standards.
Please take note that additional charges may be incurred if you are using a non-Malaysian issues card due to Foreign Exchange.
5.2.2 Debit Cards
Cheri Cheri accepts all Malaysian Visa and MasterCard debit cards where subject to bank availability. All debit card numbers shall be protected by means of industry-leading encryption standards.
5.2.3 Online Banking
- By choosing this payment method, the Buyer shall transfer the payment for the Goods to a Cheri Cheri’s account for the total amount of the Buyer’s purchase (including any applicable taxes, fees and shipping costs). The transaction must be payable in Ringgit Malaysia. Cheri Cheri, in its sole discretion, may refuse this payment option service to anyone or any user without notice for any reason at any time.
6.1 Delivery of the Goods shall be made to the address specified by the Buyer in its order.
6.2 Cheri Cheri has the right at any time to sub-contract all or any of its obligations for the sale/delivery of the Goods to any other party as it may from time to time decide without giving notice of the same to the Buyer.
6.3 Any dates quoted for delivery of the Goods are approximate only. The time for delivery/performance shall not be of the essence, and Cheri Cheri shall not be liable for any delay in delivery or performance howsoever caused.
6.4 If Cheri Cheri has failed to deliver the Goods in accordance with the Contract or within a reasonable time, the Buyer shall be entitled, by serving written notice on Cheri Cheri, to demand performance within a specified time thereafter, which shall be at least 14 days. If Cheri Cheri fails to do so within the specified time, the Buyer shall be entitled to terminate the Contract in respect of the undelivered Goods and claim compensation for actual loss and expense sustained as a result of Cheri Cheri’s non-performance, which was foreseeable at the time of conclusion of the Contract and resulting from the usual course of events, subject always to the limitations set out in Condition 12.4.
6.5 If the Buyer fails to take delivery of the Goods (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of Cheri Cheri’s fault) then without prejudice to any other right or remedy available to Cheri Cheri Cheri Cheri may:
6.5.1 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract provided the price has been paid in cleared funds in full or charge the Buyer for any shortfall below the price under the Contract; or
6.5.2 terminate the Contract and claim damages.
- Risk and property of the Goods
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods, the time when Cheri Cheri has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions the property in the Goods shall not pass to the Buyer until Cheri Cheri has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Cheri Cheri to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Cheri Cheri’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer.
7.4 The Buyer agrees with Cheri Cheri that the Buyer shall immediately notify Cheri Cheri of any matter from time to time affecting Cheri Cheri’s title to the Goods and the Buyer shall provide Cheri Cheri with any information relating to the Goods as Cheri Cheri may require from time to time.
7.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) Cheri Cheri shall be entitled at any time to demand the Buyer to deliver up the Goods to Cheri Cheri and in the event of non-compliance Cheri Cheri reserves it’s right to take legal action against the Buyer for the delivery up the Goods and also reserves its right to seek damages and all other costs including but not limited to legal fees against the Buyer.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Cheri Cheri but if the Buyer does so all moneys owing by the Buyer to Cheri Cheri shall (without prejudice to any other right or remedy of Cheri Cheri) forthwith become due and payable.
7.8 If the provisions in this Condition 7 are not effective according to the law of the country in which the Goods are located, the legal concept closest in nature to retention of title in that country shall be deemed to apply mutatis mutandis to give effect to the underlying intent expressed in this condition, and the Buyer shall take all steps necessary to give effect to the same.
7.9 The Buyer shall indemnify Cheri Cheri against all loss damages costs expenses and legal fees incurred by the Buyer in connection with the assertion and enforcement of Cheri Cheri’s rights under this condition.
- Warranties and Remedies
8.1 Subject as expressly provided in these Conditions all other warranties conditions or terms, including those implied by statute or common law, are excluded to the fullest extent permitted by law.
8.2 Subject to this Condition 8, Cheri Cheri warrants that the Goods will correspond with their specification at the time of delivery, and agrees to remedy any non-conformity therein for a period of 12 months commencing from the date on which the Goods are delivered or deemed to be delivered (“Warranty Period”). Where the Buyer is dealing as a consumer (within the meaning of the Sale of Goods Act and the Consumer Protection Act), Cheri Cheri further gives to the Buyer such implied warranties as cannot be excluded by law.
8.2.1 Cheri Cheri’s above warranty concerning the Goods is given subject to the following conditions:
(a) No condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose or use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to Cheri Cheri.
(b) Any description given of the Goods is given by way of identification only and the use of such description shall not constitute a sale by description.
(c) Cheri Cheri binds itself only to deliver Goods in accordance with the general description under which they were sold, whether or not any special or particular description shall have been given or shall be implied by law. Any such special or particular description shall be taken only as the expression of Cheri Cheri’s opinion in that behalf. Cheri Cheri does not give any warranty as to the quality state condition or fitness of the Goods.
(d) Cheri Cheri shall be under no liability for the following measures and actions taken by the Buyer or third parties and the consequences thereof: improper remedy of defects, alteration of the Goods without the prior agreement of Cheri Cheri, addition and insertion of parts, in particular of spare parts which do not come from Cheri Cheri.
(e) Cheri Cheri shall be under no liability in respect of any defect arising from unsuitable or improper use, defective installation or commissioning by the Buyer or third parties, fair wear and tear, willful damage, negligence, abnormal working conditions, defective or negligent handling, improper maintenance, excessive load, unsuitable operating materials and replacement materials, poor work, unsuitable foundation, chemical, electro-technical/electronic or electric influences, failure to follow Cheri Cheri’s instructions (whether oral or in writing) misuse or alteration or repair of the Goods without Cheri Cheri’s approval.
(f) Cheri Cheri is not liable for any loss damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without Cheri Cheri’s prior written approval and the Buyer shall indemnify Cheri Cheri against each loss liability and cost arising out of such claims.
(g) Cheri Cheri shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid in cleared funds by the due date for payment.
(h) Cheri Cheri shall be under no liability whatsoever in respect of any defect in the Goods arising after the expiry of the Warranty Period.
8.2.2 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to Cheri Cheri within seven days from the date of receipt of the Goods or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. During use, the Goods shall be monitored constantly with regard to safety and defects. If there are even slight reservations concerning the suitability for use or the slightest reservations concerning safety, the Goods must not be used. Cheri Cheri shall be given written notification immediately, specifying the reservations or the defect. However in no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure, except where the failure is such that the Goods delivered are of a fundamentally different nature than those which Cheri Cheri had contracted to deliver.
8.2.3 If the Buyer does not give due notification to Cheri Cheri in accordance with the Condition 8.2.2, Cheri Cheri shall have no liability for any defect or failure or for any consequences re-sulting therefrom. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet a specification is notified to Cheri Cheri in accordance with Condition 8.2.2, the non-conforming Goods (or part thereof) will be repaired or replaced free of charge as originally ordered. Where the Goods have not been repaired or replaced within a reasonable time, despite a written warning from the Buyer, the Buyer shall be entitled to a reduction of the price in proportion to the reduced value of the Goods, provided that under no circumstance shall such reduction exceed 15% of the price of the affected Goods. In lieu of repair or replacement, Cheri Cheri may, at its sole discretion, grant such a reduction to the Buyer. Upon a repair, replacement or price reduction being made as aforesaid, the Buyer shall have no further claim against Cheri Cheri.
8.2.4 When Cheri Cheri has provided replacement Goods or given the Buyer a refund, the non-conforming Goods or parts thereof shall become Cheri Cheri’s property.
- Force Majeure
9.1 Cheri Cheri shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of Cheri Cheri’s obligations if the delay or failure was due to any cause beyond Cheri Cheri’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Cheri Cheri’s reasonable control:
9.1.1 Act of God, explosion, flood, tempest, fire or accident;
9.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.1.3 acts of restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
9.1.4 import or export regulations or embargoes;
9.1.5 interruption of traffic, strikes, lock-outs, other industrial actions or trade disputes (whether involving employees of Cheri Cheri or of a third party);
9.1.6 interruption of production or operation, difficulties in obtaining raw materials labour fuel parts or machinery;
9.1.7 power failure or breakdown in machinery.
9.2 Upon the happening of any one of the events set out in Condition 9.1 Cheri Cheri may at its option:-
9.2.1 fully or partially suspend delivery/performance while such event or circumstances continues;
9.2.2 terminate any Contract so affected with immediate effect by written notice to the Buyer and Cheri Cheri shall not be liable for any loss or damage suffered by the Buyer as a result thereof.
- Insolvency of Buyer
10.1 This condition applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases – or threatens to cease – to carry on business; or
10.1.4 Cheri Cheri reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this condition applies then without prejudice to any other right or remedy available to Cheri Cheri, Cheri Cheri shall be entitled to cancel the Contract or suspend any further delivery/performance under the Contract without any liability to the Buyer and if Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed, if to Cheri Cheri, to its registered office or principal place of business and if to the Buyer, to the address stipulated in the relevant offer to purchase.
12.1 Cheri Cheri shall accept liability to the Buyer for death or injury resulting from its own or that of its employees’ negligence. Save as aforesaid, Cheri Cheri’s liability under or in connection with the Contract shall be subject to the limitations set out in this Condition 12.
12.2 Cheri Cheri shall be under no liability whatsoever where this arises from a reason beyond its reasonable control as provided in Condition 9 or from an act or default of the Buyer.
12.3 In no event shall Cheri Cheri be liable for loss of profit or goodwill, loss of production or revenue or any type of special indirect or consequential loss whatsoever (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss were reasonably foreseeable or Cheri Cheri had been advised of the possibility of the Buyer incurring the same.
12.4 Where time of performance has been agreed by Cheri Cheri becomes the essence of the Contract by means of notice by the Buyer to Cheri Cheri, as provided for in Clause 6.4, and Cheri Cheri fails to comply with its obligations in due time, so that the Buyer becomes entitled to compensation in accordance with Condition 6.4, Cheri Cheri’s liability shall be limited to an amount of ½% for each full week of delay, in total to a maximum cumulative amount of 5%, of the value of the delayed Goods.
12.5 The remedies set out in Condition 8 are the Buyer’s sole and exclusive remedies for non-conformity of or defects in the Goods or Services and Cheri Cheri’s liability for the same shall be limited in the manner specified in Condition 8.
12.6 Without prejudice to the sub-limits of liability applicable under this Condition 12 or elsewhere in these Conditions, Cheri Cheri’s maximum and cumulative total liability (including any liability for acts and omissions of its employees agents and sub-contractors) in respect of any and all claims for defective performance, breach of contract, compensation, indemnity, tort, misrepresentation, negligence at law or equity and any other damages or losses which may arise in connection with its performance or non-performance under the Contract, shall not exceed the total Contract price.
12.7 If a number of events give rise substantially to the same loss they shall be regarded as giving rise to only one claim under these Conditions.
12.8 No action shall be brought by Cheri Cheri later than 12 months after the date it became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become aware, and in any event, no later than 12 months after the end of the Warranty Period.
13.1 On or at any time after the occurrence of any of the events in condition 13.2 Cheri Cheri may stop any Goods in transit, suspend further deliveries to the Buyer and exercise its rights under Condition 7 and/or terminate the Contract with the Buyer with immediate effect by written notice to the Buyer.
13.2 The events are:-
13.2.1 the Buyer being in breach of an obligation under the Contract;
13.2.2 the Buyer passing a resolution for its winding up or a court of competent jurisdiction making an order for the Buyer’s winding up or dissolution;
13.2.3 the making of an administration order in relation to the Buyer or the appointment of a receiver over or an encumbrancer taking possession of or selling any of the Buyer’s assets;
13.4. the Buyer making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors.
14.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
14.2 No waiver by Cheri Cheri of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 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 provision in question shall not be affected thereby.
14.4 No person who is not a party to this Contract (including any employee officer agent representative or sub-contractor of either party) shall have any right under the Contracts (Rights of Third Parties) Act to enforce any terms of this Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties, which the agreement must refer to Condition 3.2.
14.5 The Contract shall be governed by the laws of Malaysia and the Buyer agrees to submit to the non-exclusive jurisdiction of the Courts in Malaysia, as provided for in Clause 14.7.
14.6 Except as provided for in Clause 14.7, any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Rules for Arbitration of the Kuala Lumpur Regional Centre for Arbitration (KLR-CA). The arbitral tribunal shall consist of a sole arbitrator, to be appointed by the Chairman of the KLRCA. The place of arbitration shall be Kuala Lumpur. Any award by the arbitration tribunal shall be final and binding upon the parties.
14.7 Notwithstanding Clause 14.6, Cheri Cheri shall be entitled to commence court legal proceedings for the purposes of protecting its intellectual property rights and confidential information by means of injunctive or other equitable relief.
14.8 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Contract for the sale of Goods.
14.9 Cheri Cheri reserves their right to these terms and conditions of sale at any time.