TERMS AND CONDITIONS OF SALE - LENSES
Accurate as of 07 October 2020
1.1 In these Terms & Conditions of Sale (Lenses):
“Conditions” means the terms and conditions set out in this document and the Suppliers’ Conditions of Use of Trademarks and Marketing Materials , as amended from time to time and published on the Website;
“Contract” means the contract between the Customer and the Supplier for the sale and purchase of the Products in accordance with the Conditions;
“Customer” means the person, firm or company placing Order(s) with the Supplier;
“GST” means goods and service tax (or similar tax of any other jurisdiction such as value added tax);
“Products” means the [stock and Rx optical lenses] which are the subject of sale or supply between the Parties;
“Order” means the Customer’s order for the Products, whatever its format (order form, fax, email, call to the customer service, Whatsapp, through the Ordering System or any other electronic format) and whether written or oral or as the case may be;
“Ordering System” where applicable, means the ordering software (such as “Essicliq”) made available by the Supplier to the Customer to order Products in accordance with the Conditions;
“Parties” means the Customer and the Supplier, and “Party” means any one of them;
“Supplier” means Essilor Malaysia, Wisma Mont Kiara, Suite L11-01, 1, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur; and
“Website” means the website accessible at www.essilor.com.my.
1.2 In these Conditions "the Seller" means Essilor Malaysia Sdn Bhd, "the Buyer" means the person, firm or company with whom the Seller agrees to sell or supply the Goods, "the Goods" means the goods materials or services which are the subject of sale or supply between the Seller and the Buyer, and “this contract” means the contract entered into between the Buyer and the Seller in relation to the Goods.
1.3 All sales are made subject to the Conditions set forth hereunder and the following:
(i) all quotations are given and all orders are accepted on these Conditions which shall supersede any other terms appearing in the seller’s catalogue or elsewhere, and shall override and exclude any other terms stipulated or referred to by the Buyer in any negotiations, order and any course of dealing established between the seller and the buyer;
(ii) all orders made by the Buyer are binding and may not be cancelled save as provided under Clause 2A below, and shall be deemed to be made subject to these Conditions; and
(iii) the Seller reserves the right to terminate all commercial relations in the event that the Goods are not sold to the public by authorized persons.
1.4 No modification of these Conditions shall be effective unless made by an express written agreement between the Buyer and the Seller. The signing by the Seller of any of the Buyer’s documentation shall not imply any modification of these Conditions.
2. THE GOODS
2.1 The description and the quantity of Goods shall be set out in the invoice.
2.2 All samples, descriptions and illustrations in the Seller's catalogues, price lists and advertisements or otherwise communicated to the Buyer shall not form part of this contract, but shall be treated as being issued or published for the sole purpose of giving an approximate idea of the Goods described in them only unless otherwise stated. Sections 13 and 15 of the Sales of Goods Act in Malaysia and the equivalent of identical or similar laws in other countries are hereby expressly excluded.
2.3 The Buyer is responsible for ensuring that the terms of its order and any applicable specification (if applicable) are complete and accurate, and shall determine the suitability of the Goods for its intended use. If a Buyer has requested for certain modifications to the Goods and this was agreed to in writing by the Seller, the determination of whether the modified Goods conforms to the Buyer’s specifications shall be based on a reasonable objective standard. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller that is not set out in this contract. So long as the Goods supplied are of sound commercial quality, there is no guarantee of their suitability for any specific purpose, even if that purpose is known to the Seller.
2A. RETURNED GOODS/CANCELLATION
2A.1 It is the Buyer’s responsibility to check the item references, quantities, condition, and conformance of the Goods at the time of delivery. Goods can only be returned by prior agreement with the Seller in writing, unless the Goods are returned due to defects or incorrect dispatch.
2A.2 Should the Seller accept rejection of the Goods (or any part thereof) delivered against this contract, reasonable time will be allowed to the Seller to replace the rejected Goods. The Goods returned must be sent, insured and carriage paid to the Seller’s warehouse accompanied by a packing slip clearly stating quantity and description of the Goods returned, reason for the return and quoting the invoice number of the original delivery within two weeks from the date of the Seller’s delivery.
2A.3 If the Goods ordered by the Buyer are Rx lenses, the Buyer may request in writing to cancel or modify its order at no extra cost provided that its original order has not already been processed by the Seller. For the avoidance of doubt, if the Seller has already commenced or completed the processing of the lenses based on the Buyer’s specifications or order, there can be no cancellation or modification to the Buyer’s original order.
For the purposes of this clause, any response and/or decision of the Seller shall be final and binding on the Buyer.
2A.4 The Seller reserves the absolute right (but not the obligation) to issue credit notes upon receipt of Goods returned by the Buyer in accordance with these Conditions, and such credit notes can be used by the Buyer to offset any amount it owes to the Seller for Goods ordered or delivered from time to time.
3.1 The price to be paid for the Goods will be set out in the Seller’s invoice, or (if no price is quoted) will be based on the Seller's price list prevailing on the date of delivery. All prices for the Goods are quoted as net prices and do not include transport of the Goods and any goods and services tax, which shall be paid additionally by the Buyer.
3.2 The Seller shall be entitled to adjust the price to be paid for the Goods by such amount as it thinks fit at any time before the dispatch of the Goods (including additional charges for postage) in the event of any increase in the cost to the Seller in supplying the Goods, whether such increase shall result from higher costs of raw materials, labour, transport or overhead expenses, or any delay caused by instructions or requests from the Seller, or from any other cause whatsoever.
4. DELIVERY & RISK
4.1 All delivery dates and time are estimates only and the time of delivery shall not be of the essence of this contract. Should the Seller be prevented from or hindered in delivering the Goods or any part thereof by reason of war, riot, explosion, fire, flood, strike, lockout, shortage of materials or labour, delay in delivery or non-delivery by the Seller's suppliers, breakdowns or accidents to machinery, labour strike or dispute, order of decree of any court, or action of any Governmental authority or any other cause or circumstances beyond the Seller’s control (collectively as “Force Majeure Event”), the Seller reserves the right to cancel or suspend the whole or part of any delivery. In the event the Seller decides to suspend the delivery, the time for delivery shall be extended by a period equal to that during which the cause preventing or hindering delivery exists.
For the avoidance of doubt, late delivery (regardless whether it is caused by a Force Majeure Event or any other reason whatsoever) shall not be a ground for cancellation or refusal to take delivery of the Goods or constitute a valid claim against the Seller for compensation/indemnification under this contract.
4.2 Part delivery - Orders are dispatched complete but in the event of shortages or any other reason beyond the Seller’s control, part delivery may be made in the absence of instruction to the contrary. If the Seller delivers the Goods by instalments, each instalment shall constitute a separate contract and shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.3 The Seller shall not in any way be liable to compensate the Buyer in damages or otherwise for non-delivery or late delivery of the Goods or any part of them for whatever reason or for any loss consequential or otherwise arising therefrom unless the Buyer’s claims are submitted in writing.
(i) For damage or partial loss in transit, within forty-eight hours of the delivery and provided the delivery note is endorsed accordingly by the Seller.
(ii) For non-delivery of the whole consignment, within 7 days of receipt of the date of Seller’s invoice.
If the Goods or any part thereof are damaged or lost while in the custody of a carrier, the Seller will at its sole option either replace such Goods or part thereof, or refund to the Buyer the cost or price of the same.
4.4 Carriage and packing - A charge for carriage and packing may be levied on orders. The seller reserves the right where special deliveries are required to pass on these costs.
5.1 Payment for the Goods shall be promptly made in full without deduction or set off by the date or within the period (as the case may be) set out under the “TERM” box in the Seller’s invoice, unless otherwise expressly provided under these Conditions or approved in writing by the Seller.
For the purposes of these Conditions, an indication of “COD” on the Seller’s invoice shall mean “cash-on-delivery”, and the indications of “7”, “030” or “060” on the Seller’s invoice shall separately mean that payment shall be received by the Seller from the Buyer within 7, 30 or 60 days respectively from the date of issue of the Seller’s invoice.
5.2 As an incentive for the Buyer to make prompt payment for any consignment of Goods, the Seller may offer a 10% discount off the total price in relation to that particular consignment if the Seller receives the full outstanding amount from the Buyer within the credit period indicated in the Seller’s invoice. This “prompt payment” incentive will not apply to “COD” consignments/payments, and/or if the Seller only receives the payment (or any part thereof) after the lapse of the credit period indicated in the Seller’s invoice. Notwithstanding anything stated under this Clause 5.2, the Seller hereby reserves and shall have the absolute right to end or vary the terms of this incentive at any time without prior notice to the Buyer.
5.3 The Seller shall have the right to levy and be paid interest at the rate of four percent per month on all sums due to the Seller and unpaid, for the period from the date upon which payment is due until the date upon which payment is made, both before and after any judgment, but nothing herein shall entitle the Buyer to withhold or delay any payment due to the Seller after the date upon which it falls due or in any way prejudice or effect the Seller's rights in relation to the said non-payment. The Buyer shall pay the interest together with the overdue amount.
5.4 The Seller may at any time require the Buyer to make payment in advance of delivery.
5.5 The Buyer shall pay all amounts due under this contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
5.6 Should the Buyer fail to make payment by the due date or when required, the Seller reserves the right without prejudice to any other remedy which it may have, to cancel this contract and/or any other contract between the Buyer and Seller and/or to suspend delivery until payment shall have been made and all outstanding sums in respect of Goods delivered to the Buyer shall become immediately due.
6. RETENTION OF TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery but the title of the Goods shall not pass to the Buyer at the time of delivery until all sums due or owing by the Buyer to the Seller on any account whatsoever (including debts arising before the date of this contract) have been paid in full.
6.2 Until title and ownership of the Goods have passed to the Buyer:
(i) The property and title in the Goods shall remain with the Seller and the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller.
(ii) The Goods shall be stored separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property, and the Buyer shall not remove, deface or obscure any identifying mark or packaging on or relating to the Goods.
(iii) The Buyer shall maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery, and give the Seller such information relating to the Goods as the Seller may require from time to time.
(iv) The Seller shall have full legal and beneficial ownership in any new product into which the Goods are coveted or which results in the mixing of the Goods with any other products. If the Seller’s co-ownership becomes null and void due to processing, combining or mixing with other goods, the Buyer immediately assigns to Seller its ownership rights in the new property or compound matter which correspond to the amount of the value of Goods, and such rights shall be subject to these Conditions.
(v) The Buyer shall be entitled to sell in the ordinary course of its business any of the Goods which are the property of the Seller as long as the Buyer has not breached any of the Conditions hereunder, and on condition that the Buyer shall hold on trust for and on demand pay or transfer to the Seller (to the extent of any monies due to the Seller) the proceeds of such sale and all claims that the Buyer may have against its purchaser as a result of such sale.
6.3 If the Buyer shall commit any breach of its obligations hereunder or shall default in payment or any sum due to the Seller under this or any other contract, or if any distress execution or other legal process shall be levied against the Buyer's property or assets, or the Buyer shall make or offer to make any arrangement or composition with its creditors, or any petition or order be presented or made against the Buyer, or if any resolution or petition to wind up the Buyer shall be presented or passed or any administrative receiver be appointed over all or any of its assets, or the Seller reasonably believes that any of the above events is about to happen and notifies the Buyer accordingly, then in each such case the Buyer’s power of sale shall automatically cease and the Seller shall have the right with or without prior notice at any time to take possession of the whole or any part of the Goods (and for that purpose to go onto any premises occupied by the Buyer or any subsidiary, parent or associated company of the Buyer) to the value of all sums due to the Seller, without prejudice to any other right or remedy available to the Seller at law or otherwise.
6.4 Where payment is made by means of a bill of exchange, cheque or other negotiable instrument, the Seller shall be deemed not to have received payment for the purpose of these Conditions until the bill of exchange, cheque or instrument has been honored on presentation for payment, notwithstanding that the Seller may have negotiated it and received value therefore.
7.1 Subject to the conditions and procedure set out in Section 2, the supplier provides a warranty against manufacturing defects. The supplier warrants that on delivery the products shall: a) conform in all material respects with their description, and (b) be free from material defects in design, material and workmanship. The warranty is valid for one(1) year in Crizal® (except Crizal®Easy) branded coatings, starting from the date stated on the Supplier’s invoice. For all other defects and non-conforming products, the warranty must be exercised within the timeline set out in Section 2A.
7.2 Without limiting the generally of the foregoing and for the avoidance of doubt, the Supplier shall not be liable in any way for any of the following (i) any defects in the products that arise from the Customer’s neglect, negligence, misuse, abuse, damage, external action or from normal wear and tear, and/or (ii) any other goods, products, materials, services and/or items of any kind whatsoever and regardless of howsoever the damage or defect may have occurred, including without limitation any damage to any spectacle frames sent by the Customer and/or its clients to the Supplier for edging/lens fitting purposes.
7.3 The warranty set out in the Conditions shall be void if installation, operating or maintenance instructions are not observed, or if parts are replaced or materials used are not in accordance with Supplier’s original product specifications unless the Customer can show that the defect in question did not result from such non-observance of instructions. The Customer shall have no claims against the Supplier in respect of Products sold as lower class or used goods.
7.4 All other warranties and conditions (implied or expressed at law or otherwise) that exceed the above obligations, are hereby disclaimed and excluded to the fullest extent permitted by applicable laws. So long as the Products supplied are of sound commercial quality, the Supplier does not guarantee their suitability for any specific purpose, even if that purpose is known to the Supplier.
7.5 60 Days Adaptation Warranty.
(i) Progressive lenses of Varilux® (and such other lenses that may be included in this warranty, as determined by the Supplier as its sole discretion) benefit from the “60 days Wearers Adaptation Warranty”, which is widely publicised and is an essential and inseparable component of these lenses. As part of this offer, the wearers of these lenses have 60 days from the date of delivery to the Customer to express any difficulties of adaptation persistent despite a regular wearing of the equipment. As an eye care professional, you must inform the wearer of the existence of the “60 days Wearers Adaptation Warranty” provided by the Supplier.
(ii) The Supplier’s support for the “60 days Wearers Adaptation Warranty” is subject to (a) the written notification by the Customer to the Supplier of the difficulty of adaptation, within a maximum period of sixty (60) days after the delivery date appearing on the lenses delivery slip; and (b) the provision by the Customer of all the information necessary for the analysis by the Supplier of the difficulty of adaptation.
(iii) If the cause of the difficulty of adaptation imposes a modification of the equipment despite the support by the Supplier of a member of its Professional and Education team, on appointment basis, the Supplier will supply free of charge to the Customer a new pair of progressive lenses, preferably of the same design, upon reception of the non-fitting lenses accompanied by a copy of the delivery slip of these lenses. If by extraordinary, this replacement is not suitable, and that it is necessary to consider another equipment, the Supplier will assist the Customer to bring the best solution to the wearer, within the limit of a second change of lenses. For the avoidance of doubt, the Customer shall remain liable for the payment of the invoice originally issued by the Supplier for the non-fitting lens.
8. TRADEMARKS & ADVERTISING MATERIALS
8.1 For the purposes of these Conditions, “Trademarks” shall mean all trademarks, brands, logos, or trade names owned by the Seller and/or any of its subsidiary, parent or associated company (including its parent company Essilor International (Compagnie Générale d'Optique) SA) or for which any of them holds rights (collectively as “TM Proprietor”).
8.2 The Buyer and/or any of its customers are expressly prohibited from using or reproducing the Trademarks in any manner that will harm or bring them into disrepute. By using the Trademarks, the Buyer shall be deemed as acknowledging that (i) the TM Proprietor is the owner of all rights, titles, and interests in the Trademarks, (ii) all use of the Trademarks inures to the TM Proprietor’s benefit, (iii) it shall not interfere with or challenge the TM Proprietor’s rights in the Trademarks, and (iv) it shall not bring the Trademarks into disrepute, and shall ensure that none of its employees, agents, customers, consultants, partners, associates etc will directly or indirectly reproduce or use any Trademarks in any manner other than expressly authorised by the TM Proprietor.
8.3 Any advertising campaign and materials that in any way mentions any of the Trademarks or features drawn from the TM Proprietor’s advertising must be submitted to the TM Proprietor, who shall have the right (i) to make any changes it may unilaterally decide to the said campaign, (ii) to determine at its discretion the manner of use of the Trademarks, and (iii) to reject the submitted commercial or advertising campaign if it appears incompatible with the image of the Trademarks.
In order to allow the TM Proprietor to verify such compliance, the Buyer must submit (with sufficient lead time) all advertising campaigns to the TM Proprietor for its approval prior to launching them.
9.1 If the Buyer shall commit any breach of its obligations under this (including the obligations under Clause 8) or any other contract, or shall default in payment of any sum due to the Seller under this or any other contract, or if any distress execution or other legal process shall be levied against the Buyer's property or assets, or the Buyer shall make or offer to make any arrangement or composition with its creditors, or any petition or order be presented or made against the Buyer, or if an administrative receiver be appointed of all or any of its assets, then in each case the Seller shall have the right to forthwith terminate this contract and to cancel any outstanding delivery without any prejudice to any other right or remedy available to it under law or otherwise.
9.2 The Buyer shall not be entitled to cancel this contract without the consent of the Seller, which if given shall be deemed to be on the express condition that the Buyer shall indemnify the Seller against all loss, damage, claims or actions arising out of such a cancellation.
10. LIMITATIONS OF LIABILITY
The Seller’s liability (if any) whether in contract or otherwise in respect of any defect in the Goods or for any breach of this contract or of any duty owed to the Buyer in connection therewith shall be limited to the price of the Goods in question. The Seller shall not be liable for any loss or any duty owed to the Buyer arising from any damage to the Goods occurring after the risk has passed to the Buyer however caused, nor shall any liability of the Buyer to the Seller be diminished or extinguished by reasons such as loss of Goods.
11.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this contract; but the Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this contract without the prior written consent of the Seller.
11.2 If any provision or part-provision of this contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this contract shall not affect the validity and enforceability of the rest of the contract.
11.3 This contract between the Seller and the Buyer for the supply of the Goods shall be governed and construed in accordance with the Laws of Malaysia. Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be in Kuala Lumpur Malaysia, and the arbitration proceedings shall be conducted in English.
11.4 No forbearance or indulgence shown or granted by the Seller to the Buyer shall in any way effect or prejudice the right of the Seller against the Buyer or be regarded as a waiver of these Conditions.
11.5 A person who is not a party to this contract shall not have any rights to enforce the Conditions stated hereunder.