1.1 In these Conditions:
"Buyer" means the person who accepts a quotation of Posmogo for the supply of Goods or who otherwise enters into a contract for the supply of Goods with Posmogo;
"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 Posmogo;
"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 Posmogo is to supply in accordance with a Contract;
"Writing" includes electronic mail facsimile transmission and any comparable means of communication.
“Posmogo” means Kornerstone Commerce Sdn. Bhd., a company incorporated in Malaysia under registration number 1141735-U and having its business address at B-05-13A, Empire SOHO Subang Jalan SS16/147500 Subang Jaya, Selangor 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.
2. Basis of the Contract
2.1 The supply of Goods by Posmogo 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 Posmogo’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 Posmogo.
2.4 Any typographical clerical or other error or omission in any quotation, invoice or other document or information issued by Posmogo in its website shall be subject to correction without any liability on the part of Posmogo.
2.5 Posmogo may provide Buyer with electronic documents such as tax invoice, receipt, credit note, debit note, or any other document.
3. Orders and Specifications
3.1 Order acceptance and completion of the contract between the Buyer and Posmogo will only be completed upon Posmogo issuing a confirmation of dispatch of the Goods to the Buyer. For the avoidance of doubt, Posmogo 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. Posmogo shall furthermore be entitled to require the Buyer to furnish Posmogo 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 Posmogo and on terms that the Buyer shall indemnify Posmogo 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 Posmogo 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 Posmogo’s website at the time which the Buyer makes its offer purchase to Posmogo. 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 Posmogo in addition to the price.
5. 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 Posmogo’s website. The terms and conditions applicable to each type of payment, as contained in Posmogo's website, shall be applicable to the Contract.
5.2 In addition to any additional terms contained in Posmogo’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. Posmogo 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 Posmogo 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 Posmogo’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. Posmogo, 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 Posmogo 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 Posmogo shall not be liable for any delay in delivery or performance howsoever caused.
6.4 If Posmogo 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 Posmogo, to demand performance within a specified time thereafter, which shall be at least 14 days. If Posmogo 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 Posmogo’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 9.4.
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 Posmogo's fault) then without prejudice to any other right or remedy available to Posmogo, Posmogo 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.
7. 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 Posmogo 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 Posmogo 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 Posmogo 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 Posmogo's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer.
7.4 The Buyer agrees with Posmogo that the Buyer shall immediately notify Posmogo of any matter from time to time affecting Posmogo’s title to the Goods and the Buyer shall provide Posmogo with any in-formation relating to the Goods as Posmogo 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) Posmogo shall be entitled at any time to demand the Buyer to deliver up the Goods to Posmogo and in the event of non-compliance Posmogo 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 Posmogo but if the Buyer does so all moneys owing by the Buyer to Posmogo shall (without prejudice to any other right or remedy of Posmogo) forthwith become due and payable.
7.7 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.
7.8 The Buyer shall indemnify Posmogo against all loss damages costs expenses and legal fees in-curred by the Buyer in connection with the assertion and enforcement of Posmogo’s rights under this condition.
8. Force Majeure
8.1 Posmogo 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 Posmogo's obligations if the delay or failure was due to any cause beyond Posmogo's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Posmogo's reasonable control:
8.1.1 Act of God, explosion, flood, tempest, fire or accident;
8.1.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.1.3 Acts of restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
8.1.4 Import or export regulations or embargoes;
8.1.5 Interruption of traffic, strikes, lock-outs, other industrial actions or trade disputes (whether involving employees of Posmogo or of a third party);
8.1.6 Interruption of production or operation, difficulties in obtaining raw materials labour fuel parts or machinery;
8.1.7 Power failure or breakdown in machinery.
8.2 Upon the happening of any one of the events set out in Condition 8.1 Posmogo may at its option:-
8.2.1 Fully or partially suspend delivery/performance while such event or circumstances continues;
8.2.2 Terminate any Contract so affected with immediate effect by written notice to the Buyer and Posmogo shall not be liable for any loss or damage suffered by the Buyer as a result thereof.
9.1 Posmogo shall accept liability to the Buyer for death or injury resulting from its own or that of its employees' negligence. Save as aforesaid, Posmogo’s liability under or in connection with the Contract shall be subject to the limitations set out in this Condition 9.
9.2 Posmogo shall be under no liability whatsoever where this arises from a reason beyond its reasonable control as provided in Condition 8 or from an act or default of the Buyer.
9.3 In no event shall Posmogo 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 Posmogo had been advised of the possibility of the Buyer incurring the same.
9.4 Where time of performance has been agreed by Posmogo becomes the essence of the Contract by means of notice by the Buyer to Posmogo, as provided for in Clause 6.4, and Posmogo fails to comply with its obligations in due time, so that the Buyer becomes entitled to compensation in accordance with Condition 6.4, Posmogo’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.
9.5 Without prejudice to the sub-limits of liability applicable under this Condition 9 or elsewhere in these Conditions, Posmogo’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.
9.6 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.
10.1 On or at any time after the occurrence of any of the events in condition 10.2 Posmogo 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.
10.2 The events are:-
10.2.1 The Buyer being in breach of an obligation under the Contract;
10.2.2 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;
10.2.3 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;
10.3 The Buyer making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors.
11.1 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.
11.2 No waiver by Posmogo 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.
11.3 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.
11.4 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.
11.5 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 11.7.
11.6 Except as provided for in Clause 11.7, 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.
11.7 Notwithstanding Clause 11.6, Posmogo 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.
11.8 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Contract for the sale of Goods.
11.9 Posmogo reserves their right to these terms and conditions of sale at any time.
11.10 If you are dissatisfied for any reason, please contact us. Refunds and cancellations will be handled on a case-by-case basis.