KASI (Malaysia) Sdn Bhd (Company No. T48597-H) hereinafter referred to as “KASI” is a Company incorporated in Malaysia under the Company’s Act 1965.
These terms & conditions shall apply to all contracts for commissioned work performed by KASI to the extent that they have not been explicitly deviated from by agreement in writing concerning the work in question.
3. Offers and Agreements
4. Early Termination of Agreement
- An offer for the carrying-out of commissioned work shall be binding on KASI only if (i) made in writing by KASI, and (ii) accepted in writing by the Client within three (3) months after the making of such offer. The offer and acceptance shall be the “Agreement” referred to herein.
- KASI agrees to carry out the commissioned work conscientiously and using, to the best of its ability, the knowledge available to KASI or which KASI deems appropriate to obtain from sources other than KASI. However, KASI does not guarantee the accuracy of information made available to it by others, nor does KASI guarantee the objectives of each commissioned job will be accomplished.
- KASI shall not be liable for any work it performs to the extent that the results thereof may be inconsistent with the results desired or anticipated by the Client.
- KASI shall keep the Client up to date concerning the progress of KASI’s work. Thus, it shall be the duty of KASI to notify the Client if, while the work is in progress, circumstances arise which, in KASI’s opinion, will necessitate a change to the scope of KASI’s work, or which will render the completion of work impossible or impracticable, or which will substantially alter the anticipated result. In the event of a necessary change to the scope of the work, the fee payable under the contract between KASI and the Client shall be adjusted to reflect the change in the scope of the work.
- Where, in the course of its work, KASI becomes aware of matters which, in KASI’s opinion, may entail an imminent, serious risk to the life or safety of any party, KASI may demand that the Client to notify the appropriate governmental authorities. If the Client fails to comply with such demand and provide proof of such compliance, KASI may inform the appropriate governmental authorities on its own accord. Nothing herein shall, however, impose any liability on KASI for failure to make such a demand or failure to so notify any governmental authorities.
- The Client shall have the right to terminate its agreement with KASI upon 30 days’ prior written notice, which notice shall be accompanied by payment to KASI of the full fee plus any other amounts due and owing under the relevant contract between KASI and the Client, less any savings that KASI may achieve, as determined by KASI in its sole discretion, by virtue of the early termination.
- In cases in which the Client has exercised its early termination right as set forth in Clause 1 of Paragraph 4, KASI shall have the right, subject to the limitations contained in Clause 6 below, to continue the work for KASI’s own account, or for another client. In such event, KASI shall not be obligated to refund or rebate to the Client any portion of the fee payable by the Client.
- KASI shall have the right to terminate this Agreement upon prior written notice to the Client (i) in the event of any non-performance on the part of the Client of any of the Client’s obligations, (ii) if KASI determines, in its sole discretion, that the commissioned work is, or entails work or results, of such a nature that public health or safety or other public interests are jeopardized. In any such event, the Client shall pay to KASI the full fee plus any other amounts due and owing under the relevant contract between KASI and the Client, less any savings that KASI may achieve, as determined by KASI in its sole discretion, by virtue of the early termination.
KASI’s work is customarily concluded with a report to the Client containing a description of the work performed, the most significant measurement and analysis results, calculations, if any, evaluations, and a conclusion. In the absence of agreement in writing to the contrary, the report will be delivered in two (2) copies, copies of which KASI shall be entitled to retain and use.
6. Ownership and Publication of Results
7. Prices and Payment
- KASI shall retain ownership and copyright in all materials created by KASI, including the drawings and data prepared by KASI as well as the underlying detailed information. KASI shall have the right to use such materials, without compensation to the Client, for any lawful purpose.
- The Client shall acquire a limited right to use the material prepared by KASI which is delivered to the Client (hereinafter the “Delivered Material”). Except to the extent set forth in a separate written agreement between the parties, if any, the Client is only entitled to employ the Delivered Material for his own use in connection with the project for which the Delivered Material was prepared.
- The Client shall have the right to publish KASI’s final report. However, any publication or use of abstracts shall be subject to KASI’s written permission and approval of the abstracts and any other restrictions reasonably imposed by KASI, including those relating to the use of KASI’s name. The Client may never use KASI’s name in any misleading way in publishing the report for any reason or in any advertising.
- KASI reserves the right to publish study results, if any, that KASI deems to be of general interest.
In the absence of agreement in writing to the contrary, the prices and rates specified in KASI’s offer shall be an estimate based on prices in effect on the date of the offer, and KASI reserves the right to alter such prices to equal the prices and rates as of the date of delivery, subject to one (1) month notice. This shall also apply to ongoing and agreed, but not yet initiated, works.
- If the Client so wishes and KASI, in its sole discretion, agree to do so in writing, a commissioned study may be carried out at a fixed price calculated on the basis of the fees, as outlined above, plus a contingency amount to cover unforeseen expenses. In such cases KASI undertakes to carry out the work for the agreed Fixed Price.
- If after KASI begins the work the Client wishes to alter the scope of work or circumstances arise which require a modification to the scope of work, or if the assumptions for the offer are changed, the parties will alter the terms in accordance with a new agreement on the scope of work.
Invoicing; Terms of Payment
8.Client’s Responsibility to Provide Access to Information
- In the absence of agreement to the contrary, the Client shall make all payments to KASI on the basis of invoices or on-account requests for commissioned work.
- Payments shall be made no later than twenty one (21) days from the date of the invoice, with the exception of mobilization fee, which shall be due immediately on instruction to proceed.
- KASI shall be entitled to suspend the work, subject to prior notice, if payment is not received punctually.
- If the Client wishes to dispute the amount of any invoice, the Client shall nevertheless pay the full amount of the invoice by the due date, but may file a complaint concerning the invoice so long as such complaint is made in writing and delivered to KASI within twenty one (21) days after the date of the invoice.
- Unless otherwise agreed to the contrary with the Client, all fees are exclusive of Goods and Services Tax (‘GST’) on the Services and Products and other supplies made under this Agreement to the extent that they are taxable supplies within the meaning of the Goods and Services Tax Act.
The Client shall provide to KASI access to Client’s premises, books, records and other information in the Client’s possession as requested by KASI, which request shall be limited to such access and information as is reasonably necessary for KASI to perform the work.
9. KASI’s Liability
KASI shall be liable to the Client in accordance with the general rules of damages under Malaysia law, with such limitations as follows from items a. to j. below:
10. Client’s Liability
- The Client acknowledges that KASI’s consulting services and guidance are provided on the basis of the knowledge and technology available to KASI.
- KASI shall not be held liable if subsequent technological developments should show that KASI’s knowledge and technology were deficient or incorrect.
- KASI disclaims responsibility for all and any damage occurring in connection with any use which is beyond the task and beyond the purpose for which the KASI’s report was made.
- KASI disclaims responsibility for errors in connection with statements about which it has been specified that they are based on an estimate.
- In connection with any exercise of control, including certified testing, KASI shall be liable only for such loss as the Client may incur by reason of KASI having failed to draw the Client’s attention to existing defects in due course. KASI stipulates that KASI shall be liable only if the Client can show that the damage or injury was directly caused by errors or negligence on the part of KASI. KASI shall not be liable for any damage or injury if:
- The product causing the damage or injury has not been specifically tested by KASI, unless the Client can show that the relevant product is identical to a product that was specifically tested or checked by KASI; or
- If the damage or injury was caused by a property in a product or a use of a product which either was not tested or examined and described in the test or study report or which differs from KASI’s description, in the test or study report, of the product’s property or of a possible use of the product.
- In connection with any renting and sale of equipment and products, KASI shall have no liability, unless it is conclusively shown that any damage or injury was directly caused by KASI’s errors or negligence.
- Notwithstanding any errors or omissions, KASI shall not be liable for any loss of data, consequential loss, loss of profits, or other indirect loss.
- In the absence of agreement to the contrary in writing, KASI’s total liability to the Client shall not exceed the lesser of the total remuneration agreed or estimated in connection with a commissioned study. This amount is the parties’ reasonable estimate of the maximum amount of damage the Client would suffer in the event of a breach by KASI and the Client acknowledges that KASI would not have entered into the Agreement without this limitation on damages.
- Any claim by the Client asserting KASI’s liability under the Agreement must be made within one (1) year after the date that KASI delivers the final report to the Client, after which all such liability shall be extinguished.
- In the event that KASI is held liable by any third party in respect of any matter for which the liability to the Client is limited by a. to i. above, to an extent that exceeds those limitations, the Client shall hold KASI harmless and indemnified against such liability, including all costs (such as attorneys’ fees and costs of defence) associated with defending against any claim asserted against KASI.
In addition to the provisions set forth above relating to KASI’s rights in the event of Client’s late payment, if the Client fails to perform any other obligation under the Agreement or herein, KASI shall be entitled to recover all loss, cost, damage and expense incurred by KASI as a direct result of the Client’s breach. With respect to the Client’s obligations regarding publication of results and use of KASI’s name, KASI shall be entitled, if it so elects, to specific performance of such obligations rather than an action for damages.
The Agreement shall be governed by the laws of Malaysia and no suit or other proceedings relating to this Agreement shall be brought or filed in any court other than a court of competent jurisdiction in Malaysia, which shall have exclusive jurisdiction to hear and determine all suits or proceedings arising out of this Agreement. In the event of a dispute between the parties, the prevailing party shall be reimbursed in full by the other party for all expenses, including without limitation attorneys’ fees, incurred in enforcing the parties’ Agreement. In any of the provisions of the parties’ Agreement or these General Terms are deemed, to any extent, to be invalid or unenforceable, the remainder of the Agreement and the application of such provisions to persons or circumstances other than those as to whom it is invalid or unenforceable shall not be affected.
12. No Assignment
Neither party may assign the Agreement or such party’s obligations hereunder without the prior written consent of the other party.
13. No Oral Representations
The Agreement and these General Terms contain the entire agreement between the parties, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. No representations, warranties, undertakings or promises (whether oral or written, express or implied), can be made or have been made by KASI.
14. Restrictions on Modifications
No modification of these General Terms or the parties’ Agreement, or any waiver of any provision shall be effective unless the same is in writing signed by the party against whom enforcement of such modification, amendment or waiver is sought.
15. Survival of Obligations
The Client’s obligations to pay any sums owed to KASI as well as the indemnification obligation set forth in Clause 9 j. above shall survive the expiration or earlier termination of the parties’ Agreement.
16. Force Majeure
Either party shall be excused from acting within a prescribed time period to the extent such party is precluded from doing so by reasons of force majeure, which are hereby defined to include strike; lockout; labour trouble (whether legal or illegal); civil disorder; inability to procure materials; failure of electricity or other utilities; restrictive governmental law or regulation; governmental action; fuel shortage; accident; casualty; weather or other act of God.
17. Construction of Agreement
The provisions of the Agreement and these General Terms shall not be construed more strictly against one party than against the other merely by virtue of the fact that they may have been prepared primarily by one of the parties.