Terms and Conditions

1.0 General

1.1 The terms and conditions set out below (“these Conditions”) apply to the sale of products or materials (“Goods”) by Innochemie ("Seller") to the buyer ("Buyer"). Buyer and Supplier shall be referred to individually or collectively as “Party” and “Parties”. These Conditions shall supersede any other terms appearing in any catalogues of Seller or elsewhere and shall override and exclude any other terms stipulated or incorporated or referred to by Buyer, whether in the order or in any negotiations, and any course of dealing established between both Parties.

1.2 Any other terms and conditions shall only apply if expressly agreed in writing by Seller. Buyer acknowledges that there are no representations outside of these Conditions which have induced him to enter into these Conditions. Except for terms expressly agreed pursuant to this clause, these Conditions constitute the entire understanding between the Parties for the sale of the Goods. Neither Party shall be bound by nor liable to the other for any representation, promise or inducement made by that Party or any agent or person in that Party’s employment and not embodied in these Conditions unless otherwise expressly agreed upon pursuant to this clause.

2.0 Quotes and Agreements

2.1 Seller does not intend for any offer to Buyer to be binding as a contract unless expressly accepted and agreed in writing by Buyer.

2.2 All verbal supplements, promises or changes shall be binding only if they have been made by authorized persons at Innochemie and confirmed in writing by Innochemie. In entering into this Agreement, the Buyer acknowledges that it does not rely on any such representation, supplements, promises or changes which are not so confirmed.

2.3 Samples and models shown or provided shall serve as indications only, without the Seller Goods having to comply with those samples and models. Minor variations in stated size, weight, number, colour and such like shall not be considered to be defects. Commercial practice shall determine whether variations are minor. The Buyer acknowledges and agrees that where a sample of the Seller Goods has been shown to and inspected by the Buyer and the sole purpose of so doing was to enable the Buyer to judge the quality of the sample, doing so does not constitute any such sale a sale by sample.

3.0 Prices and Payment Conditions

Unless otherwise agreed in writing by Seller, prices are exclusive of any value added or goods and services taxes, taxes, levies, cost of documents and any other charges, whether of a general or a special nature, which shall be charged to Buyer.

3.1 Seller shall issue invoice to Buyer upon delivery of Goods, to the address specified in the order by Buyer. Any invoice issued to Buyer is payable within agreed payment terms after the date of the invoice free of any deductions or set-off whatsoever.

3.2 If payment of invoice is overdue, Buyer shall, without prejudice to any of Seller's other rights, pay interest at a daily rate of 0.05% on the amounts in arrears. Such interest shall accrue immediately after 30 days for as long as the amounts in arrear, including all interests accrued to date remain unpaid in full. Under no circumstances shall Buyer withhold any amount due to Seller because of a disputed claim of any nature.

4.0 Price Increases

Seller reserves the right to increase the price of the Goods by giving notice at any time before delivery.

5.0 Quantity Tolerances

Seller reserves the right to deliver against any order in excess or deficiency up to 10% of weight of volume ordered without any adjustment in the price.

6.0 Delivery

6.1 Delivery dates are not binding, unless explicitly declared as binding by Seller. Seller will only be liable for non-delivery or late delivery if such non-delivery or late delivery is caused directly by the wilful act or grossly negligent act or omission of Seller.

6.2 Where Seller undertakes to deliver the Goods, delivery shall take place when they are loaded off Seller’s or a third party’s vehicle, ship or any other transport at the station, port or address specified by Buyer.

6.3 Where Buyer undertakes to collect the Goods, delivery shall take place when such Goods are loaded on Buyer’s or a third party’s vehicle or any other transport at the address of Seller or the address of any storage or warehouse facility used by Seller for storage of the Goods.

6.4 Buyer shall examine the Goods immediately following delivery. Any discrepancies or defects in packaging found upon receiving, Buyer must remark in Delivery Order and pass Delivery Order to transporter. Buyer must give written notification to Seller immediately accompanied by photo evidence. Seller shall be relieved and discharged from all and any liability in respect thereof.

7.0 Warranty and Liabilities

7.1 Seller warrants that the Goods shall comply with Seller’s specification for the Goods in question as current from time to time. Seller does not warrant the fitness of the Goods for any particular purpose, even though that purpose be known to the Seller, and no such warranty is to be implied from the name or description under which the Goods are sold.

7.2 Subject as aforesaid and to the extent permitted by law, all warranties, conditions and statements, express or implied, by statute or common law or arising from conduct or a previous course of dealing or otherwise are excluded.

7.3 Seller’s liability in contract or tort for any reason whatsoever, arising (whether or not from Seller’s own negligence) directly or indirectly out of the supply or use of the Goods, or of the packages or pallets or containers by which the goods are delivered, shall, to the extent permitted by law, be limited to the value of the Goods supplied.

7.4 Seller shall be liable only for direct damage resulting from an intentional act or wilful recklessness, proven by Buyer, on the part of Seller and/or its managerial staff forming part of the board of directors or management, during the fulfilment of the obligations arising from any agreement concluded between Seller and Buyer.

7.5 Seller shall never be liable for:

- indirect loss of any kind, including consequential loss and/or

- non-material loss suffered by Buyer or by a third party as a result of Seller, or a person for whom it is vicariously liable under the law, failing in the performance of the Agreement.

7.6 Buyer shall in any case be solely liable for damage, of whatever nature and in whatever form, which occurs after the Goods delivered by Seller have been treated and/or processed.

7.7 The liability of Seller shall be limited at all times per event, with a series of connected events counting as one event, to the amount that is paid out under Seller’s business liability insurance policy in the case concerned and the Buyer shall not be entitled to make any other claim against Seller for any reason whatsoever.

7.8 Buyer must compensate and hold seller harmless for, and indemnify it against, all third-party claims, for whatever reason, in connection with compensation for any and all damage, costs, expenses, interest, losses and/or liabilities arising out or in connection with the Goods delivered by Seller, Buyer’s use thereof and/or Buyer’s use or application of any information disclosed or provided by or on behalf of Seller.

8.0 Confidentiality

8.1 Except as required by law or with Seller’s written consent, Buyer shall maintain in strict confidence, and shall not disclose to any third party, any and all confidential information, knowledge and materials, for example, technical and other data, personal data, measured values, techniques, business experience, business secrets, know-how, pricing and other documentation (hereinafter known as “INFORMATION) received from Seller pursuant to these Conditions. If Buyer is required by any law to disclose any or all of Seller’s INFORMATION, Buyer must immediately notify Seller of such disclosure requirements.

8.2 The Buyer acknowledges that its failure to comply with the provisions of this section may cause irreparable harm to Seller which cannot be adequately compensated for in damages, and accordingly acknowledges that Seller will be entitled to claim, in addition to any other remedies available to it, interlocutory and permanent injunctive relief to restrain any.

9.0 Force Majeure

9.1 In the event that, due to force majeure, Seller is prevented from performing the Agreement, or performance becomes more costly for Seller, Seller shall have the right to suspend the Agreement for the duration of the force majeure situation, or to terminate the Agreement in full or in part, without Seller being obliged to pay any compensation.

9.2 The term “force majeure” shall be understood to mean any circumstance, both foreseen and unforeseen, that permanently or temporarily prevents the performance by Seller of the Agreement. Such circumstances shall in any case be understood to include (a) Events beyond the control of Seller, such as fire, storm, hail, flood, strike, lockout, accident, act of war or terrorism, theft or loss of Products, equipment malfunction, riot, civil commotion, embargo, (b) any regulation, law, order, action or restriction of any governmental department, commission, board, bureau, agency, court, or other similar government instrumentality (“Governmental Authority”), (c) inability of Seller to obtain any required raw material, water, electricity or other utility or energy source, equipment, labour or transportation, at prices and on terms Seller deems practicable from Seller’s usual sources of supply, (d) interruptions in production, transport problems, fire and other business disruptions, import, export and transportation bans, late or defective delivery by Seller’s suppliers, (e) mechanical failure or breakage or accidents related to equipment, machinery or lines of pipe, or (d) a subcontractor being impacted by any cause or circumstance described in this Section.

9.3 Promptly after Seller determines that a Force Majeure Event exists, that Seller shall notify the Buyer and shall seek to mitigate the effects of the Force Majeure Event.

9.4 Quantities affected by the Force Majeure Event shall be deducted from the Contract (without any compensation for any losses, damages and/or costs that may be incurred by the other party), but the Contract shall otherwise continue in full force and effect for the term set forth therein.

9.5 If there is a shortfall in the quantity of the Goods due to a Force Majeure Event, we may apportion any reduced quantity of Goods among ourselves, our affiliates and customers in a reasonable manner (but otherwise, in our sole discretion), taking appropriate account of our own requirements.

10.0 User Recommendations

Recommendations of Seller on the use and processing of the Goods are of a general nature only. Under no circumstances whatsoever does Seller warrant to Buyer that the Goods are fit for any or all of Buyer’s particular use, application or processing conditions.

11.0 Indemnity

Buyer shall indemnify Seller in respect of all damage, injury or loss occurring to any person or property and against all actions, suits, claims, demands, charges or expenses in connection therewith arising from the condition or use of the Goods in the event and to the extent that the damage, injury or loss shall have been occasioned partly or wholly by the wilful acts or negligence of Buyer or its servants or agents or by any breach by Buyer of its obligations to Seller under these Conditions.

12.0 Packaging

Unless otherwise agreed in writing by both Parties, Buyer shall dispose of all packaging at his own cost and in accordance with any applicable regulations. In so far as packaging is re-used by Buyer, any and all indication on the packaging as to the Goods and to Innochemie’s name or Manufacturer’s name must be entirely removed. Special conditions as notified apply to returnable packaging owned by Seller.

13.0 Safety

All Goods shall be handled, transported, stored, processed, labelled or used by Buyer in accordance with any applicable laws and all requirements set out on the safety data sheet of each specific Good. If delivered Goods are classified as hazardous, such Goods may only be handled, transported, stored, processed or used by Buyer in accordance with the safety data sheet and any applicable laws and safety requirements corresponding with the Goods’ hazard classification. Buyer is solely liable and responsible for complying with any applicable regulation, including: obtaining all required licenses and approvals, for the storage and transportation of the Goods. Buyer shall indemnify Seller upon demand for any and all loss, damages or injury to person or property and all actions, suits, claims, demands, charges or expenses suffered by Seller for any failure by Buyer to comply with this clause.

14.0 Claims/Insurance/Returns

14.1 All claims for damage to or partial loss of Goods in transit must be submitted in writing to carrier and Seller or Seller’s Agent upon the day of delivery and the delivery note must be endorsed accordingly.

14.2 All claims for non-delivery of the whole of any consignment, or of any separate package forming part of a consignment must be submitted in writing to the carrier and Seller or Seller’s Agent upon the day of receipt by Buyer or Buyer’s Agent of Seller’s invoice or advice note, whichever is the earlier.

14.3 In the absence of notification as a claim or otherwise in accordance with clauses 14.1, or 14.2 above, the goods shall be deemed to have been delivered and accepted in conformity with the contract.

14.4 The insurance costs shall be payable by Seller only if provided for by the definitions of an Incoterm declared applicable. In that case, however, Seller shall not be obliged to do any more with regard to the insurance to be taken out, than to take out insurance up to values equivalent to the net invoice sum.

14.5 The insurance to be taken out shall insure against normal business risk only, and therefore not against exceptional risks and/or acts of war. The liability of Seller shall not, in any case, extend beyond the cover provided by the insurance. If Seller should nonetheless be liable beyond the cover provided by such insurance, the provisions of Warranty and liabilities shall be applicable.

14.6 In the event of damage or loss in transit in cases where risk remains with Seller, Seller shall submit a claim to the insurer. After Seller has received the payment from the insurer, it shall deduct relevant sums to Buyer through issuance of credit note.

14.7 Without duly authorised prior written consent on its part, Seller shall not be obliged to accept returns from Buyer. If Seller Goods are returned without the duly authorised prior written consent of Seller, their dispatch and storage after their return shall be at Buyer’s expense and risk.

14.8 The risk in returned Seller Goods shall continue to be borne by Buyer until Seller has accepted the return and the returned Goods in writing, to which acceptance Seller may attach conditions.

14.9 Complaints about Goods which have already been treated and/or processed in any way after delivery shall not be accepted.

14.10 If a complaint is submitted in time and in accordance with these Terms and Conditions, and Seller is reasonably of the opinion that it has been sufficiently demonstrated that the Goods are not suitable for their intended use, Seller shall be free to choose either to deliver what is lacking so that the Goods are then suitable for the intended use or to redeliver the Goods found to be unsound free of charge, or to grant a discount on the price. By performing in one of the stated ways, shall have discharged its guarantee obligation fully and shall not be obliged to pay any further compensation. Replaced Goods shall become the property of Seller.

14.11 The guarantee on Goods delivered by third parties may never extend beyond the guarantee that is provided to Seller by the manufacturer or importer of those Goods.

14.12 Any claim under this Article shall in any case lapse once one month has passed since receipt of the goods supplied.

15.0 Intellectual Property

Buyer must not use any trademarks or copyrights with respect to the Goods supplied by Seller, or the performance of its obligations under these Conditions unless and except to the extent Buyer has obtained prior explicit written consent from the owner of the trademark or copyright.

16.0 Applicable Law and Jurisdiction

The Buyer and we irrevocably submit to the exclusive jurisdiction of the courts of Malaysia.

17.0 Title and Risk

Risk in the Goods shall pass to Buyer once Goods are loaded on Buyer’s vehicle or third party’s transporter or any storage or warehouse facility used by Buyer for storage of the Goods. Title to the Goods shall only pass to the Buyer on full payment for the Goods (together with all interest, if any). If the Purchaser fails to make full payment for the Goods by the Due Date and such non-payment exceeds fourteen (14) days, we reserve the right (but without the obligation to), without reference to any judicial proceedings, to repossess the Goods (if Delivered), and the Seller shall grant, entry into Buyer’s premises for repossession of the Goods (if Delivered). The Buyer undertakes to store the Goods in its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as our Goods and the Buyer shall reimburse us for any expenses and costs we may incur in respect of such repossession of the Goods. In the event the Goods are damaged, or have already been used by the Buyer, the amount owing by the Buyer to us shall be deemed as a debt owed and subject to the interest rate as set out in clause 5 of these Conditions from the day after the Due Date till the date the full payment (together with all interest accrued) is made.

18.0 Cancellation

Buyer may not cancel any order without the prior written consent of Seller, which, if given, shall be deemed to be on the express condition that Buyer shall indemnify Seller against any and all loss, damages, claims or actions arising out of such cancellation.

19.0 Breach and Buyer’s Insolvency

In the event Buyer: (i) defaults or breaches any of its obligations to Seller under these Conditions; or (ii) any distress or execution shall be levied upon Buyer; or (iii) enters into any negotiations for arrangement or composition with its creditors; or (iv) commits any act of bankruptcy or if any petition in bankruptcy is presented against it or, (where Buyer is a corporate body): (i) any resolution is proposed or petition presented to wind up Buyer; or (ii) if a receiver of Buyer’s assets or undertaking or any part thereof is appointed, Seller shall be entitled to terminate these Conditions and any order/s without prejudice to any other claims, entitlement or rights of Seller.

20.0 Compliance with Innochemie Code of Conduct, etc.

The Buyer shall comply with all applicable laws including but not limited to laws and conventions relating to (i) competition law, (ii) anti-bribery, and anti-corruption, and (iii) laws relating to export control and customs regulations such as (i) the rules on embargoed countries, (ii) the restrictions on the sale of products to restricted or denied customers, and (iii) the regime for the control of imports, exports, transfer, brokering and transit of dual-use items. The Buyer shall not directly or indirectly utilise, sell, ship or otherwise transfer, the products purchased from Seller to or through any country, entity or individual as prohibited under national and international regulations.

20.1 Without prejudice to the other provisions in this Article, the Buyer shall comply with all applicable laws and regulations in performing its obligations under the Agreement in a manner consistent with the Innochemie Code of Conduct. The Buyer confirms to have read and agrees to the Innochemie Code of Conduct which is available at the following website: www.innochemie.com.my

20.2 The Buyer shall procure that any third parties to whom the products from Seller will be supplied, whether in original form or as intermediate or end-product, are under the same obligations as set out in this Article such that all third parties down the supply chain, as far as the end-user, are under the same strict compliance.

20.3 The Buyer agrees to indemnify and hold harmless Seller, its officers, employees, agents, and representatives, from and against all damages, losses, liabilities, penalties, costs and expenses, including reasonable attorney fees, as a result of any claim, suit, action, proceeding, demand, judgment or settlement arising out of Buyer's failure to adhere to the provisions of this Article.

21.0 Assignments

The Buyer may not assign, transfer, charge or deal in any other manner with any or all of its rights or obligations under the Contract without Seller’s prior written consent. Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of Contract, and shall permit us, in addition to any other rights that we may have, to terminate the Contract and claim damages. Severability. If any court or competent authority finds that any provision of these Conditions or the Contract or part of any provision thereof is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be amended or deemed to be deleted, and the validity, legality and enforceability of the other provisions of the Conditions and the Contract shall not be affected.

22.0 Non-Waiver

Failure by Seller to insist upon strict performance of any of the terms and conditions of these Conditions, or delay in exercising any of its remedies, shall not constitute a waiver of such terms and conditions or a waiver of any breach, or of any remedy thereof.