TERMS AND CONDITIONS
1. General
POWERTEX FLEXITANKS (herein after referred to as the “SELLER”) contracts for the sale of Flexitanks (the “FLEXITANKS”) to the purchaser (the “PURCHASER”) only in accordance with these specific Terms and Conditions of Sale (the “TERMS”).
Any deviating general terms and conditions of the PURCHASER to which the SELLER has not expressly agreed in writing shall not become part of the contract between the SELLER and the PURCHASER, even if the SELLER has not expressly objected to them. These TERMS together with the terms of the acknowledgement of order referred to in clause 2 below constitute the entire agreement between the SELLER and the PURCHASER and no variation to these TERMS howsoever expressed or implied shall be valid unless referred to in the acknowledgement of order.
2. Contracting
Any order from the PURCHASER is deemed to be an unconditional acceptance by the PURCHASER of the TERMS to the exclusion of all other terms and conditions, warranties or representations written or oral, express or implied.
Any order placed by the PURCHASER needs to be in text form. The PURCHASER shall be responsible for ensuring the accuracy of each order and shall provide the SELLER with all information necessary for the SELLLER to fulfil the order.
Estimates by the SELLER are not binding and are subject to written confirmation upon receipt of an order in accordance with this clause 2.
No contract shall be deemed to have been formed between the SELLER and the PURCHASER until such time as the dispatch to the PURCHASER of the SELLER´s written acknowledgement of order shall confirm the terms of such a contract.
3. Remuneration
All prices estimated by the SELLER are for the quantities stipulated by the PURCHASER concerned only and should not be taken to apply to orders for greater or lesser quantities.
Prices are on EXW (ex works) basis unless otherwise specified and do not include taxes or any other applicable levies which will be added where applicable to contract values at the prevailing rate at the time of invoicing. Any customs duties, fees and similar public charges shall be borne by the PURCHASER.
All prices, whether estimated or in the written acknowledgment of the order by SELLER, are subject to modifications according to variability of PE raw material purchase prices.
The price and the remuneration rate for any associated, agreed ancillary services and costs shall be due and payable in advance on the payment date stated on the written acknowledgment of the order. The amount payable shall be paid without any deduction by wire transfer to the SELLER’s designated bank account, stating the invoice number. Alternative terms of payment may be agreed between SELLER and PURCHASER and confirmed in the written acknowledgement of the order. Where alternative terms are offered the term “net cash 30 days” shall mean full payment 30 days from the date of invoice.
PURCHASER shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by SELLER or has been determined by a final and binding decision.
The Buyer will not owe any interest on maturity. The default interest is limited to 5 percentage points above the base interest rate of the Bank Negara Malaysia.
SELLER will issue an invoice. Invoicing can be done in paper form or electronically. An invoice shall be deemed accepted if PURCHASER does not raise and substantiate objections to the invoice in writing within seven (7) business days of receipt of the invoice.
In any case where the PURCHASER, alternatively,
a. Is overdue with any payment owed to the SELLER for more than 30 days, or
b. shall have failed to collect or accept delivery of the FLEXITANKS, or
c. makes defaults in or commits any breach of its other obligations to the SELLER hereunder, or
d. becomes bankrupt, insolvent or has a receiver or administrator appointed of the whole or part only of its assets or undertaking or execution or distress is levied upon its assets or under the national law of its country suffers the equivalent of any of these, or
e. ceases or threatens to cease trade, or if the SELLER shall reasonably doubt the solvency of the PURCHASER.
The SELLER reserves the right to suspend delivery under any contract made between the PURCHASER and the SELLER and delivery will only be made and the further deliveries made under this and any other contract upon payment by the PURCHASER in full of all outstanding accounts due whether in relation to a contract for the FLEXITANKS or otherwise.
In no circumstances shall the SELLER be liable for loss or any nature suffered by the PURCHASER as a result of the application of this clause nor shall it be a reason for the cancellation of this or any other contract which shall at the SELLER´s option remain in full force and effect.
4. Delivery
The FLEXITANKS shall be made available to PURCHASER on an EX-WORKS basis in accordance with the Incoterms 2020 at the agreed location (the “Delivery Location”).
Time estimates for delivery are made in good faith and time shall not be specifically of the essence in performance of the contract by the SELLER. In no circumstances whatsoever shall the SELLER be liable to the PURCHASER or any third party for any delay in delivery howsoever caused or any losses whatsoever that may arise as a result there from or in connection therewith.
PURCHASER is obliged to collect the FLEXITANKS. SELLER will inform PURCHASER of the provision of the FLEXITANKS at the Delivery Location. PURCHASER shall collect the FLEXITANKS within 7 calendar days or as otherwise agreed by the SELLER in the acknowledgment of the order. If PURCHASER is in default of collecting the FLEXITANKS within the agreed period, SELLER shall be entitled to charge PURCHASER with reasonable storage costs. SELLER may further demand reimbursement of any extra expenses incurred for safekeeping and preservation of the FLEXITANKS. Further or other legal and contractual claims and remedies remain unaffected.
SELLER will hand over all necessary documentation in paper or electronic form.
PURCHASER is responsible for all import and export procedures (including, but not limited to, customs clearance), onward transport, insurance, domestication and for all costs arising in connection with and/or after collection of the Goods. SELLER is not obligated to load the FLEXITANKS. If SELLER does so at PURCHASER’s request, this will be at PURCHASER’s risk and cost.
5. Risk & title
The risk of damage to or loss of the Goods shall pass to PURCHASER in accordance with the Incoterms 2020.
Provided that SELLER has received the Price and the remuneration for associated, agreed ancillary services in full, SELLER’s title to the FLEXITANKS shall transfer and vest in PURCHASER at the point in time when the FLEXITANKS have been collected by the PURCHASER or by a (transport) person (e.g. hauler, courier, agent, employee or representative) named by the PURCHASER, or where PURCHASER or a (transport) person named by PURCHASER have signed a delivery note or similar document. Otherwise, SELLER’s title to the Goods shall transfer and vest in PURCHASER, only upon the time when SELLER irrevocably receives the Price and the remuneration for associated, agreed ancillary services in full.
6. Liability and no waiver
The SELLER warrants that the FLEXITANKS will be of satisfactory quality and be free from defects in workmanship for a period of 12 months from the date of their delivery and will comply with any specification agreed for them, only if the FLEXITANKS have been stored in compliance with the SELLERS guidelines and or instructions. Where it is alleged that the SELLER is in breach of this warranty, precise details of the breach must be supplied by the PURCHASER to the SELLER as soon as practicable. In the case where overt defects have been proven and therefore where a breach of warranty exists with regards to satisfactory quality, the cost of the returning FLEXITANKS containing such defects to the SELLER and the cost of returning such FLEXITANKS to the SELLER shall be reimbursed by the SELLER. No FLEXITANKS may be returned to the SELLER without its express and prior approval. All other liability howsoever arising is excluded to the widest possible extent permitted by law.
SELLER’s liability, irrespective on what legal basis, for indirect and consequential damages (including, without limitation, lost profits, loss of goodwill, losses caused by business interruption and frustrated expenses) shall be excluded.
Above limitations of liability shall not apply in case of death or personal injury or damages resulting from intentional or grossly negligent misconduct of SELLER.
A delay in enforcement or granting extra time to perform is not to be treated as a waiver of any right or remedy. A purported waiver is valid and binding only if expressly made or confirmed in writing.
7. Health and safety
It shall be a term of each sale that before putting any of the FLEXITANKS into use the PURCHASER will carry out such tests and examinations as are necessary to insure that the item purchased is so designed and constructed as to be safe and without risk to health when properly used and that no item will be put into use at work until any necessary work has been carried out so that the item complies with any relevant legislation rules or regulations.
8. Force majeure
The SELLER shall be relieved of its liabilities incurred under any contract whatsoever to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded as a consequence (though not exclusively) of fire damage, floods, strikes and lawful lockouts, unexpected pandemics or epidemics as well as operational disruptions, war, invasion, act of foreign enemy hostilities (whether war has been declared or not), civil war, rebellion, revolution, insurrection or military or usurped power, or any similar event or by any statute, rules, regulations, orders or requisitions issued by any Government, Council or duty constituted authority in Malaysia or elsewhere. The SELLER may at any time after the continuance of any of the aforementioned matters for more than 3 consecutive weeks terminate the contract without incurring any liability for such termination .
9. Compliance with foreign trade regulations
PURCHASER is obliged to comply with all applicable foreign trade regulations, including but not limited to the U.S. International Traffic in Arms Regulation. This applies in particular to the authorized import and export of goods, including so-called dual-use goods (goods that can be used for both civil and military purposes). PURCHASER shall be liable to SELLER for all damages arising from the violation of foreign trade regulations and shall indemnify SELLER against all claims asserted by third parties against SELLER due to such violation.
10. Assignment/transfer
Neither Party shall assign or transfer the contract or all or any part of its rights thereunder without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Irrespective of the aforesaid, the SELLER shall be entitled to assign or transfer the contract or all or any part of its right thereunder and shall not require to obtain PURCHASER’s consent, if such assignment or transfer is made to any of SELLER’s affiliated companies.
11. Applicable law / place of jurisdiction
The sales contract shall be governed by the laws of Malaysia with the exclusion of the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).
The exclusive jurisdiction of the court having jurisdiction over SELLER’s registered office is agreed for all disputes arising from or in connection with the sales contract. If PURCHASER has its registered office outside SELLER’s country of domicile, SELLER shall also be entitled to start proceedings at the court having jurisdiction over PURCHASER’s registered office.
12. Third party rights act
A person who is not a party to this contract has no right to enforce or to enjoy the benefit from any of the contractual provisions in this contract.
13. Severability
If any part, term or provision of this contract is held to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected by such determination, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provisions held to be illegal or invalid.
Version 1 | As of October 2024