1.1 The following terms and conditions shall apply to all sales of products (the ‘Products') by Sukano Sdn Bhd, Malaysia (referred to as ‘Seller') to Buyer and to all related transactions between Seller and Buyer.
1.2 Buyer's terms and conditions of purchase and any other terms requested by Buyer which are in any way inconsistent with or in addition to the terms set forth in this instrument are hereby rejected. These terms and conditions may only be amended, modified or waived by an express written instrument duly signed by Seller and Buyer.
2.1 All prices for Seller's products shall be Seller's prices in effect on date of shipment, unless otherwise agreed in writing. Transportation shall be by means that are commercially reasonable and customary.
2.2 Seller shall not be liable for any transportation charges incurred at the point of destination such as spotting, storage, switching, drayage, demurrage, pier loading charges, etc.
2.3 Unless otherwise specified in writing by Seller, all prices are quoted duty delivered paid to destination and are exclusive of taxes and subject to correction for error and currency fluctuation adjustment.
3.1 The amount of any sales, use or other tax or duty, however designated, levied or based on the price of the Products, shall be added to the price quoted and billed to and paid by Buyer as if originally included herein.
3.2 If Seller is required to pay any such tax or duty, Buyer shall reimburse Seller therefore or, in lieu of such payment, shall provide Seller with appropriate exemption certificates or other documents acceptable to taxing or customs authorities.
4. Terms of Payment
4.1 Payment is due thirty (30) days net from date of invoice, unless otherwise agreed in writing. Payment must be made by Buyer when due without offset, deduction or counterclaim regardless of any claim by Buyer.
4.2 Past due amounts are subject to a monthly service charge at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate from time to time permitted by applicable law.
5.1 Each delivery to be made to Buyer shall be subject to receipt of cash or to credit arrangements made by Buyer with Seller.
5.2 If payment is not made in accordance with the terms thereof, or if at any time in Seller's judgment Buyer's credit standing has been impaired, Seller may withhold delivery of any Products to be sold hereunder until in the case of future deliveries, satisfactory cash or credit arrangements have been made and, in the case of Products already delivered, satisfactory security arrangements have been made for payment of all outstanding balances.
5.3 If Buyer fails, neglects or refuses to make cash or credit arrangements satisfactory to Seller, or to comply with the terms thereof, then Seller may, without waiving any other remedies it may have against Buyer, terminate the contract without further liability on Seller's part.
6. Inspection and Testing
6.1 Buyer shall inspect the Products within five (5) days of delivery to verify compliance with the specifications as set forth in Buyer's purchase orders and accepted by Seller.
6.2 In the event of any non-conformity or defect, Buyer shall notify Seller within ten (10) days thereafter. Prior to any application of any Product, Buyer shall test the suitability of such Product in the application.
6.3 Buyer will forward all Product safety information provided by Seller to Buyer's employees and affiliates and to all others who handle the Products and to its customers.
6.4 Buyer agrees to indemnify Seller for any claims made against Seller for associated damages and expenses to the extent caused by Buyer's failure to familiarize itself with such hazards and precautionary procedures and to manage accordingly, and to forward such information.
7.1 All shipping dates are tentative. Seller shall not be liable for any delay or failure to perform in whole or in part, caused by any force majeure, governmental prohibition, restriction or regulation or by reason of fire, floods, strikes, work stoppages, accidents, casualties, inability to procure supplies and raw materials, delays in transportation, civil unrest, hostilities or war or other causes beyond Seller's control whether or not similar in class or kind to those mentioned.
7.2 If Buyer fails to accept delivery due to reasons beyond Sellers control, Buyer shall nonetheless make payment to Seller.
7.3 Where Buyer wrongfully rejects or revokes acceptance of the Products or fails to make payment due on or before delivery, or repudiates with respect to all or part of the contract for the Products shipped, Seller may withhold delivery, or stop delivery of the Products or cancel the contract and/or sue for damages at Seller's exclusive option.
7.4 If Buyer causes a delay in the delivery of the Products or any part thereof, Seller, at its exclusive option, may extend the period of delivery by a period reasonable in consideration of the circumstances, and, if the delay causes Seller substantial inconvenience, Seller has the right to cancel with respect to the Products whose delivery is delayed.
7.5 Seller reserves the right to retrieve any expenses or damages resulting from such delays. Unless otherwise agreed in writing, Seller reserves the right to make partial shipments and to submit invoices for partial shipments.
8. Product Warranty
8.1 a) all products will conform to the specifications as set forth in Buyer's purchase order and accepted by Seller
8.1 b) upon payment of the purchase price, Buyer will receive good title to all such Products free of any lien, encumbrance or security interest and
8.1 c) the Products shall be of merchantable quality.
8.2 This warranty is in lieu of any other warranties, either express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose, which other warranties are expressly excluded and disclaimed. No suit or other proceeding may be brought on an alleged breach of warranty of seller set forth herein more than twelve months after delivery to buyer of the Products and in no event later than two months after Buyer becomes aware of such breach.
9. Limitation of Remedy
9.1 Buyer's exclusive remedy for defective or non-conforming Products or any other cause whatsoever hereunder shall be at Seller's option, the repair or replacement of Products or the repayment of the purchase price.
9.2 Seller shall not be liable for, and Buyer assumes responsibility and holds Seller harmless for, all personal injury and property damage resulting from the handling, possession, use or resale of the Products, whether the same is used alone or in combination with other substances.
9.3 In no event shall Seller be liable for indirect, incidental or consequential damages, whether Buyer's claim is in contract, tort or otherwise.
Buyer may not assign its order or any right or interest therein or any other obligation arising hereunder without the prior written consent of Seller.
11.1 In case Buyer shall fail to make payments as they become due, Seller, in addition to its other rights and remedies, may at its option defer further shipments until such payments are made, and/or terminate the sales contract and Buyer shall not have any cause of action or be entitled to any off-set, counterclaim, or recoupment against Seller by reason of such action.
11.2 No failure of Seller to insist upon strict compliance by Buyer with the terms and conditions hereof, or to exercise any right accruing from any default of Buyer shall impair Seller's rights in case Buyer's default continues or in case of any subsequent default by Buyer.
12. Return of Products
All return of products, whether good or defective, shall require prior written consent of Seller. Transportation charges for the return of Products shall be paid by Buyer unless authorized in advance by Seller.
13. Credit Impairment of Buyer
If before the Products are delivered Seller has reasonable ground for assuming that Buyer will be unable to fulfil its obligations to make payment, Seller may, at it exclusive option, demand in writing a) adequate assurance of due performance or b) deliver the products by cash on delivery.
14. Cooperation in Development of Products
14.1 In the event Seller and Buyer engage in technical cooperation regarding the development or improvement of products to be sold to Buyer, except as otherwise may be agreed by the parties by separate written agreement: I. Seller shall have all intellectual property rights to the products so developed or improved; II. Buyer agrees to assign, or to cause it relevant representatives to assign, all such rights to the products so developed or improved; III. no right or license regarding the products so developed or improved, whether expressed or implied, is or shall be deemed granted to Buyer.
14.2 Buyer shall be liable for all technical information provided to Seller in the course of the cooperation to be correct and complete.
15. Proprietary Information
All layouts, models, designs, compositions, formulations, chemicals, polymers and processing information incorporated in the Products or otherwise provided to Buyer are the proprietary information of Seller. Buyer agrees not to disclose or utilize any such information nor to manufacture or have manufactured any products which are the same as or similar to any Products.