GENERAL TERMS AND CONDITIONS OF SALE OF BUNGE LIPID ENZYMTEC SDN BHD
1. GENERAL
1.1 These General Terms and Conditions of Sale (“GTCs”) apply to and are incorporated by reference into all agreements for the sale and delivery of goods (the “Agreement”) by Bunge Lipid Enzymtec Sdn. Bhd. (“Seller”) and its buyers (“Buyer”), each individually also referred to in these GTCs as a “Party” and together, the “Parties”. Unless otherwise agreed in writing, these GTCs govern all sales and deliveries effected by Seller and supersede all prior terms (whether oral, written or partly oral and partly and written) between the Parties to the extent inconsistent with these GTCs. If any provision of these GTCs is inconsistent with the Agreement, then the provision of the Agreement shall prevail, unless otherwise agreed in writing and signed between Seller and Buyer.
1.2 Any contradictory or supplementary terms and conditions of Buyer including but not limited to Buyer’s terms and conditions of sale and purchase are hereby expressly excluded, even if Seller does not expressly object to such terms and conditions.
1.3 Buyer acknowledges that it has been notified of these GTCs and notwithstanding any failure of Buyer to sign or counter-sign the Agreement, these GTCs or any other document referring to the sale and delivery of the goods, the validity or applicability of the GTCs stated above and hereinafter shall not be affected.
1.4 If any provisions of these GTCs are void or nullified, the remaining provisions shall continue to apply in full.
1.5 The contra proferentum rule shall not apply in the interpretation of the Agreement.
1.6 The title and headings used in these GTCs are for convenience only and have no legal effect whatsoever upon the text. Any conflict or inconsistency between any such heading and the text shall be resolved in favour of the text.
1.7 The English language version of the Agreement and these GTCs shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
2. PRICES
2.1 Unless expressly stated otherwise, all prices stated are exclusive of any taxes and duties. Where Seller is required to account to any tax authorities for tax, Buyer shall promptly pay such tax in addition to the sales price.
2.2 The sales price is based on the price determining factors including raw material, freight, surcharges and insurance (including war risk) costs at the time when the Agreement was concluded, which were applicable to both the supply of Seller's raw materials and the delivery of the sold goods. If, as a result of events or circumstances beyond the reasonable control of Seller, the amount of these price determining factors is higher for Seller as a result of increases between the date of the Agreement and the date of delivery under the Agreement, then Seller shall be entitled to charge such higher costs to Buyer and adjust the price agreed accordingly.
2.3 If, during the subsistence of the Agreement, Seller has to make payments such as taxes, import, transit or export duties, product board levies, etc. which result from measures taken by any governmental, intergovernmental or supranational body, agency, department or any regulatory, self-regulatory or other authority or organisation and which were not payable at the time when the Agreement was concluded or if the said taxes, duties or levies, etc. are modified or rescinded, then Seller shall be entitled to charge Buyer for the resultant payment or extra payment.
3. PAYMENT
3.1 Payment shall be effected within fourteen (14) calendar days after the invoice date unless explicitly agreed otherwise, and the Parties agree that time shall be of the essence for the due payment of the invoice.
3.2 Unless explicitly agreed otherwise, Buyer shall effect payment by means of a net cash deposit into an account designated by Seller without any discount, deduction or counterclaim, howsoever it may be called, and without any recourse to set off by Buyer.
3.3 Seller shall at any time have the right to require payment in advance, immediate payment of all sums owing or the provision of security in relation to any delivery. Seller shall be entitled to suspend the performance of its obligations if and for so long as Buyer refuses or is unable to provide the payment in advance or the security requested, and may treat itself as being discharged from the Agreement pending full payment. All storage costs incurred in this respect shall be for Buyer's account.
3.4 Without prejudice to Seller’s right to suspend performance of its obligations as provided for in Article 3.3 above, in the event that Buyer (i) fails to comply with any term of payment stipulated in these GTCs or the Agreement; (ii) fails to effect payment of any amount(s) due under any other contract or agreement between Buyer and Seller or between the Buyer and any of Seller’s affiliated entities; or (iii) in the event payment is by any documentary credit, Buyer fails to open such documentary credit in accordance with
the deadline, then Seller has, at its sole discretion, the right to carry out any one or more of the following non-exhaustive list of options:
3.4.1 proceed with collection without any further notice of default and interest at the rate of 18% per annum shall be imposed from the date the payment is due until actual payment is received from Buyer;
3.4.2 add any costs, expenses or damages incurred by Seller to the sales price and/or renegotiate the sales price;
3.4.3. terminate the Agreement with immediate effect and/or sell the goods to another counterparty of its choice;
3.4.4. postpone or extend the shipment or delivery period under the Agreement at Seller’s sole discretion and option; and/or
3.4.5. demand immediate payment of all amounts outstanding, whether due or not.
3.5 In addition to the principal sum and interest payable due to late payment, Buyer shall be liable for all expenses (including solicitors fees) which Seller may incur for the purposes of collecting the debt and securing its entitlements.
3.6 In case of any default by Buyer under this Article, Seller shall have the right to declare that the joint and several claims of all or part of the invoices due and owing from Buyer to Seller or from Buyer to any of Seller’s affiliated entities be immediately due and payable, whereupon they shall become immediately due and payable.
3.7 Buyer further hereby expressly agrees that any and all monies paid by Buyer or caused to be paid by Buyer under the Agreement, these GTCs or any other agreements between the Parties, may be used by Seller at its sole discretion to cover: (i) the value of the goods delivered under the Agreement; or any sums due thereunder; or (ii) any costs, expenses and/or damages it may suffer by reason of Buyer’s breach(es) of any current, past and/or future agreements between Buyer and Seller or any other amounts due under such agreements. Costs, expenses and/or damages to include (without limitation) detention, demurrage, financing costs or charges, any other standby charges or any unliquidated damages as per Seller's calculations.
4. DELIVERY
4.1 Delivery shall be at the place, period and method as defined in the Agreement.
4.2 Partial deliveries are allowed at Seller’s sole option. In the event of partial deliveries, each delivery shall be in equal instalments, as apportioned respectively monthly and weekly over the defined delivery period.
4.3 Risk in the goods shall pass from Seller to Buyer on delivery of the goods.
4.4 Title to the goods shall not pass until Seller has received full payment for the goods in accordance with the Agreement.
4.5 In the event the delivery place is not at the factory of Seller, Buyer shall take any risk of deterioration in the goods necessarily incident to the course of transit.
4.6 Seller will take all reasonable steps available to deliver the goods on the dates agreed but shall not be liable to Buyer in any way if delivery is not made on such date.
4.7 Buyer shall inspect the delivered goods immediately after delivery for any defects and shall notify Seller thereof in writing as soon as possible, and in any event no later than eight calendar days after the goods have been delivered.
4.8 Defects caused by Buyer by not following directions given by Seller pertaining to, inter alia, location, storage, cooling, testing, assembly, inspection, or maintenance will never be considered defects of goods of Seller. Any notifications or complaints in that respect will not be dealt with or accepted by Seller.
5. FORCE MAJEURE
5.1 Any obligation which Seller has to comply with under the Agreement or these GTCs shall be suspended for as long as it is impossible for it to do so or to do so properly due to force majeure, and the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. Under these GTCs, force majeure on the part of Seller shall be deemed to cover any circumstances that are beyond its control, be they foreseen or unforeseen, as a result of which Buyer can no longer reasonably require Seller to comply with the relevant Agreement.
5.2 Force majeure shall include but not be limited to the following: war, terrorism, revolution, riots, labour unrest, industrial strike, fire, weather conditions, flooding, transport restrictions, illness including epidemic or pandemic, government measures including price restrictions, import and export restrictions, crop failure, disruption in the supply or provision of raw materials, energy or required operating resources.
5.3 In the event that the Agreement is suspended for longer than three (3) months, at the Seller’s option and upon notice to Buyer, Seller may cancel the Agreement or the relevant part thereof with immediate effect.
5.4 In the event of a suspension or cancellation of the Agreement as a result of force majeure, Buyer shall not be entitled to any compensation.
5.5 Nothing in this Article 5 shall relieve Buyer of its obligation to pay when due in full any amounts due under the Agreement.
6. DELAY IN DELIVERY
Seller shall not be responsible for failure or delay in the performance of the Agreement when the failure or delay is due to causes beyond the reasonable control of Seller or is not caused by its fault or negligence. Such causes include but are not limited to: force majeure as set out in Article 5, delay in transportation not caused by or attributable to acts or omissions by Seller, or the inability after due and timely diligence of Seller to procure materials, accessories, equipment or parts. In the event of such delay the delivery period shall be extended for the period of time as may be reasonably necessary to compensate for such delay.
7. FAILURE TO CLAIM AND/OR FAILURE TO TAKE DELIVERY BY BUYER
7.1 If one or more delivery dates elapse without Buyer having claimed and/or having taken delivery of the purchased goods, Seller shall be entitled, without serving notice of default and without legal proceedings being required, to deliver or at least to make available for delivery all or part of the quantities still to be delivered and to claim the direct payment in respect thereof and/or to consider the purchase as being void in respect of the unclaimed or still undelivered portion, without prejudice to Seller's right to claim compensation from Buyer and/or sue Buyer for damages arising from Buyer’s failure to claim, take delivery and/or make payment for the goods.
7.2 In addition, Seller has, at its sole discretion, the right to carry out any of the following non-exhaustive list of options:
7.2.1. add any costs, expenses, interest at the rate of 10% per annum and damages, incurred by Seller to the sales price and/or renegotiate the sales price, including without limitation adding any additional storage costs;
7.2.2. postpone or extend the delivery period until such time as Buyer performs its payment obligations under the Agreement; and/or
7.2.3. terminate the Agreement with immediate effect and/or sell the goods to another counterparty of its choice without prejudice to Seller's right to claim full compensation in any other respect (including loss on foreign exchange).
7.3 Any and all costs, expenses and/or damages (including without limitation vessel demurrage, additional transport or storage costs and damages due to losses on the difference between market and/or resale price and the contract price) which Seller may incur by reason of the above due to a failure to take delivery by Buyer will be entirely for the account of Buyer and Buyer hereby agrees to indemnify Seller for all such amounts.
8. LIABILITY
8.1 Seller can only be held liable for damages, if, and insofar as these damages are a direct consequence of a direct breach by Seller of its obligations under the Agreement or these GTCs.
8.2 Except to the extent prohibited by law, any liability on the part of Seller, including non-contractual liability, shall be limited to an amount of twice the net invoice value of the goods which have been delivered in a defective condition.
8.3 In the event that the limitation of liability set out in Article 8.2 or an appeal thereto is not accepted by the court, Seller's exclusive liability and Buyer’s exclusive remedy for the delivery of non-conforming goods is expressly limited to, at Seller’s option: (i) replacement of the non-conforming goods or services; or (ii) refund of the purchase price to the extent already paid.
8.4 In no event will Seller be liable for consequential, indirect, incidental, special or exemplary losses of whatsoever nature, including but not limited to economic loss, loss of turnover, loss of profit and damage to goodwill.
8.5 All claims against Seller in respect of loss or damages will be deemed to be waived unless brought by Buyer no later than thirty (30) calendar days after delivery of the goods.
9. RECALL
Buyer shall comply with all legislation and governmental measures, such as those regarding food safety, traceability and recall. Buyer shall immediately inform Seller of any claim by a third party, product liability and recall issues and shall cooperate with Seller and relevant authorities in order to avoid or minimize damages.
10. INDEMNITY
10.1 Buyer shall indemnify and keep Seller indemnified against all claims from third parties for liability due to a defect in a product delivered by Buyer to a third party which included goods supplied by Seller except if and insofar as, Buyer proves that the damage was caused solely by the goods supplied by Seller.
10.2 Buyer shall indemnify Seller against all claims, losses, liabilities and expenses on account of any injury or death of persons (including Buyer’s employees or agents) or damage to property arising out of Buyer’s unloading, storage, handling or use of the goods except for the portion of damages directly attributable to Seller’s negligence.
10.3 The indemnities in this Article 10 shall survive termination of the Agreement.
11. NO WARRANTY
11.1 Seller represents and warrants that, as of the time and at the place of delivery: (i) Seller has the right to convey good title to the goods; and (ii) the goods delivered will conform to expressly agreed-upon quality specifications.
11.2 Except for the foregoing, Seller disclaims, to the fullest extent permitted by law, any and all other warranties, express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose or non-infringement of third party intellectual property rights. Buyer assumes all risk and liability for results obtained through the use of the goods covered by the Agreement, whether used singly or in combination with other products.
12. SELLER’S INTELLECTUAL PROPERTY
12.1. Seller or its affiliated entities or licensors shall own at all times, all rights, title and interest (including all intellectual and industrial property rights) to the goods, to all analyses, samples, tests formulas, designs, drawings, models, programs, recipes or any other information or documents related to the goods or products or its manufacturing, as well as preparatory material thereto, including but not limited to those developed or made available by either Party in relation to the Agreement ("Seller IP").
12.2. Buyer shall not use Seller’s or its affiliated entities’ trade names, trademarks, logos, service marks or any other intellectual or industrial proprietary rights unless expressly agreed by Seller in a separate written agreement.
12.3. Buyer is not allowed to make the Seller IP available to any third parties, to reproduce it, nor to make any copies thereof.
12.4. Buyer shall observe secrecy with respect to all Seller IP. In the event Buyer is required by applicable law to disclose the Seller IP or is ordered by a court or a regulatory authority permitted to direct Buyer to disclose the Seller IP, Buyer shall, to the extent legally permitted to, give prompt notice of the requirement of disclosure and consult with Seller on the disclosure requirement and restrict the disclosure of Seller IP to only the Seller IP expressly required to be disclosed.
12.5 Buyer undertakes that it will not, and its affiliated entities will not, register any trademarks or other intellectual property rights which are identical or similar to Seller IP anywhere in the world.
13. TERMINATION
Without prejudice to any of Seller’s rights or remedies under the Agreement, these GTCs, at law or in equity, Seller may terminate the Agreement, in whole or in part, with immediate effect by giving notice in writing to Buyer if:
13.1 Buyer commits any breach of any term of the Agreement or these GTCs and that breach (if capable of remedy) is not remedied within seven (7) calendar days of Seller's notice to Buyer requiring it to be remedied or, if the breach is not capable of remedy, without service of any notice requiring the breach to be remedied;
13.2 Buyer or any affiliated entity of Buyer commits any breach of any terms of any other contract entered into between Seller and Buyer or any affiliated entity of Buyer, and as a result Seller terminates that contract;
13.3 Buyer files a petition or otherwise commences or authorises the commencement of a proceeding under any bankruptcy, insolvency, reorganisation or similar law or has any such petition filed or proceeding commenced against it; or has a liquidator, administrator, receiver, trustee or officer with similar powers appointed with respect to it or any substantial portion of its property or assets or otherwise becomes insolvent (however evidenced) or is unable to pay its debts as they become due;
13.4 Buyer is dissolved, liquidated, hived off, or party to a merger;
13.5 Buyer ceases its business or transfers its business operations or a significant part thereof, including the incorporation of its business in another one; or
13.6 Any governmental authority imposes any ceiling price, allocation, quota, priority or material control affecting goods or any material normally required in connection with goods, or any present or future laws or regulations prevent or adversely affect Seller’s performance of the Agreement.
14. RESERVATION OF TITLE OF OWNERSHIP
14.1 All goods that are delivered to Buyer shall remain the property of Seller but shall be for the account and risk of Buyer until Buyer has paid in full all sums it owes for goods that are delivered, or to be delivered under the Agreement, as well as any claims arising from Buyer's failure to comply with the Agreement or these GTCs, including interest and collection costs.
14.2 Buyer shall take all appropriate measures to separate, and keep separated, the goods referred to in the preceding paragraph (i.e., where title of goods have not been transferred to Buyer) from other goods or products in its care, and to mark these goods in such a manner that they are clearly recognizable for third parties as being the property of Seller. Buyer shall at all times grant Seller and its representatives free access to the spaces where the goods, delivered by Seller, are stored.
14.3 For as long as the ownership of the goods has not yet passed to Buyer, Buyer shall not be entitled to process these goods, transfer actual control of them, alienate them, pledge them, or encumber them in any way whatsoever.
14.4 If Buyer fails to comply with its obligations or if Seller has good grounds to fear that Buyer shall fail to comply with its obligations, Seller may invoke its retention of title. If Seller invokes the retention of title, Buyer shall, if so requested, transfer the delivered goods immediately under the actual control of Seller, free of charge.
14.5 Should the law of the country of destination of the goods and/or the country where the work has been performed offer more far reaching alternatives for the retention of title than is provided for in this Article 14, such far reaching alternatives shall be deemed to have been agreed by the Parties for Seller’s benefit, subject to the provision that, if it is possible to determine objectively which far reaching rules these provisions relate to, the foregoing provisions of this Article shall continue to apply.
15. CONFIRMATION OF PURCHASE
If a difference exists between the confirmation which may have been given in advance by a representative, agent or other intermediary and the final written confirmation given by Seller, then the conditions of Seller’s final written confirmation as stipulated in the Agreement and/or these GTCs shall take precedence and shall be applied.
16. SELLER’S RIGHTS TO SET-OFF
Seller shall be entitled, at its option, to set-off (i) any and all accrued but unpaid amounts owing from Seller to Buyer against (ii) any amounts owing from Buyer or any of its affiliated entities to Seller. If the amounts are in different currencies, Seller may convert either amount at a market rate of exchange in its usual course of business for the purposes of the set-off.
17. ASSIGNMENT, WAIVER, VARIATION AND COUNTERPARTS
17.1 Buyer may not assign any of its rights or transfer any of its obligations under the Agreement and/or these GTCs without Seller’s prior written consent. Any purported transfer or assignment contrary to this Article shall be null and void.
17.2 No failure or delay by Seller to exercise any right or remedy provided under the Agreement, these GTCs, by law or howsoever otherwise shall constitute a waiver of that right or remedy or any other right or remedy, nor shall it prevent or restrict the further exercise of that right or remedy, or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that right or remedy or any other right or remedy.
17.3 No variation or amendment of any Agreement or these GTCs shall be effective unless it is in writing and signed by both Buyer and Seller.
17.4 This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and signature pages may be exchanged by electronic communication. All of such counterparts together shall constitute one instrument.
17.5 The Parties agree that Parties may sign the Agreement and any addendum, variation, renewal or novation and/or exercise any option and/or make any election using a digital signature. The Parties acknowledge and agree that sufficient IT protection has been implemented in the digital signature system to identify the users, the person who signs the Agreement and such other documents through that system is validly signing it on behalf of the Party, and any such digital signature shall be treated in all respects as if it were an original signature in writing.
18. COMPLIANCE
18.1 Seller and Buyer comply with all U.S., EU, English, United Nations, and Swiss economic sanctions laws relating to transactions with restricted countries, persons and entities, including money transfers related to such transactions and restrictions against dealings with blocked/prohibited persons (the “Sanctions Laws”).
18.2 Buyer agrees that the goods will not be resold or delivered to a restricted destination, person or entity, or be transshipped in or transited through a restricted destination, or be transported on a vessel or by other carrier owned, operated, flagged or chartered by any country, person, or entity, or payment made through such country, person or entity which may cause Seller or a person subject to U.S. jurisdiction to be in violation of or be penalized by the Sanctions Laws. Seller has the right to reject at any time(s) any restricted destination, vessel, person, entity or bank and Buyer will be liable to Seller for any costs, expenses, damages and delays arising as a result. Additional information is available from Seller upon request.
18.3 Buyer undertakes and warrants that all goods supplied by Seller (either in whole or in part) shall not be used, by itself, its agents or its customers for any activities that will or may facilitate the design, development, production and delivery of or in connection with weapons of mass destruction or any terrorism activities or any restricted activity under the Malaysian Strategic Trade Act 2010 (“STA”) or any other applicable export controls laws. Buyer fully indemnifies Seller, its directors, shareholders and employees of any breach of the STA and/or any other applicable export controls laws.
18.4 Buyer’s bank and all payment channels must be acceptable to Seller and will always be in accordance with U.S., EU, English, United Nations and Swiss economic sanctions laws, including in the event of any changes to such laws or in any applicable bank policies concerning such laws. Should the payment of the goods be impeded by the Sanctions Laws, Buyer shall ensure that such payment be effected through a channel that Seller is permitted to accept unless any such payment problems are the result of Seller's contravention of the Sanctions Laws. Buyer will be liable to Seller for any costs, expenses, damages and delays related to payment instructions provided by Buyer that are not in accordance with the Sanctions Laws.
18.5 Seller will not cooperate with, agree to, or comply with any terms or requests, including documentary requests, which contravene or are prohibited or penalized under U.S. Antiboycott laws or regulations.
19. ARBITRATION
Any dispute, controversy or claim arising out of or relating to these GTCs or this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Arbitration Rules of the Asian International Arbitration Centre (Malaysia). The seat of arbitration shall be Kuala Lumpur, Malaysia. The language to be used in the arbitral proceedings shall be English.
20. APPLICABLE LAW
20.1 These GTCs and any offers and agreements which are subject to these GTCs shall be solely governed by the law of Malaysia.
20.2. The United Nations Convention on Contracts for the International Sale of Goods of 1980 and the implied terms under the Sale of Goods Act 1957 shall not apply to the Agreement.