“Affiliate” means with respect to any Party, any other entity or person that, directly, or indirectly though one or more intermediaries, controls, or is controlled by, or is under common control with, such Party. For purposes of the foregoing definition, “control” means the direct or indirect ownership of more than fifty percent (50%) of the outstanding capital stock or other equity interest having ordinary voting power for the election of directors or the equivalent thereof and/or the power to direct or cause the direction of the management and policies of such entity.
“Buyer” means the company as stated in the Purchase Order/Service Order who procures the Goods and/or Services from Seller and shall include its legal successors in title and assigns.
“Buyer Group” means Buyer, Client, its and their Affiliates, directors, officers and employees.
“Client” means the entity specified in the Purchase Order/Service Order and shall include its legal successors in title and assigns.
“COEC” means the Code of Ethical Conduct which governs all Sapura Energy Berhad group of companies including Buyer.
“Contract” means the Purchase Order/Service Order issued by Buyer to Seller and includes all attachments and enclosures specified in the Purchase Order/Service Order, including this general conditions for supply of goods and provision of services and any subsequent amendments to them.
“Delivery Date” means the date for delivery of the Goods at the Delivery Point as specified in the Purchase Order/Service Order.
“Delivery Point” means the place where the Goods are to be delivered to as stated in the Purchase Order.
“Delivery Term” means the specified delivery term under Incoterm 2010 as stated in the Purchase Order/Service Order.
“Goods” means all items to be supplied by Seller for Buyer’s purchase as specified in the Purchase Order Purchase Order/Service Order.
“Purchase Order/Service Order” means the face sheet issued by Buyer to Seller detailing all relevant information on supply of the required Goods and Services.
“Price” means the amount specified in the Purchase Order/Service Order, subject to terms and conditions of this Purchase Order.
“Sanction” means any sanctions, embargoes or similar economic or financial restrictions or prohibitions imposed, administered or enforced by a Sanctions Authority, which are directly applicable to a Party, financier and/or mandatory for compliance by a Party, financier and/or mandatory for compliance by a Party, its Affiliates or its financiers.
“Sanction Person” means any person or entity who is listed on, or owned or controlled by or acting on behalf of a person listed on, any Sanctions List as herein defined, or who is otherwise the target of Sanctions; and/or with whom a Party’s Group or its lenders is otherwise prohibited from dealing (directly or indirectly) pursuant to Sanctions (to the extent of such prohibition)
“Sanctions Authority” means:
(a) the United Nations Security Council;
(b) the Malaysian government;
(c) the United Kingdom government;
(d) the United States government;
(e) the European Union (or any government of any of its member states);
(f) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State and Department of Commerce and Her Majesty’s Treasury; and
(g) any other competent governmental institution or agency in any other country where the Services are to be performed.
“Sanctions List” means a list of Sanctioned Person or other banned, blocked or sanctioned persons, entities or sectors maintained by a Sanctions Authority including without limitation the US Foreign Sanctions Evaders (FSE) List, US Sectoral Sanctions Identifications (SSI) List, US Palestinian Legislative Council (NS-PLC) List, the US List of Foreign Financial Institutions Subject to Part 561 (the Part 561 List), the Non-SDN Iranian Sanctions Act (NS-ISA_ List, the US List of Persons Identified as Blocked Solely Pursuant to Executive Order 13599 (the 13599 List), the Consolidated List of Financial Sanctions Targets maintained by Her Majesty’s Treasury, or any other similar list issued or maintained by any Sanctions Authorities, each as amended, supplemented or substituted from time to time.
“Seller” means the company named in the Purchase Order/Service Order who supplies and delivers the Goods and provides the Services pursuant to the Purchase Order/Service Order and shall include its legal successors in title and assigns.
“Services” means all the activities or services to be performed and rendered by Seller described in the Purchase Order/Service Order.
“TAXES” shall include:
(a) Taxes due on income, profits, royalty, excess profits of Seller and withholding tax.
(b) Taxes due and payable by Seller in countries outside of Seller’s area of operations.
(c) Taxes and duties due on any offices or property whether owned, occupied or operated by Seller including vehicles, plants, franchise licenses, permits, registration fees.
(d) All employment taxes and contributions imposed by law ,or trade union contracts, or regulations (which are imposed by or on behalf of Inland Revenue Board (IRB) or any taxing authority of any jurisdiction) with respect to or measured by the compensation (wages, salaries ,bonuses and benefits) paid to employees of Seller including without limitation, taxes and contributions for unemployment and compensation insurance, old age benefits, welfare funds, pensions and annuities and disability insurance and includes penalties, interest, fines in respect thereof.
(e) Taxes as a result of non-compliance of this Contract and general conditions for supply of goods and provision of services by Seller including fines, penalties, interest, levy, and similar charges.
(f) Indirect Tax includes Transaction Taxes, Service Tax, Goods and Services Tax, Value Added Tax, Consumption Tax and any other similar taxes as well as import and export duties, Sale Tax, Excise Duties and other similar duties and charges.
(g) Taxes and duties due on importation of tools, vessels work and Goods necessary for the performance of this Contract except for such Customs Duties expressly provided to be payable by Buyer in this Contract.
(h) Levies of any kind.
“Trade Control Law” means all applicable laws concerning the import, export or re-export of Goods and restrictions on dealings with restricted or designated Parties and the regulations and orders issued and/or administered in relation to export control, anti-boycott and Sanctions (as amended from time to time).
“Worksite” means the areas or places onshore and/ or offshore as designated by Buyer where the Services are to be performed.
Seller’s acceptance of this Contract shall constitute a waiver by Seller of any restrictive clause appearing or which may appear on the Goods, drawings, price proposal and/or data delivered by Seller to Buyer under this Purchase Order; such clauses, if any, shall not be binding upon Buyer, and Seller authorises Buyer to nullify, obliterate or otherwise remove any such restrictive Clause from any Goods, drawings, price proposal or data so delivered.
3. PACKAGING, PACKING AND MARKING
All Goods shall be suitably and adequately packed, packaged or otherwise prepared in accordance with good commercial practice to prevent any possible damage such as but not limited to resulting from weather conditions, handling of Goods during loading and unloading and during in transit and/or storage. Packages must be packed to withstand the type and mode of delivery or shipment as specified in the Purchase Order/Service Order and in full compliance to trade terms stated therein.
Packages must be marked with the Purchase Order/Service Order number, item number, destination, contents, quantity, date and method of dispatch and weight of each package.
Any Goods that are received in a damaged condition shall, at the discretion of the Buyer, be returned for replacement or credit and all charges arising from the return and replacement of damaged Goods shall be solely borne by the Seller.
All wooden crates/pallets with cargoes to be strapped with polyester band, NOT metal band.
Buyer shall not be liable to pay for or return to Seller any packing or crating, unless otherwise agreed in writing.
Seller shall, whenever a consignment of Goods is ready for transit, make up a packing slip, in English, adequately identifying the contents with one copy of said slip shall company the consignment and another shall be sent immediately to the person named in the Purchase Order/Service Order.
4. PERFORMANCE OF THE SERVICES
Seller shall comply with all Buyer’s instructions and shall perform the Services in accordance with this Contract, at accepted standards of the international petroleum industry, in compliance with all relevant laws and regulations and in such a manner as will always safeguard and protect Buyer’s and Client’s interests.
Seller warrants that it has the experience and capability including sufficient and competent, fully qualified and technically trained personnel and all necessary facilities to efficiently and expeditiously perform the Services.
Seller shall at its own cost, be responsible for all matters relating to the employment of its personnel, whether local or foreign, including without limitation:
(a) work permit, employment visa, immigration requirements;
(b) remuneration, EPF, SOCSO, taxes, levy, commission;
(c) all required PPE apparel, as approved by Buyer, for use by its personnel;
(d) transportation, lodging or accommodation and meal allowance;
(e) medical welfare, examination, treatment, hospitalisation, health insurance, including that of their immediate families.
Seller undertakes to remove from the Worksite any person who, in the opinion of Buyer is incompetent, misconducts himself, is negligent in the proper performance of his duties or is otherwise considered to be undesirable to Buyer interest, and such person shall not again be employed upon the Worksite without written permission of Buyer. Seller shall forthwith without delay, replace at Seller’s sole expense any such discharged person with a suitably qualified and experienced person satisfactory to Buyer.
Unless otherwise so stated in the Purchase Order/Service Order , the Price shall be the full and complete compensation for duly performing and completing Seller’s obligations under this Contract to the satisfaction of Buyer and shall inclusive of all TAXES which may be imposed by relevant authority with respect to the Goods and Services and inclusive of all charges for packaging, packing, insurance, transportation, handling, storage and any other duties or levies imposed.
If any such cost is specified to be payable by Buyer in writing, Seller shall effect payment first and seek reimbursement at cost from Buyer. In the case of any costs relating to transportation specified to be payable by Buyer, the transport methods as identified in the Purchase Order/Service Order shall be used.
The Price is fixed and firm throughout the duration of this Contract. No increase in the Price may be made, whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise.
Seller shall promptly inform Buyer of any discount available for early payment prior to the issuance of the Purchase Order/Service Order and the payment period qualifying for such discount shall commence at the actual date of receipt of the invoice by Buyer (irrespective of anything appearing on the invoice to the contrary).
6. INVOICING AND PAYMENT
(a) Seller shall submit its invoice on or at any time after delivery of the Goods. Seller shall submit an original Invoice or “Commercial” invoice with a valid Purchase Order/Service Order and other relevant supporting documents to the “Invoice To” address as noted on the Purchase Order/Service Order for payment processing.
(b) Payment shall be made by Buyer subject to the submission of the following documents by Seller:
(i) The Purchase Order/Service Order duly signed by the Buyer’s authorised representative.
(ii) The Delivery Order (“DO”) duly signed and stamped by the Buyer’s authorised personnel at the Delivery Point and shall state clearly the date of receipt of the Goods and/or Services together with the name and designation of the authorised personnel. The DO shall be clearly marked with the Purchase Order/Service Order number; and
(iii) Other relevant documents or certification of the Goods e.g. Mill Certificate, Notice to Invoice etc., or in the case of Services, Time-Sheet, Service Entry number etc., as may be required by Buyer.
(c) Buyer shall make payment of the invoice or of the undisputed portion thereof within sixty (60) days upon receipt by Buyer of Seller’s original invoice.
(d) In the event of any dispute or query on Seller’s invoice, Buyer shall notify Seller of the said dispute or query. Buyer and Seller have to make every effort to resolve the said dispute or query as soon as possible. Buyer shall make payment within thirty (30) days after resolution of the dispute or query. Such prescribed periods are meant only to ensure undisputed invoices are paid without undue delay. Buyer is not barred from disputing or querying on the invoices after lapse of such prescribed period.
(e) Seller shall not unilaterally suspend the supply of any other Goods and/or Services under this Contract on account of the invoices being disputed in good faith and the Parties shall make every effort to resolve the dispute amicably.
(f) Buyer will notify Seller of any erroneous billings made by or payments made to Seller and Seller will promptly, and in any event no later than thirty (30) days from such notification, make appropriate adjustments therein and reimburse Buyer any amounts of overpayment still outstanding as reflected by said adjustments, notwithstanding the fact that a temporary withholding or a correction of discrepancy may have been effected previously. Accordingly, Buyer will pay Seller any amount of underpayment subject to verification thereof.
(g) Supplier Portal
(i) Effective on 01-June-2018 and if required by the Buyer, the Seller shall submit its invoice together with complete supporting documents via Supplier Portal as per the following manner:
(a) Seller shall register online at https://supplierportal.eyeshare.no/; and
(b) Seller shall email all inquiries at email@example.com.
(ii) If Supplier is required to submit invoice(s) via Supplier Portal, Supplier shall comply with the following requirements:
(a) submission of hardcopy invoices is not required and not acceptable;
(b) the invoices shall consist the accurate company name and address as per the Purchase Order;
(c) the Purchase Order number must be indicated on the tax invoice;
(d) the Purchase Order/Service Order must be signed by Buyer’s representative; and
(e) the Delivery Order/Note must be signed and stamp by Buyer’s representative.
Any invoice(s) submitted by the Supplier may be rejected should Supplier failed to fulfil the above requirements.
(h) When billing, Seller to ensure that invoice/credit note must reference to the correct legal entity and contains at least the following information for proper accounting and tax audit record:
• Legal entity name
• Legal entity’s address noted on the Purchase Order/Service Order
• Invoice number
• Invoice date
• TAX registration number
• Total net amount charged on the invoice and applicable tax rates and tax amounts (tax exemptions to be stated)
• Discounts and other price reductions (if any)
• Quantity, unit of measure and common description of the goods supplied or services rendered
• Currency (must be the same as the currency of the corresponding PO)
• Goods/services descriptions
• Relevant payment information (banking details or address to send payment)
(i) Revised invoices should be raised preferably with the same invoice number as the original one, and categorically mentioned as “REVISED INVOICE” on the package. In case the revised invoice is raised with a different invoice number, Seller to provide a credit note for processing and reject the incorrect old invoice submitted previously.
The Seller shall within fourteen (14) days from the date of issuance of the Purchase Order/Service Order provide Buyer with the following guarantees, in the form of:
(a) an irrevocable and unconditional bank guarantee executed and issued by a reputable and acceptable bank to Buyer, in favour of Buyer for the amount equivalent to 10% of Price. Such bank guarantee shall be issued by a reputable and acceptable bank to the Buyer and executed in the prescribed format as provided by Buyer. Such bank guarantee shall be effective from the date of issuance of Purchase Order/Service Order and shall remain in force and effect until ninety (90) days after the expiry of the Warranty Period or any extended warranty.
If Seller fails to provide the required bank guarantee or at any time and for any reason that such bank guarantee is not enforceable, Buyer may suspend the payment to Seller and/or performance under this Contract without limitation to terminate this Contract without incurring any liabilities whatsoever.
In the event of a default or failure by Seller to perform its obligations or any part thereof under this Contract, Buyer may call upon the Performance Bank Guarantee without limitation to terminate this Contract without incurring any liabilities whatsoever.
(b) a performance guarantee from Seller’s parent company in the format as provided by Buyer.
Delivery must be affected on the Delivery Date or within the time stated in this Purchase Order/Service Order, otherwise the Buyer may, by instruction in writing, (a) extend the time for delivery; or (b) cancel this Purchase Order/Service Order. Seller shall reimburse Buyer for any additional cost incurred by the Buyer if the Buyer shall purchase elsewhere in case of cancellation. Buyer assumes no obligation with respect of the Goods delivered in excess of quantities specified herein. If requested by Seller, Goods delivered in excess of quantities ordered may be returned at Seller’s expenses and are at Seller’s risk. The quantities and weight determined by the Buyer upon receipt shall prevail for all consignments. In the event Seller fails to observe the required mode of transportation for delivery, Buyer shall have the right to (a) cancel this Purchase Order/Service Order; or (b) affirm this Purchase Order/Service and charge the Seller all additional expenses incurred by the Buyer for Seller’s failure to comply. Liquidated Damage shall be imposed for delay of delivery of Goods and/or delay in the completion of the Services under this Contract.
Acknowledgement of delivery or prepayment of invoice to secure cash discount shall not be deemed a waiver of Buyer’s rights reserved in this Contract. Delivery of Goods shall include the provisions of all required certificates and documents as well as Services as specified in this Contract. The delivery is deemed completed upon written acceptance by authorized personnel assigned by Buyer.
A partial delivery is not acceptable unless with prior written agreement by the Buyer.
Buyer shall have the right to extend the Delivery Date in the event of changes in the specifications or delivery scope as required by Buyer or due to any reasonable circumstances as determined by Buyer.
Buyer shall determine the length of such extension of time to the Delivery Date and shall have the sole discretion in determining whether the granting of any extension of time entitles Seller to additional costs.
(a) General Warranty
Notwithstanding any inspection, delivery to or acceptance by the Buyer of the Goods, or any part thereof, the Seller warrants to the Buyer that:
(i) the Goods shall be genuine, new, unused and current or of recent production;
(ii) the Goods shall be of merchantable quality and fit for its purpose or for any purpose held out by the Buyer or made known to the Seller at any time the Purchase Order/Service Order is issued and shall be suitable for oil and gas environment;
(iii) the Goods shall be free from any defects in design, material and workmanship;
(iv) the Goods shall correspond with any relevant specification or sample; and
(v) the Goods shall comply with all statutory requirements and regulations relating to the sale of the Goods.
(b) Manufacturer’s Warranty
Without prejudice to the general warranty mentioned above, the Seller shall ensure that any guarantees or warranties issued by manufacturers of the Goods supplied by Seller shall be issued in the joint names of Seller and Buyer and the Client, such that Buyer enjoys the same benefits and protection provided by such guarantees or warranties as does the Seller. The original copy of all such guarantees or warrantees shall be supplied to Buyer upon delivery of the Goods. The issuance or existence of such guarantees and warrantees shall in no way relieve the Seller of any obligations under this Contract. Seller shall list out procedures, frequency and details of any preventive maintenance and precautions which are necessary to be carried out so as not to nullify the warranty herein. Seller shall also specify the part of the Goods that are not to be handled by Buyer’s personnel in observance of the warranty.
(c) Warranty Period
(i) Unless otherwise stated in the of the Purchase Order/Service Order, the Warranty Period shall remain in force for 12 months from when Goods are put into their intended service or 24 months from delivery, whichever occurs earlier. If any defect is discovered in the performance capability of any of the Goods due to defective design, material, workmanship or manufacture, within the Warranty Period, Seller shall at its own expense, without delay and at no additional cost to Buyer, correct, repair, rectify, making good or replace the defective part or item thereof in accordance with the provisions of this Contract. Replacement and repairs shall themselves be subject to a period of 12 months from date of replacement or repair. If the Seller refuses or is unable to rectify and/or replace such defective Goods at the Delivery Point or in the event that the Goods are already installed on a vessel or a facility or any other place that access to the Goods cannot be granted for such rectification or replacement for any reasons whatsoever, then Buyer may undertake such rectification or replacement itself or by a third party and in either instance, the Buyer shall be entitled to recover the full cost of such rectification and/or replacement from the Seller. For the avoidance of doubt any and all costs relating to the dismantling or re-assembly of objects in order to gain access to such part of the Goods which is required to be rectified or replaced shall be for the sole account of the Seller.
(ii) Where applicable, Seller further warrants that it has the experience and capability including sufficient and competent manpower to perform periodical maintenance of the Goods, during the Warranty Period.
10. LIABILITY AND INDEMNITY
Seller shall be responsible for all liabilities, loss, damages, costs and expenses (including any legal expenses) awarded against or incurred or paid by Buyer Group and shall indemnify Buyer Group in full against the foregoing resulting from or in connection with or resulting from:
(a) breach of any warranty given by Seller in relation to the Goods and Services;
(b) any claim that the Goods or Services infringe, or their importation, use or resale, infringes the intellectual property rights or other persons;
(c) any liability under any laws relating to consumer protection in respect of the Goods or Services;
(d) any default, negligence, act or omission of Seller or its employees, agents or suppliers in supplying or delivering of the Goods and in the performance of the Services; and
(e) any personal injury of Seller, its servants or agents, suppliers or subcontractors and loss or damage to property and equipment of Seller, its servants, agents, suppliers or subcontractors and consequential losses or damages of Seller, howsoever caused.
(f) all spills, leaks or discharges of any pollution substance whatsoever, including without limitation, fuels, lubricants, motor oils, pipe dope, paints, solvents, ballast, bilge, sludge, garbage, or any other liquid or solid whatsoever in the possession and control of Seller, its servants or agents, suppliers or subcontractors, and/or directly associated with Seller, its servants or agents, suppliers or subcontractors’ equipment and facilities, arising from or relating to the performance of this Contract , without regard to negligence of Buyer Group.
(g) Personal injury, illness or death of any third party and the loss or damage to any third party’s property caused by the negligence, fault, or strict liability of Seller.
(a) Seller shall, at the Seller’s sole expenses and risks, provide and maintain in force insurance coverage with insurance companies acceptable to Buyer to cover its liabilities under this Contract and at law. Such insurances shall be deemed as primary coverage. The list of insurances and the required limits are as specified in the Purchase Order/Service Order.
(b) All deductibles applicable to the insurances taken by Seller shall be for the account of and be paid by Seller.
(c) Except for Workmen Compensation and Employer’s Liability insurances, Buyer Group shall be named as additional assured but only to the extent of the liabilities expressly assumed by Seller in this Contract. Seller shall instruct its insurers to include a waiver of all expressed or implied rights of subrogation against Buyer Group for all its insurances.
(d) The insurance policies shall contain a policy endorsement including requirements that the insurance companies shall provide not less than twenty-one (21) days written notice shall be given to Buyer and Client prior to any cancellation of material modification of the policies.
(e) Within thirty (30) days of issuance of the Purchase Order/Service Order, Seller shall furnish to Buyer with all insurance certificates from its insurers evidencing that all insurances under this Contract are in full force and effect and fully compliant with the Purchase Order/Service Order requirements. Seller shall not commence its obligations under this Contract until the insurance certificates have been provided to Buyer.
(f) Seller shall wherever required produce to Buyer the insurance policies for review and compliance to the conditions stipulated herein.
(g) Seller shall produce a certificate from its insurers to the effect that all premium under the policies have been paid and indicating validity of the policy.
(h) Seller shall be solely responsible for any non-disclosure, breach of express or implied warranties, breach or non-fulfilment of any terms and conditions of the policies which may result in automatic termination or cancellation, payment of all premiums, deductibles, or self-insured retentions that are applicable to any claims made against any insurance policies provided by Seller.
(i) Approval by Buyer of any insurer or terms of insurance proposed by Seller shall not relieve Seller of any of its obligations or liability under or arising from this Contract or generally at law.
(j) The terms of insurance shall include a provision whereby in the event of any claim being brought or made against Buyer Group in respect of which Seller would be entitled to receive indemnity under the policy, the insurer will indemnify Buyer Group against such claims and any costs charges and expenses in respect thereof.
(k) Seller shall include in his respective contracts with its suppliers such clause(s) pertaining to insurance, indemnity and waiver of subrogation that appear in this Contract. This, however, shall not relieve Seller from his responsibilities under this Contract.
(l) Seller shall notify Buyer immediately upon receipt of any notice of claims, incidents or demands or of any situation which may give rise to such claims or demands being made under the said insurance policies. Written notice shall be given not later than two (2) days after the occurrence of any accident. However, for serious accidents (including but not limited to death or serious injuries) notice shall be given immediately and confirmed in writing.
Buyer reserves the right but not the obligation to inspect the Goods at any time either before or after delivery.
Inspection conducted at Seller’s manufacturing plant shall not be constituted as approval or acceptance of Goods in whatsoever manner. Approval or acceptance during such inspection shall not constitute waiver to Seller’s obligation in the warranty to deliver the Goods or Services in accordance with the terms and conditions of this Contract.
Buyer and/or Client shall have the right to conduct or appoint a third party to conduct a detailed Goods inspection as a condition of acceptance of Seller’s Goods. Seller shall provide the necessary assistance to Client and/or Buyer or its appointed third party who will undertake the inspection. Seller shall be responsible towards all the associated costs incurred for the inspection.
Any discrepancies shall be notified through Material Description Deficiency Report and it is the Seller obligations to rectify all identified discrepancies to the acceptance of Buyer.
Goods may be rejected if found defective, not in accordance to the type, brands, specifications, quantum or if supplied not in accordance with the Shipping Instruction or supplied later than the Delivery Date or delivered to the wrong Delivery Point or are incorrectly labelled or not in compliance with any applicable laws and regulations. Buyer shall inform Seller if any Goods are rejected and Seller shall, at its sole costs, be responsible to correct, repair, rectify, making good or provide replacement to the Goods not later than five (5) days upon receipt of Buyer’s notice.
If Buyer received Goods whose defects or non conformities are not apparent on examination or when Buyer found any latent defect on the Goods, Buyer reserve the right to return and require replacement of such Goods and the Seller shall, not later than five (5) days upon receipt of Buyer’s notice, correct, repair, rectify, making good or provide replacement to the Goods at no additional costs to the Buyer.
The Buyer’s rights herein shall be without prejudice and in addition to its rights at law.
14. TITLE AND RISK
(a) Risk of damage to or loss of the Goods shall pass to the Buyer until actual delivery to the Delivery Point and Buyer's actual receipt and acceptance thereof. Loss or damage to the Goods during transit shall be at the Seller’s own risk and expense. If the Goods or any part thereof are nonconforming, the Seller shall continue to bear risk of loss as to them until cure of the defect or acceptance.
(b) The legal title in the Goods shall pass to the Buyer upon acceptance of the delivery by the Buyer, upon payment if payment is made prior delivery or upon buyer invoking default or termination clauses, whichever is earlier.
All materials or equipment to be incorporated into the Goods and for which the title has passed to Buyer shall be clearly marked as Buyer’s property and where possible be stored separately.
Seller shall indemnify, defend and hold harmless the Buyer, its Affiliates, successors, assigns, customers and the users of its Goods from and against all losses, damages, liability, claims, demands, proceedings and expenses including attorney’s fees for actual or alleged infringement of any patent, design, trademark or violation of process or other proprietary or protected rights of any person or entity by the reason of or through the use of the Goods.
Seller shall not assign this Contract or any moneys due or become due hereunder, without Buyer’s prior written consent and any attempted assignment without such consent of Buyer shall be void.
17. FORCE MAJEURE
Force Majeure means the occurrence of any act or event which is unforeseeable, insurmountable and outside the control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its obligations under this Contract. Force Majeure includes Acts of God (such as epidemic, tidal wave, lightning, earthquake, hurricane), hostilities or acts of war (whether declared or not), acts of terrorism, sabotage, riots (other than among employees of either Seller or Seller or their Group), civil or military disturbances, national or regional strikes (excluding strikes, lock-outs and other industrial disputes or actions by, between or originated among employees of either Buyer or Seller or their Group) and acts of any government or public authority or any representative thereof whether or not legally valid. Force Majeure does not include events such as insolvency of any Party.
In the occurrence of an event of Force Majeure, the Party affected by the effects of such event shall promptly notify the other Party with evidence of the occurrence of the said event. The Party having claimed Force Majeure shall give prompt notice once the end of the Force Majeure. Each Party shall do everything reasonably possible to minimise the effects of such Force Majeure.
The Party affected by Force Majeure and who has given such notice shall be excused from the performance or punctual performance of its obligations under this Contract.
Each Party shall bear separately all direct and indirect financial consequences of such Force Majeure situation and no extra payment or compensation shall be claimable by Seller to Buyer due to suspension of performance for Force Majeure except for extension of time for delivery of the Goods and/or performance of Services under this Contract.
If the performance by Seller is suspended lasting for more than 120 days due to Force Majeure and affects the major work under the Purchase Order/Service Order, Buyer shall have the right to terminate this Contract in whole or part thereof. If this Contract is terminated, Seller shall be paid for any Goods supplied and/or Services performed at the date of termination after offsetting any amount due and payable by Seller to Buyer, if any.
18. HEALTH, SAFETY AND ENVIRONMENT REGULATION
Seller shall ensure all its personnel, employees, gents, vendors and subcontractors comply with all applicable laws, regulations, practices and policies and requirements of Buyer and Client.
Without prejudice to any of its rights or remedies the Buyer may cancel and terminate this Contract of any part thereof:
(a) If the Seller at any time fails or is unable to comply with any warranty, term or condition expressed or implied in this Contract relating to Goods such as but not limited to failure to deliver on the required Delivery Date or through specific mode of transportation for delivery, or
(b) If the Goods or part of the Goods delivered do not conform in full to this Contract, including any relevant specification, drawings, samples or descriptions and any alteration thereto authorised in writing by the Buyer or are not fit for the purpose for which they are intended or are defective or are insufficient in quantity,
(c) The provider of any guarantee as provided by the Seller in favour of the Buyer pursuant to this Contract of an assignment for the benefit of creditors, the filing by or against any of them of a petition in bankruptcy, liquidation or for corporate reorganisation, or the appointment of a receiver or trustee for any of them or their respective properties; or
(d) If in the case of the Seller being a company and an order is made or a resolution is passed for the winding up or dissolution of the Seller or for the reconstruction and amalgamation of the other Party or otherwise under Companies Act 2016 or any other similar action or proceeding under any other law or if a receiver or manager or official manager, liquidator, or like official is appointed in respect of the whole or a substantial part of the undertaking and property of the Seller or assignment for the benefit of his creditors.
In the event of cancellation or termination of all or any of this Purchase Order/Service Order in accordance with this Clause, the Buyer shall have no obligations save to pay for any Goods which have been accepted by Buyer under this Contract. Buyer shall have the right to offset such payment due against any additional costs which incurred by the Buyer as a result of such cancellation or termination.
Notwithstanding the above, Buyer shall have the right to terminate this Contract at any time at its own convenience by prior written notice to Seller.
In case of termination at its convenience, Buyer shall pay Seller for the Goods supplied and/or Services completely performed by Seller at the date of termination and any justifiable and reasonable costs incurred by Seller before such termination.
Buyer reserves the right to change the Goods specifications, method of delivery, packaging and packing as to any Goods or the provision of Services covered by this Contract and Seller agrees to comply with such change notice and shall submit to Buyer with any consequent effect to such change notice such as price and/or delivery schedule. Any change notices will be in writing and signed by the Buyers authorised representative.
Failure by Buyer to enforce a provision of this Contract shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of this Purchase Order or any part thereof, or Buyer’s right thereafter to enforce each and every such provision. Any waiver by Buyer shall not be valid unless it is made in writing and signed by Buyer’s ` representative.
22. ATTACHMENTS AND ENCLOSURES
Attachments and enclosures as specified to this Purchase Order/Service Order are integral to and made a part of this Contract.
23. LIQUIDATED DAMAGES
(a) Time is the essence of this Contract. Seller shall notify Buyer immediately if it learns or has reasonable grounds to believe that it cannot fulfil an obligation by any such specified date. Seller shall, at its own costs and expense, and without prejudice to any other rights Buyer may have under this Contract and/or at law, take all necessary steps Buyer requires it to take in order to minimise possible loss, delay or inconvenience to the Buyer. Buyer may call for meetings to address potential delays. Seller shall implement all requests or recommendations made by Buyer.
(b) In the event Seller fails to complete the Services by the stated completion date or deliver the Goods by the delivery date or any approved extension thereof, Seller shall pay Buyer liquidated damages for the delay. Unless otherwise stated in the Purchase Order/Service Order, the amount of the liquidated damages payable by Seller is in the sum of 1% of Price so delayed per day up to the maximum of 10% of the Price.
(c) The Buyer may, without prejudice to any other method of recovery or other rights under this Contract or at law, deduct and retain from any sum otherwise due or become due by Buyer to the Seller hereunder the amount of the liquidated damages payable by the Seller. The deduction of such liquidated damages shall not relieve the Seller from his obligation or liabilities under this Contract.
(d) The imposition of liquidated damages are expressly agreed by the Parties to represent a genuine pre estimate of the costs likely to be suffered by Buyer because of delays, and shall not be construed as a penalty nor as consequential loss.
(e) In addition to the liquidated damages, the event of delay in the delivery of the Goods and/or completion of the Services, Buyer may, at its option, reject the Goods and terminate this Contract by serving Seller with a notice of its intention to terminate.
24. TAXES, LICENSES, DUTIES, FEES AND OTHER CHARGES
(a) Seller shall be responsible for and pay at its own expense when due and payable, all TAXES and duties relating to the Seller’s obligations in connection with this Contract by any governmental offices, entity or agency including but not limited to:
(i) All sales, excise, storage, consumption (e.g. service tax, VAT, etc.) and use taxes, licenses, permit and registration fees, income, profit, royalty, excess profit, franchise and personal property taxes.
(ii) All employment taxes and contributions imposed by law, or trade union contracts, or regulations (which are imposed by or on behalf of Inland Revenue Board (IRB) or of any taxing authority of any jurisdiction)with respect to or measured by the compensation (wages, salaries or other) paid to employees of Seller and its suppliers including, without limitation, taxes and contributions for compensation insurance, welfare funds, pensions and annuities and disability insurance and includes penalties, interest, fines in respect thereof.
(iii) All other taxes arising from the use of personnel, materials and equipment necessary for Seller’s performance under this Contract.
(b) Seller, shall defend, protect, indemnify and hold harmless Buyer Group from:
(i) Any and all claims or liability for income, excess profits, royalty and other taxes assessed or levied by the relevant authorities or by any relevant authorities thereof or by the government of any other country against Seller or its suppliers or against Buyer Group, on account of any payment made to or earned by Seller or its suppliers;
(ii) All taxes assessed or levied against or on account of wages, salaries or other benefits paid to or enjoyed by employees of Seller or its suppliers, and all taxes assessed or levied against or on account of any property or equipment of Seller or its suppliers;
(iii) All claims, demands and causes of action based on any actual or alleged failure by Seller and/or its suppliers to make timely payment of any taxes or duties for which they are liable or any actual or applicable reporting, return or other procedural requirements with respect to their payment.
(iv) This indemnity shall include without limitation all penalties, awards and judgments, court and arbitration costs, attorney’s fees and other reasonable expenses associated with such claims, demands and causes of action.
(c) Buyer’s Right to Withhold Monies or Payment
(i) Buyer shall have the right to withhold income, excess profit, royalty and other taxes from payment due to Seller under this Contract, to the extent that such withholdings maybe required by the relevant authorities or any relevant authorities thereof.
(ii) Where Seller is of the opinion that it is not subject to withholding tax, it is the sole responsibility of the Seller to secure written direction of the relevant authorities and submit the original copy to Buyer. Upon receipt of such written direction Buyer may make the said payments without deduction of such taxes.
(d) Prompt Notification
Seller shall give prompt notice to the Buyer on all matters pertaining to non-payment, payment under protest, or claim of immunity, or exemption from any taxes, duties or levies, which may affect the performance of Seller’s obligation under this Contract.
In the event that the Seller is a foreign incorporated company and by virtue of its activities related to the provision of services is considered to have a permanent establishment in any country, the Seller shall be solely liable or responsible for the following:
- Any liability for TAXES
- Any and all other costs incurred by Seller due to the creation of a permanent establishment
- Any TAX and other filing obligation occasioned by the creation of the permanent establishment
(e) Indirect Tax
(i) Where service tax is applicable to any services rendered by the Seller under this Contract, Buyer shall be responsible for and pay the service tax as mentioned in (e) (ii) below when invoiced by the Seller for any taxable service, provided that Seller shall provide Buyer a copy of valid Service Tax license issued by the Royal Customs Department confirming that Seller is licensed under the Service Tax Act as a taxable person providing taxable services.
(ii) Seller is advised that pursuant to Clause 5, the Purchase Order Price and rates is inclusive of all TAXES and this includes the Service Tax amount and Buyer shall not compensate Seller with additional sum for the Service Tax portion. For the purposes of raising an invoice, the Service Tax amount shall be separately itemised in the invoice in accordance to Service Tax law and Buyer will not pay anything additional beyond the Purchase Order/Service order Price.
(f) In the event Buyer has paid or incurred any liability for any taxes or custom duties on behalf of Seller, which is subsequently determined to be not payable, Seller shall promptly account for and refund to Buyer all payments made.
(g) The delivery of Goods shall be interpreted in accordance with INCOTERMS 2010 and Seller shall act in the best interest of the Buyer in the procurement and movement of any materials / equipment for the purposes of work outside Malaysia by applying for customs duties / Value added Tax (“VAT”)/Transaction Taxes facilities that can mitigate import duty and VAT payable (in the country where the work under the Purchase Order/Service Order is carried out) from the relevant authorities in the respective countries.
Seller shall be responsible for the preparation of all documents required by the relevant Customs Department (“Customs Authority”), in connection with the import and export of Goods, to and from country of origin. Seller is also required to provide assistance, information and documentation to Buyer as and when required for any application to be made to the Customs Authority or any other relevant authorities for the purposes of this Contract.
(h) For avoidance of doubt “Custom Duties” shall not be limited to any import duties, export duties, excise duties, surtax, sales tax, service tax and other statutory imposts as levied, which are imposed by or on behalf of the Customs Authority or any other relevant authorities.
25. GOVERNING LAW
This Contract is governed by the laws of Malaysia. Seller shall comply with all statutes, rules, regulations and laws that may apply to the activities under this Contract, without prejudice to the law of this Contract. Seller shall be responsible for obtaining all authorisations, approvals, permits, licences and the like necessary for performance of this Contract.
26. DISPUTE RESOLUTION AND ARBITRATION
(a) If any dispute or difference between the Parties should arise under this Contract, the Parties shall make every reasonable effort to resolve such dispute or difference within twenty-eight (28) days of either Party bringing the dispute to the notice of the other Party.
(b) In the event that the Parties are unable to resolve such dispute or difference within the twenty-eight (28) days as set forth above, the matter shall be submitted to arbitration in accordance with and be subject to Rules of Asian International Arbitration Centre. The place of arbitration shall be Kuala Lumpur and all arbitration proceedings shall be conducted in the English language.
(c) The arbitration tribunal shall consist of three (3) arbitrators, one each appointed by Seller and Buyer respectively and the two arbitrators so appointed shall in turn appoint a third arbitrator who shall also act as an umpire.
(d) Pending determination of the dispute or difference as aforesaid, each Party shall fulfil all of its obligations under this Contract, including the obligation to take steps necessary during the arbitration proceedings to ensure that the supply of the Goods shall be completed within the time stipulated by this Contract.
(e) Any decision or award of the arbitration tribunal shall be final and binding. The costs of the arbitration process shall be borne by the Party as determined by the arbitration tribunal.
Buyer’s authorized representatives shall have access, at all reasonable times for a period of six (6) years from expiry or earlier termination of the Purchase Order to all Seller's and its agents', suppliers and consultants' personnel, books, records, correspondence, instructions, plans, drawings, receipts, vouchers, gifts and entertainment records, data stored in computers and other documentation pertaining to this Contract for the purpose of auditing and verifying compliance with the terms and conditions of this Contract.
Seller shall ensure that the provisions of this Clause are included in all its subcontracts.
28. CONSEQUENTIAL LOSS
Unless otherwise stated in the Purchase Order/Service Order Neither party shall be liable to the other party and/or the other party's indemnitees and each agrees to defend and indemnify the other party and/or the other party's indemnitees against consequential losses of an indirect nature (such as but not limited to loss of production, loss of product, loss of use of revenue, profit or anticipated profit and business interruption howsoever arising) resulting from or arising out of any breach of this Contract. Liquidated damages of Clause 23 shall not be construed as a Consequential Loss.
Seller warrants that all Goods specified in this Purchase Order/Service Order shall be free and clear of all liens and that Seller has good and marketable title to the same. In the event of breach of the foregoing warranties Seller shall protect, indemnify and hold Buyer harmless from and against all liabilities resulting there from Including all costs incurred (including legal costs on a solicitors client basis) and payments made by the Buyer to secure discharge of liens and payments made by Buyer for damage suffered by others.
30. ANTI-BRIBERY PROVISIONS
Seller shall not enter into any business arrangements with employees or servants of Buyer or pay any commissions or fees or grant any rebates to them nor favour them with gifts or entertainment.
Seller shall exercise reasonable care and diligence to prevent any action being taken or condition from arising, which conflicts with Buyer’s best interests. This obligation shall apply to the activities of the employees and agents of Seller in their relations with Buyer’s employees and their families, or with vendors, sub suppliers and third parties arising from this Contract or accomplishing work hereunder. Seller’s efforts shall include, but not be limited to establishing and maintaining precautions and procedures to prevent its directors, employees, agents or representatives from directly or indirectly making, receiving, providing or offering gifts whether of minimal value or otherwise, entertainment, payments, loans or other consideration to directors, employees, agents or representative of Buyer for influencing individuals to act contrary to Buyer’s interests.
The Parties herein agree that the Malaysian Anti-Corruption Commission Act 2009 (Act 694) (“MACC Act”), as may be amended from time to time, is applicable and shall be referred to in this Purchase Order/Service Order which provisions are deemed to be incorporated by reference in this Clause. Seller states that it is familiar with and shall comply with the MACC Act.
Seller shall comply at all times with all laws (whether international, national, state or otherwise) and regulations pertaining to anti-bribery and anti-corruption regulations, which are applicable to the work under the Purchase Order/Service Order, and requirements as may be required by the Malaysian Government or other authorities having jurisdiction and otherwise as set forth in the Buyer’s COEC policy and procedures as appended to this Contract and any other requirements (if any) stipulated herein.
Seller shall have a written policy on Anti-Bribery and Anti-Corruption which is of a standard comparable to Buyer’s COEC policy and which has been signed and dated and is actively supported and endorsed by Seller’s management. The policy shall be written in English and/or Bahasa Malaysia language. Seller's policy shall include a description of Seller’s responsibilities.
Seller represents that it has not done any act or attempt to corruptly solicit or receive or agree to receive, or give, promise or offer, or agreed to give or offer, accept or obtain, or agreed to accept or attempt to obtain, any gratification from and/or to any person, which includes but not limited to, any officer of a public body or foreign public official (as defined under the MACC Act), in connection with this Contract as an inducement or reward for doing or forbearing to do any act or to secure any improper advantage or benefit in relation to the matters contemplated by this Contract, either directly or indirectly through a third party.
In recognition of the principles of the MACC Act, Seller represents and agrees that it will not, directly or indirectly, in connection with this Contract and the matters resulting therefrom, corruptly solicits or receives or agrees to receive, or gives, promises or offers, or agrees to give or offer, accepts or obtains, or agrees to accept or attempts to obtain any gratification from and/or to any person, which includes but not limited to, any officer of a public body or foreign public official (as defined under the MACC Act), as an inducement or reward for doing or forbearing to do any act or for the purpose of influencing the act, decision or omission to obtain or retain business related to this Purchase Order/Service Order, to direct business related to this Purchase Order/Service Order to any person, or to obtain any improper advantage or benefit. If Seller should become aware of any breach, or possible breach, of the provisions of this Clause, it shall at the earliest promptly notify Buyer thereof in writing, including complete details thereof.
Seller covenants that should Buyer notify it of any concerns that there has been a breach of the provisions of this Clause, it shall cooperate in good faith with Buyer in determining whether such a breach has occurred. If such a breach has occurred or Seller has taken any action that would create a material risk of liability for Buyer under any applicable law, it shall be entitled to treat the breach as an event of default by Seller and to exercise any rights it may have under this Purchase Order/Service Order upon the occurrence of an event of default by Seller, without regard to any waiting periods or cure periods (if any) specified in this Contract.
31. BOOKS AND RECORDS PROVISION
Seller shall maintain records of all transactions relating to the performance of this Purchase Order/Service Order, including, without limitation, the spending of money, any other disposition of assets and the incurrence of liabilities, expenses and contractual obligations, in accordance with applicable laws. Such records shall fairly and accurately reflect the transactions undertaken by Seller in the performance of this Purchase Order/Service Order.
Supplier shall treat all Buyer’s supplied information, for performance of this Contract, as strictly confidential and shall not disclose any information to anyone outside the Supplier’s organisation. The Supplier shall also ensure that all information provided by Buyer under this Contract shall be used only for the purpose of performance of this Contract and shall take appropriate steps to comply with and to bind Supplier’s employees and its sub vendors/suppliers, if any, to comply with the secrecy and security obligations stipulated herein.
33. STAMP DUTY
Seller shall bear its own costs and expenses in stamping this Contract and any other documents in relation to this Contract.
34. SANCTIONS & TRADE CONTROLS
Seller represents and warrants to the other that in its performance of its obligations under this Contract that it will not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts or with those persons who are or may become (i) described in section 1 of United States Presidential Executive Order 13224, or (ii) listed in the “Alphabetical Listing of Blocked Person, Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Glocal Terrorists, Foreign Terrorist Organisations, and Specially Designated Narcotics Traffickers” published by the United States Office of Foreign Assets (31 C.F.R Chapter V, Appendix A), as in effect from time to time or (iii) otherwise designated as persons with whom an entity organised under the laws of the United States or the European Union (or a state thereof) is prohibited from entering into transactions as to (i), (ii) and (iii) and known as “Blocked Person”.
Seller represents and warrants that it is not, and to its knowledge no principal of such Party is or has been determined to be acting on behalf of, a Block Person.
If Buyer discovers that the Seller is or becomes a Blocked Person or is acting on behalf of a Blocked Person, Buyer shall have the right to immediately terminate this Contract and take all other actions necessary or in the opinion of Buyer appropriate to comply with applicable law.
Seller shall in the conduct of its affairs, the Services:
(a) complies with all Trade Control Laws;
(b) not, and shall not permit or authorse any other person, directly or indirectly, to use, lend, make payments of, or otherwise make available, all or any part of the payments received by it:
(i) in connection with any trade, business or other activities with or for the benefit of any Sanctioned Person; and
(ii) in any other manner that could result in Buyer, a Party or a Party’s lenders being in breach of any Sanctions, being subject to any penalties or restrictive measures being imposed pursuant to Sanctions or being designated as a Sanctioned Person; and
(iii) not directly or indirectly deal with or allow any benefit or other thing of value to be obtained, directly or indirectly, by a Sanctioned Person.
In the event that Seller takes any action or perform any part of the Services which are potentially subject to Sanctions imposed, administered or enforced by a Sanctions Authority, then Seller shall bear any penalties or additional costs resulting from such violation and correction and Buyer, notwithstanding any other provision of this Purchase Order to the contrary, shall have the right to terminate this Contract without any liability ore responsibility for any costs, expenses or damages associated with such termination.
The Parties agree and acknowledge that any breach of the obligations and undertaking set out in this Clause 35 shall constitute a material breach of this Contract.
35. DATA PROTECTION
If so required, the Buyer shall provide the Personal Data Protection Notice (“PDPN”) to the Seller in explaining how the Buyer collect and handle personal data in the light of the Personal Data Protection Act 2010 (“Act”). The Buyer will require the Seller that processes personal data on behalf of the Buyer to adhere strictly to the requirements of the PDPN and the Act.
The Seller warrants to have the authority to provide personal data to the Buyer in connection with the provision of the Goods and/or performance of the Services and that the personal data provided to the Buyer has been processed in accordance with applicable law.
36. ENTIRE AGREEMENT
This Contract constitutes the entire Contract between the Parties hereto and supersedes all prior negotiations, representations, proposals and understandings except to the extent they are expressly incorporated herein. No change, alteration or modification to this Contract shall be effective unless in writing and signed by the Parties.