General Terms and Conditions of Sale of Innoactive
1. Preamble
Definitions:
Seller:
Innoactive Footlab Sdn Bhd, having its place of business at (Block 98-3-42B Prima Tanjung Business Centre, Jalan Fettes, 10470 Tanjung Tokong)
Buyer:
For the purposes of these Terms and Conditions, the term ‘Buyer’ means any legal entity or natural person acting in the course of a profession or business that has concluded or wishes to conclude a contract with the seller as well as their representatives, authorized agents and legal successors.
Product:
For the purposes of these Terms and Conditions all products offered by the Seller that are subject of the contract, of the offer and of the order.
Contract:
For the purposes of these Terms and Conditions, the term ‘contract’ means any contract concluded between the Seller and the Buyer, any additions or amendments thereto and all juridical and other acts performed in preparation or execution of such contract.
Written/In Writing:
For the purposes of these Terms and Conditions, the term ‘written’ expressly and exclusively means: signed by the person(s) who are duly authorized under the articles of association to represent the relevant party, unless the term ‘written’ is explicitly and unequivocally defined differently.
Buyer’s Terms and Conditions:
The Buyer’s general terms and conditions are applicable only if and to the extent that the Seller has accepted them expressly and has confirmed this acceptance to the Buyer in writing.
As long as the Seller has not accepted the Buyer’s Terms and Conditions in writing as meant in this Article above, the Seller expressly rejects the Buyer’s general terms and conditions of purchase or other clauses.
Additions or Amendments:
Additions or amendments to any provision in these Terms and Conditions are applicable only if and to the extent that the Seller has laid them down in writing and these relate only to the relevant underlying contract. The Seller is at all times entitled to amend or supplement these Terms and Conditions unilaterally and/or use new Terms and Conditions. The Seller agrees to inform the Buyer of such amendment(s), additions or new terms and conditions no later than 10 business days before these take effect.
Local Currency:
The currency of the country, where the business takes place. In case of an international business, in which the Seller and the Buyer are not in the same country, the Local Currency refers to the country of the Seller. Payments can also be realized in USD or EUR.
Sales Territory:
All regions and markets worldwide, in which the Seller is offering its products for Sale, if not otherwise stipulated in the contract between the two parties.
Late Payments:
All payments, which are delayed by more than 7 working days after the expected and agreed payment date.
2. Orders and Quotations
To become legally effective, any Order requires a corresponding written acknowledgement by the Seller. The Seller’s written acknowledgement of the Order together with these Terms and Conditions conclude a legally valid and binding contract between the Seller and the Buyer. No representations, warranties or guarantees, other than those contained therein, and no variation, except as agreed upon by the parties in written form, of a respective contract shall be binding on the Seller and the Buyer.
All Orders shall be made in written form, including, but not limited to email, letter or fax. All Orders shall contain the required information including, but not limited to quantities, grades, additional specifications, if any, time and place of delivery, and other specific terms of the Products, and shall be submitted by the Buyer directly to the Seller.
3. Prices
To become legally effective, any Order requires a corresponding written acknowledgement by the Seller. The Seller’s written acknowledgement of the Order together with these Terms and Conditions conclude a legally valid and binding contract between the Seller and the Buyer. No representations, warranties or guarantees, other than those contained therein, and no variation, except as agreed upon by the parties in written form, of a respective contract shall be binding on the Seller and the Buyer.
All Orders shall be made in written form, including, but not limited to email, letter or fax. All Orders shall contain the required information including, but not limited to quantities, grades, additional specifications, if any, time and place of delivery, and other specific terms of the Products, and shall be submitted by the Buyer directly to the Seller.
4. Delivery Conditions
Dates of delivery shall be valid after being expressly acknowledged in writing by Seller. They shall be deemed to have been met if the goods have been advised as being ready for dispatch on the agreed date.
The Seller shall deliver the Products and Services with the required quantity according to the Order; however, if necessary, the Seller shall be entitled to effect partial deliveries. Delivery shall be made in agreement with the International Commercial Terms (Incoterms) issued by the International Chamber of Commerce and in force at the time of delivery.
The Seller shall be exempt from the obligation to deliver as long as the Buyer is in default with any payment and other obligations. Delays in delivery which are beyond the Seller’s control shall entitle the Seller to reasonably extend the term of delivery or to withdraw by written notice to the buyer from the obligation to deliver in whole or in part. If the date of delivery is exceeded by more than ninety (90) days in such cases, the Buyer shall be entitled to withdraw from the unperformed part of the contract in whole or in part.
If Products cannot be dispatched for reasons for which the Buyer is responsible, the Seller shall be entitled to place the Products in storage at the Buyer’s risk and expense. In such case, the date of storage shall be deemed to be the date of delivery and the warehouse bond shall replace the shipping or delivery documents.
The benefits and risks of the Products, e.g. of damage and loss, shall pass to the Buyer at the point where the Products are taken in charge by the buyer or his main carrier.
Deliveries shall be effected and service shall be rendered subject to the condition that their performance is not prevented by any national or international regulations including, but not limited to, any export control regulations or embargos or other sanctions. The Buyer undertakes to furnish all information and documents required for exportation, transport or importation. If delays occur due to export checks or approval procedures, the respective time limits and terms of delivery shall be suspended accordingly. If necessary approvals are not granted, the Order placed by Buyer shall be deemed to be ineffective with regard to the parts concerned.
The Products from the Seller shall be packaged with standard packing material, and shall be delivered to the delivering location as agreed between the Seller and the Buyer in writing, or as stated in the confirmed Order. Products shall be packaged further if requested by Buyer and at Buyer’s expense.
5. Retention of Title
The Seller shall retain the title to the Products until all its claims against the Buyer have been fulfilled. If the law of the respective country of the Buyer does not permit retention of title in the future but permit the Seller to retain other rights to the Products, the Seller shall be entitled to exercise all rights of this kind.
The Buyer shall take all measures to register the retention of title as far as these are necessary according to the rules of the respective country of the Buyer or foreign legal systems.
The Buyer undertakes to assist the Seller in connection with all measures for purposes of securing credit for the Products and, in particular, to enter into corresponding supplemental agreements, if necessary. The Buyer further agrees to handle purchased Products with care and in good repair as long as the ownership has not passed to the Buyer and to adequately insure them against loss, damage or theft at replacement value. Any costs arising due to any investments that may become necessary, including but not limited to maintenance or inspection work, shall be borne by the Buyer.
If an application for commencing insolvency proceedings has been filed against the Buyer, the Seller is entitled to rescind any contract with the Buyer with immediate effect and request immediate return of the delivered Products.
6. Conditions of Payment
The purchase prices shall not include the transportation and import costs to the place to be designated by the Buyer within the Sales Territory without the relevant transportation insurance, unless otherwise agreed between the Seller and the Buyer in writing.
The purchase price shall become fully payable net in Local Currency before shipment or handover, after receiving the payment instructions. The Seller provides the legal tax invoice to the Buyer after receipt of the payment unless otherwise agreed on between the Parties in writing. No amounts due and payable may be withheld or set off against any type of counterclaims including warranty claims. All bank charges and exchange costs are borne by the Buyer.
Periods allowed for payment shall be agreed separately in writing. If no such agreement has been made, payment shall be due net fully before delivery or handover of the products. Payment shall be deemed to have been effected on the day the money is received by the Seller in cash or in his bank account.
Late payments, if applicable, shall entitle the Seller to charge interest on arrears. The interest on arrears shall be eight percent (8%) per year on the corresponding outstanding amount from the day of 7 working days after the agreed payment date, until the day the payment has been made completely. In case of delay, the Seller shall, in addition to such default interest, also have a right of retention with respect to deliveries of Products from all open Orders of the Buyer that have not yet been carried out. If the Seller establishes that its actual damages resulting from the Buyer’s delay of payment are higher, then the Seller is entitled to claim compensation for such higher damages. The Buyer shall, however, be entitled to prove that the actual damages resulting from its late payment are lower.
7. Warranty and Liability
If the Buyer fails to make such complaint within the above mentioned period of time, the Products shall be deemed to have been accepted without objection and the delivery is deemed to have been performed in accordance with the order or any contract agreed on between the Seller and Buyer. If external damage is noticed upon receipt of Products, a complaint shall be made to the forwarding agent or carrier immediately.
Subject to the corresponding timely complaint and upon the Seller’s own discretion, defective Products shall be either replaced by Seller at Seller’s cost (including cost of new Product, transportation, customs, and other import duties) or the Seller may remedy the defective Products at Seller’s cost. In the event that subsequent performance fails, the Buyer shall have the option either to demand cancellation or reduction of the purchase price.
The Seller shall be entitled to refuse to honor its warranty obligations at its own discretion as long as the Buyer has not fulfilled its entire (contractual) obligations.
The Buyer shall keep any rejected Products available for the Seller.
Unless the Seller and any person acting in the seller’s name, including, but not limited to its legal representatives or vicarious agents, trainers, Sales persons, consultants cause a damage by gross negligent or intentional conduct or a personal injury, the Seller shall not, such that Buyer’s own negligence and/or contribution, tort or otherwise, be liable to the Buyer for any indirect, incidental or consequential damages (including, but not limited to, loss of profits, opportunities or revenues) or claims of Buyer’s customer’s for such damages, provided no main obligations of this contract are violated or not otherwise stipulated by the law of the Malaysia. In other respects, the liability for any financial loss shall be limited to the contractually typical predictable damage.
8. Purpose of Use and Liability
The Buyer must use the products following strictly the instruction for use and the guidance of the Seller. If the Buyer fails to apply these instructions, the Seller will not be liable for any from the own contributory negligence of the Buyer caused damages. In the case, the Seller authorized the Buyer to resell the product to a third party, the Seller provides detailed instructions for use to the Buyer and transfers all liabilities and responsibilities for the products to the Buyer. In the event that the Seller’s Products are combined with other movable goods to form one composite good, or are blended inseparably with other goods, and if the other goods are regarded as the main item, the Buyer shall assign the Seller a proportionate co-ownership to the item, insofar as the Buyer owns the main item.
9. Miscellaneous
The contractual relationship and the entire business relationship between the Seller and the Buyer shall be subject to the laws and regulations of Malaysia. The sole and exclusive court of jurisdiction for any legal dispute arising from the contractual relationship between the Seller and the Buyer shall be the competent court in the territory where the Seller is domiciled. However, the Seller reserves the right to sue the Buyer at his principal place of business according to the law applicable there.
In case of ambiguity the provisions of this Contract shall be interpreted according to the Incoterms and the Laws of Malaysia in force at the time of concluding a contractual relationship between the Seller and the Buyer or, in case no contract is concluded, in force at the time of order placement by the Buyer.
It is hereby understood that the Seller is acting as general contractor for and/or on behalf of the corresponding manufacturer, and/or is manufacturer of its products by himself. The Seller is authorized to sell the products of the manufacturer in the designated territory and appoint its sub-contractors for the supply, sale and/or distribution of the Products.
Any modifications and/or amendments of these General Terms and Conditions of Sale shall be valid only if made in writing and signed by the Seller and the Buyer.
10. Anti-Bribery and Anti-Corruption
The Seller has a zero tolerance policy towards bribery and corruption, including as regards providers of services to the Seller and Facilitation Payments/grease payments. The Buyer shall
(a) comply with the Seller’s ethics, anti-bribery and anti-corruption policies in each case as the Seller or the relevant industry body may update and notify the Buyer from time to time (“Relevant Policies”);
(b) have and shall maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Policies, and will enforce them where appropriate;
(c) comply with all applicable anti-bribery, anti-corruption and anti-money laundering laws and regulations, and will not offer, give or agree to give any person whosoever, or solicit, accept or agree to accept from any person, either directly or indirectly, anything of value in order to obtain, influence, induce or reward any improper advantage;
(d) not cause the Seller to breach any of the Relevant policies.
11. Intellectual Property Rights
All trademarks, and any intellectual work, distinctive mark or name, image, photograph, written text or graphics, and more generally any other intangible asset protected by laws and international conventions on intellectual property and industrial property reproduced by the Seller remain the exclusive property of the Seller and/or its licensors, without that, from access to the Website and/or the drawing up of purchasing contracts, the Buyer derives any right over them.
12. Processing of Personal Data
The Seller is committed to compliance with current legislation regarding the protection of personal data. The information on the processing of personal data is made available on the Website of the Seller under “Personal Data Protection Notice” and in any event memoizable and viewable at any time.