General Terms and Conditions of Purchase of Latexx Manufacturing Sdn Bhd (“Latexx”)

1. Conclusion of a transaction

1.1. - The terms "delivery" and "supply" as used in these GTCP shall include deliveries of goods and other items (including but not limited to energy and software) and the provision of services and the granting of rights. Wherever the term "goods" or “services” are used in these GTCP, the GTCP shall also apply to all other types of deliveries or services or rights described herein mutatis mutandis.

1.2 - Unless otherwise agreed all deliveries and services ordered by us shall be subject to these General Terms and Conditions of Purchase ("GTCP"). Terms and conditions of delivery or other contract form sheets of the supplier shall not be applicable even if we do not expressly object thereto.

1.3 - Purchase orders shall be acknowledged by means of execution and return of the purchase order. If we do not receive an acknowledgement of order which fully corresponds to our purchase order within a period of 48 hours, we shall be entitled to withdraw the purchase order.

1.4 - If the supplier has submitted an offer, and we subsequently submit a purchase order in response, any terms contained in the supplier’s offer shall be thereby rejected, save to the extent that they have been incorporated into our purchase order; our purchase order shall be acknowledged by means of execution and return of the purchase order within a period of 48 hours; such acknowledgement shall fully correspond to our purchase order.

1.5 - Any and all variations and additions to this GTCP shall require written form in order to be valid.

1.6 - All purchase orders are issued in writing. Purchase orders placed orally or by fax (that include a purchase order number) shall take effect as of receipt of the order acknowledgement by means of execution and return of the purchase order within a period of 48 hours corresponding to our purchase order.

1.7 - All trade clauses stated in supply agreements shall be understood within the meaning of the Incoterms 2010 applicable from time to time unless some other meaning is expressly agreed in writing.

2. Type and period of performance, title

2.1 - Performance shall be handled according to our instructions. Goods shall be packed properly. Deliveries shall be in compliance with the regulations on safety, packaging and dangerous goods applicable in Malaysia and all other applicable laws and regulations; the related papers (e.g. safety data sheets and test certificates) shall be enclosed. Services shall be provided according to the latest professional standards applicable and all other applicable laws and regulations. With respect to utilisation and disposal of means of packaging our directives and rules shall be observed and co-ordinated with us, if necessary. Unless otherwise agreed deliveries shall be made DDP (named place of destination) according to the Incoterms.

2.2 - Insurance of the goods against transport damage or other damage shall be provided by the Supplier. This can be at our cost only if expressly agreed.

2.3 - Partial performance may only be made with our consent.

2.4 - Performance periods shall commence on the date of our purchase order.

2.5 - Title in any goods supplied shall pass to us upon delivery, unless payment for the goods is made prior to delivery, in which case it shall pass to us once payment has been made and the goods have been appropriated to the contract; notwithstanding, risk shall remain with the supplier until delivery pursuant to clause 2.1.

3. Payment

3.1 - All prices shall be fixed prices unless deviating provisions have been agreed upon in writing.

3.2 - Payments shall be deemed neither an acknowledgement of proper delivery nor a waiver of any rights whatsoever.

4. Untimely Performance

Time of performance is of the essence of the contract. If the supplier is in default with respect to the delivery date, we shall be entitled to cancel the contract with immediate effect. We may nevertheless grant such period or periods of grace as we, in our absolute discretion, think fit without prejudice to our right to claim for compensation for any loss occasioned by late delivery.

5. Defective performance

5.1 - Unless expressly agreed otherwise the supplier warrants that all goods delivered or services performed shall be of top quality (1A goods/servcices or agreed type of goods/services), shall be brand-new (as far as goods are concerned); free from defects in design, material and workmanship, latest state-of-the-art and suitable for their designated purpose.

5.2 - If we at the acceptance test have determined values regarding the supply quantity, measurements, weights and quality, such values shall be relevant unless the supplier proves them to be incorrect. Our right to claim for defects or to raise any other claims at a later point in time shall not be excluded by the acceptance test.

5.3 - The supplier shall be responsible for the constant quality of the goods delivered on the basis of his quality assurance system maintained according to Clause 7.6 of these GTCP. That means that as soon as the supplier has been admitted as a supplier of Latexx, Latexx will, in principle, no longer inspect the incoming goods. Defectiveness of the goods delivered may be claimed notwithstanding that they have been used or have been processed. The warranty claims shall be deemed to have been asserted in time if we have dispatched a written notice of defects within the warranty period.

5.4 - If defective performance has been rendered, we shall have the option to cancel the contract in respect of the defective performance or to demand a price reduction or to demand that the defect be repaired or that non-defective goods be delivered/services to be performed. Improvement or substitute delivery shall be effected immediately and at the supplier's cost. In urgent cases we shall be entitled at the supplier's cost to repair the defect ourselves or to have the defect repaired.

6. Business secret

Our purchase orders and all related commercial details and technical details shall be treated by the supplier as a business secret. The supplier may only refer to the existence of business relations with us if we have agreed thereto.

7. Safety provisions and other provisions

7.1 - The goods delivered shall be in compliance with all statutory provisions (laws, regulations, standards, etc.) applicable in the land of production and at the place of delivery and at the place where the goods delivered will be used, in particular safety regulations, accident-prevention rules, standards regarding CE conformity and labelling, industrial safety regulations, environmental regulations, health standards, machine guarding regulations as well as regulations of electrical engineering.

7.2 - If insolvency proceedings of any kind are opened in respect of the supplier after the contract has been concluded, we shall be entitled to rescind the contract immediately.

7.3 - The supplier warrants that the goods delivered are not encumbered with rights of third parties and that no patents, proprietary rights or other rights of third parties are violated by our purchase or use of the goods. The supplier shall indemnify and hold Latexx harmless from and against all claims of third parties arising out of a violation of this obligation.

7.4 - The supplier shall not be free to have contractual services for Latexx provided by third parties in whole or in part unless Latexx expressly agrees thereto (no subcontracting).

7.5 - An assignment of claims of the supplier under this contract to any third party shall require the written consent of Latexx (non-assignment clause).

7.6 - The supplier undertakes that the goods will be produced and delivered within the scope of a quality assurance system according to DIN ISO 9001 et seq. (or an equivalent system). The supplier shall provide Latexx with evidence of the continuing existence of such a quality assurance system upon request.

7.7-  If any provision of these GTCP or any contractual agreement between Latexx and the supplier is held by any court or other competent authority to be void, illegal or unenforceable in whole or part, the other provisions of these GTCP or the affected Agreement as well as the remainder of the affected provisions shall continue to be valid, in force and binding. The void, illegal or unenforceable provision shall be automatically deemed replaced by such valid, legal and enforceable provision that comes closest to the business purpose of the replaced provision.

7.8 Interpretation:
All references to ‘we’, ‘us’ ‘our’ and / or Latexx and / or the purchaser are references to Latexx Manufacturing Sdn Bhd .
All references to agreement by Latexx entail agreement in writing signed by an authorised signatory of Latexx.

8. Dispute resolution, applicable law

In the event of any disputes arising in relation to these GTCP or any contractual agreement between Latexx and the supplier, the dispute shall be referred to the ordinary courts. Place of jurisdiction is Georgetown, Penang. Malaysian law shall apply. The United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the aforesaid, Latexx may at its option elect to seek judicial relief at the court of supplier’s place of business or any other jurisdiction applicable.

edition 3/2014


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