1. The following are the standard conditions of sale of TotalEnergies Marketing Malaysia Sdn. Bhd. (hereinafter the “Company”), applicable to all agreements for sale, sales and deliveries by the Company of petroleum products (hereinafter the “Products”) to the relevant buyer (hereinafter the “Buyer”) (the “Agreement”).
2. All orders accepted by the Company from the Buyer are accepted on the terms conditions and exceptions contained in them (and such variations or replacements thereof as may at any time be in force) and on no other terms conditions or exceptions. No other terms conditions or warranty of any nature whatsoever shall be added to them unless expressed in writing and signed by an officer or authorized representative of the Company. Once an order for Products is placed to the Company, it is not cancellable by the Buyer without the prior written consent of the Company. No servant or agent of the Company has authority to agree to any oral variation or modification of or addition to these terms conditions and exceptions in any circumstances whatsoever. Except as otherwise provided, all conditions and warranties, express or implied, statutory or otherwise, relating to the Products, or to any container or package in which such Products may be supplied, are excluded insofar as may be permitted by law. The Company shall be entitled at any time and from time to time to vary or replace these terms conditions and exceptions without notice. Without prejudice to the above, acceptance of delivery of Products shall constitute acceptance of these Conditions.
Property
3. The property in the Products shall not pass to the Buyer until the Buyer has paid all outstanding amounts due to the Company in relation to the said Products.
Repossession
4. If the Buyer receives from the Company a notice to the effect that the Buyer has failed on the due date for payment to pay the full purchase price for the Products or any other amount due to the Company or if a receiver or manager of the Buyer is appointed or if any action is taken for the dissolution or liquidation of the Buyer (save for the purposes of reconstruction or amalgamation) or if the Buyer ceases to trade or appears unable to pay a debt or appears to have no reasonable prospect of being able to pay a debt so as to entitle a creditor to bring a creditor's petition or sells or otherwise disposes of all or any part of the Buyers interest in the land upon which the Company's products are situated, or if all or any part of the assets of the Buyer are attached or distrained, then the Buyer shall be deemed to have repudiated the contract for the purchase of any of the Products its servants and agents may enter upon the land or buildings in or upon which the Products are located.
Delivery/Risk
5. Delivery shall be deemed to take place and risk to have passed to the Buyer on transfer of possession of such Products to the Buyer or its agent. The Company accepts no liability for any loss or damage whatsoever caused by any delay in delivery, howsoever arising. The Buyer shall take immediate delivery upon the Products being made available to it by the Company or on the Company’s behalf.
Quantity
6. The measurement of quantity by the Company shall be accepted by the Buyer as conclusive evidence of the quantity delivered in the absence of manifest error. The Buyer may be present to witness and confirm delivery, but this intervention shall not be permitted to delay the delivery. Any dispute by the Buyer must be notified to the Company both (a) verbally within twenty-four hours of such delivery; and (b) in writing within five days of such delivery.
Payment
7. (i) Payment shall be made by the Buyer in cash at the time of the ordering of the Products, subject always to the right of the Company to demand payment by banker’s draft, direct debit at the time of delivery or as otherwise agreed by the parties in writing.
(ii) Should any amount become overdue the Company shall have the right to demand immediate payment of all amounts owing whether or not they are overdue.
(iii) Interest and costs shall accrue to overdue payments in accordance with applicable law and at the prevailing prime interest rate as determined by the local appointed bank.
(iv) In the event of non-payment by the due date, the Company may suspend further deliveries.
Returnable Packages
8. (i) The deposit charged on any returnable packages shall be paid at the time as payment for Products contained in them. Packages on which no deposit is charged are free and non-returnable.
(ii) If returnable packages are returned to the Company carriage paid and reach the Company in a condition fit for the Company's immediate use the amount of the deposit paid shall be credited to the Buyer in full. The Company's certificate as to the condition of any package upon its receipt by the Company shall be final and conclusive.
Liability
9. The Company shall not be liable for any loss or damage whatsoever whether direct, indirect, consequential or otherwise (except death or personal injury resulting from the negligence of the Company) caused by or arising out of or in connection with the Products and the Buyer shall fully indemnify the Company against all claims which may be made against the Company for such loss or damage and against all related costs and expenses incurred by the Company, including the costs and expenses of investigating any such claims. The Company's maximum liability to the Buyer in relation to the Products shall be limited to the price paid by the Buyer for them.
Means of Delivery and Storage
10. (i) (a) Where delivery is made at the Buyer's premises, the Buyer shall provide safe access for the vehicles of the Company or its agents between public highway and the actual point of delivery and shall observe all the conditions of the Buyer's Petroleum Storage License, Environmental and health and safety acts, regulations, and recommendations thereunder. In particular, the Buyer shall not allow any smoking or naked lights, nor permit any stoves electric or gas fires or radiators to function in the vicinity of such point of delivery.
(b) Where delivery is taken at the Company's premises, the Buyer shall comply with the environmental and health and safety regulations for the time being in force and with the conditions of the Company’s applicable Petroleum Storage License (copies of both of which may be obtained on request). In particular the Buyer shall not allow any smoking or naked lights in the vicinity of such of delivery.
(ii) The Buyer shall take delivery of the full quantity of the Products ordered by the Buyer and shall thereafter provide sufficient, safe and suitable bulk storage for such Products. In particular, the Buyer shall comply with the requirements and conditions laid down by the applicable law and regulations for the same time being in force and shall comply with all relevant statutes regulations and codes of practice relating to delivery and storage of petroleum products.
(iii) Delivery is conditional upon the Buyer or its representative being in full time attendance during the delivery, unless a Drive Controlled Delivery is in place or a written agreement is entered into between the parties by which the Buyer or its representatives is allowed to be absent during delivery.
(iv) The Buyer shall fully indemnify the Company against all claims which may be made against the Company for loss or damage caused by or arising out of or in connection with any breach by the Buyer of the provisions of this Condition and against all costs and expenses incurred by the Company in connection therewith including the costs and expenses of investigating and defending any such claims.
Restricted Product (Use)
11. In the case of Lubricating Oils, these oils have not borne excise duty and the Buyer undertakes that these oils will not be used as heating fuel motor fuel or as additive or extender to motor fuel.
Price
12. (i) The price to be paid by the Buyer for the Products shall in all cases be the relevant price contained in the Company's price list in force at the date of delivery. Where the Products are delivered in returnable packages, the Buyer shall pay the appropriate deposit charged by the Company thereon.
(ii) All prices are exclusive of value added tax, which will be charged, if applicable, at the rate in force at the time of supply.
(iii) With the exception of lubricants oils, prices include excise duty at the rate in force at the time of supply. Any variation in the existing duty or any additional taxation is for the Buyer's account.
Force Majeure
13. The Company shall not be responsible for damages caused by delays, failure to perform in whole or in part any obligation hereunder, or non-compliance with any of the Conditions hereof when such delay, failure or non-compliance is due to or results from a case of Force Majeure. For the purpose of this Condition, “Force Majeure” means causes beyond the reasonable control of the Company, including, without limitation, acts of God, fires, war (declared or undeclared), embargoes, accidents, the case of industrial action, strikes, labour disputes, any circumstances at any Company's refinery or depot restricting the availability of petroleum products, acts in compliance with requests of any governmental authority or person purporting to act therefore, or any similar causes.
Assignment and No Waiver
14. The Buyer shall not assign the contract or its rights and obligations hereunder.
No waiver by either party of any provision of the contract shall be binding unless made expressly and expressly confirmed in writing.
Compliance with Anti-Bribery and Corruption Laws, Laws on Economic Sanctions & Export Control
15. Buyer undertakes to comply with and cause any sub-contractors it may use to comply with the anti-bribery and corruption laws that may be applicable to the parties.
16. For the purposes herein, the term “Sanctions Regulations” means any law, regulation, embargo or another restrictive measure (economic, financial, trade, etc.) relating to economic sanctions and export controls applicable to the parties, which is enacted, administered, imposed, implemented and/or enforced from time to time by any competent authority with jurisdiction over the parties and the Products, including the European Union, France, any other Member state of the European Union and the United States of America.
17. The parties must perform their obligations under the Agreement in compliance with Sanctions Regulations that apply to the parties and the Products as defined above. If either party is unable to do so due to a conflict of law, the provisions specified under paragraph 22 shall apply.
18. The Buyer undertakes not to, directly or indirectly, distribute, sell, supply, export, reexport or otherwise transfer the Products purchased from the Company in violation of Sanctions Regulations.
19. Moreover, the Buyer undertakes and warrants that it will not, directly or indirectly, distribute, sell, supply, export, re-export or otherwise transfer the Products purchased from the Company in Russia and/or for use in Russia.
20. The Buyer undertakes to implement adequate procedures to comply with Sanctions Regulations and detect possible non-compliant activities of third parties, including potential resellers, and apply such procedures to transactions involving the Products purchased from the Company.
21. In the event of any breach of paragraphs 15, 16, 17 or 18 by the Buyer, the Company shall have the right to suspend the performance of under the Agreement and/or terminate it. In such event, the Buyer shall not be entitled to any compensation rights provided for by the Agreement.
22. Throughout the performance of the Agreement, the Buyer undertakes to inform the Company forthwith and by written notice of any information likely to impact the declarations or commitments covered by paragraphs 15, 16, 17 and 18, including regarding the activities of third parties that may frustrate the same sections. The Buyer shall make available to the Company information relating to compliance with its obligations under paragraphs 15, 16, 17 and 18 within two weeks from the Company’s written request for such information.
23. Neither party shall be obliged to perform any obligation under the Agreement if this would not be compliant with, in violation of, inconsistent with, or expose a party (the “Affected Party”) to punitive measures under the Sanctions Regulations. In this event, the Affected Party shall, as soon as reasonably practicable, give written notice to the other Party of its inability to perform the Agreement. The Affected Party may either (i) suspend the performance of the affected obligations under the Agreement until the Affected Party may lawfully discharge such obligation; or (ii) terminate the Agreement where the Affected Party may not lawfully discharge such obligation.
Law and resolution of disputes
24. These Conditions and any related agreement shall be governed by the laws of the Malaysia. In case of dispute between the Company and the Buyer, both parties shall try to resolve the dispute by mutual discussions for a period of 30 days, failing which, the dispute shall be submitted to the exclusive jurisdiction of the competent courts in Malaysia.