Terms & Conditions of Sale

VICTUAL INDUSTRIES SDN. BHD.

1. General

These TCS apply to all sales, deliveries and other services of Victual Industries Sdn. Bhd. (“Victual“). The placing of all and any purchase order shall be deemed to imply the irreveocable acceptance by the buyer of these TCS. Contrary conditions of the buyer are not binding on Victual even if the order is based upon them or if the buyer refers to them on forms or in other documents. Unless stated otherwise herein, this contract constitutes the entire agreement between the parties concerning the subject matter hereof and there are no understandings, representations or warranties of any kind, express or implied, not expressly set forth herein. No modification of these TCS shall be binding unless agreed in writing between the parties.

2. Orders

All purchase orders placed by the buyer shall become firm and binding at the time they are confirmed in writing by Victual and may not be cancelled or changed in any way without prior written approval by Victual. The buyer shall assume all risk and shall pay all charges applicable to any purchase order cancellation or modification. In case of conflict between Victual’s sales order confirmation (where issued, otherwise the invoice) and any quotation that Victual may have given, the sales order confirmation (or the invoice, as the case may be) shall always prevail.

3. Price

Unless otherwise agreed in writing by Victual or as indicated in the Victual sales order confirmation, the price of the product shall be the prevailing price at the time of delivery and are exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the products, which the buyer shall be additionally liable to pay to Victual. Victual reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of the products to reflect any increase in the cost to Victual which is due to any factor beyond the control of Victual (such as, without limitation, any foreign exchange fluctuation, currency regulation or alteration of duties, any change in delivery dates, quantities or specifications for the products which is requested by the buyer, or any delay caused by any instruction of the buyer or failure of the buyer to give Victual adequate information or instructions, decision of the seller of the product).

4. Delivery & Risk

Delivery of the products shall take place and risk in the products will pass:

  1. in accordance with Incoterms agreed in writing by Victual (Edition in force at the date when sales order confirmation (where issued, otherwise the delivery order) is made) where applicable, otherwise
  2. by Victual tendering bills or appropriate documents of lading, or
  3. by delivering the products to the place specified in the Vicutal’ sales order confirmation (where issued, otherwise the delivery order) as the location to which the products are to be delivered by Victual; or if no place of delivery is so specified
  4. by the buyer collecting the products at Victual’s premises at any time after Victual has notified the buyer that the products are ready for collection.

The delivery date is approximate only and time for delivery shall not be of the essence unless previously agreed by Victual in writing. Where the products are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Victual to deliver any one or more of the instalments in accordance with these TCS or any claim by the buyer in respect of any one or more instalments shall not entitle the buyer to treat this contract as a whole repudiated. Victual will insure the product up to the nominated point of delivery (excluding Iran, Iraq, Lybia, Cuba, Sudan, Afghanistan, North Korea, Liberia and U.S. trade sanction countries.); thereafter it shall be the responsibility of the buyer to arrange for insurance cover during storage and onwards transportation of the products.

5. Property

Notwithstanding delivery and the passing of risk in the product, or any other provision of these TCS, the property in the product shall not pass to the buyer until corresponding price and all its accessories are fully paid to Victual. The buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the products which remain the property of Victual, but if the buyer does so all money owing by the buyer to Victual shall (without prejudice to any other right or remedy of Victual) forthwith become due and payable.

6. Payment Terms

Victual shall submit an invoice to the buyer at any time on or after the delivery. Invoices are based on the quantity and condition of the payment date stated in

  1. Victual’s sales order confirmation where issued, otherwise in
  2. the invoice, or if no expressly mentioned in it
  3. within seven (7) calendar days from the date of the invoice.

The buyer shall make payment to Victual’s account, net of any charges in connection with the payment such as banking, cable, LC and other charges, arising at buyers side. Payment shall be deemed to be made on the date funds are credited to Victual’s account at Victual’s nominated bank. Interest on any sums overdue shall accrue from the due date of the invoice through the date of effective payment at 12.0% p.a. when invoicing in local currency, or on the basis of EURIBOR when invoicing currency is Euro, or USD-LIBOR when invoicing currency is United States Dollar, for three (3) calendar months duration plus 9.0%. The time of payment of the price shall be the essence of this contract.

7. Warranties & Liabilities

Determination of the suitability of the products supplied hereunder for the uses and applications contemplated by the buyer and others shall be the sole responsibility of the buyer. All warranties by Victual pertaining to the products are expressed in this paragraph. Victual warrants that the product delivered hereunder meets specifications attached hereto. Notwithstanding the above, where the products are pre-packaged goods that are sold on by Victual in the same packaging as they are bought by Victual, then Victual’s only obligation shall be to use its reasonable endeavours to pass on to the buyer the warranties and instruction or warning labels given to Victual by the seller of the products to Victual.

VICTUAL MAKES NO OTHER EXPRESS WARRANTIES, THERE ARE NO IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTIBILITY OR FITNESS FOR A PATICULAR PURPOSE. THE BUYER ASSUMES ALL RISK AND LIABILITY FOR ALL LOSS, DAMAGE OR INJURY TO PERSON OR PORPERTY, INCLUDING WITHOUT LIMITATION POLLUTION, ENVIRONMENTAL DAMAGE AND RESTORATION LIABILITY, RESULTING FROM

  1. THE USE OF SAID PRODUCT IN MANUFACTURING PROCESS OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE
  2. THE HANDLING AND DISPOSAL OF THE PRODUCT, OR
  3. THE INCORRECT USE OR STORAGE OF THE PRODUCT OR THE FAILURE TO FOLLOW VICTUAL OR THE SELLER’S WARNING AND/ OR INSTRUCTION.

VICTUAL MAKES NO OTHER EXPRESS WARRANTIES, THERE ARE NO IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ASSUMES ALL RISK AND LIABILITY FOR ALL LOSS, DAMAGE OR INJURY TO PERSON OR PROPERTY, INCLUDING WITHOUT LIMITATION POLLUTION, ENVIRONMENTAL DAMAGE AND RESTORATION LIABILITY, RESULTING FROM

8. Force Majeure

Neither party shall be liable for its failure to perform hereunder if said performance is made impracticable due to any circumstance beyond the reasonable control of the party affected, including but not limited to, acts of God, acts of terrorism, fires, floods, wars, sabotage, accidents, labor disputes or shortages, plant shutdown, equipment failure, voluntary or involuntary compliance with any law, order rule or regulation of government agency or authority, or inability to obtain material (including power and fuel), products bought from third parties, or transport equipment or transportation. The present clause of Force Majeure shall not apply to the buyer’s obligation to pay for the products delivered.

9. Assignment

The buyer may not assign the benefit of this contract without the prior written consent of Victual.

10. Law & Jurisdiction

This contract and any dispute or claim arising out of or in connection with it shall be governed by the law of Malaysia, without regard to conflict of laws, rules or principles. Any dispute arising under this contract shall be submitted to the same jurisdiction. The Vienna Convention on the International Sales of Goods (CISG – 11 April 1980) is hereby specifically excluded.

11. Miscellaneous

If any provision of these TCS is held by any competent authority to be invalid or unforeceable in whole or in part the validity of the other provisions of these TCS and the remainder of the provision in question shall not be affected thereby.

  • Victual’s waiver of any breach, or failure to enforce any of the terms and conditions of this contract, at any time, shall not in any way affect, limit or waive Victual’s right thereafter to enforce and compel strict compliance with every term and condition hereof. The acceptance of any payment by Victual after the specified due date shall not constitute a waiver of the buyer’s obligation to make further payments on the specified dates.
  • The headings in these TCS are for convenience only and shall not affect their interpretation.

Version: March 2018