These “Terms and Conditions for the Purchase and Sale of Parts and the Provision of Technical Services” (hereinafter referred to as the “Terms and Conditions”) apply to the purchase and sale of parts (hereinafter referred to as “Parts”) between Mitsui E&S Co Ltd or its group of companies (hereinafter referred to as “Mitsui”) and Mitsui’s customers (hereinafter referred to as “Customers”) and related technical services provided by Mitsui engineers (hereinafter referred to as the “Services”).
1.1 Unless otherwise agreed, a separate contract for the sale or sale of Parts or the provision of the Services (hereinafter referred to as the “Individual Agreement”) shall be concluded by the Customer issuing a prescribed purchase order to Mitsui specifying the name, quantity, delivery date and other matters and Mitsui issuing an order acknowledgement to the Customer.
1.2 In the event of any discrepancy between the contents of these Terms and Conditions and the contents of the Individual Agreement, the description of the Individual Agreement shall prevail.
2.1 Unless otherwise agreed in writing, taxes and charges imposed in connection with the sale of Parts or the provision of the Services are not included in the total price of the Parts or Services as set forth in the Order Acknowledgement (the “Price”) and are borne by Customer.
3.1 Unless otherwise agreed in writing, the delivery of the Parts shall be in accordance with the Incoterms 2020 published by the International Chamber of Commerce.
3.2 Ownership of the Parts shall be transferred from Mitsui to the Customer upon completion of payment by the Customer. The Customer shall comply with Mitsui’s request and take all necessary measures with respect to Mitsui’s ownership until payment of the Price.
4.1 Packaging and marking of these parts shall be carried out in accordance with Mitsui’s standards.
5.1 The price of the Services shall be paid at the rate as prescribed by Mitsui multiplied by the working hours of Mitsui’s engineers (including actual working hours, as well as travel time and standby time of Mitsui engineers between the place of residence or work of Mitsui engineers and the place of provision of the Services). In addition, in the event that a waiting time occurs in each country due to reasons not attributable to Mitsui, including infectious diseases such as the new coronavirus and epidemics, the Customer shall bear the waiting time and expenses during the waiting period in accordance with this Article 5.
5.2 Unless otherwise agreed in writing, Mitsui may use the Customer’s facilities to provide the Services.
5.3 The Customer shall have its own personnel (hereinafter referred to as “customer personnel”) and to have Mitsui’s engineers cooperate and follow the instructions and guidance of Mitsui’s engineers. 3 2642933
5.4 The Customer shall provide a written confirmation of the completion of the provision of the Services by Mitsui within 7 days thereof, and Mitsui shall not be liable for the provision of the Services after such confirmation, except as described in Article 7.
6.1 Unless otherwise agreed in writing, Customer shall pay the Price by wire transfer (T/T) to a bank account designated by Mitsui within thirty (30) days after the delivery of the Parts or the completion of the provision of the Services.
6.2 At Mitsui’s request, the Customer shall provide Mitsui with an appropriate collateral, such as a letter of credit (L/C) issued by a bank acceptable to Mitsui.
6.3 The Customer shall not offset the obligation to pay the Price in the event that the Customer has a claim against Mitsui.
6.4 In the event that the Customer fails to perform its obligations under Article 3, the Customer shall pay Mitsui a late payment penalty at the rate of 14.6% per annum from the day following the due date to the date of full payment.
7.1 In the event that the Parts or Services do not conform to the terms of the Contract in terms of type, quality, or quantity (except for normal wear, deterioration, corrosion, etc., hereinafter referred to as “non-conformity”), Mitsui shall notify the Company of new Parts within 12 months of shipment from Mitsui or a third party commissioned by Mitsui, and shall not be new (including refurbished and exchanged products). Mitsui or a third party entrusted by Mitsui shall be 4 2642933 liable for non-conformity with the contract set forth in this Article only within six months after shipment, and within six months after the completion of provision of the Service (hereinafter referred to as the “Warranty Period”). The Customer shall notify Mitsui in writing within one week of the discovery of the non-conformity with detailed documents such as data tables, maintenance and inspection records.
7.2 In the case of the preceding Article 7.1, Mitsui shall investigate the content of the Customer’s notice, reasonably ascertain whether the non-conformity is attributable to Mitsui, and promptly notify the Customer of the result. If it is reasonably confirmed by Mitsui that the non-conformity is due to reasons attributable to Mitsui, Mitsui shall repair or replace the part of the contract that is non-conforming (including replacement with a substitute with equivalent performance). The same shall apply hereinafter to be done.
7.3 The terms and conditions of delivery in the case of replacement of this part shall apply mutatis mutandis to the provisions of Article 3.1.
7.4 Mitsui shall not be liable for non-conformity if the non-conformity arises from the repair or replacement of the Parts carried out by the Customer or by a third party, or the provision of related technical services.
7.5 Mitsui’s liability for non-conformity shall be limited to the repair or replacement of non-conformity as set forth in Article 7.2, and Mitsui shall not be liable for any Parts or Services if not notified by the Customer within the warranty period.
8.1 Nothing in these Terms and Conditions shall be applied to any patent, utility model, design, trademark, or copyright (including but not limited to the rights under Section 8 of the Copyright Act 1987) relating to the Parts. The sale of the 5 2642933 Parts does not transfer any intellectual property rights therein to the Customer.
8.2 Mitsui shall not be liable for any infringement of the intellectual property rights of any third party by the Parts or the Service resulting from the Customer’s instructions, and any dispute or claim arising from such infringement shall be resolved by the Customer alone.
9.1 Notwithstanding any provisions in these Terms and Conditions, Mitsui may terminate the contract and / or the Individual Agreement without cause, i.e., for convenience, by giving the Customer a written notice.
9.2 Either party may terminate in whole or in part of the Individual Agreement (where applicable) by notifying the other party in writing if any of the following occurs, without prejudice to their respective right to claim damages:
i) In the event of a breach of these Terms and Conditions or the Individual Agreement.
ii) When there is a petition for bankruptcy or winding up proceedings, judicial management proceedings corporate reorganization proceedings or dissolution.
iii) When a bill or check drawn or underwritten by the applicant is dishonored even once.
iv) When the business is suspended, or the business license or business registration is revoked by the supervisory authority.
v) When a resolution is made to reduce capital, abolish or change the business, or dissolve the business.
10.1 Notwithstanding any provision of these Terms and Conditions or the Individual Agreement, the scope of damages that Mitsui may compensate to the Customer shall be limited to actual damages suffered as a direct result of reasons attributable to Mitsui, and Mitsui shall not be liable for any loss of profits, loss of business, loss of non-operation, loss of raw materials or products, indirect damages, or similar damages.
10.2 The cumulative total amount of damages for damages in connection with the performance of Individual Agreements by Mitsui shall not exceed 30% of the Gross Price, regardless of default, liability for non-conformity with contract, unjust enrichment, tort or other cause of action.
10.3 In the event that damage to the life, body, or property of a third party occurs due to a defect in the Parts due to reasons attributable to Mitsui, Mitsui shall compensate for such damage in accordance with the law. The scope and amount of damage to be compensated shall be determined and agreed upon through consultation between Mitsui and the Customer after the Customer notifies Mitsui of the detailed documents such as data tables, maintenance, and inspection records, and whether the Customer has settled the damages with the third party concerned (whether in court or out of court).
Either party shall, in fulfilling its obligations under these Terms and Conditions and the Individual Agreement, comply with relevant laws and regulations relating to the export of technology, such as the Strategic Trade Act 2010 and Customs Act 1967, as well as the laws and regulations relating to export control where relevant.
Natural disasters or other natural or man-made events for which Mitsui is not attributable (including, but not limited to, actions by governments, citizens, or the military, strikes and other labor disputes by workers, fires, floods, epidemics, wars, riots, civil revolts, transportation delays, and shortages in the supply of raw materials, parts, fuel, gas, and electricity). Any delay or failure to perform in whole or in part of these Terms and Conditions or the Individual Agreement shall not be a breach of these Terms and Conditions or the Individual Agreement, and Mitsui shall not be liable for it.
13.1 Neither party shall disclose or divulge to any third party any confidential information of the other party disclosed by the other party pursuant to these Terms and Conditions or a Separate Agreement without the prior written consent of the other party. The duty of confidentiality survives after the termination or expiration of this contract or Separate Agreement (where applicable).
However, this does not apply to information that falls under the following items.
i) Information that was already publicly known at the time of disclosure.
ii) Information that has become publicly known after disclosure for reasons not attributable to the individual.
iii) Information lawfully obtained from a third party without any obligation of confidentiality.
iv) Information developed by the company without relying on the information disclosed.
13.2 Notwithstanding Article 13.1, if Mitsui and the Customer are obliged to disclose confidential information by as required by law or by order of a government agency, Mitsui and the Customer may disclose such confidential information to 8 2642933 the extent that such an obligation is imposed upon the other party upon prior written notice and to the extent permitted by law. 13.3 The obligations set forth in this Article shall remain in effect for a period of three (3) years after the termination of the contract or Individual Agreement (where applicable) unless otherwise stated.
Neither party shall assign to any third party, pledge itself as collateral for a third party, or otherwise dispose of any rights or obligations arising under these Terms or Conditions or any Individual Agreement without the prior written consent of the other party.
These Terms and Conditions may only be amended if Mitsui and the Customer agree in writing with their name, seal, or signature.
These Terms and Conditions and Individual Agreement (where Applicable) shall be governed by and construed in accordance with the laws of Malaysia.
All disputes, controversies or differences that may arise in connection with or out of these Terms and Conditions or any Individual Agreement shall be finally resolved by arbitration in accordance with the prevailing Rules of the Asian International Arbitration Centre (AIAC) administered by the Asian International Arbitration Centre (AIAC). The seat of arbitration shall be Kuala Lumpur, Malaysia. The number of arbitrators shall be 1 or 3 as agreed by the parties and the language of the arbitration shall be English.
The Arbitration Agreement shall be governed by and construed in accordance with the laws of Malaysia.
These Terms and Conditions constitute the entire agreement between the parties hereto and supersede and cancel any prior agreements, negotiations and understandings with respect to the subject matter hereof, whether written or oral, subject to Article 1.2.
