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Purchase Order Terms and Conditions I Agree with Terms and Conditions listed Below 1. DEFINITIONS “Purchaser” means Kossan Rubber Industries Bhd or any one of its related companies or subsidiaries as specified on the Purchase Order Form. “Delivery Date” means the date specified in the Purchase Order Form by which the Goods are to be delivered to the place specified by the Purchaser. “Goods” means all Goods, equipment, materials, articles, or any other property or parts to be provided to the Purchaser by the Vendor under the Purchase Order and includes, without limitation, all services including design, manufacture, inspection, testing, expediting, quality assurance and control, painting, packing and delivery as specified in the Purchase Order Form or required hereunder. “Purchase Order” means the Purchase Order Form issued by the Purchaser to the Vendor together with this “Purchase Order Terms and Conditions” and other documents listed in the Purchase Order Form. “Purchase Order Form” means the section of the Purchase Order to be completed by the Purchaser, which identifies the Purchaser and the Vendor and includes but is not limited to a brief description of the Goods and a list of the documents comprising the Purchase Order. “Vendor” means the party providing the Goods, as identified in the Purchase Order Form. “Variation” means any increase or decrease in, or change to, the scope of the supply of Goods under this Purchase Order, as directed by the Purchaser in writing. “Warranty Period” means the period commencing on the date of final supply of the Goods and lasting for a period of twelve (12) months, unless otherwise stated in the Purchase Order Form. 2. APPLICATION (a) This “Purchase Order Terms and Conditions” apply to and form part of the Purchase Order issued by the Purchaser to the Vendor for the purchase of the Goods. (b) In the event of any discrepancy in the Purchase Order Form, this “Purchase Order Terms and Conditions” and other documents listed in the Purchase Order Form, the Vendor shall immediately seek the Purchaser’s instructions on the discrepancy and the Purchaser shall advise the prevailing provision. (c) No terms stated by the Vendor in accepting or acknowledging the Purchase Order will be binding on the Purchaser unless expressly accepted by the Purchaser in writing by referring to this clause. 3. SUPPLY AND DELIVERY OF THE GOODS (a) The Goods described in this Purchase Order shall be supplied by the Vendor to the Purchaser strictly in accordance with the terms set out herein and no alteration or variation shall be made without the written authorisation of the Purchaser. (b) The Vendor, at its expense, shall promptly deliver the Goods ordered on the Delivery Date, in accordance with the delivery terms (INCOTERMS 2010 unless otherwise stated in the Purchase Order Form) and at the place specified by the Purchaser in the Purchase Order. The Purchaser may direct the Vendor to change the Delivery Date, the mode and terms of delivery, or the place of delivery by notification to the Vendor. (c) With each consignment of Goods to the Purchaser, the Vendor shall include a written delivery order stating the date of the consignment, a description and quantity of the Goods delivered, the delivery place, the Delivery Date, the Purchase Order ordering the goods so consigned and any variance (with reasons) from the Purchase Order. (d) Delivery occurs when the Goods have been unloaded by the Vendor at the place for delivery and the delivery note is signed by an authorised representative of the Purchaser, in accordance with the specified delivery term. 4. TITLE AND RISKS OF THE GOODS (a) Ownership of and unencumbered title in the Goods pass from the Vendor to the Purchaser on the earlier of the following: i) Payment of any deposit or advance payment with respect to the Goods; ii) Payment to the Vendor of the value of the Goods; iii) Delivery of the Goods as required by the Purchase Order. (b) The goods shall remain at the risk of the Vendor until the Purchaser has accepted the same in writing after inspection. (c) Risks in the Goods or any part of them which are rejected or refused delivery by the Purchaser pursuant to this Purchase Order shall remain with the Vendor. (d) In the event of the Vendor’s default (including alleged default), breach of the Purchase Order (including alleged breach) or insolvency, the Purchaser may attend at the Vendor’s premises, or such places as the Goods are located to which the Vendor has access, and collect the Goods to which it holds title. The Vendor hereby agrees to provide reasonable access to the Purchaser, or its duly authorised representatives, to collect the Goods, in the event that the Purchaser exercises its entitlement to collect the Goods pursuant to this clause. (e) The Vendor acknowledges that it is liable for the care, safe custody and control of the Goods until the risk in the Goods passes to the Purchaser. The Vendor hereby agrees to waive its entitlement to exercise any lien in respect to the Goods, whether arising by statute or common law. 5. TESTING, INSPECTION AND RETURN OF GOODS (a) The Goods must be tested in accordance with the requirements of the Purchase Order. Unless otherwise set out elsewhere in the Purchase Order, any tests and the costs thereof shall be the responsibility of the Vendor. The results of tests shall be promptly supplied to the Purchaser in writing. (b) The Purchaser shall have the right to inspect and monitor the Goods prior to delivery and the Vendor shall give the Purchaser access to the Vendor's premises for such purpose during its normal working hours. (c) Any inspection by the Purchaser shall not relieve the Vendor from its obligations to comply with the requirements of the Purchase Order and shall in no way impair the Purchaser’s right to require correction of non-conforming Goods. (d) The Purchaser is entitled to a reasonable opportunity to inspect the Goods following delivery. (e) Upon inspection, the Purchaser may reject any Goods which do not comply with the Purchase Order or which are otherwise unacceptable in the reasonable opinion of the Purchaser. (f) The Purchaser may either repair the Goods at the Vendor’s expense, obtain refund for the returned Goods, obtain replacement Goods from the Vendor, source the Goods elsewhere and recover any additional cost or expense so incurred from the Vendor, or terminate the Purchase Order in whole or in part and seek damages. 6. LATE DELIVERY The Vendor shall take all reasonable steps to prevent any delay to the delivery of the Goods. If the Vendor fails to deliver the Goods to the delivery site nominated by the Purchaser by the Delivery Date, the Purchaser shall, without prejudice to any of its other rights pursuant to the Purchase Order or otherwise, be entitled to: (a) refuse to accept Goods delivered to the delivery site; (b) procure the Goods from third parties. In this instance, the Vendor shall be liable for any additional costs incurred by the Purchaser as a consequence of procuring the Goods from third parties and any incidental losses of whatsoever nature incurred as a consequence of such default; (c) terminate the Purchase Order either in whole or in part; (d) claim for liquidated damages, the amount of which is specified in the Purchase Order Form representing a genuine pre-estimate of the Purchaser's damages and not as a penalty. 7. VARIATIONS (a) The Purchaser may vary the Goods under the Purchase Order or any condition thereof and the Vendor shall carry out any such variation as directed by the Purchaser. The Vendor's price (addition or reduction) for any variation and any effect on the Delivery Date of the Goods shall preferably be agreed between the Purchaser and Vendor prior to the Vendor carrying out any such variation. However, if agreement cannot be reached, the Purchaser shall determine the price for the variation and its effect on the Delivery Date of the Goods. (b) The Vendor shall not vary the work under the Purchase Order or any condition thereof, except as directed and approved by the Purchaser in writing. No variation shall invalidate the Purchase Order. (c) None of the terms and conditions of this Purchase Order will be varied, waived, discharged or released either at law or equity, except with the Purchaser’s prior written consent. 8. WARRANTIES AND REMEDIES (a) The Vendor warrants and represents that, during the Warranty Period, the Goods shall: i) Be free from liens, charges, encumbrances or other defects in title; ii) Be free from defects in design, materials and workmanship; iii) Conform to the conditions and specifications of the Purchase Order; iv) Conform to all applicable laws and regulations to which the Goods are subject; v) Be of merchantable quality and suitable for the purpose for which they are required; vi) Be new and comply with the standards of quality specified in the Purchase Order. If no standards are specified the Vendor shall comply with the best quality standards applicable to the Goods concerned. vi) Be made of new and undamaged materials, unless otherwise specified in the Purchase Order and the workmanship shall be of the highest. (b) The warranties stated above are in addition to any statutory warranties applicable to the Goods. (c) During the Warranty Period, the Purchaser shall give written notice to the Vendor of any failure or defect in the Goods. The Vendor shall without delay and at no cost to the Purchaser, correct any defect or failure in the Goods covered by the warranty, by way of repair, replacement, modification or other means acceptable to the Purchaser. (d) If the Vendor fails to correct any defects and failures, of which it has been notified by the Purchaser, within the time specified in the notice, the Purchaser shall have the right to rectify the Goods itself or have the rectification undertaken by a third party. All costs so incurred shall be a debt due and payable by the Vendor or deducted from moneys otherwise owing to the Vendor. (e) Any Goods repaired under warranty shall be subject to a further full Warranty Period commencing on the date of completion of any such repair. (f) The Purchaser may, at its election, deduct from any money payable to the Vendor, under this Purchase Order or any other contract or agreement between the parties, the costs of repairing defective Goods, replacing defective Goods, sourcing the Goods from elsewhere or rectifying the Goods during the Warranty Period, referred to in this clause. 9. INDEMNITIES (a) The Vendor indemnifies the Purchaser and keeps the Purchaser indemnified from and against any claim, demand, cause of action, damage or loss, costs and expenses (including legal expense) made against or suffered by the Purchaser arising out of, or in connection with, or as a result of the Goods supplied or to be supplied under the Purchase Order. (b) The Vendor shall indemnify and keep indemnified the Purchaser and its officers, employees and agents against all claims, demands, proceedings, liabilities, costs, charges and expenses (including legal expense) arising as a result of any act, neglect or default of the Vendor, its employees or agents related to its obligations under the Purchase Order. 10. INTELLECTUAL PROPERTY The Vendor hereby indemnifies the Purchaser, its successors, assigns, customers and users of the Goods, from and against all actions, suits, claims and demands and costs of whatsoever nature arising out of or in any way connected with any infringement of any patent, registered design, copyright or trade mark in any way connected with the Goods or the use thereof. 11. INSTALLATION The following conditions apply where the Vendor, under the terms of the Purchase Order or to enable the performance of the Purchase Order, is required to be present or perform work on or near the Purchaser’s premises or sites: (a) the Vendor shall supply all labour, tools, equipment and materials necessary to complete the work and to perform the Purchase Order; (b) subject to any applicable law, the Vendor, its employees, agents, contractors and subcontractors enter the Purchaser’s premises and sites at the Vendor’s own risk. The Vendor indemnifies the Purchaser against loss, damage, claims, and liability arising out of or connected with performance of the Purchase Order or presence of the Vendor, its employees, agents, subcontractors at the Purchaser’s sites and premises including claims against the Purchaser, in connection with the supply of the Goods, whether alleging negligence on the part of the Purchaser or otherwise; (c) the Vendor, its employees, agents, subcontractors shall comply with all safety and other regulations applicable to the Purchaser’s site and premises and shall obey all instructions of the Purchaser, its managers, supervisors or other authorised officers; (d) the Vendor performs all work under the Purchase Order as an independent contractor. (e) the Vendor must at its own expense procure and maintain an insurance policy for an amount not less than that required by any legislation for any liability, loss, claim or proceedings relating to workers ’ compensation or employers ’ liability whether arising by virtue of any statute or at common law in respect to any person employed by the Vendor. 12. PRICE AND PAYMENT (a) Unless otherwise stated in the Purchase Order Form, the price indicated on the Purchase Order will be paid by the Purchaser no later than ninety (90) days from the end of the month in which the invoice is received, subject to the Vendor’s compliance with the Purchase Order and the provisions of this clause. (b) Unless otherwise stated in the Purchase Order, prices shall be fixed and not subject to any variation, including, but not limited to, variations in the cost of labour, materials, plant, transport or exchange rates. (c) Unless otherwise stated in the Purchase Order, prices stated in the Purchase Order shall include import or other costs attributable to exchange rates, customs or import duties, freight and insurance charges, all duties and taxes, costs of packing, carriage and delivery, samples and testing and all other costs and expenses involved in fulfilling and complying with all the terms, conditions and obligations of this Purchase Order. (d) Before becoming entitled to receive any payment (and unless otherwise specified in the Purchase Order), the Goods must be delivered and the Vendor must submit to the Purchaser any certificates or warranty documents in relation to the Goods. (e) Payment shall be payment on account only and not be evidence that the Goods comply with the Purchase Order. The Purchaser shall have no obligation to pay for any defective or unsuitable Goods. 13. SET OFF Without limiting the Purchaser’s rights under the Purchase Order or at common law or in equity, the Purchaser may set off against payments due to the Vendor (including retention monies) any monies due to the Purchaser or claimed to be due to the Purchaser under the Purchase Order or any other contract between the Vendor and the Purchaser. 14. INSURANCE Subject to the Purchaser’s requirements as specifically stated in the Purchase Order Form, the Vendor shall, at its own costs, procure and maintain the insurances as required. 15. INSOLVENCY (a) Either party may terminate the Purchase Order immediately by written notice if the other party ceases to carry on business, or threatens to do so, becomes insolvent (which includes being unable to pay debts when they fall due), has execution levied against it, enters into a compromise with creditors, has a receiver and manager, controller or administrator appointed, or has a third party exercise security over its property. (b) In the event of termination due to insolvency in accordance with subparagraph (a) herein, the Purchaser shall not be liable to pay for any Goods not then delivered to or accepted by the Purchaser. 16. TERMINATION (a) The Purchaser may at any time, at its absolute discretion and for any reason, terminate the Purchase Order with respect to any undelivered Goods. (b) If the Purchase Order relates to standard stock goods, the Purchaser’s only obligation shall be to pay for Goods shipped prior to the termination. (c) If the Purchase Order relates to Goods manufactured or fabricated to the Purchaser’s specifications or specifications prepared by the Vendor for the Purchaser: i) On receipt of notification of cancellation from the Purchaser, the Vendor shall cease manufacture, supply or work in accordance with and to the extent specified in the notice and shall immediately do everything possible to mitigate any cost after such cancellation; ii) Provided that the Vendor is not in default, the Purchaser shall pay to the Vendor the agreed direct and reasonable costs incurred by the Vendor in connection with the Purchase Order prior to date of cancellation; provided however that the total costs plus any previous payments made by the Purchaser to the Vendor shall not exceed the total price of the Purchase Order. iii) Upon payment by the Purchaser to the Vendor following cancellation of the Purchase Order, title to and property in any material or incomplete Goods shall pass to the Purchaser. 17. DELIVERY, SAFETY AND QUALITY MANAGEMENT (a) The Vendor shall comply with all instructions of the Purchaser with respect to delivery, site safety and quality management. (b) The Purchaser reserves the right to apply the requirements and its delivery, safety, quality and environment policies to this Purchase Order. 18. SUBCONTRACTING AND ASSIGNMENT. The Vendor shall not subcontract nor assign all or any part of the Purchase Order without the prior written approval of the Purchaser. The Purchaser’s approval of any subcontract shall in no way relieve the Vendor of any of its obligations under the Purchase Order. 19. LAW AND DISPUTE RESOLUTION (a) Unless otherwise stated in the Purchase Order Form, the applicable law for the interpretation and enforcement of the Purchase Order is that of the state or territory to which the Goods are being delivered or supplied. (b) Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof shall be settled in Kuala Lumpur in accordance with the Rules for Arbitration of the Kuala Lumpur Regional Centre for Arbitration for the time being in force. The arbitration tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. (c) The parties hereby agree to submit to the non-exclusive jurisdiction of the Malaysian courts. 20. MISCELLANEOUS PROVISIONS (a) This Purchase Order states the entire agreement between the Parties concerning the Goods and supersedes any prior agreements, understandings, or representations with respect thereto. (b) Any addition or modification to the Purchase Order must be made in writing and signed by authorized representatives of both Parties. (c) If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Purchase Order as a whole. (d) Any notice demand or request required to be given under this Purchase Order shall be in writing and shall be validly given if served personally on a Party hereto or sent by registered post to the Party’s address above written and in the event of posting shall be deemed to have been received by the Party when in the due course of post it would be delivered at the address to which it was sent.