1. Definitions and Interpretation
1.1 In these Terms: Company means Nexorion Technology Sdn. Bhd. (Company Registration No. 202601016881 (1678978-D)); Customer means the buyer, hirer or recipient named in the quotation, purchase order or contract; Contract means the accepted quotation, purchase order, scope of work and these Terms; Goods means equipment, materials, spare parts, jet mixing devices, cathodic protection equipment, anodes and any other items supplied by the Company; Rental Goods means Goods hired or loaned to the Customer; Services means engineering, design, installation, commissioning, inspection, supervision, testing, training and related services; JMD means any jet mixing device, mixing system, nozzle, skid, control system, piping, structural support or related item; ECP/CP Goods means electrochemical/cathodic protection materials, anodes, reference electrodes, test posts, cables, junction boxes, monitoring items and related components; Site means any refinery, terminal, tank farm, vessel, yard, offshore/onshore location or premises where Goods or Services are delivered, installed, used or stored; Company Group means the Company, its affiliates, directors, employees, subcontractors and suppliers; Customer Group means the Customer, its affiliates, owner, operator, client, contractors, subcontractors, invitees and their respective personnel; and PO Value means the value of the relevant purchase order, call-off or accepted quotation excluding taxes, duties, freight, storage and reimbursables.
1.2 Consequential Loss means any loss of profit, revenue, production, product, cargo, throughput, contract, business, opportunity, use, market, goodwill, anticipated savings, data, financing, interest, downtime, shut-down, start-up, delay, demurrage, charter hire, wasted overhead, management time, penalties, liquidated damages, indirect, special, exemplary or punitive loss or damage, and business interruption, whether direct or indirect, foreseeable or not, and whether arising in contract, tort, negligence, breach of statutory duty, indemnity, strict liability or otherwise.
1.3 Words such as including and in particular are illustrative only. References to negligence include sole, concurrent, active or passive negligence, to the extent permitted by applicable law.
2. Basis of Contract
2.1 These Terms apply to every quotation, proposal, order acknowledgement, purchase order, rental, sale, installation and service contract issued or accepted by the Company. They prevail over any Customer terms, procurement conditions, portal terms or purchase order wording unless expressly agreed in writing and signed by a director of the Company.
2.2 A quotation is not an offer capable of acceptance and may be withdrawn or amended at any time before the Company accepts the Customer's order. The Contract is formed only when the Company issues written acceptance, commences work or delivers Goods.
2.3 No amendment, waiver, liquidated damages, back-charge, set-off, warranty extension, performance guarantee or flow-down obligation binds the Company unless expressly agreed in the Contract. Industry standards, drawings, specifications or Customer documents apply only to the extent expressly stated in the Company's quotation.
3. Customer Information, Design Basis and Site Responsibility
3.1 The Customer is responsible for providing complete, accurate and timely drawings, tank data, dimensions, weights, nozzle locations, roof and roof-leg details, pontoon information, product properties, sludge/sediment profile, operating envelope, pump and electrical data, hazardous area classification, soil/water resistivity, coating data, current density assumptions, corrosion history, permits, class/operator requirements and all other information required for the Goods or Services. The Company may rely on such information without independent verification.
3.2 The Customer retains responsibility for the condition, integrity and suitability of the Site, tanks, foundations, roofs, legs, pontoons, coatings, nozzles, valves, piping, power supply, earthing, bonding, isolation, process fluids, cleaning, decontamination, gas-free status, lifting points, access, scaffolding, permits to work and HSE management, unless expressly included in the Company's scope.
3.3 Any change in design basis, Site conditions, product, operation, regulations, drawings, access or schedule entitles the Company to an equitable adjustment to price, time and method of performance.
4. Prices, Taxes and Payment
4.1 Prices are exclusive of SST, GST, VAT, withholding tax, import/export duties, customs charges, bank charges, freight, insurance, storage, permits and third-party fees unless stated otherwise. The Customer shall pay or reimburse all such amounts without set-off or deduction.
4.2 Payment terms are as stated in the quotation or invoice. If none are stated, payment is due within 30 days of invoice. The Company may require advance payment, milestone payment or security at any time where credit risk, export risk or project risk requires it.
4.3 Late payments accrue interest at 1.5% per month, compounded monthly, or the maximum lawful rate if lower. The Company may suspend work, withhold delivery, retain title and recover all collection costs until all overdue sums are paid.
4.4 The Customer has no right of set-off, retention, counterclaim or withholding unless finally determined by arbitration or agreed in writing by the Company.
5. Delivery, Title, Risk and Acceptance
5.1 Delivery dates are estimates only. Time is not of the essence and the Company is not liable for delay, loss of production, shutdown extension or liquidated damages unless expressly agreed in writing.
5.2 Unless otherwise stated, delivery is Ex Works or FCA the Company's nominated facility or supplier facility under Incoterms 2020 in accordance with the Contract. Risk passes on delivery to the Customer, carrier, forwarder or Site, as applicable. Title passes only after full payment of all amounts due under the Contract and any other overdue amount owed to the Company.
5.3 If the Customer delays delivery, collection, customs clearance, Site readiness or access, the Goods are deemed delivered, risk passes, and the Customer shall pay storage, handling, preservation, demobilisation/remobilisation and additional costs.
5.4 Goods and Services are accepted on the earliest of: signed delivery note, commissioning certificate, handover record, beneficial use, installation completion, or seven days after delivery/notification of readiness unless the Customer gives a specific written defect notice.
6. Rental Goods
6.1 Rental starts on dispatch or agreed availability date and continues until the Rental Goods are returned to, received by and inspected at the Company's nominated location. Off-hire is not effective merely because the Customer stops using the Rental Goods.
6.2 The Customer shall keep Rental Goods in its custody and control at its sole risk; use them only for the agreed purpose; comply with manuals, lifting/pressure/electrical limits and certification conditions; keep them secure, insured and free from liens; and not modify, repair, dismantle, reverse engineer, sub-hire, pledge, export or move them to another Site without written consent.
6.3 The Customer shall pay replacement cost, repair cost, recertification cost, cleaning/decontamination cost and continuing rental for any loss, theft, damage, contamination, excessive wear, missing accessories, expired certification caused during the rental period or delayed return. The Customer is responsible for all damage caused by product contamination, chemicals, corrosion, abrasive solids, heat, pressure, misuse, bad lifting, storage or Site conditions.
7. Installation, Commissioning and Site Work
7.1 The Company may refuse, suspend or stop work where the Site is unsafe, permits are unavailable, the tank is not isolated, cleaned, drained, decontaminated or gas-free, access is inadequate, lifting is unsafe, required utilities are unavailable, or performance would breach law, HSE requirements or Company policy. All resulting delay and cost is for the Customer's account.
7.2 The Customer shall provide, at its cost, safe access, permits, isolation, gas testing, fire watch, confined space controls, scaffolding, cranes, forklifts, utilities, lighting, welfare, security, storage, local labour support, HSE induction, waste handling and disposal, unless expressly included in the price.
7.3 Company's personnel remain under the Company's employment control, but the Customer controls the Site and is responsible for Site rules, hazardous substances, simultaneous operations, emergency response and interfaces with other contractors. The Company is not responsible for damage caused by others, existing defects or Customer-directed methods.
8. Jet Mixing Device Specific Terms
8.1 JMD design, modelling, selection and installation are based solely on the design basis and assumptions stated in the Contract and the information provided by the Customer. Unless expressly stated, the Company does not warrant that a JMD will entirely eliminate sludge, remove existing deposits, achieve any particular homogeneity, product quality, energy saving, tank cleaning interval, ROI, emissions result, throughput, downtime reduction or process outcome.
8.2 The Customer is responsible for tank structural integrity, roof, roof legs, pontoons, floating roof movement, settlement, nozzle reinforcement, hot work suitability, electrical area classification, earthing, lightning protection, fire and explosion controls, pump adequacy, product compatibility, operating procedures and process safety.
8.3 Warranty and liability do not apply to blocked strainers or nozzles, sediment outside the design basis, product changes, viscosity/temperature changes, wax/asphaltene behaviour, microbial contamination, foreign objects, bad operation, inadequate maintenance, unsuitable pumps/power supply, coating failure, tank deformation, unavailable access, or any condition not expressly included in the design basis.
9. ECP, Cathodic Protection and Anode Specific Terms
9.1 CP/ECP design and anode performance depend on coating condition, exposed surface area, soil/water resistivity, salinity, temperature, oxygen, flow, shielding, continuity, bonding, isolation, stray currents, third-party systems, installation quality, monitoring, maintenance and operating conditions. The Customer bears these risks unless expressly included in the Company's scope.
9.2 Anodes are sacrificial consumables. Consumption rates, potential readings and service life are estimates only unless the Contract states a guaranteed criterion and includes all required surveys, installation control, monitoring, access and maintenance. The Company is not liable for corrosion, under-protection, over-protection, hydrogen effects, coating disbondment, microbiological corrosion, under-deposit corrosion, crevice corrosion, stray-current corrosion, inaccessible/shielded areas or failure to meet potential criteria caused by inaccurate data, changed conditions, third-party systems, poor bonding, damaged cables, depleted anodes, coating breakdown, missing inspection or Customer/third-party work.
9.3 For anodes and CP/ECP Goods, the Company's responsibility is limited to supplying items materially conforming to the Contract at delivery. The Customer is responsible for suitability, installation environment, handling, storage, electrical continuity, testing, inspection, replacement planning, and environmental handling/disposal of spent or damaged anodes and associated materials.
10. Warranty and Exclusive Remedies
10.1 Unless a different period is stated in the quotation, the Company warrants that sold Goods will materially conform to the Contract for 12 months from delivery and Services will be performed with reasonable skill and care. Rental Goods are warranted only to be in serviceable condition at dispatch. Third-party/manufacturer items carry only the manufacturer's warranty to the extent transferable.
10.2 The warranty does not cover fair wear, consumables, sacrificial anodes after installation, corrosion, contamination, storage damage, misuse, unauthorised repair, modification, non-compliant operation, failure to maintain, normal deterioration, Site conditions, Customer drawings/data, third-party workmanship or items not supplied by the Company.
10.3 The Company's sole obligation and the Customer's exclusive remedy for breach of warranty is, at the Company's option, repair, replacement, re-performance or credit of the defective item or affected part of the Services. The Customer must notify defects promptly, stop use if required, preserve evidence and give the Company access to inspect. All other warranties, conditions and representations, express or implied, including merchantability, fitness for purpose and performance outcome, are excluded to the fullest extent permitted by law.
11. Intellectual Property and Confidentiality
11.1 All technology, know-how, drawings, calculations, designs, software, CFD/model outputs, procedures, manuals, proposals, pricing, data sheets and documents supplied or developed by or for the Company remain the Company's or its licensor's property. No licence is granted except the limited right to use them for operating the Goods for the Contract.
11.2 The Customer shall not copy, disclose, reverse engineer, decompile, reproduce, manufacture, modify or use Company intellectual property and shall indemnify the Company Group for all losses arising from any breach.
11.3 Each party shall keep the other's non-public technical and commercial information confidential, except to professional advisers, insurers, auditors, financiers or as required by law, provided equivalent confidentiality obligations apply.
12. Mutual Hold Harmless, Indemnities and Pollution
12.1 Subject to applicable law and Clause 14, each party is responsible for and shall indemnify, defend and hold harmless the other party's Group from claims arising from injury, illness or death of its own Group personnel and loss of or damage to its own Group property, regardless of negligence, breach of duty, strict liability or other fault of the indemnified party.
12.2 The Customer shall indemnify, defend and hold harmless the Company Group from all claims, losses and costs arising from: (a) the Site, tanks, product, cargo, sludge, sediment, hazardous substances, contamination, fire, explosion, pollution or environmental release, except pollution originating solely from Company-owned equipment before risk and title passes; (b) Customer information, design basis, drawings, specifications, operating instructions or procurement requirements; (c) Customer Group property, personnel, operations or other contractors; (d) import/export, permits, customs, local approvals and Site regulations; and (e) claims by the Customer's owner, operator, client or end user.
12.3 The Company shall be responsible only for third-party physical injury or tangible property damage to the extent directly caused by the Company's proven negligent act in performing the Contract, subject always to Clauses 13 and 14.
12.4 The Customer shall ensure that its insurers, owner, operator, affiliates, clients and contractors waive subrogation against the Company Group to the extent of the Customer's indemnity obligations.
13. Exclusion of Consequential Loss
13.1 Neither party shall be liable to the other party, and the Customer shall indemnify the Company Group from Customer Group claims, for Consequential Loss arising out of or in connection with the Contract, Goods, Rental Goods, Services, Site, JMD, CP/ECP Goods, anodes, installation, delay, defect, failure, corrosion, pollution, shutdown or process outcome.
13.2 The exclusion applies whether the claim arises in contract, tort, negligence, breach of statutory duty, indemnity, strict liability, misrepresentation or otherwise; whether or not the loss was foreseeable; and whether or not the Company knew or should have known of the possibility of such loss.
14. Cap on Company Liability
14.1 To the fullest extent permitted by law, the Company's total aggregate liability arising out of or in connection with a Contract, including for breach, negligence, indemnity, warranty, delay, defect, installation, rental, JMD, CP/ECP Goods, anodes, corrosion, pollution or otherwise, shall not exceed 10% of the PO Value paid for the specific Contract giving rise to the claim. For call-off or framework orders, the cap applies only to the affected call-off.
14.2 The cap is a single aggregate cap and shall not be increased by multiple claims, defects, Sites, tanks, causes of action, claimants or legal theories. Amounts paid under warranty remedies count towards the cap.
14.3 Nothing in these Terms limits liability that cannot lawfully be limited, but all exclusions and caps shall be interpreted to give the Company the maximum protection permitted by law. The Customer's payment obligations, rental loss/damage obligations, confidentiality/IP obligations and indemnities in favour of the Company are not capped.
15. Insurance
15.1 The Customer shall maintain, with reputable insurers, property/all-risk insurance for the Site, tanks, product, cargo and Rental Goods; third-party liability; pollution/environmental liability; employer's liability; business interruption; and any insurance required by law or the owner/operator. Such policies shall, where available, name the Company Group as additional insured or include waiver of subrogation for risks allocated to the Customer.
15.2 The Company will maintain insurance it considers appropriate for its business. Insurance does not increase the Company's liability beyond these Terms.
16. Suspension, Termination and Force Majeure
16.1 The Company may suspend or terminate performance if the Customer fails to pay, provide security, provide information, make the Site ready, accept delivery, comply with HSE, becomes insolvent, or breaches the Contract. The Customer shall pay all completed work, committed costs, cancellation charges, demobilisation/remobilisation costs and reasonable margin.
16.2 Neither party is liable for failure or delay caused by events beyond reasonable control, including acts of God, fire, flood, epidemic, war, sanctions, export restrictions, shortage, supplier delay, port/customs delay, strike, transport failure, cyber incident, government action or unsafe Site condition. Time for performance is extended and costs reasonably incurred by the Company are payable by the Customer.
17. Compliance, Export and Anti-Bribery
17.1 Each party shall comply with applicable laws relating to anti-bribery, sanctions, export controls, customs, competition, tax, personal data, HSE and environment. The Company may refuse or stop performance if it reasonably believes performance may breach law, sanctions, export controls, internal compliance requirements or end-use restrictions.
17.2 The Customer shall obtain and maintain all import/export licences, permits, approvals, customs clearances, hazardous goods documentation and Site permissions unless expressly included in the Company's scope. The Customer shall not use, re-export or transfer Goods in breach of applicable sanctions or export controls.
18. General
18.1 The Customer may not assign, novate or transfer the Contract without the Company's written consent. The Company may subcontract or assign to an affiliate, supplier, financier or successor.
18.2 No waiver is effective unless in writing. If any provision is invalid, it shall be modified to the minimum extent required and the remaining provisions continue. Provisions intended to survive, including payment, title, IP, confidentiality, indemnities, exclusions, caps and dispute resolution, survive expiry or termination.
18.3 These Terms are the entire agreement for their subject matter and supersede prior discussions and inconsistent Customer documents. No person other than Company Group has rights to enforce protections given to Company Group, and the Company may enforce them on behalf of Company Group.
19. Governing Law and Dispute Resolution
19.1 The Contract and any non-contractual obligations are governed by the laws of Malaysia. The parties shall first attempt in good faith to resolve disputes by senior management negotiation within 30 days of written notice.
19.2 Any dispute, controversy, difference or claim arising out of or relating to the Contract, including its formation, validity, breach, termination and any non-contractual claims, shall be finally resolved by arbitration administered by the Asian International Arbitration Centre (Malaysia) (AIAC) in accordance with the AIAC Arbitration Rules in force at commencement of the arbitration.
19.3 The seat of arbitration shall be Kuala Lumpur, Malaysia. The language shall be English. The tribunal shall consist of one arbitrator, unless the amount in dispute exceeds USD 1,000,000, in which case either party may require three arbitrators. The arbitration, documents and award shall be confidential, except to enforce or challenge an award, comply with law, or notify insurers/advisers. Nothing prevents the Company from seeking urgent interim, injunctive or debt recovery relief in any court of competent jurisdiction.
