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General Terms and Conditions

December, 2012

NOTICE: Sale of any Products is expressly conditioned on the Customer’s assent to these General Terms and Conditions. Any acceptance of the Supplier’s offer is expressly limited to acceptance of these General Terms and Conditions by the Customer and the Supplier expressly objects to any additional or different terms proposed by the Customer. Any order to perform work and the Supplier’s performance of work shall constitute the Customer’s assent to these General Terms and Conditions.

  1. General
    1. The Products sold are subject to these General Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by the Customer.
    2. These General Terms and Conditions shall also apply to future transactions between the Supplier and the Customer without the need for an explicit agreement in each individual case.

  2. Conclusion of contract
    1. Offers of the Supplier are without engagement with the Customer. In the event that the offer quotes quantities, dimensions or weights or includes drawings, these shall be deemed to be approximate only. If the Customer requires compliance with exact dimensions, reference shall be made to such specifications in the order placed with the Supplier.
    2. Plans, drawings and other documents (“Supporting Documents”) shall be handed to the Customer for the purpose of conclusion of the Contract and, if applicable, its execution. The Supplier reserves the right of ownership of such Supporting Documents. No right of use shall be granted in relation to the said Supporting Documents. The Supporting Documents shall not be made accessible to any third party by the Customer. The Customer shall be obliged to return the Supporting Documents in the event that the contractual negotiations between the Supplier and the Customer fail or in the event that the Supporting Documents are no longer required for execution of the Contract.
    3. Samples shall only be provided against payment by the Customer to the Supplier.
    4. Insofar as the Customer provides samples, plans, drawings and other documents, Clause [3.2] hereof shall apply mutatis mutandis. The Customer shall be liable to the Supplier to ensure that the said samples, plans, drawings and documents do not infringe the rights of any third party. The Supplier shall be under no obligation to verify whether any of the said samples, and/or other documents provided by the Customer infringe any rights of any third party.
    5. The Contract shall come into existence when the order is placed by the Customer and confirmed by the Supplier. The order confirmation from the Supplier shall apply to the content of the Contract unless the Customer raises an objection to this within 3 (three) business days of receipt. In the absence of confirmation of the order, acceptance of the Customer’s offer for purchase of any Products shall take the form of execution of the order.
    6. Quantities ordered may have a variance tolerance of 10% in either direction. The quantity of the Product invoiced shall in all cases be the quantity of the Product actually supplied.
    7. Prices quoted are net prices, to which statutory taxes/ levies shall be added and shall be borne by the Customer. Packing, insurance and shipping costs are included unless otherwise stated in writing at the time of order confirmation.
    8. In the event that the prices of raw materials increase after conclusion of the Contact, the Supplier shall have the right to increase the agreed prices correspondingly. This shall not apply if the period between conclusion of the Contract and the time of delivery in accordance with the terms of the Contract is 4 (four) months or less.
    9. In the event that the price increase is in excess of 10% over the price agreed in terms of the Contract, the Customer may withdraw from the Contract within 2 (two) weeks of announcement of the price increase. The Supplier shall have the right to withdraw in the event that, as a result of the increase in the price of raw materials, the price agreed in terms of the Contract would have to be increased by 20% or more.

  3. Delivery
    1. The delivery period (“Delivery Period”) shall, in cases of doubt, begin upon receipt of the Customer’s order, not, however, prior to clarification of all details required for performance of the Contract and provision of all documents and parts to be obtained by the Customer. The Delivery Period shall be extended by any period required for completing import and export formalities. The Delivery Period shall also be extended by any period, as may be required, in the event of any force majeure circumstances and/or any impediments beyond the control of the supplier (including any industrial action or similar circumstances) at the business of the Supplier or his sub-suppliers or sub-contractors as well as for the period of any retention rights of the Supplier.
    2. The Supplier shall have a right of retention as long as the Customer is in default of any obligation(s) arising from this or another Contract between the Parties unless the obligation is of a very minor nature only and does not impair performance, in any manner whatsoever, of the Contract by the Supplier.
    3. The Customer shall only have the right to reject partial deliveries if the Customer cannot reasonably be expected to accept them, also taking the legitimate interests of the Supplier into account.
    4. In the event that shipping is delayed at the request of the Customer, the Supplier shall be entitled to demand advance payment in the manner agreed between the Parties.
    5. Obligations of the Supplier to adhere to the Delivery Period shall have been complied with so long as the Products are shipped in time for delivery to the Customer within the Delivery Period. In the event that shipment is delayed at the request of the Customer, obligations of the Supplier to adhere to the Delivery Period shall have been complied with so long as the Customer has been notified of the readiness of the Products for shipment.
    6. The Supplier may revise and/or discontinue products at any time without notice. There may be occasions when the Supplier confirms orders but learns that it cannot supply the ordered Products, either at all or in the quantities ordered such as when the products no longer are being manufactured or they otherwise become unavailable to the Supplier, or when there is a pricing error, etc. In such circumstances, the Supplier will contact the Customer to inform them about alternative products that might meet the Customer’s needs. However, if the Customer does not wish to order alternative products, the Supplier will cancel the order for Products that it cannot supply and will refund the purchase price for those products.

  4. Shipment
    1. Shipment shall be on FOR Destination basis and title to and risk in the Products shall pass to the Customer upon delivery of the Products to the Customer.
    2. Unless otherwise agreed in writing, the route and mode of shipment shall be decided by the Supplier at its discretion. The Supplier shall also have the right, at its option, to deliver on cash on delivery basis; any charges incurred in connection with the same shall be paid by the Customer.
    3. The Customer shall take immediate possession of the Products on delivery from the Supplier at the agreed place of delivery in terms of the Contract.
    4. In the event that the Customer is unable to take immediate possession of the Products on delivery by the Supplier in terms of the Contract, the Customer shall intimate, with sufficient advance notice, the Supplier of such inability. If the Customer fails to so intimate the Supplier of its inability to take possession of the Products on delivery by the Supplier in accordance with the Contract, the Supplier shall be entitled to put the Products in storage at the expense of the Customer.
    5. The Customer shall file a complaint with the shipping company in respect of any visible transport damage and detail it in a record to be drawn up together with the shipper. Failure of the Customer to file the said complaint with the shipping company on a timely basis shall relieve the Supplier of any payment/ performance obligations in respect of the Products damaged in transit, to the extent of such damage.

  5. Payment
    1. Time for payment is of the essence. The price agreed in terms of the Contract shall be due for payment strictly net and without any cash discounts by the Customer by the date stipulated on the invoice.
    2. No right exists to offset claims or rights of retention of the Supplier.
    3. Provisions of statutory law shall apply in relation to any default in payment. The Supplier reserves the right to charge interest from the date on which the payment was due till the date of actual receipt of payment.
    4. In the case of payment default, the Supplier may prohibit resale, reuse or processing of any Products supplied and demand their return.
    5. In the event that the Customer defaults on payment or circumstances become known subsequently that, given a reasonable assessment of the situation, give rise to the risk that the Customer will not discharge its payment obligation, the Supplier may require advance payment.

  6. Default in performance and damages

    1. The Supplier warrants that the Products shall be delivered free from defects in material and workmanship affecting normal use.
    2. If any defect exists in the Product, the Customer shall file a complaint in writing, with the Supplier without delay and within 15 [fifteen] business days from the date of delivery of the Product to the Customer.
    3. Complaints regarding latent manufacturing defects that cannot be detected even after careful inspection of the Products upon receipt and/or subsequent performance related defects in the Product shall be filed by the Customer with the Supplier, by facsimile, immediately on the discovery of such latent defect(s). For the avoidance of any doubt it is hereby clarified that any claims arising from a defect in any Product supplied by the Supplier shall lapse 1 (one) year after the date of delivery of such Product.
    4. The Customer shall give the Supplier adequate opportunities to examine the Products. The Supplier shall, at its discretion, rectify the defect or supply replacement goods in lieu of the defective Products. In the event of failure or refusal to rectify the defect, the Customer may terminate the Contract or reduce payment in proportion to the price payable in respect of the defective Products and as may be agreed with the Supplier.
    5. The Customer shall not be entitled to withhold payment of all or any of the amounts payable by the Customer to the Supplier whilst any claim is being investigated by the Supplier.

  7. Retention of title to ownership
    1. The Supplier retains the right of ownership of the Products supplied until all claims arising under the Contract have been satisfied. In the event that such retention of title to ownership is without legal effect under any law applicable in respect of the Customer for any reason whatsoever, the Customer shall draw the attention of the Supplier to this explicitly prior to the formation of the Contract. In such a case, the Customer is obliged to offer the Supplier equivalent collateral to the satisfaction of the Supplier. Alternatively the Supplier shall be entitled to require payment in advance.
    2. The Customer may re-sell, use or further process the Products in the ordinary course of business of the Customer. However, the Supplier shall be entitled to unilaterally revoke the rights granted under this Clause [8.2] at any point of time and without advance notice to the Customer.
    3. In the event of resale of any Products (“Resold Products”), the Customer hereby assigns its claims against its own customer (“Customer’s Customer”) to the Supplier. The Supplier hereby accepts the assignment. The Customer is hereby permitted, in a way that may be revoked by the Supplier at any time, to collect the claim from the Customer’s Customer. The Supplier has the right to disclose the said assignment, as soon as the Customer fails to discharge its payment obligations towards the Supplier when due. The Customer is obliged to furnish the Supplier with information regarding the name and address of the Customer’s Customer and regarding the amount of the claim assigned and when it was due. The Customer shall make every effort to support the Supplier in collecting the assigned claim(s). Provided that, in the event that the Customer resells any Products to the Customer’s Customer in conjunction with any other goods and/or services, the said assignment of claims to the Supplier shall be proportionate to the payment claims of the Customer from the Customer’s Customer on account of the Resold Products only.
    4. In the event that the Resold Products are treated or processed (“Processed Products”), the Parties hereby agree that: the Supplier shall become co-owner of the Processed Products. The size of the co-ownership share of the Supplier shall be calculated according to the proportion of the Resold Products to the value of the Processed Products. Clause [8.4] shall apply mutatis mutandis in respect of the Processed Products.
    5. Insofar as the value of the objects serving as collateral exceeds 120% of the payment claim to be collateralised, the Supplier shall at the request of the Customer, release objects serving as collateral, by (a) transferring conditional ownership to the Customer; or (b) retransferring the claims against the Customer’s Customer to the Customer, at the Supplier’s option.
    6. In the case of loss, seizure, destruction or damage to the objects serving as collateral, the Customer shall notify the Supplier without any delay whatsoever. The Customer hereby assigns its claims arising therefrom against any third party, in particular against the party causing the damage or against an insurer, to the Supplier.

  8. Tools
    1. Notwithstanding anything to the contrary, any tools and moulds that the Supplier manufactures or obtains for performance of the Contract shall remain the property of the Supplier. The Supplier shall retain all rights and title in respect of such tools and moulds even in the event that the Customer has been invoiced for the same.

  9. Recurring orders
    1. In the case of Contracts to supply the Customer on a recurring basis, the Customer shall plan and specify the quantities to be delivered on a monthly basis sufficiently well in advance of the first date of delivery of the Products. In the event of failure to do so, the Supplier may, after granting a grace period to the Customer, notify the Customer of the quantities to be delivered on a monthly basis and then deliver these quantities to the Customer.
    2. In the event that the sum of individual quantities of the Products specified exceeds the agreed total quantity of the Products to be supplied, the Supplier shall have the right to supply the additional quantity of the Products based on a new price agreement with the Customer.

  10. Governing Law & Jurisdiction
    1. These General Terms and Conditions shall be governed by and construed in accordance with the laws of India and shall be subject to the exclusive jurisdiction of the courts of Kolkata. Provided that the Supplier shall also have the right to sue the Customer at the court with jurisdiction at the registered office of the Customer. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable to the Contract.

  11. Limitation of Liability
    1. To the extent permitted by law, the Supplier shall not be liable in contract or in tort for any loss or damage suffered and consumer rights are limited to those set out in these General Terms and Conditions and under statute.
    2. To the extent permitted by law and subject to Clause [13.6], the Supplier’s total liability under the Contract in respect of each event or series of connected events shall not exceed the amount invoiced for the applicable Products and/or services under the Contract.
    3. The Customer shall indemnify the Supplier and keep the Supplier fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these General Terms and Conditions.
    4. To the extent permitted by law, the Supplier shall not be liable for (a) any incidental, indirect, special or consequential damages; (b) loss of opportunity; (c) loss of revenue; (d) loss of profit or anticipated profit; (e) loss of business; (f) loss of contracts; (g) loss of goodwill; (h) loss arising out of business interruption; (i) loss arising out of or in connection with pollution or contamination arising out of or in connection with the purchase, use or performance of any Product, even if the Supplier has been advised of their possibility.
    5. To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
    6. Where under any applicable law, implied conditions and warranties cannot be excluded, the Supplier’s liability for breach of such conditions and warranties shall be limited, at the Supplier’s option, to:
    1. In the case of Products, the replacement of the Products or the supply of equivalent Products; or the repair of such Products;
    2. In the case of services, the supplying of services again.

  12. Miscellaneous
    1. The Customer shall not assign or otherwise transfer any Contracts or any of its rights and obligations hereunder or thereunder whether in whole or in part without the prior written consent of the Supplier. Any such unauthorized assignment shall be deemed null and void.
    2. The Supplier has the right to change the General Terms and Conditions at any time.
    3. The Contract represents the entire agreement between the Supplier and the Customer. No oral or written representation or warranty not contained in the Contract shall be binding on either Party. The Parties’ rights, remedies and obligations arising from or related to Products sold under the Contract are limited to the rights, remedies and obligations stated in the Contract. No modification, amendment, rescission or waiver shall be binding on either Party unless agreed in writing.