In the General Terms and Conditions the following terms shall have the meaning defined here in:
These General Terms and Conditions are useful in the supply of the Goods and Services by the Vendor to the companies of Mundhra Group. These General Terms and Conditions will be applied in the supply of the Goods and Services, even if any offer, order acknowledgement or other similar document refer to any other general terms and conditions, and these General Terms and Conditions will overrule any such other terms and conditions. Any amendments or deviations from these General Terms and Conditions must be agreed in writing specified in detail in a Contract (as defined below) entered into between the Parties.
The Vendor will sell and the Customer will buy the Goods in accordance with the terms and conditions of the Contract and these General Terms and Conditions. No exclusivity or similar rights of any kind are granted to the Vendor and the Customer is entitled to purchase goods from other Vendors at its free discretion. If the Customer wishes to make any changes to the specifications of the Goods prior to delivery of the Goods, the Parties undertake to negotiate in good faith in order to agree on such changes in the specifications and the related changes in other terms and conditions of the Contract.
The Vendor will ensure that the Goods supplied:
- are of the quality and in accordance with the specifications set out in the Contract.
- are always of merchantable quality and fit for any purpose held out by the Vendor or made known to the Vendor at the time the orders are placed. Otherwise the Goods will be fit for the purpose for which similar goods are ordinarily used.
- are in compliance with the local regulations and/or standards of the markets in which they are sold and to which they are delivered.
- are labelled and packed in compliance with the regulations in force in the country to which the Goods are supplied.
The Vendor will ensure that the evaluation of risks caused to human health and the environment when using the Goods is made at least according to the laws and common prevailing practices in the country.
The Customer shall during and after the time of manufacture of the Goods, have the right to inspect the quality of the Goods at Vendor’s place of manufacture. This right does not diminish the responsibilities of the Vendor according to these General Terms and Conditions.
The Vendor will provide the Customer with the documentation necessary to get the Goods in a running order and together with the adequate information (including material safety data sheet) about the use for which purpose the Goods are ordered. The Vendor will provide the Customer with the drawings and documentation required for normal maintenance of the Goods.
The Goods will be delivered in accordance with the Contract and within the term indicated in the Contract. The title of ownership to the Goods will transfer to the Customer at the time of delivery.
If the Vendor fails to deliver the Goods at the agreed time and such a delay is not due to the Force Majeure event or to reasons attributable to the Customer, the Vendor will be obliged to pay to the Customer liquidated damages in accordance with the following:
- For each following week or fraction of the week for which the delivery is postponed beyond the date specified in the Contract, liquidated damages for a late delivery is one per cent (1%) of the Price of the Goods.
- Total liquidated damages for a late delivery will not exceed fifteen per cent (15%) of Price of the Goods.
If the actual costs and damage incurred by the Customer due to the delay of the Vendor exceed the amount of the liquidated damages, the Customer will have the right to claim damages from the Vendor for such exceeding costs or damage.
If the Vendor fails to supply the Goods within a reasonable time after having received a written notice from the Customer, the Customer is entitled to purchase the delayed Goods from a third party and the Vendor will compensate all additional costs due to this purchase.
Where the Goods do not conform to the terms and conditions of the Contract and/or these General Terms and Conditions, the Customer will inform the Vendor thereof within reasonable period after having become aware of such defect. The Customer reserves the right to accept or reject the whole or any part of the defected Goods and if rejected to return the Goods to the Vendor at the Vendor’s own risk and expense.
The Vendor guarantees for a period of 24 months the proper design, construction and quality of the Goods furnished under the Contract and these General Terms and Conditions. The guarantee period shall be calculated from the completion date of the delivery of the Goods. However, the guarantee period of the goods shall be delivered to be stored by the Customer will start when such Goods are taken into operation and at the latest after six (6) months’ storing period.
The Vendor shall without delay at its own cost rectify and/or replace any defective Goods and compensate to the Customer the losses arising as a result of such defects. The rectified or replaced Goods will have a new guarantee period of 24 months. However the guarantee period shall extend for a maximum of 48 months from the commencement date of the original guarantee period.
After the expiry of the guarantee period, the Vendor is liable for latent defects which existed on the date of expiry of the guarantee period and which the Customer could not reasonably be expected to notice during the guarantee period and for defects arising as a result of the Vendor’s gross negligence. The Vendor is not liable for any defects attributable to the deficient maintenance of the Goods by the Customer or their improper use, handling and storage in breach of written information provided by the Vendor.
On completion of delivery of the Goods the Customer will pay the Price to the Vendor against an invoice. Payments will be made within 60 days of the date of the invoice. The Price for the Goods will be fixed for the entire term of the Contract and will not be subject to any revision. The Price will be the total compensation payable by the Customer for the Goods. None other costs will be charged to the Customer unless otherwise specified in the Contract. Applicable value added tax or other such statutory tax payments will be added to the Price in accordance with the laws and regulations applicable from time to time.
The Customer has the right to withhold payment of any Vendor invoice where the Goods will not be provided in accordance with the terms and conditions of the Contract and General Terms and Conditions. The withholding of payment will correspond to the value of the defective delivery.
All rights to the documents (e. g. plans, drawings, technical documents, software) made available by the Customer to the Vendor for the supply of the Goods and/or the fulfilment of the Services will remain the property of the Customer. The Vendor is responsible for making sure that no rights of third parties will be infringed in conjunction with the supply of the Goods and/or performance of the Services. All intellectual property rights created in the performance of the Services will vest in the Customer.
If the Vendor fails to supply the Goods in agreement with the Contract and/or these General Terms and Conditions and/or there is a defect in the Goods, the Vendor will without delay at its own cost remedy the breach or defect. If the Vendor fails to remedy the breach or defect in the Goods within a reasonable time after having received a written notice from the Customer, the Customer is entitled to remedy the breach or defect itself or have it repaired by a third party at the cost of the Vendor. Alternatively, the Customer will be entitled to a reduction of the Price reflecting the difference between the defect-free Goods and the defective Goods.
Neither Party will be liable for any indirect or consequential damage, including but not limited to loss of income or interruption of production or services. This limitation of liability does not apply to breaches of confidentiality obligations, damage caused by a Party’s gross negligence, wilful acts/omission or any damage caused to Customer’s property.
If either Party is in material breach or a series of breaches of the Contract and/or these General Terms and Conditions and does not remedy such breaches within reasonable period after having received a written notice thereof from the non-breaching Party, the non-breaching Party is entitled to terminate the Contract with immediate effect and without any liability towards the breaching Party.
In case of termination of the Contract, the breaching Party will compensate the non-breaching Party the damage and costs incurred by the non-breaching Party as result of the termination of the Contract. Either Party will terminate the Contract with immediate effect in the event that the other Party becomes subject to any bankruptcy or insolvency proceeding.
The Vendor will keep in firm confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Vendor by the Customer and any other confidential information concerning the business or products of any company belonging to Mundhra Group which the Vendor may obtain and the Vendor will restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Vendor’s obligations to the Customer and will ensure that such employees, agents or sub-contractors comply with the provisions of this clause.
Neither Party is accountable towards the other Party for delays or failures to fulfill its responsibilities if the delay or failure is due to any event, which is not foreseeable and is beyond the control of the Parties and which could not have been prevented or overcome by reasonable efforts of the prevented Party (“Force Majeure”). The Party affected by Force Majeure will be excused for its non-performance during the duration of Force Majeure. The Party pretentious by Force Majeure will immediately notify the other Party about Force Majeure event and its consequences and expected duration. In this situation both Par-ties will use their reasonable efforts to prevent or lessen any damage or costs caused by such Force Majeure event and to ensure the continued and undisturbed business operations of the Customer.
If either Party is unable to fulfil its responsibility due to a Force Majeure Event for a period exceeding thirty (30) days, either Party is entitled to terminate the Contract with immediate effect without any liability towards the other Party. The termination notice will be delivered in writing.
The laws of the Customer’s domicile will be applied to the Contract, without regard to conflict of laws rules. Any disputes between the Parties arising out of or in connection with the Contract are to be settled before a competent court at the domicile of the Customer.
Seller warrants that the product will conform to Seller’s published specifications, if any exist, or to such other quality standards and/or measurements the parties have attached to this document or consequently have agreed upon in writing. Seller has based any recommendations to Buyer for the use of the Product upon information that Seller considers reliable, but Seller makes no warranty as to any results Buyer might obtain in Buyer’s use(s) for the Product. Seller makes no representation or warranty of any kind with respect to Product, express or implied, respecting merchantability or fitness for any particular purpose. Seller makes no other warranties extending beyond the description of the Product, whether used alone or in combination with any other substance or in any process.
Buyer will inspect Product promptly after receipt for damage, defects, short-weight and non-conformance. Buyer must give Seller written notice of the existence of each claim involving Product (whether based in contract, breach of warranty, negligence, strict liability, other tort or otherwise) within the earlier of seven (7) days after receipt of the quantity of Product forming the basis for the claim or applicable shelf-life expiration, if any. A failure by Buyer to give such notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims. Seller’s entire liability to Buyer for damages, whether under breach of warranty or any other cause whatsoever, and whether under this contract or otherwise, will in no event exceed that part of the purchase price applicable to the portion of Product giving rise to Buyer’s claim for such damages. In no event will either party have liability to the other for any incidental, consequential, exemplary or special damages.
Seller may cease any Product sold hereunder at any time, unless Buyer and Seller have otherwise agreed in writing.
Buyer will make all payments hereunder in cash or in negotiable paper collectible at face value in the funds and at the location indicated on Seller’s invoice; late payments will bear interest at 2% per month. If Seller determines that Buyer’s financial responsibility has become impaired or otherwise unsatisfactory to Seller, Seller may require advance cash payments, COD, shorter terms, and/or the posting of satisfactory security by Buyer, and may withhold shipments until Buyer complies.
If a present or future law, governmental decree, order, regulation, or ruling under any existing or future legislation prevents Seller from increasing or revising the price as provided herein, or nullifies or reduces any price or price increase hereunder, upon written notice from one to the other Seller and Buyer will attempt to identify mutually agreeable changes to conform this contract with such law, decree, order, regulation, or ruling. If the parties cannot agree upon and implement such changes within sixty (60) days after such notice, Seller will thereupon have a right to terminate this contract forthwith by written notice to Buyer.
Seller may change the price and/or terms of delivery and shipment at any time up until shipment, except where a written alternative pricing mechanism exists in this contract. In addition, at any time prior to delivery, Seller may pass through increased fuel surcharges or taxes imposed upon Seller in connection with the sale/shipment of the Product after order acceptance.
Buyer will reimburse Seller for all national, state, local or other taxes (other than income taxes), excises or charges, and fees, which Seller must pay in connection with the manufacture and supply of Product, but only those amounts not already included in the price at the commencement of this contract.
Title and risk of loss to the Product will pass to Buyer at Seller's point of shipment. Buyer assumes all risks and liabilities arising out of unloading, discharge, storage, handling and use of the Product, or arising out of compliance or non-compliance with federal, state, municipal or local laws and regulations governing or controlling such activity, except to the extent, if any, attributable to Seller’s gross negligence or wilful misconduct. Seller has no liability for the failure of discharge or unloading equipment or materials used by Buyer, whether or not supplied by Seller. Except to the extent attributable to the Product failing to meet the express warranties set forth in paragraph 1, Buyer will indemnify, defend and hold Seller harmless from all costs, expenses, damages, judgements or other loss, including costs of investigation, litigation and reasonable attorney’s fees, arising out of Buyer’s selection, use, sale and further processing of the Product.
Buyer declares that Seller has to furnish to the Buyer Material Safety Data sheets. This includes warnings together with safety and health information concerning the Product and/or the containers for such Product. Buyer will allocate such information so as to give warning of likely hazards to persons whom Buyer can foresee may receive exposure to such hazards, which includes, but not limited to, Buyer’s employees, agents, contractors and customers. Buyer will save, defend, as well as indemnify the Seller harmless against any and all liability arising out of or in any way connected with Buyer’s failure to disseminate such information, which includes without limitation, liability for injury, sickness, death or property damage, costs of investigation, litigation and reasonable attorney’s fees.
Indian Law will govern the interpretation and construction of this contract. All litigation concerning the contract will occur only in the state and national courts of Delhi, India, and each party consents to exclusive jurisdiction in such courts.