Standard Terms & Conditions For Sale of Goods / Services
A. DEFINITIONS
1 “Buyer” means the company or person who buys the Goods:
2 “Goods” mean and include the products, services and / or software(s) to be supplied to the Buyer by the Seller:
3 “Seller” means the company which supplies the Goods:
4 “Parties” or “Party” means the Buyer and/or the Seller, such that “Party” means either the Buyer or the Seller and “Parties” means the Buyer and Seller jointly:
5 “Offer” means a sales quotation for the Goods given by the Seller. Offer shall only be valid for a period of thirty (30) business days from its date of issuance unless otherwise specified or extended in writing by the Seller:
6 “Purchase Order” means the Buyer’s order or work order or letter of award, as the case may be (including amendments if any) issued to the Seller for the Goods:
7 “Sales Order Acceptance” means sales order confirmation of the Seller raised subsequent to the issuance of the Purchase Order by the Buyer (hereinafter referred to as “OA”):
8 “Warranty Period” shall mean warranty provided on the Goods by the Seller for a period of eighteen (18) months from dispatch of Goods or twelve (12) months from commissioning of Goods, whichever is earlier, unless otherwise specifically stated in the Order Acceptance.
B. GENERAL
1 Unless expressly otherwise agreed by the parties in writing, these Terms and Conditions shall be applicable to all the Offer(s), OA(s) and invoice(s) raised by the Seller upon the Buyer and to the sale of Goods by the Seller to the Buyer, to the exclusion of all other terms and conditions referred to, offered or relied upon by the Buyer whether in negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by the Buyer in its Purchase Order or other document.
2 No trade custom or usage less favourable to the Seller than the Terms and Conditions shall be applicable to the Purchase Order or binding on the Seller, unless specifically agreed to in writing by the Seller.
3 The Parties agree that a binding contract amongst the Seller and the Buyer for the sale of the Goods shall be deemed to have been constituted upon (i) the delivery of the Goods against the OA, whether in part or full; or (ii) receipt of payment of Price against the OA, whether in part or full; or (iii) after expiry of 7 days from the date of issuance of the OA, whichever is earlier, and which contract shall be governed by these Terms and Conditions.
4 Sales literature, price lists, illustrations, photographs or descriptions and other documents issued by the Seller in relation to the Goods and Services are subject to alteration without notice and are intended as a guide only and shall not be binding on the Seller. Any typographical, clerical, or other accidental errors or omissions in any sales literature, quotation, price list, OA, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
5 Any amendment in the Purchase Order made by the Buyer shall be binding on the Seller only if confirmed in writing by the Seller and additional costs, if any, for such amendment shall be borne by the Buyer.
6 The Seller reserves the right to make any changes in the specification of the Goods which do not materially affect their quality or performance where (i) such changes are required to conform to any applicable law or regulatory requirements or (ii) the Goods are to be supplied to the Buyer’s specification. In such cases the Seller shall notify the Buyer of the change.
C. PRICE AND PAYMENT
1 The price of the Goods shall be the price as set out in the Offer unless otherwise agreed in writing between the Parties. VAT not included in the quotation will be added to the invoice where and at the rate appropriate as well as any other government-imposed taxes in force at the date of invoice.
2 Any other charges / costs related to transportation, freight, packing, forwarding, inspection, documentation, and
insurance as applicable shall be stated separately. Bill discounting, bank and other charges shall be borne as per the agreed terms.
3 The payment shall be made by the Buyer as per the payment terms stated in the invoice raised by the Seller upon the Buyer.
4 The Seller reserves the right to apply the relevant provisions of the applicable law not limited to the Late Payment of Commercial Debts (Interest) Act 1998 to any and, all invoices that remain unpaid after 30 days of the invoice date. At the Seller’s discretion, all overdue amounts shall bear interest not exceeding the rate permissible under the applicable laws for the period such monies unpaid, compounded for the period from the date of invoice to the date of settlement.
5 The Seller reserves the right to add a currency surcharge if the exchange rate rises by €0.01 or $0.01 or more against the pound sterling between acceptance of the order and the time of invoicing, based on the daily spot exchange rates quoted by the Bank of England.
http://www.bankofengland.co.uk/boeapps/iadb/Rates.asp
6 In case the Buyer has any payment related query, the same shall be addressed to accounts@codel.co.uk.
D. DELIVERY
1 Unless otherwise agreed in writing, the Goods shall be delivered at the place as stated within the Purchase Order. Any time or date stated for delivery is an estimate only and the Seller shall not be liable for any failure to deliver at the specified time or on the specified date unless agreed in writing between the Parties. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery:
2 If the Seller is unable to deliver the Goods due to reasons attributable to the Buyer, the Seller may, at its discretion, place the Goods in storage and the Buyer shall be liable to the Seller for any expenses associated with such storage and any other incidental expenses thereto. Further, the Buyer agrees that the Seller shall have the right to adjust, all or any cost/charges incurred by the Seller from any advance paid by the Buyer to the Seller whether under these Terms and Conditions or any other contract between the Buyer and the Seller (or the Seller’s affiliates).
3 Any damages, shortages, or excess deliveries in respect of the Goods supplied by the Seller to the Buyer shall be reported to the Seller within seven (7) days from the date of delivery of the Goods for necessary action. If Buyer fails to intimate the Seller within this seven (7) day period, then the Goods shall be deemed to have been delivered to the Buyer in good condition and in due compliance with the obligations of the Seller.
4 Partial / part delivery shall be permitted, unless otherwise agreed between the Parties.
5 In case of international transactions where the Buyer is located outside United Kingdom and Goods are delivered outside United Kingdom, any agreed trade term shall be construed in accordance with the INCOTERMS in force and as stated in the invoice.
E. RISK
Risk in the Goods shall pass to the Buyer according to the terms of delivery as stated within the Purchase Order. Where the Buyer opts to collect the Goods from the factory of the Seller, risk will pass when the Goods are handed over to the Buyer or set aside for its collection, whichever happens first.
F. TITLE
1 Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods. The retention of the title shall not affect passing of risk of the Goods to the Buyer in terms of these Terms and Conditions.
2 The Buyer shall be in possession of the Goods solely as bailee for the Seller until the full price is paid. The Buyer shall store, the Goods separately from his own Goods and / or those of any other person and at, all times the Goods shall be stored in such a manner that they are easily identifiable as belonging to the Seller until the full price is paid.
3 The Buyer is not entitled to create any encumbrances, charge, lien, or transfer as security any Goods on which the title has not passed to the Buyer. 4 In case the Buyer is an Original Equipment Manufacturer (OEM) / trader/ reseller, the risk and title to the Goods shall pass upon the delivery; however, the Seller shall have the right to lien on such Goods till full payment is received by the Seller.
G. LIMITATION OF LIABILITY
Notwithstanding anything to the contrary stated herein or in any other agreement, communication or documentation exchanged between the Parties:
1 The Seller’s aggregate liability to the Buyer in respect of sale of any Goods (as sold pursuant to issuance of an OA) for all losses, claims, damages arising out of, or in connection with such sale of Goods under these Terms and Conditions and its performance or breach of these Terms and Conditions, shall be limited to 100% (one hundred percent) of the Price paid for the Goods supplied pursuant to such OA, and such liability shall cease upon the expiry of the Warranty Period;
2 Neither Party shall be liable for loss of production, loss of profit, loss of use, loss of contracts, loss of revenue, loss of goodwill, loss of reputation, loss of interest, suffered in connection with the sale of Goods or otherwise under these Terms and Conditions.
3 Neither Party shall be liable for any indirect, special, incidental, consequential, or punitive damages, costs, charges, losses suffered in connection with such sale of Goods or otherwise under these Terms and Conditions (“Indirect Damages”) even if advised in advance of the possibility of such Indirect Damages.
4 Nothing in these Terms and Conditions excludes or limits the liability of the Seller for any matter which cannot be excluded by law.
H. TERMINATION
1 If for any reason not attributable to the Seller, the Buyer decides to terminate the contract for sale of Goods, then the Seller shall be entitled to be compensated for the losses suffered and/or cost / charges incurred by the Seller for the performance of such sale of Goods.
2 If for any reason which is not attributable to the Seller, the Buyer fails to accept delivery as per the agreed terms of delivery, the Seller may, by written notice, terminate the order as accepted under the OA (and all its obligations under these Terms and Conditions in relation thereto) immediately in whole or in part. The Seller shall then be entitled to be compensated for the losses/charges suffered by the Seller by reason of the Buyer’s default.
3 The Seller may terminate the order as accepted under the OA (and all its obligations under these Terms and Conditions in relation thereto):
(i) if the Buyer commits a breach of the provisions of these Terms and Conditions or any additional terms and conditions mutually agreed upon by both Parties, including but not restricted to, failure / delay in making payment of agreed price and other costs, charges or expenses (either in full or part) as per the agreed terms of payment and fails to rectify the breach within 7 days from the date of the notice of such breach; or
(ii) in case the Buyer becomes bankrupt or insolvent or goes into liquidation, or
(iii) if the Buyer ceases to carry on its business: or
(iv) if the Buyer fails to comply with any applicable laws; or
(v) if the Buyer has entered, into this contract by way of misrepresentation to engage in activities against the business interests of the Seller; or
(vi) if the Buyer requests any changes in the specifications, drawings, or design after issuing the Purchase Order, which are not feasible according to the Seller and the Parties cannot come to an agreement on said changes.
4 Termination of the contract of sale under this clause for any reason whatsoever, shall not affect any of the rights and remedies that have accrued to the Parties as on the date of such termination, including the right to claim any additional costs and charges incurred till the date of termination and damages in respect of any breach of these Terms and Conditions which existed at or before the date of termination.
I. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
1 “Intellectual Property Rights” means all patents, designs, copyright, trademarks, know-how and all other forms of intellectual property whether registered or not and wherever enforceable in the world:
2 Each Party shall retain ownership of all Intellectual Property Rights it had prior to the issuance of the OA. All new Intellectual Property Rights conceived or created by the Seller in the performance of its obligations under these Terms and Conditions, whether alone or with any contribution from Buyer, shall be owned exclusively by the Seller. Buyer agrees to deliver assignment documentation as may be necessary to vest such rights in the Seller.
3 Data / drawings / documentation furnished by Seller which is confidential in nature, or any other information furnished by the Seller that is considered, to be confidential by the Seller shall not be reproduced or used for any purpose other than the purpose for which it is or was furnished and shall not be disclosed to third parties without the prior written permission of the Seller. If the Buyer violates any of the terms of this clause, it shall indemnify the Seller. The Buyer agrees that any breach of the confidentiality obligations under this clause, may cause the Seller irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a breach, the Seller shall be entitled to injunctive or other equitable relief to enforce the provisions of these Terms and Conditions without the necessity of proving the inadequacy of damages, in addition to any available legal remedies.
4 Where work is carried out in accordance with the Buyer’s specifications, using the Buyer’s IPR, the Buyer shall indemnify the Seller against damages, penalties, costs, and expenses to which the Seller may become liable arising out of any action for infringement of any patent, trademark, or registered design, resulting from such work.
5 In case any software is incorporated into the Goods, the use of such software shall be governed exclusively by Seller’s and / or applicable third-party owner’s license terms. The Buyer shall have no objection if the Seller refers to the Buyer as one of the Seller’s valued customers.
IJ. FORCE MAJEURE
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside Seller’s reasonable control, including but not limited to, acts of God, strikes, lock outs, natural disasters, pandemics, epidemics, acts of terrorism, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the order as accepted under the OA (and all its obligations under these Terms and Conditions in relation thereto) by a written notice. Notwithstanding the above, the Seller shall not be obliged to provide any cost reductions to the Buyer in an event of Force Majeure. In no event shall the provisions of Force Majeure be used by the Buyer to delay, suspend, or stop payments that are due to the Seller under the Purchase Order for those Goods already supplied to the Buyer.
K. RELATIONSHIP OF PARTIES
Nothing contained in these terms and conditions shall be construed as establishing or implying any partnership or joint venture between the Parties and nothing in these terms and conditions shall be deemed to construe either of the Parties as the agent of the other Party. All representative (s) of the Seller (employees, directors, agents of the Seller) whether, or not directly involved in any negotiations, acknowledgements and/or contract discussions as well as signing, and acting for the Seller shall be free from any personal duty, obligation and/or liability which might arise due to the execution of the transactions and any related document, activity, procedure and/or process.
L. ASSIGNMENT AND SUB-CONTRACTING
The Parties may be entitled to assign any of their rights or obligations under these Terms and Conditions to any person only upon the prior written consent of the other Party.
M. WARRANTIES
1 Subject to the terms and conditions mentioned herein, Seller shall be responsible for providing warranty for the Warranty Period.
2 The Seller warrants that for the Warranty Period, the Goods are free from any material defects and workmanship.
3 Seller makes no representation or warranty of any kind other than those explicitly stated herein, and hereby expressly disclaims, any and, all other warranties.
4 Seller disclaims responsibility or liability for any defects or deficiencies during the Warranty Period, for the Goods, if the Goods are:
(i) used in any manner that is inconsistent with the intended purpose or design of the Goods as described in the user manual / product literature / documentation provided by the Seller for the Goods;
(ii) altered in any way;
(iii) used or maintained in any manner that is inconsistent with Seller’s instructions or warnings (“User Instructions”) provided along with the Goods; and/or
(iv) subjected to any other misuse, lack of proper maintenance, faulty repair, neglect, accident or servicing by persons other than Seller’s authorised person. The Seller shall neither be liable for normal wear and tear nor for deterioration. Seller shall not be liable for any loss, damages or claims which are attributable to the negligence of the Buyer while storing, maintaining, or operating the Goods. Responsibility for suitability, selection, installation, use, safety, operation, or maintenance of the Goods rests solely with the Buyer.
5 Wherever there is an express warranty provided with the Goods,
(i) the Buyer shall, without undue delay, up to the date of the Warranty Period notify the Seller in writing of any defect which appears in the Goods. The notice shall contain a description of the defect. lf the Buyer fails to notify the Seller in writing of a defect within the Warranty Period, the Buyer shall lose his right to have the defect remedied.
(ii) once the Buyer has notified the Seller of any defect under sub-clause (i) above, unless otherwise agreed in writing by the Seller, the Buyer shall promptly send the Goods to the Seller’s location stated in the invoice for any repairs and the Seller shall repair such Goods. In case the Goods cannot be repaired, then the Seller shall replace such Goods. The freight and other charges for sending defective Goods to the Seller’s location shall be borne by the Buyer. In case the Seller agrees to carry out repairs of Goods at any location other than that of the Seller, any travel and living costs of the Seller’s service employee(s) for such purposes of repair must be incurred by the Buyer.
(iii) In case the Seller dispatches replacement Goods without receipt of the defective Goods, the Buyer shall be return such defective Goods no later than eight (8) weeks from the date ofBuyer’s notice in relation to defective Goods. The Buyer agrees that such defective Goods shall be the property of the Seller. If the Buyer fails to return the defective Goods to the Seller within the said period, the Buyer shall be liable to pay to the Seller the invoice value of the Goods provided as replacement.
6 The Seller shall not be liable for defects arising out of materials provided or a design stipulated or specified by the Buyer.
7 Any energy / fuel savings or any payback period calculated by the Seller in its Offer or other documentation shall be only indicative in nature and shall not be construed in any way as a guarantee by the Seller. Such energy / fuel savings or any payback period calculated by the Seller are contingent upon Buyer’s continued maintenance of necessary plant parameters, operating conditions, production capacity and usage of the Seller’s Goods in accordance with the User Instructions provided by the Seller. The Seller disclaims any liability arising out of any non-attainment of energy / fuel savings or any payback period calculated by the Seller.
N. ADHERENCE TO APPLICABLE LAW
1 The Buyer shall perform its obligations hereunder in compliance with all applicable laws including but not limited to Foreign Corrupt Practices Act (FCPA) and the OECD Anti- Bribery Convention, the U.K. Bribery Act 2010 (UKBA), antimoney laundering laws, anti-corruption laws, environment laws and labour laws in any jurisdiction in connection with its activities pursuant to these Terms and Conditions.
2 The Buyer declares that it is not subject to any economic sanctions (“Sanctions”) administered by the Government of India, the Office of Foreign Assets Control of the United States, Her Majesty’s Treasury (UK), Office of Foreign Assets Control (OFAC), the European Union, or any other relevant Government Authority or regulatory body, and has not and will not conduct business with any party subject to such Sanctions.
3 The Buyer will from time to time, at the reasonable request of the Seller, confirm in writing that it has complied with its covenants under this clause hereinabove and will provide any information reasonably requested by the Seller in support of such compliance.
4 The Seller may provide sensors, analysers, monitors, gauges and / or process control systems for the purposes of emission monitoring, diagnostics, plant operations efficiency and predictive maintenance and to comply with environmental regulations. The Buyer consents to the collection, storage on a third party cloud server and use of such data by the Seller, which
(i) will be kept confidential by the Seller,
(ii) will not be disclosed to any third party without the consent of the Buyer and
(iii) will not be used for any purpose except for the purposes of providing services to the Buyer, improvement of products and services of the Seller and/ or to comply with applicable law, including any environmental regulations. The Buyer also consents that such data may reside on a third-party cloud server which will be available for the access by the Buyer and the Seller. The Seller disclaims any and, all liability arising (whether directly or indirectly) out of any data loss, breach, or incident in relation to such data stored on such third-party cloud server. In case the Buyer has contracted for an annual maintenance contract for transmission of its emission data to the environmental authorities as required by law, the Seller disclaims any liability for any non-transmission of such emission data to the environmental authorities in case the Buyer has not paid the price for such annual maintenance contract and such liability shall solely rest with the Buyer.
O. WAIVER
The failure by either Party to enforce at any time, for any reason or for any period, any of the terms and conditions stated herein shall not be construed as a waiver of such term(s) and condition(s) or of the right to enforce such terms and conditions of these Terms and Conditions subsequently.
P. SEVERABILITY
If any term or provision of these Terms and Conditions is held invalid, illegal, or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed to with the invalid, illegal or unenforceable provision eliminated.
Q. ENTIRE AGREEMENT
These Terms and Conditions supersede all previous agreements, correspondence and understandings between the Parties concerning the sale of Goods to be supplied pursuant to the order as accepted under the OA. Upon issuance of the OA, no modification to these Terms and Conditions shall be of any force or effect between the Parties. The Parties agree that the legal doctrine of Contra Proferentem will not apply to the contract of sale or these Terms and Conditions. Consequently, any ambiguity that may exist in these Terms and Conditions will not be construed against the Party who drafted these Terms and Conditions.
R. GOVERNING LAW AND DISPUTE RESOLUTION
1 These Terms and Conditions shall be construed and interpreted in accordance with the substantive law of England and Wales. All disputes arising between the Parties out of or in connection with the performance and/or breach of these Terms and Conditions or otherwise in relation to
supply of Goods by the Seller to the Buyer shall be amicably settled between the Parties. Where the Parties fail to settle the dispute amicably within 60 (sixty) days of written notice of its existence given by either Party to the other then such disputes shall be settled by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The seat of Arbitration shall be London. The language of the arbitral proceedings shall be English. The venue of arbitration shall be London.
2 Unless otherwise agreed in writing between the Parties, the UN Convention on the International Sale of Goods (CISG) shall not apply.
S. DATA PROTECTION
To the extent that either Party processes Personal Data on behalf of the other Party under or in connection with these Terms and Conditions, it is hereby agreed between the Seller and Buyer that: each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments including but not limited to the U.K.-GDPR.
T. SURVIVAL
The provisions of these Terms and Conditions in relation to Limitation of Liability, Intellectual Property and Confidentiality, Governing Law and Dispute Resolution and all obligations that are capable of having effect after the expiry or termination of the order as accepted under the OA shall survive such expiry or termination and shall be without prejudice to the rights and remedies of the Parties up to and including the date of such expiry or termination.
END OF STANDARD TERMS & CONDITIONS
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