Sales Terms and Conditions
1. APPLICABLE CONDITION:
ANY SALE/ LICENSING OF GOODS BY THE SELLER TO THE PURCHASING PARTY (“BUYER”) (EACH OF THEM A “PARTY”, AND COLLECTIVELY, “PARTIES”) IS SUBJECT TO THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE EXPRESSLY OBJECTED TO AND SHALL NOT BE BINDING UPON SELLER UNLESS EXPRESSLY ACCEPTED IN WRITING BY SELLER’S AUTHORIZED REPRESENTATIVE. ANY ORDER FOR GOODS, PRODUCT, PARTS, AND/OR SERVICES SHALL CONSTITUTE ACCEPTANCE OF THESE TERMS AND CONDITIONS.
2.STORAGE:
If Buyer fails to accept delivery of the goods, then, except where such failure or delay is caused by a force majeure event or Buyer’s failure to comply with its obligations under the Agreement, Seller may store the goods until delivery takes place and charge Buyer for all related costs and expenses (including insurance, if applicable). Notwithstanding the foregoing, if Buyer refuses to accept delivery at any time, Buyer must assume return freight costs or restocking, even if failure to comply with the acceptance of delivery of the goods occurs after the goods have arrived at the place of delivery.
3. PRICE, PAYMENT & SECURITY:
Except as set forth in the invoice pursuant to which this document is issued, Seller may at any time upon notice change the price payable for the goods or modify delivery terms or terms of payment and such modified price, delivery terms or terms of payment shall apply for all shipments of goods after the effective date of such change or modification. If Seller is prevented by law or other government restriction from increasing its price or from continuing any price already in effect, Seller may terminate the contract pursuant to which this document is issued by written notice to buyer. Payment terms shall be as provided in the invoice issued by the Seller. If payment is not made as provided herein, the Seller may, at its option: (a) elect to withhold future deliveries of goods to the Buyer until such breach has been cured (b) require payment in advance as to future deliveries; or (c) demand return from the Buyer of any goods for which payment has not been made. If deliveries of goods are to be made in installments, the purchase price of each installment shall, at Seller’s option, be recoverable as a separate sale. The remedies contained in this paragraph are cumulative and shall be in addition to any other remedies available to Seller under contract or applicable law. Disputes as to invoices must be accompanied with detailed supporting information and are deemed waived after 15 (fifteen) calendar days from the date of the arrival of the goods at the destination Seller reserves the right to correct any inaccurate invoices. Any corrected invoice must be paid by the issuance date of the corrected invoice. Buyer must pay the undisputed amount of the invoice within the original invoice payment due date. Unless or otherwise agreed in writing payment is due as stated in the invoice. Unless otherwise agreed in writings or mentioned in the invoice, the Buyer agrees to pay the Seller interest at the rate of 1.5 % per month on any delinquent invoices. Seller retains the security interest in goods sold until the entire invoice amount is paid by the Buyer.
Any charges for consular invoices, if required, shall be for account of Buyer.
The Buyer shall pay the price specified on the invoice without availing of the benefit of any right of set-off, counterclaim, recoupment or other such rights which the Buyer may have against the Seller, which rights shall be exercised in separate proceedings between the Buyer and Seller.
4. TITLE & RISK:
Except and otherwise agreed upon the Buyer and Seller, in writing, upon the delivery of the Goods, subject to the Buyer paying the invoice amount (including applicable taxes, duties, or fees, if any), the absolute title shall pass to the Buyer. However, risk of loss or damage to the goods shall pass to the Buyer in accordance with applicable incoterms. The said title shall be free and clear of all liens, claims, security interest or encumbrances.
5. DELIVERY:
Unless otherwise mutually agreed upon a contract, invoice, or purchase order, delivery terms are the same, as stated in the invoice. Buyer is responsible for all carriage, duties, taxes, and other charges to enable import clearance. Seller will schedule delivery in accordance with its published lead-time unless Buyer’s purchase order requests a later delivery date or Seller agrees in writing to an earlier delivery date. Both, the request to advance the order or the request to delay dispatch must be with Seller’s authorization. Seller reserves the right to assess an expedite fee for purchase orders requested to be shipped prior to mutually agreed lead-times.
Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance, of this agreement caused by force majeure, act of God, or any other cause or condition beyond Seller’s reasonable control and foreseeability or events in the international logistic chain or any other such event that affects in a substantial way the logistics of delivery. In the event of any such delay or nonperformance, Seller will inform the Buyer of the delay as soon as possible, and may at its preference, and without liability, cancel all or any portion of this agreement and/or extend any date upon which any performance hereunder is due. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered merchandise. Any dates quoted for delivery are only estimations, and the time of delivery is not a material obligation of the agreement.
Orders will be considered complete upon shipment of a reasonable quantity over or under the amount specified in the purchase order when it is impracticable to produce the exact quantity ordered, Seller reserves the right to ship up to 5% more or less than the quantity specified in the order. Orders shipped within this ±5% variance will be considered complete and will be invoiced by Seller and paid by Buyer.
Seller reserves the right to allocate production if market conditions materially change, and Buyer has the right to cancel an order that is late, so long as it has not been produced and shipped. Delivery is completed when the goods are delivered in accordance with the agreed Incoterm or where no Incoterm is applicable upon the unloading of the Goods at the agreed delivery location. Seller shall not be required to tender delivery of any quantities of goods for which Buyer has not provided timely shipping instructions. Unless otherwise agreed upon in writing the Buyer will bear any responsibility for unloading the Goods; the Buyer should have the required equipment to unload the Goods as well as ensure to maintain optimal conditions for unloading at all times. The buyer declares to have trained personnel to handle the material and unloading process properly.
6. PACKING:
The make-up, packing and packaging and making shall be at Seller’s option unless otherwise agreed in writing.
7. INSPECTION:
The inspection of goods shall be performed by Seller or its designee in the country (from which the goods are exported) according to the export regulations of the country, before the shipment and such inspection shall be considered as final and conclusive in all respects regarding the goods.
8. FORCE MAJEURE:
If any performance of the contract is prevented or delayed in whole or part, by reason of any prohibition of export or import, flood, typhoon, Act of God, fire, lockout, lockdowns, war whether declared or not , armed conflict, civil commotion, riot, strike or other labor disputes of Seller or suppliers of the goods, severe economic dislocation, non-availability of raw material (including fuel and power), peril or accident of the sea, the bankruptcy or insolvency of the manufacturer or suppliers, or any other cause beyond the reasonable control of Seller or of the manufacturer or suppliers of the goods, Seller shall not be liable for the non performance of the contract including non-shipment or late shipment of the goods, and Buyer shall accept any shipment made within a reasonable time, or shall accept the cancellation of all or any part of the contract at Seller’s option. Provided that nothing herein shall relieve Buyer from its obligation to pay for the goods.
9. INDEMNITY:
Buyer shall indemnify and defend, hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from any loss, damage, fines, penalties, suits, actions, claims, liabilities, judgment, costs and expenses (including attorney’s fees) including personal injury to or death of the Seller’s employees or property damage, arising out of or in connection with this agreement and the buyer’s activities in connection with the agreement, resulting or arising from (a) Buyer’s negligence (b) Buyer’s use, sale handling, storage or disposal of the goods or any product or waste derived therefrom (c) Buyer’s discharge or release of the goods or any product or waste derived therefrom into the water, onto land or into air, (d) Buyer’s exposing any person (including Buyer’s employee) to the goods or any product or waste derived therefrom, including failure to warn of such exposure, or (e) the transportation of the goods to Buyer after tender of the goods by the Seller to the carrier at Seller’s shipping point. The foregoing shall apply, without limitation, to injury to person (including death) or damage, or harm to property or the environment.
This clause shall survive the termination, cancellation or expiration of the performance of obligation under the contract, PO and/or the invoice.
10. WARRANTY:
(i). All recommendations or statements about the goods by Seller, including statements concerning substances present or not present in the goods, or anticipated performance of the goods, are based upon Seller’s research and experience and are believed to be reliable, but such recommendations or statement shall not constitute a warranty, and no employee, agent or representative of Seller is authorized to give any such warranty. Buyer must determine for itself , by tests or otherwise, the suitability of the goods for Buyer’s purpose. Seller warrants only that the goods shall conform to the description given in this document or in the contract pursuant to which this document is issued or in the absence thereof, to Seller’s standard specification for the goods, that the Seller will convey good title thereto, and that such goods shall be delivered free from any lawful security interest or encumbrance unknown to Buyer. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND/OR IF GOODS ARE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE. (ii). Except for the limited warranty referenced above, Seller grants no other warranties, express or implied, by statute or otherwise, regarding the ordered goods, and specifically disclaims any implied warranty of fitness for any purpose, quality, merchantability, or otherwise. (iii). Claim(s) shall be excluded based on insignificant deviation from the agreed quality or if the Buyer amend the specifications of the goods i.e. change in original state as delivered by the Seller. The Seller shall not be responsible for any damage to the ordered goods or defect in the quality which occur after passing of the risk or resulting from any act or omission of the Buyer or its agent including but not limited to improper handling, improper storage etc. (iv). If Buyer identifies a defect in goods and informs Seller of that defect no later than fifteen (15) calendar days (in writing) from the date of arrival of the goods at the destination and such goods is found by Seller to be defective, then Seller as the sole remedy shall repair or replace either the product or the defective part, or refund a part or the full cost of the good’s purchase price, at its sole discretion Buyer should include all necessary and relevant information and evidence along with its claim. In any case, the Seller will only recognize up to the total value of the good delivered. No charge/ claim to the Seller will be made for lost profits, machine time, collateral damage due to the use of the material, loss of sales or any other concept. Goods which may be sold by Seller, but which are not manufactured by Seller are not warranted by Seller, but are sold only with the warranties, if any, of the manufacturers thereof.
11. LIMITATION OF LIABILITY:
THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER (INCLUDING THIRD PARTY CLAIMS). SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE SUCH AS (BUT NOT LIMITED TO), DELAY DAMAGE, DAMAGE DUE TO BUSINESS INTERRUPTION, LOST PROFITS, LOST SAVINGS, LOST REVENUE, MISSED OPPORTUNITIES, LOSS OF GOODWILL, OR FORFEITED PENALTIES OR FINES, WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY.
(i). In no event shall Seller’s total liability hereunder exceed the amount paid by Buyer for ordered goods hereunder, and in no event shall Seller be liable for costs of procurement of substitute goods or services by anyone, or for any special consequential, incidental or other damages, however caused, whether for breach of contract, negligence or otherwise, and whether or not Seller has been advised of the possibility of such damage. This limitation shall apply notwithstanding any failure of essential purpose of any limited remedy provided herein.
(ii). The above exclusions of and limitations on liability shall also apply for the benefit of Seller’s staff, executing aides and other third parties to whom Seller has recourse for performance of the agreement/Purchase Order.
12. RELATIONSHIP BETWEEN SELLER AND BUYER:
Buyer is not an agent, employee or legal representative of Seller, but an independent entity or person. Buyer does not have any authority to assume or create any obligation or responsibility on behalf of Seller or bind Seller in any manner whatsoever. The relationship between Seller and Buyer is that of vendor and vendee. Buyer further agrees to defend, indemnify and hold Seller harmless from and against any and all claims of third parties that would not have arisen but for an act or omission by Buyer that is contrary to the above acknowledged relationship or any other term hereof.
13. SELLER IP RIGHTS:
Buyer shall hold Seller harmless from liability, loss, or expenses in connection with any infringement with regard to Seller’s logos, patent, pattern, design, copyright, trademark, tradenames, emblems, slogans, service marks, models, know how, information, and any other distinguished material of the Seller whether or not subject to registration or filing (hereinafter “IP rights”) chosen by Buyer. Seller retains all IP rights in the Goods, and nothing herein shall be construed to grant Buyer any right or license, express or implied, in the Seller’s IP rights. In particular, Buyer shall not use Seller’s name, logo or other IP rights without Seller’s prior written consent. Further, Buyer will not do or fail to do anything that could infringe, damage, endanger or impair Seller’s IP rights. In particular, Buyer will not: (a) modify, remove or disfigure any markings or other means of identification of Goods delivered by Seller; (b) use Seller’s IP rights in such a way that their distinctive character or validity may be affected; (c) use trademarks other than Seller’s trademarks with regard to Goods delivered by Seller without Seller’s prior express written consent, or (d) use trademarks or trade names similar to Seller’s trademarks or trade names that may cause confusion or deception.
14. EXPORT CONTROL
Buyer agrees to comply with all applicable export laws and regulations of the Country of Import, to ensure goods, products, parts, and technology (if applicable) provided by Seller under this agreement are not used, sold, disclosed, released, transferred, or re-exported in violation of such laws and regulations. Buyer shall not directly or indirectly export, reexport, or transfer any items or technology provided by Seller under this agreement to: (a) any country designated by the U.S. Department of State as a “State Sponsor of Terrorism”, including for the purposes of this agreement, North Korea, or to a resident or national of any such country; (b) any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce, the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury, or any other applicable prohibited party list of the U.S. government; or (c) an end-user engaged in any nuclear, chemical, or biological weapons activities. If goods, products or parts to be exported outside the U.S. and/or EU are considered or likely to be considered as “dual use”, Buyer shall (or shall cause the end user of the goods, products/parts to) provide to Seller, promptly upon its request, an “End User Statement” in accordance with the applicable legal requirements. Seller shall not be liable to Buyer for any delay and shall not be in breach of its obligations in the event of Buyer’s failure or delay in providing such statement.
15. CONFIDENTIALITY
“Confidential Information” means the terms of this agreement and all non-public information, technical data or know-how in whatever form and materials (including samples) concerning the business, goods, products, services and/or activities of Seller and/or its affiliates disclosed or made available to Buyer in relation to this agreement, whether orally or in writing, in electronic or other form, and whether or not marked as proprietary or confidential, and any information derived from the Confidential Information; provided that Confidential Information does not include information (i) known to Buyer at the time of disclosure or rightfully obtained by Buyer on a non-confidential basis from a third party; (ii) that is now, or hereafter becomes, through no act or failure to act on the part of Buyer, generally known in the public; or (iii) that is independently developed by Buyer without reliance on the Confidential Information as shown by contemporaneous documentary evidence. Buyer shall not use the Confidential Information except for the purpose of exercising its rights or performing its obligations under this agreement (the “Purpose”). Buyer shall not disclose to the Confidential Information to any third party except its employees and agents who have a need to know such information for the Purpose and who are bound by nondisclosure obligations at least as stringent as those contained in this agreement. Buyer shall not reverse engineer any Confidential Information, including any samples, without permission of Seller. Buyer shall take reasonable, prudent safeguards to prevent the use or disclosure of Confidential Information in violation hereof. Buyer shall be primarily responsible for the obligations of its employees and agents under this agreement. Upon Seller’s request, Buyer shall promptly return all copies, whether written, electronic, or other form, of any such Confidential Information, or delete and destroy Confidential Information in a secure manner. Notwithstanding the foregoing, Buyer may retain one copy of the Confidential Information for records management purposes, or copies in enterprise-wide archival back-up systems. Notwithstanding the destruction or retention of the Confidential Information, Buyer shall continue to be bound by its obligations of confidentiality hereunder. In the event Buyer is required to disclose any Confidential Information by order of a court or any government agency, by law, regulation, judicial or administrative process, Buyer shall: (a) give prior written notice of such disclosure to Seller, if legally permitted; (b) reasonably cooperate with Seller, at Seller’s request and expense, to resist or limit such disclosure or to obtain a protective order; and (c) in the absence of a protective order or other remedy, disclose only that portion of the Confidential Information that is legally required to be disclosed in the opinion of counsel and assure that confidential treatment will be accorded the disclosed information. Following termination, the obligations of Buyer under this agreement with respect to the Confidential Information will continue in full force and effect as follows: (i) in the case of any Confidential Information that constitutes a trade secret within the meaning of applicable law, for as long as such information remains a trade secret; or (ii) in the case of any other Confidential Information or materials, for a term of five (5) years from the date of disclosure. Seller shall be entitled to injunctive relief for any breach or threatened breach of this provision without the requirement of posting bond or proving damages.
16. COMPLIANCE WITH APPLICABLE LAW
This agreement is based on Seller’s design, manufacture, testing, and delivery of the goods, products, parts, and services pursuant to: (i) its design criteria, manufacturing processes, and procedures and quality assurance program; (ii) those portions of industry specifications, codes, and standards in effect as of the date of entering into the agreement as are specified in it; (iii) the applicable law; and (iv) any mutually agreed upon written terms and specifications set forth in this agreement.
Notwithstanding any other provision of this agreement, the Parties shall at all times comply with all applicable law in the performance of the agreement.
Buyer expressly agrees that in the performance of this agreement and during its recurring business, it will not engage in bribery or corruption practices.
17. DATA PRIVACY
Each Party shall comply with all applicable data protection laws. Unless agreed otherwise by the Parties, Seller (or its subcontractors) will not process information relating to any identified or identifiable natural persons (“Personal Data”) for Buyer or on Buyer’s behalf. In the event that Seller processes Personal Data as part of its own legitimate business purposes, it will do so in accordance with the Seller’s Privacy Notice which is available on https://www.orbia.com/es/sustentabilidad/politicas-y-lineamientos/privacidad-de-datos/
18. DISPUTES AND JURISDICTION:
Any dispute or claim arising out of, in relation to, or in connection with this Agreement, or the interpretation, making, performance, claims, breach or termination thereof, the courts at Vadodara, Gujarat shall have exclusive jurisdiction.
