These standard terms and conditions of sale (“Terms and Conditions of Sale”) together with the sales covenants, the general specifications, the technical specifications, and any addendum thereto, including any acknowledgment by Seller, comprise the “Proposal” or “Quotation” (collectively the “Quotation”), which upon acceptance by Buyer become the “Contract”. Buyer may accept the Quotation through (i) delivering a purchase order that incorporates the Quotation by reference and payment of the initial deposit or (ii) other written indication by Buyer of its acceptance of the Quotation along with payment of the initial deposit or (iii) other written indication by Buyer of its acceptance of the Quotation and agreement by both parties on a payment plan that does not require an initial deposit . The effective date of the Contract shall be the date that Seller communicates to Buyer via Seller’s acknowledgement, in writing. Seller’s obligations under a Quotation or the Contract shall not commence until the effective date. The scope of work for the Contract is limited to the equipment, machinery, goods, engineering services (if applicable) and/or related commissioning services (if applicable) specifically set forth in the Contract (“Equipment”). The scope of work does not include installation or any onsite services unless specifically identified as being included in the price in the Contract.
Any terms and conditions contained in any purchase order, correspondence or accompanying payment for delivery of the Equipment specified herein, which are different from or in addition to the terms of the Contract shall not be binding on Seller, whether or not they would materially alter the Contract, and Seller hereby objects thereto. Any Quotation made by Seller either directly or by a sales representative of Seller shall expire in thirty (30) days, and after such time will no longer be valid unless renewed in writing by Seller.
All information, including quotations, specifications, drawings, prints, schematics, and any other engineering, technical or pricing data or information submitted by Seller to Buyer in a Quotation or the Contract are the confidential and proprietary information of Seller; and Buyer and its employees, agents or other parties for whom Buyer is responsible may not disclose Seller’s confidential and proprietary information to any third party, or use Seller’s confidential and proprietary information for its own account or that of any third party, except in the performance of the Contract. No transfer of ownership of any information provided by Seller to Buyer shall take place pursuant to fulfillment of the Contract.
Selection, application and design of machines, roller dies, tooling, accessories, options and auxiliary equipment shall be based upon information furnished by Buyer. Buyer shall make available to Seller in a timely manner all information reasonably necessary for Seller to complete the work specified in the Contract, including drawings, diagrams, specifications of all electrical, mechanical and structural interfaces, and shall promptly answer in writing all inquires for information that Seller deems necessary from time to time to perform Seller’s obligations under the Contract. Buyer understands that Seller is relying upon this information.
All drawings submitted by Seller, if any, with the Contract are submitted only to indicate the general style and outline, suggested arrangement, and approximate overall dimensions of the Equipment quoted. Except as otherwise provided in the Contract for the approval of Buyer, no detailed shop or engineering drawings of any part of the Equipment will be furnished to Buyer. Notwithstanding the foregoing, Seller shall provide manuals, starter guides or other information for the safe operation and maintenance of the Equipment sold to Buyer under the Contract.
If the Equipment is to be procured, designed and/or manufactured in accordance with Buyer’s specifications, Buyer represents that the drawings, prints and parts, if any, submitted in connection with its order reflect Buyer’s latest revisions of such specifications. Any subsequent modification to Buyer’s specifications may result in a change to the Contract and Seller reserves its rights set forth in Section 5 below. With respect to tolerance, capacity, accuracy, production rates and the like, the terms of this Quotation shall supersede Buyer’s specifications.
Unless otherwise agreed to by Buyer and Seller in the Contract, the Equipment shall be manufactured in accordance with Seller’s standard practices as they exist from time to time.
No governmental or other specification other than the Seller’s shall be incorporated by reference herein unless a copy of said specification is agreed by Seller and attached to the Contract. Any deviation in usage from the conditions as provided or as set forth in the Contract shall be at Buyer’s risk.
All payment terms are subject to Seller’s credit approval at the time of acknowledgment and again, prior to shipment of the Equipment. Payments are due upon Buyer’s receipt of an invoice from Seller or in the event that the payment terms are set forth in the Contract, as of the specific date listed on the applicable payment schedule in the Contract.
Payment for the sale of Equipment furnished under the Contract shall not be subject to offset, deduction or back charges by Buyer. Any sums that have been deducted by Buyer in violation of this paragraph shall be considered overdue and are subject to the above interest charge and collection costs.
The price set forth in the Contract and all payments due to Seller from Buyer shall be in the lawful currency of the India unless otherwise set forth in the Contract.
Unless otherwise set forth in the Contract the terms of payment for international transactions shall be as follows: A deposit in an amount specified by Seller shall be paid via wire-transfer upon placement of order (“Initial Deposit”) and the balance of the total purchase price shall be paid upon Seller’s notification to Buyer that the Equipment is being readied for international shipment. If a letter of credit is to be used to cover any payments, Buyer shall open, in favor of Seller, an irrevocable, documentary Letter of Credit in the amount equal to those payments in the specific form and format described in Seller’s letter of credit instructions incorporated into the Contract by attachment or reference. The minimum requirements for any such letter of credit are that it must be payable “at sight” at the counters of Seller’s bank in the India, it must allow for confirmation by Seller’s bank, it must allow partial shipments and partial draws from any point of origin, it must allow trans-shipment and it must specify that bank charges in addition to those charges by Seller’s bank shall be payable by the Buyer.
Changes to the design, specifications, scope of supply, delivery schedule, Equipment demonstration site or date, shipping instructions of the Equipment or any material term of the Contract, may only be made upon execution by Buyer and Seller in writing (collectively, “Change Order”). Such Change Order shall state the parties’ agreement on (i) change in the specifications, designs, scope of work, delivery schedule or shipping instructions for the Equipment, (ii) an adjustment to the purchase price, and (iii) an adjustment in the date of shipment of the Equipment and/or the period of performance. Both parties agree and acknowledge that unless a Change Order is agreed upon in writing by both parties, the Contract shall not be modified in any manner. In addition, Seller has the right to suspend performance of its obligations hereunder without liability during the period while the change is being evaluated and negotiated.
In the event Buyer has communicated proposed changes to Seller, Seller, at its sole discretion, shall either (a) accept the Change Order; (b) reject the Change Order and continue performance under the existing Contract; or (c) cancel the Contract. In the event that Seller elects (b) above Buyer shall either (i) agree to continue performance (of Seller) pursuant to the Contract or (ii) cancel the Contract. In the event of (b)(ii), Buyer shall pay Seller for all amounts then due and owing under the Contract plus thirty percent (30%) of the incurred costs.
If Buyer fails to perform any of its obligations hereunder, including without limitation, failure to make payments as provided in Section 4 or otherwise, or if Buyer fails to promptly give reasonable assurances of future performance when requested by Seller, then Seller may, upon five (5) days’ written notice to Buyer, declare Buyer to be in default and Seller may suspend performance of its obligations hereunder without liability and retain all rights and remedies Seller may possess at law, in equity and/or as provided in these Terms and Conditions of Sale.
In addition to the remedies noted in Section 5 above, to the extent that (i) Seller declares a default under this Section 6 or (ii) if an order, or portion thereof, for Equipment that Seller considers to be standard Equipment is cancelled for any reason, other than (a) default by Seller or (b) Force Majeure, Buyer will make payment to Seller in an amount which shall equal all incurred costs (direct material, labor, burden, and application engineering) on the completed work plus thirty percent (30%) of the incurred costs net of any payments previously made by Buyer to Seller under the Contract. If an order, or portion thereof, for Equipment considered by Seller to be non- standard Equipment, i.e. built to Buyer specifications or otherwise customized, is cancelled for any reason, other than (a) default by Seller or (b) Force Majeure, then Seller reserves the right to charge Buyer up to 100% of the price of the cancelled non-standard Equipment.
Unless expressly stated in Seller’s invoice, Quotation or the Contract, the purchase price for the Equipment furnished hereunder excludes all governmental or brokerage taxes, duties, fees, charges or assessments. Seller may elect to add any such taxes, duties, fees, charges or assessments to the invoice amount payable to Seller by Buyer. Buyer must provide to Seller in advance of the shipment of the Equipment documentation in a form and substance acceptable to Seller of any exemptions claimed from taxes, duties, permits, fees, charges or assessments. Except to the extent expressly assumed by Seller, Buyer shall secure and pay for all permits and fees necessary for the delivery and installation of the Equipment.
The scheduled dates for demonstration, testing, shipment and/or commissioning of the Equipment are estimates based on production loading at the time of Contract and may be set forth as a range of weeks after receipt of order, initial deposit and timely supply by Buyer of necessary information, acceptable to Seller required for the manufacturer of the Equipment. Although Seller shall use all commercially reasonable efforts to have the Equipment offered in the Contract available within the time estimated, the times are not intended to be exact dates but rather reasonable estimates for the time anticipated by Seller to prepare the Equipment for factory inspection (if applicable) and to be prepared for shipment.
If Seller is delayed at any time by the acts or omissions of Buyer, Buyer’s agents, subcontractors or material suppliers, Change Orders, or by any Force Majeure defined below then the period of performance shall automatically be extended to accommodate Seller’s revised engineering and production schedules, material purchases and/or labor remobilization.
“Force Majeure” means circumstances beyond the respective party’s reasonable control, including without limitation, acts of God, acts of public enemies, wars, other hostilities, blockades, insurrections, riots, epidemics, quarantine restrictions, floods, unavailability of components or supplies, lightning, fire, storms, earthquakes, severe weather, blizzard, washouts, arrests, restraints of rulers and people, civil disturbances, acts of any governmental or local authority, and any other acts and causes, not within the control of the party claiming excuse from performance, which by the exercise of due diligence and reasonable commercial effort, that party shall not have been able to foresee, avoid or overcome. During the period of any Force Majeure condition, the parties shall cooperate to perform under the Contract to the best of the parties’ abilities.
If either party in good faith is rendered wholly or partially unable by Force Majeure conditions to carry out its obligations under the Contract, or if Seller’s supplier is unable to provide Equipment or materials, and if that party gives prompt written notice and full particulars of such Force Majeure condition to the other party, that party shall be excused from performance of its obligations during the continuance of any such inability, but for no longer period. Such cause shall be remedied to the extent possible with all reasonable speed, and with all reasonable commercial efforts, and notice shall be given when the cause is remedied.
Seller reserves the right to manufacture the Equipment at any one or more of its facilities and the price of the Equipment shall not be affected by the source of the Equipment. The Seller’s factory at which the Equipment demonstration will be conducted under Section 13 below will be communicated to Buyer in the Quotation or with Seller’s acknowledgment. Any request by Buyer for a change to that location of the Equipment demonstration or other testing will require the issuance of a Change Order, including a change in Contract price, in accordance with Section 5, above.
The scope of work does not include installation or any onsite services unless specifically set forth in the Contract and Buyer is responsible for the installation of the Equipment including, without limitation, all civil engineering work and foundations, unloading, unpacking and proper positioning of Equipment, pre-aligning and anchoring of Equipment, disposal of packing materials, filling of all fluid reservoirs and provision of and connecting all electrical wiring, electronic connections and utility services required for the Equipment and the costs of the foregoing. Seller’s service department can make a service technician available for consultation on site to assist Buyer with the Buyer’s responsibilities listed below. This service will be priced at Seller’s usual and customary daily service rates plus reasonable expenses.
The Equipment covered by the Contract may require special footings, foundations or floor surfaces depending upon the depth and condition of the existing concrete slab, foundation, or floor surface and other physical conditions all of which are the responsibility of Buyer. Upon written request, Seller will furnish a layout or foundation drawing to assist Buyer in the installation, which drawing shall be approved in writing by Buyer as set forth in Section 8. Such layout or foundation drawings are approximate and are submitted only to assist Buyer with respect to
If start up and commissioning services of the Equipment in Buyer’s plant, and/or operator training are included in the price, unless otherwise expressly stated in the Contract, it shall be specified for a fixed number (depending upon the type of machinery) of eight (8) hour business days then:
Buyer is responsible for economy or equivalent class air travel, hotel, meals, ground Transportation as well as any expenses incurred (i.e.; tolls, parking fees, parts requirements, etc.) for the Seller’s service technician(s)’s visit
Any additional service or training time over the included fixed number of business days set forth in the Contract is available at Seller’s usual and customary daily service rates as announced from time to time plus reasonable expenses.
The Equipment furnished hereunder conforms to the applicable ANSI standards. However, the end user is the party responsible under the terms of all applicable Federal, state, local and regional laws applicable to such Equipment including the Occupational Health and Safety Act of 1970 (the “Act”), or the industrial safety laws applicable to the facility where the Equipment is installed, to ensure the Equipment meets such requirements, and Seller hereby disclaims any liability for any violations of the Act or other applicable regulation or law for safe and healthy operation that may be imposed respecting the Equipment furnished under the Contract. Buyer shall train, require and cause its employees to (i) comply with directions set forth in documented inspections of the Equipment and in maintenance, safety and operation instructions, manuals, drawings, safety notices and warnings and other instructions furnished by Seller; (ii) use reasonable care and all safety equipment and applicable safety guards and safety systems in the set-up, adjustment, operation and maintenance and repair of the Equipment; (iii) not remove, or disable or permit anyone to remove or disable any safety equipment, safety feature, warning placards, labels or warning signs from the Equipment nor permanently remove or disable any guards or safety features; and (iv) assure that the Equipment is used in accordance with all applicable laws, regulations, customs, permits and standards in force.
For certain Equipment lines, systems and/or product applications, the Seller may determine that testing in Seller’s factory in the presence of Buyer (“Demonstration”) is required. If Seller does not require a Demonstration, Buyer may request a Demonstration however Buyer understands that unless Seller included a Demonstration in its Quotation, then Buyer’s request for the addition of a Demonstration shall be considered as a request for a change to the Contract (reference Section 5). Buyer may also witness the standard final quality testing that Seller routinely performs prior to shipment from its factory at no additional charge. In the case of Demonstration, Seller will demonstrate the Equipment at its facility only to the extent that the Equipment purchased under the Contract can be appropriately demonstrated at such location. If material is to be part of the testing process, Buyer is responsible to furnish, freight prepaid, the required amount of material necessary for this purpose. Such material must be of acceptable quality and conform to the material properties as specified in the Contract.
The successful Demonstration of the Equipment shall constitute acceptance by Buyer of the Equipment and Buyer agrees to execute a certificate generated by Seller, in Seller’s presence and prior to shipment of the Equipment so stating. Such certificate shall also constitute passage of title to Buyer and permission to ship the Equipment after completion of any checklist, tear down and packaging. Buyer further agrees to execute a “clean” certificate after the completion of the checklist upon Seller’s request.
All claims, disputes or controversies (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) these Terms and Conditions of Sale; (b) any advertisement, promotion, or proposal relating to these Terms and Conditions of Sale, or (c) the relationship which results from these Terms and Conditions of Sale (including relationships with third parties who are not party to these Terms and Conditions of Sale) (collectively “Claims”) will be resolved, first, by a formal mediation conducted by an experienced mediator mutually agreed upon by Buyer and Seller, and, if mediation should fail to resolve the claim or dispute, secondly, under Indian rules for the resolution of disputes, or under other mutually agreed procedures.
Seller warrants to the original purchaser that the Equipment provided under the Contract shall be free from defects in material or workmanship for a period of one (1) year, measured from the date of commissioning. The foregoing warranty will become void, and Seller will have no obligation whatsoever under this warranty, with respect to any of the following: Equipment that is (i) not used or maintained in a normal and proper manner, in accordance with all manuals and instructions; (ii) Equipment that is modified, altered or repaired without the prior written approval of Seller; (iii) Buyer fails to make any payments when due under Section 4 or otherwise in the Contract or (iv) Equipment that is that is assigned, sold or transferred to an entity other than the Buyer unless Buyer is a financing entity, lessor or dealer and has notified Seller in advance at time of order that Buyer will not be the end-user of the Equipment. Seller will repair or replace at its option components which upon inspection it finds to be defective, based on claims made in writing to Seller within a reasonable time after discovery and within the warranty period.
THE WARRANTY STATED HEREIN IS PERSONAL TO BUYER AND SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE EQUIPMENT FURNISHED HEREUNDER AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ABOVE WARRANTY SHALL CONSTITUTE BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO THE EQUIPMENT FURNISHED HEREUNDER.
If Buyer removes or permits anyone to remove any safety equipment or warning signs, placards and/or labels or fails to observe any condition in this Section 15, or if any injury or damage is caused, in whole or in part, by the end-user’s failure to comply with applicable federal, state or local safety requirements or Seller’s instructions as set forth in Section 12 above, Seller shall have no obligation to Buyer, and Buyer shall indemnify and hold Seller harmless against any claims, loss or expense for injury or damage arising from the improper use of the Equipment. Seller specifically disclaims any and all liability arising out of the operating of the Equipment other than the warranty liabilities to the original Buyer.
If any software programs are deliverable, Buyer shall have a temporary license to such software only, until full payment has been made whereupon Buyer shall receive a full license to the use of the software in accordance with the terms and conditions of that license and as set forth below. The temporary license can be suspended or terminated by Seller at any time without notice to Buyer after the period for payment by Buyer has expired. For the sake of clarification, Buyer understands and acknowledges that failure to pay for the Equipment in accordance with the Agreement may result in the termination of the temporary software license and disruption of operation and service. In addition, such license of Seller, and any licenses procured by Seller on Buyer’s behalf are not transferrable without notice to Seller and payment of the required transfer fee.
All transactions under the Agreement shall at all times be subject to and conditioned upon compliance with all applicable export control laws and regulations and any amendments thereto. The parties hereby agree that they shall not, except as said applicable laws and regulations may expressly permit, make any disposition by way of transshipment, re export, diversion or otherwise, of any goods, technical data, or software, or the direct product thereof, furnished by either party in connection with the Agreement. The obligations of the parties to comply with all applicable export control laws and regulations shall survive any termination or discharge of any other contract obligations. Buyer shall provide immediate notice to Seller in the event of Buyer, or in the case of re-sale of Equipment by Buyer any of Buyer’s customers, being suspended, debarred or declared ineligible by any government entity or upon receipt of a notice of proposed debarment from any such entity during the performance of the Agreement.
The Contract supersedes and replaces any and all prior or contemporaneous agreements, understandings, arrangements or representations, whether oral or written heretofore made between the parties and relating to the subject matter hereof, and constitutes the entire understanding of the parties with respect to the subject matter of the Contract.
If Buyer intends to resell or otherwise transfer the Equipment covered by the Contract, Buyer must advise its customer of the details of the Warranty, Limitation of Liability, Software and IP License and Export Control, Suspension/Debarment And Trade Restrictions contained in Sections 15, 16, 18, 19, and 20 respectively.
The language of the Contract and any related correspondence, including notices to either party shall be English. In the event that any translations of the Contract or portions thereof to another language are included in the Contract documentation, the parties understand and agree that such translations are for convenience and the English version shall take precedence in the event of any conflict or inconsistency.
If either Party, at its option, agrees to a waiver of any of the terms and conditions recited herein, such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or any other terms and conditions; nor shall such a waiver be deemed as a course of conduct.