Standard Sales Terms
Any contract placed with IDEX India Pvt Ltd. (hereinafter referred to as “the Seller”) by any private-law corporation, company or other business or any legal person under public law or other entity (hereinafter referred to as “the Buyer”) shall exclusively be subject to these Standard Sales Terms. The Seller hereby expressly refuses to accept any standard terms of the Buyer referred to in any correspondence or other document placing any such order. Notwithstanding any reference of the Buyer to any standard terms of the Buyer, the Buyer shall, upon the acceptance of any delivery by the Seller to the Buyer, be deemed to have accepted these Standard Sales Terms. No standard terms of the Buyer shall be applicable to any contract or order placed by the Buyer with the Seller unless such terms have been accepted expressly by the Seller in writing and the performance of any such contract or order by the Seller shall not be deemed to be an acceptance of any terms of the Buyer by the Seller.
Article I General Terms
1. Unless otherwise expressly agreed upon by the Seller and the Buyer, no contract placed by the Buyer shall be effective unless expressly accepted by the Seller in writing.
2. The title to any sample, drawing or other document or information, whether reduced to writing or in electronic form, including but not limited to any copyrights or other rights associated therewith, which may be provided by the Seller to the Buyer shall remain vested in the Seller and no such sample, drawing or other document or information may be made accessible by the Buyer to any third party.
3. Any performance or other data or description of any Goods by the Seller in any brochure, price list, bid, proposal, offer or any other document which may form part of any such bid, proposal or offer shall be deemed to be approximate in accordance with standard industry practices and shall not be binding upon the Seller unless expressly accepted as binding by the Seller. The Seller does not make any assurances or guarantees whatsoever with respect to any product features of any of the Goods.
Article II Price and Payment
1. Unless expressly otherwise contractually agreed, the prices shall be valid ex works exclusive of any packaging. The statutory valid sales tax rate shall be added to said prices.
2. Unless otherwise agreed upon, payment is within thirty (30) calendar days from the date of invoice.
3. The Buyer shall not have the right to retain payments due to the Seller for any reason whatsoever and shall not deduct from any moneys due to the Seller any money owed or allegedly owed by the Seller to the Buyer unless any such counterclaim is undisputed by the Seller or has been awarded to the Buyer by a judgment from which no appeal can be taken.
Article III Goods Change, Delay or Cancellation; Liquidated Damages
1. Seller reserves the right, in its sole discretion and without prior notice, to make changes to Goods at any time that do not materially affect form, fit or function. If Buyer requests a change to Goods, Seller may impose additional equitable charges.
2. The time available to the Seller for the delivery of the Goods (“Delivery Time”) shall be as agreed between the Parties in the contract placed.
3. The Seller shall not be obligated to deliver any Goods within the Delivery Time unless the Seller receives deliveries from its suppliers as and when ordered by the Seller. The Seller shall notify the Buyer as soon as reasonably possible of any delay in delivery it may become aware of.
4. The Seller shall be deemed to have delivered within the Delivery Time if the Goods have left the Seller’s works prior to the expiry of the Delivery Time or the Seller has notified the Buyer prior to the expiry of the Delivery Time that the Goods are ready for Delivery.
5. If the Buyer fails to make any payment to the Seller under any contract or order whatsoever when said payment is due, the Seller shall, upon notice to the Buyer, have the right to discontinue performance under the contract awarded or the order placed for the Goods until the due payment of the Buyer or any security assurance therefore has been received by the Seller. This restriction shall not apply in the case that the payment so due but not made is immaterial.
6. If the Seller is unable to deliver any Goods within the Delivery Time for reasons of force majeure, due to any labor dispute or due to any circumstances beyond the reasonable control of the Seller then the Delivery Time shall be extended by a reasonable period. The Seller shall notify the Buyer of the commencement and the end of any such circumstances as soon as may be reasonably possible; however, such a delay in notification does not affect the right of the Seller to plead such circumstances.
7. Any cancellation of this order due to the Buyer’s reason is subject to a cancellation fee of fifty percent (50%) of the total contract value if the order is cancelled prior to approval of the engineering drawings. After drawing approval, the cancellation fee will be fifty percent (50%) plus all reasonable costs associated up to the time of cancellation.
Article IV Transfer of Risk and Acceptance
1. Unless expressly otherwise agreed upon between the Seller and the Buyer, the Goods shall be delivered ex works (Incoterms 2010).
2. If the Goods to be delivered by Seller to the Buyer are divisible, then the Seller shall have the right to deliver and to invoice to the Buyer said Goods in reasonable parts and the Buyer shall not have the right to retain payment for any such reasonable part on the grounds of the non-delivery of any other parts of the Goods.
3. If any delivery by the Seller to the Buyer requires acceptance by the Buyer under any express provision of the order placed by the Buyer or at law, then any delivery by the Seller to the Buyer shall be deemed to have been accepted by the Buyer if and in as far as
• any Goods manufactured by the Seller are, after delivery, sold to or allowed to be used by any third party; or
• any Goods manufactured by the Seller are, after delivery, combined with any other things with the agreement of the Buyer; or
• any Goods manufactured by the Seller are, beyond trials or tests, used by the Buyer or by any third party with the agreement of the Buyer; or
• the Goods are accepted by any purchaser from the Buyer;
• whichever may be earlier.
4. Any prior acceptance under the contract awarded or the order placed by the Buyer or at law shall take precedence over any acceptance under this clause.
Article V Warranties; Intellectual Property
1.1 Seller warrants that, subject to the limitation periods set forth in Article VII, the Goods shall (a) conform to all agreed-upon specifications and (b) be free from defects in material and workmanship. Buyer’s sole and exclusive remedy for a breach of the foregoing warranties will be limited to, in Seller’s discretion replacement, repair or refund of the purchase price of the non-conforming or defective Goods.
1.2 ASIDE FROM THE EXPRESS WARRANTIES SET FORTH HEREIN, SELLER MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE.
1.3 Any repair or replacement by the Seller with respect to any Goods shall irrespective of the scope of any such repair or replacement not be deemed to be an acceptance of any liability for any defect in any of the Goods claimed by the Buyer. No persons other than legal representatives or procurators of the Seller shall have the right to accept any liability for any defect on behalf of the Seller.
1.4 The warranties set forth above shall not apply to Goods that (a) are damaged due to misuse, abuse or negligence occurring during or after shipment; (b) are changed or modified without written authorization from Seller; (c) fail due to improper installation (except for installation provided or supervised by Seller); or (d) fail due to Buyer’s use or operation of the Goods in any manner other than in accordance with Seller’s manuals or operating instructions.
2. Intellectual Property
1. All patent, technology, copyright, trade secret or other similar proprietary or intellectual property rights in or related to the design, production, delivery, operation, use, application or performance of Goods, or other Confidential Information of Seller, and all improvements thereto, are and will remain the sole and exclusive property of Seller.
2. In no event may Buyer make a patent or other claim to Seller’s Goods and/or Seller’s technology or processes or include or reference any Confidential Information of Seller in any patent or other claim. Nothing in this Section 3 precludes Buyer from incorporating a description or reference to the Goods and/or non-confidential aspects of Seller’s technology or processes where necessary to support a patent or other claim to Buyer’s product, provided, however, that no use of Seller’s name, trademarks or logos may be made without Seller’s prior written consent. Nothing in this Agreement will be construed as granting to Buyer any license or grant of intellectual property rights with regards to the Goods or Seller’s processes.
Article VI Seller Indemnity and Limitation of Liability
1. The Seller shall defend, indemnify and hold harmless Buyer against (a) third party claims for personal injury or property damage to the extent caused by a defect in the Goods; and (b) claim’s arising out of Seller’s willful misconduct, gross negligence or negligent acts or omissions. Buyer grants Seller exclusive direction and control of the investigation, defense and settlement of such claims, including, but not limited to, selection of legal counsel.
2. To the fullest extent permissible by law, in no event shall Seller be liable to Buyer for special, punitive, indirect or consequential damages of any kind, including, but not limited to, lost profits, downtime, or loss of business in connection with the manufacture, sale, handling, repair, replacement or use of the Goods. In no event will Seller’s aggregate liability hereunder, whether in contract or tort or any other theory of liability, exceed the purchase price of the Goods giving rise to the claim, even if the Seller is advised or placed on notice of the possibility or such penalties or damages.
3. The exclusions and limitations of liability provided for hereinabove shall not apply:
• if and in as far as the Seller is held liable for any human loss of life, injury or loss of health, or
• if and in as far as the Seller is held liable under the relevant product liability law.
Article VII Limitation Periods
4. The period of limitation with respect to any defect shall be a period of one (1) year from the date of delivery.
5. The period of limitation with respect to any other cause under the contract awarded or the order placed by the Buyer or any other cause outside said contract or order shall be a period of eighteen (18) months.
6. Notwithstanding the provisions of Clauses 1 and 2 hereinabove, the periods of limitation allowed by law shall apply.
7. Clauses 1 through 3 hereinabove shall not operate to alter any of the applicable provisions of law.
Article VIII Software Use
1. If the contract awarded by the Buyer to the Seller or the order placed by the Buyer with the Seller provides for the supply of software, the Buyer will be granted a non-exclusive right to use said software and any documentation of said software. Said software will be supplied by the Seller to the Buyer for use with the Goods delivered by the Seller to the Buyer. The Buyer shall not have the right to use said software on more than one system.
2. The Buyer shall not copy, modify or translate the said software or convert the object code of the software into source code. The Buyer agrees not to remove from said software any reference to the developer of said software such as, without limitation, any copyright reference and not to modify any such reference unless the prior express content of the Seller has been obtained. After the expiration/cessation of the contract entered into between the parties, the Buyer shall return all such software and/or copies thereof to the Seller as are in its possession or destroy the same with sufficient evidence to the Seller.
3. Any other rights associated with such software and any documentation of said software and any copies thereof shall remain vested in the Seller or the supplier of said software as the case may be.The Buyer shall not grant any sub-license.
Article IX Confidential Information
1. “Confidential Information” shall include all information furnished hereunder which is designated as confidential or proprietary, or which the receiving party knows or should know is being disclosed on a confidential basis, including without limitation pricing information, proposals, prints, drawings and all information in or related to the design, development, production, delivery, operation, use, application or performance of any of a party’s technology, equipment, parts, or maintenance/services. Confidential Information does not include information which: (a) is known or independently developed by the receiving party prior to its disclosure by the other party, as evidenced by receiving party’s records; (b) becomes a part of the public domain without breach of this Agreement by the receiving party; (c) is received from a third party without restriction and under conditions permitting its disclosure to others; or (d) which is disclosed pursuant to judicial action or government regulations provided the receiving party notifies the disclosing party prior to such disclosure, and cooperates with the disclosing party in the event it elects to legally contest and avoid such disclosure.
2. For a period of five (5) years from the date of receipt, Confidential Information shall be maintained in confidence by the receiving party, shall not be disclosed to any third party, other than Seller’s suppliers who have a reason to know, without prior written approval of the disclosing party, and shall be protected with the same degree of care as the receiving party normally uses in the protection of its own confidential and proprietary information, but in no case with any less degree than reasonable care. Notwithstanding the foregoing, the Parties’ obligation to protect trade secrets is perpetual or for so long as such information remains a trade secret under applicable law, whichever occurs first.
Article X Force Majeure
1. Seller is not liable for any failure to perform its obligations hereunder resulting directly or indirectly from or contributed to by, acts of God, acts of civil or military authorities, riots or civil disobedience, terrorism, wars, strikes or labor disputes, accidents, floods, fires, or inability to secure material or transportation facilities, government orders, epidemics or pandemics or any other circumstance beyond Seller’s reasonable control; provided, however, that, Buyer agrees to take delivery and make payment for finished Goods of the date of the Force Majeure event.
Article XI Applicable Law and Jurisdiction
1. The relationship between the Seller and the Buyer shall exclusively be governed by the laws of India. Any further conflicting rules or any agreements pertaining to international law shall be excluded.
2. Subject to the the terms of agreement between the parties, any dispute between the Seller and the Buyer shall be settled by the courts having jurisdiction at the registered offices of the Seller provided however that the Seller shall have the right to bring action against the Buyer in the courts having jurisdiction at the registered offices of the Buyer.
Article XII Miscellaneous
1. If one or more provisions of this contract between Buyer and Seller is or becomes invalid, this does not affect the remaining provisions of the contract. In place of the invalid provision, a valid provision shall be agreed which comes as possible to the original economic intent of the invalid provision.
2. Complete or partial failure to assert a right arising from this contract or delayed endorsement of a right does not mean that this or any other right is waived.