TERMS & CONDITIONS OF SALE
Regd. Off. 13, Gandhi Gram, G.T. Road, Kanpur-208007, U.P., India
- Following are the general terms and conditions of sales, governs the offering, sale and delivery of all goods (referred to as: the “Goods”) from or on behalf of MKU Limited (“Seller”) to buyer (“Buyer”) and apply to all similar arms length dealings between Seller and Buyer.
- Save and except any written agreement and/or written contract as exists on date between the Seller and Buyer, these Conditions supersede all prior oral and written quotations, communications, and understandings of the parties in respect of the sale and delivery of the Goods and shall apply in preference to and supersede all terms and conditions of any order placed by Buyer and any other terms and conditions submitted by Buyer prior in time. Any communication or conduct of Buyer which confirms an agreement for the delivery of Goods by Seller, as well as acceptance by Buyer of any delivery of Goods from Seller shall constitute an unqualified acceptance by Buyer of these Conditions. These Conditions may only be varied or waived by a duly executed written agreement between Seller and Buyer subsequently.
- The seller reserves the right to revise the General Terms and Conditions at any time with no obligation of prior intimation to the buyer. Any electronic communication between Seller and Buyer shall be considered to be “in writing”. The electronic communication system used by Seller will serve as sole proof for the content and the time of delivery and receipt of such electronic communication.
2. Quotations, orders and confirmation
- 2.1 Quotations, made by Seller in whatever form, are not binding upon Seller and merely constitute an invitation to Buyer to place an order and shall constitute a binding contract only after entering in a formal contract in the shape of accepted Proforma Invoice and/or Purchase Order.
- 2.2 Price quotations given to buyer or its representatives based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities.
- 2.3 Any agreements made by Seller’s employees, officers, representatives and/or agents are not binding upon Seller unless, and only to the extent that, these are confirmed or made in writing by duly authorized representative(s) of Seller.
- 2.4 Except as provided for in Article 8.3, any samples supplied to Buyer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Buyer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods.
- 2.5 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.
- 3.1 Prices and currencies of Seller’s Goods will be as per the Seller’s Confirmation. Such price will be exclusive of any present or future sales tax, customs or excise tax (as applicable) or other statutory taxes applicable to the Seller’s Goods. The amount of any Taxes levied in relation to the sale of the Goods to Buyer shall be for Buyer’s account and shall be added to each invoice or separately invoiced by Seller to Buyer unless reverse charge mechanism is applicable in the said transaction and unless the Buyer furnishes to the Seller evidence of exemption acceptable to the taxing authority.
- 3.2 Unless the prices have been indicated as fixed by Seller in Seller’s Confirmation, Seller is entitled to increase the price of the Goods still to be delivered if the cost price determining factors have been subject to an increase beyond the contractual limit. These factors include but are not limited to raw and auxiliary materials, energy, products obtained by Seller from third parties, wages, salaries, social security and other statutory contributions, governmental charges and taxes, freight costs and insurance premiums. Seller shall notify Buyer of such increase upon which the increased price shall be binding upon the Buyer.
4. Payment and Buyer’s credit
- 4.1 Unless expressly stated otherwise in Seller’s Confirmation, payment shall be made on the basis of net amount, to be received by Seller upon mutually agreed payment terms, made in writing by means of transfer into the bank account of seller as mentioned in the invoice. All payments shall be made without any deductions.
- 4.2 With regard to payment of the price for Goods, time is of the essence. Seller shall, without prejudice to any other rights of Seller, charge interest on any overdue payment at the simple interest rate of twenty four percent (24%) per annum, from the due date computed on a daily basis until all amounts outstanding are paid in full. All costs and expenses incurred by Seller with respect to collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Buyer’s account. If the Buyer fails to make any payment in accordance with the terms and conditions hereof, the Seller, in addition to its other rights and remedies, may, at its option, defer shipment or deliveries hereunder or under any other contract with the Buyer.
- 4.3 Every payment by Buyer shall in the first place serve to pay the judicial and extra-judicial costs and the interest owed by it and afterwards shall be deducted from the oldest outstanding claim regardless of contrary advice from Buyer.
- 4.4 Any complaint with respect to the invoice must be notified to Seller within eight (8) days after the date of invoice. Thereafter Buyer shall be deemed to have approved the invoice.
- 4.5 The terms of payment may be changed at any time by the Seller.
5. Delivery and acceptance
- 5.1 The Date of Delivery shall be based on mutual agreement between the Buyer and the Seller which shall be an approximation based on Seller’s best judgement and prompt receipt from the Buyer of all necessary data/documents regarding the goods and subject to statutory clearances. Seller is entitled to deliver the Goods as stated in Seller’s Confirmation in parts and to invoice separately. In no event shall Seller be liable for any delay in delivery caused due to any of the following reasons:
- non-clarification of necessary commercial and technical queries by the Buyer;
- non-satisfaction of the Buyer’s obligations, e.g. submission of the necessary documents, approvals or release to be obtained by Buyer, or that agreed payment conditions have not been fulfilled.
- due to procedural delay on part of statutory authorities/Govt. of India in issuing necessary licenses/permissions/approvals. Delay in delivery of any Goods due to the above mentioned reasons shall not relieve Buyer of its obligation to accept delivery thereof.
- 5.2 Minor Deviations in quantity of Goods delivered from that stated in Seller’s Confirmation shall not give Buyer the right to refuse the Goods. Buyer shall be obligated to pay the rate specified in Seller’s Confirmation for the quantity of Goods delivered.
6. Export Terms:
- The goods sold hereunder are subject to Indian Export Control Laws and Regulations, including without limitation export control rules and regulations promulgated by Govt. of India, Buyer shall not export, re-export or otherwise transfer, directly or indirectly, goods, technical data and/or services provided by seller in violation of Indian Laws and/or other applicable law. Buyer is responsible for providing all necessary documents required for obtaining any necessary authorization from Govt. of India to ensure compliance of the seller with export control laws. Buyer also shall be solely responsible for full compliance with laws or regulations relating to the importation of the Goods into the country of destination, including payment of any duties on such Goods, and Buyer, or its agents, shall make available to seller all documentation received or utilized for the shipment of all Goods. Seller may require Buyer to provide seller with written certification relating to Buyer’s compliance with applicable export and import laws. Buyer will indemnify seller for claims made against seller for Buyer’s failure to comply with applicable export and import laws, regulations, orders and policies. Orders requiring seller to obtain export license will be subject to additional fees and/or minimum order requirements.
- Buyer’s wrongful non-acceptance or rejection of Goods or cancellation or repudiation of Seller’s Confirmation shall entitle Seller to recover from Buyer special damages, in addition to any other damages caused by such action:
- in the case of Goods which reasonably cannot be resold by Seller to a third party, the full price of such Goods including all cost of transportation and other auxiliary cost ; or
- in the case of Goods which can be resold by Seller or where an action for the price is not otherwise permitted by law, damages equal to fifty percent (50%) of the price for the Goods including all cost of transportation and other auxiliary cost.
8. Examination and conformity to specifications
- 8.1 On date of delivery and during the handling, use, processing, transportation, storage and sale of the Goods, Buyer shall examine the Goods and satisfy itself that the Goods delivered meet all contractual requirements.
- 8.2 Complaints about the Goods shall be made in writing and must reach Seller’s registered address in writing not later than seven (7) days from the date of delivery in respect of any manufacturing defect, default or shortage which would be apparent from a reasonable inspection on delivery, and seven (7) days from the date on which any other claim was or ought to have been apparent, but in no event later than 90 (Ninety) days from the date of delivery of the Goods. Use or processing of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all future claims in respect of the Goods.
- 8.3 A determination of whether or not delivered Goods conform to the agreed specifications for the Goods as stated in Seller’s Confirmation or, in the absence of agreed specifications, to the most recent specifications held by Seller at the time of delivery of the Goods (the “Specifications”), shall be done solely by analysing the samples or records retained by Seller and taken from the batches or production runs in which the Goods were produced in accordance with the methods of analysis used by Seller. Goods that Seller consents or directs in writing to be returned shall be returned to Seller at the risk of Buyer, to the destination directed by Seller.
- 8.4 Defects in parts of the Goods stated in Seller’s Confirmation do not entitle Buyer to reject the entire delivery of the Goods. Complaints, if any, do not affect Buyer’s obligation to pay as defined in Article 4. Upon receipt of a notice of defect, Seller is entitled to suspend all further deliveries until the complaints are established to be unfounded and/or refuted or until the defect has been totally cured.
9. Transfer of risk and property
- 9.1 Risks for all shipments of Goods hereunder shall be transferred when Free on Board (FOB) basis as identified in INCOTERMS 2010. Title and risk of loss shall pass to Buyer upon delivery to the carrier at Seller’s shipping facility or outsourced shipping facility.
- 9.2 Goods for which delivery is suspended pending payment by Buyer, as well as Goods of which delivery is wrongfully rejected or not accepted by Buyer, shall be held and stored by Seller at the risk and expense of Buyer.
- 9.3 Seller shall be entitled to a security interest equivalent to the value of the Goods ordered by the Buyer until Seller has received payment in full for the Goods, including all secondary costs such as interest, charges, expenses etc. Buyer shall assist Seller, as may be required by local regulations, to record its security interest in and to the Goods.
- 9.4 In the event of termination on the basis of Clause17 of these Conditions, Seller shall, without prejudice to any other rights of Seller, be entitled to require immediate re-delivery of the Goods for which it may invoke retention of title.
- 9.5 Until payment for the Goods has been completed, Buyer is entitled to use of the Goods solely to the extent required in its ordinary course of business, and, to the extent possible, shall:
- keep the Goods separate and in a clearly identifiable manner;
- notify Seller immediately of any claims by third parties which may affect the Goods; and adequately insure the Goods.