MKU PRIVATE LIMITED
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 Private 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:
i) non-clarification of necessary commercial and technical queries by the Buyer;
ii) 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.
iii) 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:
(i) 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
(ii) 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:
(i) keep the Goods separate and in a clearly identifiable manner;
(ii) notify Seller immediately of any claims by third parties which may affect the Goods; and
(iii) adequately insure the Goods.
10. Limited warranty
10.1 Seller solely warrants that on the date of delivery, the Goods shall conform to the Specifications. If and to the extent Goods fail to meet such warranty, as shall be determined in accordance with the provisions of Article 8 of these Conditions, Seller may at its own option within a reasonable time either repair or replace the Goods at no charge to Buyer, or issue a credit for any such Goods in the amount of the original invoice price. Accordingly, SELLER’S OBLIGATION SHALL BE LIMITED SOLELY TO REPAIR OR REPLACEMENT OF THE GOODS OR FOR CREDIT OF THE GOODS.
10.2 Seller’s obligation to repair, replace, or credit shall be contingent upon receipt by Seller of timely notice of any alleged non-conformance of Goods and, if applicable, the return of the Goods, in accordance with Article 8 of these Conditions, however delay in information to seller contributing to further damage will entitle seller reject such requests for repair or replacement. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS, EXPRESS, IMPLIED, STATUTORY, CONTRACTUALLY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PURPOSE, OR ABSENCE OF INFRINGEMENT OF ANY CLAIM IN ANY INTELLECTUAL PROPERTY RIGHT COVERING THE GOODS.
11. Limitation of liability
THE LIABILITY OF THE SELLER FOR ANY AND ALL CLAIMS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE GOODS AND THE USE THEREOF SHALL UNDER NO CIRCUMSTANCES EXCEED THE SUM OF BUYER’S PAYMENTS FOR THE GOODS THAT ARE THE SUBJECT OF THE CLAIM. UNDER NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGE OR LOSS, COST OR EXPENSE, INCLUDING WITHOUT LIMITATION, DAMAGE BASED UPON LOST GOODWILL, LOST SALES OR PROFITS, WORK STOPPAGE, PRODUCTION FAILURE, IMPAIRMENT OF OTHER GOODS OR OTHERWISE, AND WHETHER ARISING OUT OF OR IN CONNECTION WITH BREACH OF WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE OR OTHERWISE.
12. Force majeure
12.1 Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, Acts of God, laws, statutes, ordinances, regulations, legislative measures, acts of governments or other administrative measures by any statutory authority, orders or decrees of any court, earthquake, flood, fire, explosion, war (whether declared or not), extensive military mobilization, terrorism, riot, sabotage, theft, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, insurrection, requisition, seizure, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors and any other circumstances where such other circumstances are beyond the reasonable control of Seller that restricts the performance of the obligations herein (“Force Majeure”).
12.2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under Seller's Confirmation. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than two (2) months after the agreed delivery date, either Party is entitled to cancel the affected part of Seller’s Confirmation without any liability to the other Party.
13. Modifications and information, indemnity
Unless the Specifications have been agreed to be firm for a certain period or quantity of Goods, Seller reserves the right to change or modify the Specifications, construction and/or manufacture of Goods and to substitute materials used in the production and/or manufacture of Goods from time to time without notice. Buyer acknowledges that data in Seller’s catalogues, specification sheets and other descriptive publications distributed or published on its websites by Seller, may accordingly be varied from time to time without notice. Any statement, representation, recommendation, advice, sample or other information of Seller in relation to the Specifications, the Goods and the Use thereof shall be furnished for the accommodation of Buyer only.
14. Compliance with laws and standards
Seller makes no promise or representation that the Goods shall conform to any law, statute ordinance, regulations, code etc. or standard (“Laws and Standards”) of foreign country which buyer has not put seller on notice, and unless expressly stated in Seller’s Confirmation or in the Specifications. Buyer acknowledges that the Use of the Goods may be subject to requirements or limitations under Laws and Standards. Buyer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Goods; (ii) obtaining all necessary approvals, permits or clearances for such Use(iii) to answer all the queries raised or to be raised by the Government Authorities/United Nations from time to time.
15. Independent contractors
Seller and Buyer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal or agent. No sale to or obligation of either party towards a third party shall in any way bind the other party.
Neither party may assign any of the rights or obligations under Seller’s Confirmation without the prior written consent of the other party, provided however, that Seller may assign such rights and obligations, wholly or partly, to any of its parent companies, subsidiaries or affiliates or to a third party acquiring all or a substantial part of Seller’s assets or business relating to the Goods.
17. Suspension and termination
17.1 If (a) Buyer is in default of performance of its obligations towards Seller, or (b) if Seller has reasonable doubts with respect to Buyer’s performance of its obligations to Seller and Buyer fails to provide to Seller adequate assurance of Buyer’s performance before the scheduled date of delivery and in any case within thirty (30) days of Seller’s demand for such assurance; or if Buyer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation (otherwise than for the purposes of a reconstruction or amalgamation) or any bankruptcy proceeding shall be instituted by or against Buyer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Buyer or if Buyer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, then, without prejudice to any other rights of Seller, Seller may by notice in writing forthwith (i) demand re-delivery and take repossession of any delivered Goods which have not been paid for, for which purpose Buyer hereby grants an irrevocable right and license to Seller to enter upon all or any of the premises where the Goods are or may be located and all costs relating to the recovery of the Goods shall be for the account of Buyer; and/or (ii) suspend its performance or terminate Seller’s Confirmation for outstanding delivery of Goods unless Buyer makes such payment for Goods on a cash in advance basis or provides adequate assurance of such payment for Goods to Seller; without any intervention of courts being required and without liability for Seller of whatsoever kind arising out of or in connection with such suspension or termination.
17.2 In any such event of (i) and/or (ii), all outstanding claims of Seller shall become due and payable immediately with respect to the Goods delivered to Buyer and not re-possessed by Seller.
Failure by Seller to enforce at any time any provision of these Conditions shall not be construed as a waiver of Seller’s right to act or to enforce any such term or condition and Seller’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Seller of any breach of buyer’s obligations shall constitute a waiver of any other prior or subsequent breach.
19. Severability and conversion
In the event that any provision of these Conditions shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity or enforceability of the remaining provisions between the parties and shall be severed there from. The pertaining provisions held to be invalid or unenforceable shall be reformed to provisions satisfying the legal and economic intent of the original provisions to the maximum extent permitted by law.
20. Limitation of action
No action by Buyer shall be brought unless Buyer first provides written notice to Seller of any claim alleged to exist against Seller within thirty (30) days after the event complained of first becomes known to buyer and an action is commenced by buyer within twelve (12) months after such notice.
21. Governing law and jurisdiction
21.1 The parties’ rights and obligations arising out of or in connection with Seller’s Confirmation and/or these Conditions shall be governed, construed, interpreted and enforced according to the laws of the India, excluding principles of conflict of laws.
21.2 All disputes or differences between the Parties in relation to or arising out of or concerning or connected with this Agreement shall first be mutually discussed and resolved by the Parties. In the event the Parties are unable to resolve the same through mutual discussions, the same shall be referred to arbitration by an arbitral panel of three arbitrators in accordance with the Arbitration and Conciliation Act, 1996 (or any modification or amendment thereof). The said panel shall be composed of one arbitrator to be appointed by each of the disputing Parties; and the presiding arbitrator to be appointed by the two arbitrators so appointed. The Arbitration shall be held in Delhi, India. The decision of such arbitration shall be binding and conclusive upon the Parties and may be enforced in any court of competent jurisdiction.
21.3 The parties agree that any suits, actions or proceedings that may be instituted by any party shall be initiated exclusively before the competent courts of Kanpur, India without prejudice to Seller’s right to submit the relevant case to the court which would have jurisdiction if this provision has not been incorporated in the Conditions, and the parties do hereby consent to the jurisdiction of those courts and waive any objection which they may have, now or hereafter, to venue of those suits, actions or proceedings.
22. Survival of rights
The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the rights and obligations of the parties, for whatsoever reason, shall not affect the provisions of these Conditions which are intended to continue to have effect after such termination.
The headings contained in these Conditions are included for mere convenience of reference and shall not affect their construction or interpretation.
24. Intellectual Property
24.1 Seller shall not be held liable for the infringement of third party’s intellectual property rights which might be infringed as a consequence of the sale and/delivery of the Goods and Seller shall not be held liable for any loss or damages in that respect.
24.2 The sale of Goods shall not, by implication or otherwise, convey any license under any intellectual property right relating to the Goods, the compositions and/or applications of the Goods, and/or the trademarks or logo’s owned and/or controlled by Seller. Buyer expressly assumes all risks of any intellectual property infringement by reason of its importation and/or use of the Goods, whether singly or in combination with other materials or in any processing operation.
24.3 Any information, including drawings, specifications, samples, plans and other information, furnished by the Buyer to Seller that is the subject of any patent, copyright, design rights, and other intellectual property rights, or is confidential must be clearly marked to give Seller adequate notice of the rights asserted. The Buyer warrants to Seller that any information furnished to Seller to be used in the production or embodied in the Goods may be used for the purpose for which they are so furnished and the Goods may be produced using such information and the Goods may be made and delivered without infringement of any right of any third party.
24.4 The Seller reserves all ownership rights and copyrights to its samples, cost estimates, drawings and similar information of either tangible or intangible nature-including information in electronic form as well as to any and all other documents. The said items shall only be made available to third parties with the written consent of the Seller.
24.5 Buyer shall defend, indemnify and hold harmless Seller and its directors, officers, share holders, employees, agents, successors and assigns from and against any and all losses, liabilities, damages and claims (including taxes) and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, interest and penalties) (“Losses”) arising from or in connection with any claim of infringement or misappropriation made against any party as to the indemnifying party’s products or services in connection with this Contract in respect of any copyright, patent, trademark, service mark, trade name, trade secret or similar proprietary rights conferred by statute, contract or by common law.
24.6 Buyer agrees that it shall not obtain any grant, option or license to any patent, trade secrets or other intellectual property rights now or hereafter held by Seller. Buyer further agrees that it shall not decipher, disassemble or reverse engineer any of the goods sold hereunder.
Any notice or other communication required or permitted under this Agreement shall be in writing and shall be given by registered post, hand delivery, e-mail, courier service, telex, or telefax addressed to the relevant Party at the address provided by such party or such other address as may be designated from time to time.
"The terms and condition appearing herein may differ in interpretation or be in contradiction with other terms of this document, in such cases by all means the terms shall be interpreted and understood as most favourable to the seller"
These conditions are applicable with effect from 1st July, 2013 and are subject to change at any time without prior notice.