PURCHASE ORDER CONDITIONS
In this document the following words shall have the following meanings:
- “Agreement” means these Terms and Conditions together with the terms of any applicable Purchase Order.
- “Buyer” means Atomberg Technologies Pvt Ltd, Plot No. 130 B, TTC Industrial Area Shirawane, Navi Mumbai – 300706
- “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
- “Purchase Order” means the standard Buyer document which includes or is attached to a statement of work describing the goods and/or services to be provided by the Supplier and which provides a maximum value payable by the Buyer to the Supplier;
- “Supplier” means the organisation or person/s who supplies goods and/or services to the Buyer;
- “Supplier Personnel” means any employee or contractor supplied by the Supplier to provide services.
- These Terms and Conditions shall apply to all contracts for the supply of goods and/or services by the Supplier pursuant to one or more Purchase Order/s. All Purchase Orders shall be subject to these Terms and Conditions.
- Where it is agreed that the Supplier shall supply goods and/or services, the goods and/or services to be supplied, the price payable and any other special terms agreed between the parties shall be set out in the Purchase Order.
- The specific terms and conditions shall always override general terms and conditions wherever they are contrary to each other.
- No changes or variations to these Terms and Conditions or any Purchase Order shall be effective unless agreed in writing between the parties.
- In case there exist specific term/condition in the contract then it shall over-ride the generic term/condition in the contract.
Price and Payment
- The price and any taxes and expenses for the goods and/or services shall be as specified in the Purchase Order.
- An invoice shall be made available by the Supplier to the Buyer in accordance with the terms set out in the Purchase Order. The Buyer shall pay for the goods and/or services at the end of 90 days from the receipt of the invoice or as mentioned in the Purchase Order. Under no circumstances shall the time for payment, be of the essence of the Agreement.
- The Buyer shall not be responsible for any expenses, charges or price other than those set out in the Purchase Order. The price mentioned in the requisite Purchase Order shall be the full and final payment for the said Purchase Order and the items included therein.
- If the parties agree that the Supplier is to provide goods and/or services or resources in addition to those specified in a Purchase Order, then such agreement will be reflected in a separate/modified Purchase Order, which is deemed incorporated into this Agreement.
- Notwithstanding anything contained herein, once a Purchase Order has been agreed by the Buyer the price for the goods and/or services shall be fixed until the complete execution of the said Purchase Order by the Supplier.
- Delivery of the goods shall be made to such location as the Buyer shall direct. Should both the parties agree to a time limit for the said delivery, time shall become the essence of the Agreement and the Buyer shall be entitled to cancel, without notice, the whole or any part of this Agreement if this Clause is not complied with by the Supplier.
- Each delivery shall be accompanied with the Sellers invoice. The Seller’s invoice must mention the Purchase Order number of the Buyer without which the said invoice will be held to be defective and not payable.
Where the Buyer cancels the whole or part of the contract in accordance with this Clause
- All sums payable by the Buyer in relation to the whole or part of the contract cancelled shall cease to become payable.
- All sums paid by the Buyer in relation to the whole or part of the contract cancelled shall be repaid by the Supplier immediately.
- the Buyer shall be entitled to recover damages from the Supplier for any loss caused as a result of the Supplier’s failure to deliver the goods and/or as a result of the cancellation of the whole or part of the contract.
The goods will be and shall remain at the Supplier’s risk until such time as they are delivered to the Buyer (or at his direction), and are found to be in accordance with the requirements of this Agreement. It shall be the duty of the Supplier at all times to maintain a contract of insurance over the goods and, on request from the Buyer, to assign to the Buyer the benefits of such insurance.
Inspection of Goods
- The Buyer shall inspect the goods upon delivery in respect of packaging and count and acknowledge the receipt.
Where goods are damaged the Buyer shall notify the Supplier. The Buyer may reject the damaged goods and the following provisions shall apply:
- the Buyer shall raise a debit note on the Supplier in respect of the damaged goods and the said debit note is hereby agreed to be accepted by the Supplier.
- the Supplier shall collect the damaged goods from the Buyer at the Supplier’s expense.
- during the period between delivery of the goods to the Buyer and collection by the Supplier, the Buyer shall not be liable for any loss or further damage caused to the damaged goods;
- all sums payable by the Buyer in relation to the damaged goods shall cease to become payable;
- all sums paid by the Buyer in relation to the damaged goods including packaging, transportation, hamali charges, storage etc shall be repaid by the Supplier immediately and/or adjusted against any other payments due to the Supplier or against future payments to be made.
- the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the goods being damaged.
Where there are shortages in the order the Buyer shall notify the Supplier and the following provisions shall apply:
- all sums payable by the Buyer in relation to the missing goods shall cease to become payable;
- all sums paid by the Buyer in relation to the missing goods shall be repaid by the Supplier immediately and/or adjusted by the Buyer at his discretion, against any other payments due to the Supplier;
- the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the shortages.
- If the Buyer so requests, the Supplier shall immediately replace damaged goods or supply goods which are missing, at the Supplier’s expense or the Buyer shall be entitled to cancel, without notice, the whole or any unexecuted part of the order and the rights referred to in Clause 4.3 shall apply.
Where there is an excess of goods in relation to the order the Buyer may reject the excess goods by notice in writing to the Supplier and the following provisions shall apply:
- the Supplier shall collect the excess goods from the Buyer at the Supplier’s expense;
- during the period between delivery of the goods and collection by the Supplier, the Buyer shall not be liable for any loss or damage caused to the excess goods;
- no sum shall be due to the Supplier for the excess goods and in the event that sums are paid to the Supplier for the excess goods, the Supplier shall repay such sums to the Buyer immediately.
Where there is an excess of goods in relation to the order the Buyer may at their option accept the excess goods by notice in writing to the Supplier and the following provisions shall apply:
- the Buyer shall raise a separate Purchase Order in respect of the excess goods
- the Supplier shall raise a separate invoice in respect of the said excess goods
- the Buyer shall not be liable for any loss or damage caused to the excess goods until such time the Invoice has been raised by the Supplier and acknowledged by the Buyer;
- the payment terms in respect of such excess goods shall be as per the Purchase Order released by the Buyer.
- The Supplier shall repair or replace free of charge, goods damaged or lost in transit upon receiving notice to that effect from the Buyer.
- The Buyer’s signature on any delivery note or any other document of the Supplier is evidence of the number of packages received and does not evidence the correct quantity of goods received or that the goods are in a good condition or of the correct quality.
- The Supplier warrants that it has good title to the goods and that it will transfer such title as it may have in the goods to the Buyer pursuant to Clause 6.2.
- Title in the goods will pass to the Buyer when the goods are unconditionally appropriated (by either party or by or with the consent of either party) to this Agreement, or on delivery to the Buyer, whichever happens first.
The Supplier warrants, represents and undertakes that:
- all services performed under this Agreement shall be performed with all due skill and care, in a good and workmanlike manner and otherwise in line with best practice within its industry (“Best Industry Practice”);
- the Supplier Personnel will possess the qualifications, professional competence and experience to carry out such services in accordance with Best Industry Practice;
- the services will not in any way infringe or violate any Intellectual Property Rights, trade secrets or rights in proprietary information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of any third parties; and
- it has full capacity and authority to enter into this Agreement and that it has or will obtain prior to the commencement of the services, any necessary licences, consents and permits required of it for the performance of the services.
- The Supplier shall provide the Buyer with such progress reports, evidence or other information concerning the services as may be requested by the Buyer from time to time.
- The Supplier shall be responsible for maintaining such insurance policies in connection with the provision of the services as may be appropriate or as the Buyer may require from time to time.
- The Supplier shall ensure that the Supplier Personnel take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions, and the Supplier agrees to indemnify and keep indemnified the Buyer from all and any liabilities, obligations, costs and expenses whatsoever arising from any loss, damage or injury caused to the Buyer or any third party by the Supplier Personnel.
- The Supplier warrants, represents and undertakes that:
By accepting this order, Seller warrants that the goods and services furnished will be free from defects for and including a period of 3 years from the date of supply of the same, in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings and data, and Seller’s descriptions, promises or samples, and that such goods will be fit for the Buyer’s intended use, provided Seller has reason to know of such. In cases where Seller does not understand the intended use of the material, it shall be the Seller’s responsibility to learn all that is necessary about the intended use in order to recommend and ensure proper application of the materials by Buyer. Seller will convey good title to the goods, free and clear from all liens, claims and encumbrances. Seller, without cost to Buyer, shall promptly do all things necessary to correct any breach of the above warranties in a manner satisfactory to Buyer. If Seller is unable or refuses to repair or replace as Buyer may require, Buyer may contract or otherwise repair or replace such defective goods and back-charge Seller for the excess cost. This warranty shall survive acceptance of the items and is in addition to any warranties of additional scope given to Buyer by Seller. No implied warranties by the Seller are excluded.
Status and Liabilities
- It is expressly understood that neither the Supplier nor the Supplier Personnel have the authority to act as agent for the Buyer or to contract on the Buyer’s behalf.
- The Supplier Personnel shall at no time be deemed to be employed or otherwise engaged by the Buyer.
- The Supplier shall be responsible for paying the Supplier Personnel as per the provision of the statute and for making any deductions required by law in respect of income tax or similar contributions relating to the provision of the services. The Supplier agrees to indemnify the Buyer in respect of any claims that may be made by the relevant authorities against the Buyer in respect of tax demands or similar contributions relating to the provision of the services by the Supplier.
- The Supplier shall, and shall ensure that the Supplier Personnel shall, comply with all applicable statutes, rules and regulations in providing the services, including all immigration and employment requirements imposed by any applicable jurisdiction, and the Supplier shall indemnify and hold harmless the Buyer from damages arising out of any failure to do so.
If Buyer discloses or grants Seller access to any research, development, technical, economic or other business information or “know-how” of a confidential nature, whether reduced to writing or not, Seller agrees, as a condition of receiving such information or “know-how,” that Seller will not use or disclose any such information to any other person at any time, except as may be necessary in the performance of this order, without Buyer’s written consent. Seller shall use such information only to perform this contract. Notwithstanding the foregoing, Buyer shall bear no responsibility for errors or omissions in Buyer’s information.
- Property furnished to seller by buyer
All special dies, molds, patterns, jigs, fixtures, component parts and any other property which Buyer furnished to Seller or specifically pays for, for use in the performance of this contract, shall be and remain Buyer’s property, shall be subject to removal upon Buyer’s instruction, shall be for Buyer’s exclusive use, shall be held at Seller’s risk, and shall be kept insured by Seller and at Seller’s expense while in its custody or control in an amount equal to the replacement cost, with loss payable to Buyer. Seller will furnish copies of policies or certificates of insurance on Buyer’s demand. Seller will not create or allow to arise any lien, claim or encumbrance by any third party against property furnished or owned, through progress payments made, by Buyer.
- Order inconsistencies and conflict resolution
It is Seller’s responsibility to comply with these and all referenced documents and to clarify with Buyer any inconsistencies or conflicts in any parts of this order, such as these provisions contained in this document, additional terms and conditions, general specifications, detailed specifications, etc. Should Seller fail to contact Buyer to resolve these conflicts or inconsistencies, Seller will be solely responsible for errors resulting from conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.
- The Buyer may terminate this Agreement for any reason by providing 7 days prior written notice to the Supplier.
The Buyer may terminate this Agreement with immediate effect by providing written notice to the Supplier if:
- the Supplier or the Supplier Personnel commit any material or persistent breach of this Agreement;
- the Supplier fails to or refuses after written warning to ensure that the Supplier Personnel provide the services properly required of them in accordance with this Agreement;
- the Supplier passes a resolution for winding up (other than for the purpose of solvency amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
- the Supplier ceases to carry on its business or substantially the whole of its business; or
- the Supplier is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
- Buyer’s rights and remedies regarding termination under this Agreement shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.
- Relationship of Parties
Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.
The Supplier shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Buyer.
The Supplier agrees to indemnify the Buyer against all claims, costs and expenses which the Buyer may incur and which arise, directly or indirectly, from the Supplier’s breach of any of its obligations under this Agreement.
- Intellectual Property Rights
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Buyer, and the Supplier shall do all that is reasonably necessary to ensure that such rights vest in the Buyer by the execution of appropriate instruments or the making of agreements with third parties.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Purchase Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
- Compliance with law
Each party shall comply with all state, national and local laws and regulations applicable to its performance hereunder.
- Governing law
The Order and this Agreement shall be governed by the laws of the State of Maharashtra, without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the Order or these this Agreement shall be commenced in court in Maharashtra and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
In the event any dispute arises between the parties hereto, the parties shall firstly endeavour to personally resolve such disputes in an amicable manner within fifteen days and in the event the disputes are not resolved within fifteen days, the parties shall jointly appoint a sole arbitrator within fifteen days failing which, each party shall appoint one arbitrator. Such arbitration shall be governed by the provisions of the Arbitration and Conciliation (Amendment) Act, 2015, or any statutory amendment or re-enactment thereof for the time being in force. The arbitration proceedings shall be held at Thane and the Arbitrator/s shall have summary powers and be entitled to give interim directions and awards from time to time. The award/s of the Arbitrator/s shall be reasoned and given in writing and shall be final and binding upon the parties hereto.
- Force majeure
The Buyer shall not be liable for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, flood or industrial disputes, and the Buyer shall be entitled to a reasonable extension of its obligations.
In the event any provision of the Order or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.
- No third parties
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
- Entire agreement
No failure by the Buyer to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.