GENERAL TERMS & CONDITIONS OF PURCHASE ORDER
1.1. “Seller” shall mean the supplier to whom a valid Purchase order issued from Swaraj Equipment Pvt Ltd
1.2. “Buyer” shall mean Swaraj Equipment Pvt Ltd.
1.3. “Order” shall mean these Standard Terms of Purchase together with the purchase order to which these terms are attached and are expressly incorporated by reference including any amendment, supplements, specifications and other documents referred to in these terms or the purchase order.
2. ACCEPTANCE OF TERMS
2.1. Seller agrees to be bound by and to comply with all the terms set forth herein and in the purchase order, to which these terms are attached and are expressly incorporated by reference including any amendments, supplements, specifications and other documents referred to in this Order.
2.2. Acknowledgment of this Order, including without limitation, by beginning performance of the work called for by this Order, shall be deemed acceptance of this Order.
2.3. The terms set forth in this Order take precedence over any alternative terms in any other documents connected with this transaction unless such alternative terms are: i) part of a written supply agreement (“Supply Agreement”), which has been negotiated between the parties and which the parties have expressly agreed may override these terms in the event of a conflict and / or ii) set forth on the face of the Order to which these terms are attached
2.4. This Order does not constitute an acceptance by the Buyer of any offer to sell, any quotation, or any proposal.
2.5. Any attempted acknowledgment of this Order containing terms inconsistent with or in addition to the terms of this Order is not binding unless specifically accepted by Buyer in writing.
3. PRICES AND PAYMENTS
3.1. All prices are firm and shall not be subject to change.
3.2. Sellers’ price includes all taxes and duties as set out in Clause 4 below.
3.3. Unless otherwise stated in the Order, payment is due 30 (Thirty) days from the date identified in the Order or the received date of the goods and/or services or the date of receipt of valid invoice by Buyer.
3.4. Sellers invoice number shall in all cases, bear Buyers Order number. Buyer shall be entitled to reject Sellers’ invoice if it fails to include Buyers Order number or is otherwise inaccurate and resulting a delay in payment shall be Sellers’ responsibility.
3.5. Seller warrants that it is authorized to receive payments in the currency stated in this Order. No extra charge of any kind will be allowed unless specifically agreed in writing by Buyer.
3.6. Buyer shall be entitled at any time to set off any and all amounts owing from Seller to Buyer or a Buyer Affiliate on this or any other order. ‘Affiliate’ shall for the purposes of this order mean, with respect to either party, any entity including without limitation, any individual, corporation, company, partnership, limited liability company or group, that directly or indirectly through one or more intermediaries, controls is controlled by or is under common control with such party.
3.7. Seller warrants the pricing for any goods or services shall not exceed the pricing for the same or comparable goods or services offered by Seller to third parties. Seller shall promptly inform Buyer of any lower pricing levels for same or comparable goods or services and the parties shall promptly make the appropriate price adjustment.
4. TAXES AND DUTIES
4.1. Sellers’ price includes all payroll and / or occupational taxes, any sales, excise, value added or similar taxes and any other taxes, fees and / or duties applicable to the goods and / or services purchased under this Order; provided however, that any state and local sales, use, exercise and / or privilege taxes if applicable, will not be included in Sellers’ price but will be separately identified on the Sellers invoice.
4.2. If Seller is obligated by law to charge any value added and/or similar tax to Buyer, Seller shall ensure that if such value added and /or similar tax is applicable, that it is invoiced to Buyer in accordance with applicable rules so as to allow Buyer to reclaim such value-added and/or similar tax from the appropriate government authority.
4.3. If the Buyer is required by government regulation to withhold taxes for which Seller is responsible, Buyer will deduct such withholding tax from payment to Seller and provide to Seller a valid tax receipt in Seller’s name.
5. DELIVERY AND PASSAGE OF TITLE
5.1. Time is the essence of this Order. If Seller fails to deliver the goods or complete the services as scheduled, Buyer may assess such amounts as may be set on the face of an Order as liquidated damages for the agreed delayed period. The parties agree that such amounts if assessed, are an exclusive remedy for the agreed delayed period; are a reasonable pre-estimate of the damages the Buyer will suffer as a result of delay based on circumstances existing at the time the Order was issued and are to be assessed as liquidated damages and not as a penalty. In the absence of agreed liquidated damages, Buyer shall be entitled to recover damages that it incurs as a result of Sellers failure to perform as scheduled. Unless expressly stated to the contrary, Buyers remedies are cumulative and Buyer shall be entitled to pursue any and all remedies available at law or equity.
5.2. Further to the foregoing, Seller shall not make any material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedule. Should Seller enter into such commitments or engage in such production, any resulting exposure shall be for Seller’s account.
5.3. Unless otherwise stated on the Order:
5.3.1. Goods shall be delivered FOR / Ex Works with the title in the goods passing at the receipt of goods.
5.3.2. Notwithstanding the above the risk in the goods shall remain with the Seller until the same are received by the Buyer at the place of delivery mentioned in the Order.
6. BUYER’S PROPERTY
6.1. Unless otherwise agreed in writing, all tangible and intangible property, including, but not limited to, information or data of any description, tools, materials, drawings, computer software, know-how, documents, trademarks, copyrights, equipment or material furnished to Seller by Buyer or specially paid for by Buyer and any replacement thereof, or any materials affixed or attached thereto, shall be and remain Buyer’s personal property. Such property and, whenever practical, each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as Buyer’s property and shall be safely stored separate and apart from Seller’s property.
6.2. Seller shall use Buyer’s property only to meet Buyer’s orders, and shall not use, disclose it to others or reproduce it for any other purpose. Such property, while in Seller’s custody or control, shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to Buyer and shall be subject to removal at Buyer’s request, in which event Seller shall prepare such property for shipment and redeliver to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.
6.3. Buyer hereby grants a license to Seller to use any information, drawings, specifications, computer software, know -how and other data furnished or paid for by Buyer hereunder for the sole purpose of performing this Order for Buyer. This license is non-assignable and is terminable with or without cause by Buyer at any time.
6.4. Buyer shall own exclusively all rights in ideas, inventions, works of authorship, strategies, plans and data created in or resulting from Seller’s performance under this Order, including all patent rights, copyrights, moral rights, rights in proprietary information, database rights, trademark rights and other intellectual property rights. All such intellectual property will be considered work(s) made for hire for Buyer or Seller will give Buyer “first owner” status related to the work(s) under local copyright law where the work(s) were created. If by operation of law any such intellectual property is not owned in its entirety by Buyer automatically upon creation, then Seller agrees to transfer or assign ownership in an to any such intellectual property to Buyer, and hereby transfers and assigns to Buyer, the entire right, title and interest throughout the world to such intellectual property. Seller further agrees to enter into and execute any documents that may be required to transfer or assign ownership in and to any such intellectual property to Buyer.
7.1. Any review or approval of drawings by Buyer will be for Sellers convenience and will not relieve Seller of its responsibility to meet all requirements of this Order.
8.1. Buyer may at any time make changes within the general scope of this Order in any one or more of the following:
8.1.1. drawings, designs or specifications where the goods to be furnished are to be specifically manufactured for Buyer;
8.1.2. the method of shipments or packing;
8.1.3. place and time of delivery;
8.1.4. the amount of Buyers furnished property;
8.1.6. quantity; or
8. 1.7. scope or schedule of goods and / or services.
8.2. If any changes cause an increase or decrease in the cost of, or the time required for the performance of any work under this Order, an equitable adjustment shall be made in the Order price or delivery schedule, or both in writing. Any Seller claim for adjustment under this clause shall be deemed waived unless asserted within Fifteen (15) days from Seller’s receipt of the change or suspension notification, and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change. Any change to this Order shall be made by a signed amendment.
9. INSPECTION AND ACCEPTANCE
9.1. In order to assess Seller’s work quality, conformance with Buyer’s specifications and compliance with this Order, upon reasonable notice by Buyer, all goods, materials and services related in any way to the goods and services purchased hereunder (including without limitation raw materials, components, intermediate assemblies, work in process, tools and end products) shall be subject to inspection and test by Buyer and its customer or representative at all times and places, including sites where the goods and services are created or performed, whether they be at premises of Seller, Seller’s suppliers or elsewhere.
9.2. If specific Buyer and/or Buyer’s customer tests, inspection and / or witness points are included in this Order, the goods shall not be shipped without an inspector’s release or a written waiver of test/inspection/witness with respect to each such point.
9.3. Buyer’s failure to inspect, accept, reject or detect defects by inspection shall neither relieve Seller from responsibility for such goods or services that are not in accordance with the Order requirements nor impose liabilities on Buyer.
9.4. Buyer’s inspection of the goods or services shall not absolve the Seller of the responsibility to provide acceptable goods or services nor shall preclude subsequent rejection during the final inspection at Buyer’s works.
9.5. No inspection, test, approval (including design approval) or acceptance of goods and / or services shall relieve the Seller from responsibility for defects or other failures to meet the requirements of this Order. Rights granted to the Buyer in this Article 9 are in addition to any other rights or remedies provided elsewhere in this Order or in law.
9.6. If any goods and/or services covered by this Order is defective or otherwise not conforming to the requirements of this Order, the Buyer may, at its option, by written notice to the Seller: (a) rescind this Order as to such non-conforming goods and/or services; (b) accept such goods and/or services at an equitable reduction in price; (c) reject such non-conforming goods and/or services and require the delivery of suitable replacements. If the Seller fails to deliver suitable replacements promptly, the Buyer, with notice of five business days, may replace or correct such goods and/or services and charge the Seller the additional cost occasioned to Buyer thereby, and/or terminate this Order for default.
10.1. If any of the goods and/or services furnished pursuant to this Order are found within a reasonable time after delivery to be defective or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, whether such defect or non-conformity relates to scope provided by Seller or a direct or indirect supplier to Seller, then Buyer, in addition to any other rights, remedies and choices it may have by law, contract or equity, and in addition to seeking recovery of any and all damages and costs emanating therefrom, at its option and sole discretion and at Seller’s expense may:
10.1.1. Require Seller to immediately re -perform any defective portion of the services and/or require Seller to immediately repair or replace non-conforming goods with goods that conform to all requirements of this Order.
10.1.2. take such actions as may be required to cure all defects and/or bring the goods and/or services into conformity with all requirements of this Order, in which event, all related costs and expenses (including, but not limited to, material, labor and handling and any required re-performance of value added machining or other service) and other reasonable charges shall be for Seller’s account;
10.1.3. withhold total or partial payment;
10.1.4. Reject and return all or any portion of such goods and/or services; and/or
10.1.5. Rescind this Order without liability .
10.2. For any repairs or replacements, Seller, at its sole cost and expense, shall perform any tests requested by Buyer to verify conformance to this Order.
11.1. Seller warrants that all goods and services provided pursuant to this Order, whether provided by Seller or a direct or indirect supplier of Seller, will be free of any claims of any nature, including without limitation title claims, and will cause any lien or encumbrance asserted to be discharged, at its sole cost and expense, within thirty (30) days of its assertion.
11.2. Seller warrants and represents that all such goods and services will be new and of merchantable quality, not used, rebuilt or made of refurbished material unless approved in writing by Buyer, free from all defects in design, workmanship and material and will be fit for the particular purpose for which they are intended. Such goods and services will be provided in strict accordance with all specifications, samples, drawings, designs, descriptions or other requirements approved or adopted by Buyer
11.3. Any attempt by Seller to limit, disclaim or restrict any such warranties or remedies by acknowledgement or otherwise shall be null, void and ineffective.
11.4. The foregoing warranties shall, in the case of all goods and services, apply for a period of twenty-four (24) months from the date of delivery of the goods or performance of the services or commissioning of the goods or plant on which the goods are used or such longer period of time as customarily provided by Seller, whichever is later, plus delays such as those due to non-conforming goods and services.
11.5. The Warranty shall run to Buyer, its successors, assigns and the users of the goods and services covered by this Order.
11.6. If any of the goods and/or services are found to be defective or otherwise not in conformity with the warranties in this Section during the warranty period, then, Buyer, in addition to any other rights, remedies and choices it may have by law, contract or at equity and in addition to seeking recovery of any and all damages and costs emanating there fro, at its option and sole discretion and at Seller’s expense may:
11.6.1. Require Seller to inspect, remove, reinstall, ship or repair or replace/re-perform nonconforming goods and/or services with goods and/or services that conform to all requirements of this Order;
11.6.2. Take such actions as may be required to cure all defects and/or bring the goods and services into conformity with all requirements of this Order, in which event all related costs and expenses (including, but not limited to, material, labor and handling and any required re-performance of value added machining or other services) and other reasonable charges shall be for Seller’s account; and/or
11.6.3. Reject and return all or any portion of such goods and/or services.
11.7. Any repaired or replaced part or re-performed services shall carry warranties on the same terms as set forth above, with the warranty period being the later of the original unexpired warranty or twenty-four (24) months after repair or replacement.
12.1. Buyer may at any time, by notice to Seller, suspend performance of the work for such time as it deems appropriate.
12.2. Upon receiving notice of suspension, Seller shall promptly suspend work to the extent specified, properly caring for and protecting all work in progress and materials, supplies and equipment Seller has on hand for performance.
12.3. Buyer may at any time withdraw the suspension as to all or part of the suspended work by written notice specifying the effective date and scope of withdrawal. Seller shall resume diligent performance on the specified effective date of withdrawal.
12.4. All claims for increase or decrease in the cost of or the time required for the performance of any work caused by suspension shall be pursued pursuant to, and consistent with, Section [__] “Changes”.
13.1. Termination for Convenience. Buyer may terminate all or any part of this Order at any time by written notice to Seller. Upon termination (other than due to Seller’s insolvency or default including failure to comply with this Order), Buyer and Seller shall negotiate reasonable termination costs consistent with cost allowable under Section [_] “Changes” and identified by the Seller within thirty (30) days of Buyer’s termination notice to Seller, unless the parties have agreed to a termination schedule in writing.
13.2. Termination for Default. Except for delay due to causes beyond the control and without the fault or negligence of Seller and all its suppliers (lasting not more than 60 days), Buyer, without liability, may by written notice of default, terminate the whole or any part of this Order if Seller:
13.2.1. Fails to perform within the time specified or any written extension granted by Buyer;
13.2.2. Fails to make progress which, in Buyer’s reasonable judgment, endangers performance of this Order in accordance with its terms; or
13.2.3. Fails to comply with any of the terms of this Order.
13.2.4. Such termination shall become effective if Seller does not cure such failure within ten (10) days of receiving notice of default.
13.2.5. Upon termination, Buyer may procure at Seller’s expense and upon terms it deems appropriate, goods or services similar to those so terminated. Seller shall continue performance of this Order to the extent not terminated and shall be liable to Buyer for any excess costs for such similar goods or services.
13.2.6. As an alternative remedy and in lieu of termination for default, Buyer at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, making Seller liable for any costs, expenses or damages arising from any failure of Seller’s performance. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Seller shall promptly notify Buyer in writing. If Seller does not comply with Buyer’s delivery schedule, Buyer may require delivery by fastest method and charges resulting from the premium transportation must be fully prepaid by Seller. Buyer’s rights and remedies in this clause are in addition to any other rights and remedies provided by law or under this Order.
13.3. Termination for Insolvency/Prolonged Delay. If Seller ceases to conduct its operation in the normal course of business or fails to meet its obligations as they mature or if any proceeding under the bankruptcy or insolvency law is brought against Seller, a receiver for Seller is appointed or applied for, an assignment for the benefit of creditors is made or an excused delay (or the aggregate time of multiple excused delays) lasts more than 60 days, Buyer may immediately terminate this Order without liability, except for goods or services completed, delivered and accepted within a reasonable period after termination (which will be paid for at the Order price).
13.4. Obligation on Termination. Upon expiration or after receipt of a notice of termination for any reason, Seller shall immediately: (1) stop work as directed in the notice; (2) place no further subcontracts or purchase Orders for materials, services or facilities hereunder, except as necessary to complete the continued portion of this Order; and (3) terminate all subcontracts to the extent they relate to work terminated. After termination, Seller shall deliver to Buyer all completed work and work in process, including all designs, drawings, specifications, other documentation and material required or produced in connection with such work and all of Buyer’s Confidential Information as set forth in Section [_].
14.1. Seller shall defend, indemnify, release and hold harmless Buyer, its directors, officers, employees, agents, representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, fines, penalties, damages, costs, expenses, or liabilities (including without limitation claims for personal injury or property or environmental damage, claims or damages payable to customers of Buyer, and breaches of Sections [_] Confidentiality below) arising from any act or omission of Seller, its agents, employees, or subcontractors, except to the extent attributable to the sole and direct gross negligence of Buyer. Seller further agrees to indemnify Buyer for any attorneys’ fees or other costs that Buyer incurs in the event that Buyer has to file a lawsuit to enforce any indemnity or additional insured provision of this Order.
15. ASSIGNMENT AND SUBCONTRACTING
15.1. Seller shall not sub-contract or assign the whole or any part of the services and shall not assign the obligations under or any benefit or interest in the Order without the prior consent in writing of SWARAJ.
16.1. Seller shall keep confidential any technical, process, proprietary or economic information derived from drawings, 3D or any other models, specifications and any other data and/or information furnished by Buyer in connection with this Order (“the Confidential Information”) and shall not divulge, directly or indirectly, the Confidential Information for the benefit of any other party without Buyer’s prior written consent.
16.2. Upon completion or termination of this Order, Seller shall promptly return to Buyer all Confidential Information, including any copies thereof, and shall destroy (with such destruction certified in writing by Seller) all Confidential Information and any copies thereof.
16.3. Any knowledge or information, which Seller shall have disclosed or may hereafter disclose to Buyer, and which in any way relates to the goods or services purchased under this Order (except to the extent deemed to be Buyer’s Property as set forth in Section [ -} above), shall not unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary, and shall be acquired by Buyer free from any restrictions (other than a claim for infringement), as part of the consideration for this Order, and notwithstanding any copyright or other notice thereof, Buyer shall have the right to use, copy, modify and disclose the same as if sees fit.
17. INTELLECTUAL PROPERTY INDEMNIFICATION
17.1. Seller shall indemnify, defend and hold Buyer harmless from all costs and expenses related to any suit, claim or proceeding brought against the Buyer or its customers based on a claim that any article or apparatus, or any part thereof constituting goods or services furnished under this Order, as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent, copyright, trademark, trade secret or other intellectual property rights of any third party. Buyer shall notify Seller promptly and give Seller authority, information, and assistance (at Seller’s expense) for the defense of the same, and Seller shall pay all damages and costs awarded therein. If the use of said article, apparatus, part, device or process is enjoined, Seller shall, at its own expense and at its option, either procure for Buyer the right to continue using the said article or apparatus, part, process or device or replace same with a non-infringing equivalent.
18. SHIPPING, PACKAGING AND LABELING
18.1. All goods purchased hereunder must be packed and packaged to ensure its safe delivery in accordance with the good commercial practice and where incorporated, the Buyer’s packaging specification.
18.2. The Seller shall mark on all containers, handle and loading instructions, shipping information, part number, purchase Order number and item number, quantity in the box, shipment date, and names and addresses of each shipment. Each packing slip shall include; this Order number, quantity, item description, Order date, shipping date and delivery address, but shall not include pricing information.
19. GOVERNING LAW
19.1. The Order shall be governed by and be construed in accordance with the laws of India without giving effect to any who ice of law or conflict of law, provision or rule.
19.2. The courts of India shall have exclusive jurisdiction in all matters arising under this Order.
20. DISPUTE RESOLUTION
20.1. Any controversy, dispute or difference arising out this Order shall be referred to arbitration under the Arbitration & Conciliation Act, 1996. The venue of such arbitration shall be Chennai This clause shall survive expiry or earlier termination of this Order.
21.1. No failure to exercise and no delay by either party under this Order in exercising any right, power, remedy or privilege shall operate as a waiver of that right, power, remedy or privilege thereof nor shall any single or partial exercise by either party of any right, power, remedy or privilege preclude any other or further exercise thereof or the exercise of any other right, power, remedy or privilege under this Order.
22.1. If any provision of this Order is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of the Order shall continue in full force and effect as if the Order had been executed with the invalid, illegal and unenforceable provision eliminated.