1. Preamble, Parties and Scope of Application
1. These General Terms and Conditions of Sale (hereinafter referred to as the “Terms and Conditions” or “T&Cs”) set out the terms on which Qualipack Packagings Private Limited, a company incorporated under the laws of India and having its registered office Plot No. 152- A Industrial Area Sector No. 3, Pithampur (Dhar) Madhya Pradesh (hereinafter referred to as the “Seller” or the “Company”), agrees to manufacture and sell, and any person or entity placing an Order agrees to purchase, flexible intermediate bulk containers (FIBCs) and related products, together with any ancillary goods, packaging and accessories, in India and in international trade. These Terms and Conditions shall be applicable to all Services provided by the Company and availed by recipients (“You” or “Your” or “Subscriber”) of the Services. Please read the Terms carefully before availing the Services. Your use of the Services shall signify Your irrevocable acceptance of the Terms. The Terms have been summarised below for your convenience.
2. For the purposes of these T&Cs, any person or entity that places an Order with the Seller, or on whose behalf an Order is placed, shall be referred to as the “Buyer”. Where an intermediary, agent, trader or stockist places an Order referencing a Buyer or end customer, the expression “Buyer” shall, as the context requires, include such intermediary or agent in addition to, or in substitution for, the end customer identified in the relevant Order or commercial documentation.
3. These T&Cs govern and apply to all offers and quotations issued by the Seller, all Orders placed by the Buyer, all written acceptances, acknowledgements and Order confirmations issued by the Seller, and all supplies and sales of FIBCs, liners and related goods and accessories (collectively, the “Goods”) by the Seller, whether the underlying transactions are domestic supplies within India or export or import transactions under international trade arrangements
4. These T&Cs shall form an integral part of, and shall automatically apply to, all present and future contracts, purchase orders, framework agreements, calloff orders and other arrangements for the sale and supply of Goods by the Seller to the Buyer, unless and to the extent that such application is expressly excluded or modified in a separate written contract signed by duly authorised signatories of both parties. Any terms or conditions that deviate from, supplement or conflict with these T&Cs shall be binding on the Seller only if and to the extent they have been expressly agreed in a separately executed written agreement that specifically refers to such deviation, supplement or conflict.
5. Unless otherwise expressly agreed in writing by the Seller, these T&Cs shall take precedence over and expressly exclude the application of any general or standard terms and conditions of purchase, procurement or contract that the Buyer may purport to impose, including terms printed on or referred to in purchase orders, order forms, acknowledgements, invoices, correspondence or in any other Buyer document.
2. Definitions
1. Unless the context otherwise requires, capitalised terms used in these T&Cs shall have the meanings assigned to them in this Section 2.
2.“Agreement” shall mean and include this service level agreement, made and entered at Indore, M.P., India on this 1st day of February, 2018, and includes any schedules or annexures attached to it or incorporated in it by reference and shall include any modifications of this service level agreement as may be mutually agreed to in writing by the Parties.
3. “Applicable Laws” means all applicable statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bylaws, regulations, notifications, guidelines, policies, directions, directives, circulars, decrees, orders and judgments of any governmental authority, court, tribunal or regulatory body that are in force and applicable to the manufacture, export, import, sale, purchase, transport, handling, storage or use of the Goods, including, without limitation, the laws of India governing the Seller and, where relevant, the laws of the country of destination or use of the Goods, to the extent the parties have expressly undertaken compliance with such foreign laws.
4. “Business Day” means a day (other than a Saturday, Sunday or public holiday) on which banks are generally open for normal business in the city where the Seller’s registered office is located, and, in relation to any payment or performance that must occur in a jurisdiction outside India, also a day on which banks are generally open for normal business in that jurisdiction.
5. “Force Majeure Event” or “Force Majeure” means any event, circumstance or combination of events or circumstances that is beyond the reasonable control of the affected party, is not reasonably foreseeable, and which, despite the exercise of due diligence and reasonable precautions, prevents or materially delays the performance by such party of its obligations under the Agreement, including, without limitation, events such as acts of God, natural disasters, fire, flood, earthquake, storm, explosion, epidemic or pandemic, war, armed conflict, terrorism, civil commotion, riot, sabotage, strikes, lockouts or other industrial disputes (excluding those involving only the employees of the affected party), embargoes, sanctions, acts of government or governmental authorities, sudden changes in Applicable Laws, major disruptions in international transport or shipping, port closures, blockage of transport routes, or prolonged breakdowns or failures of plant, machinery, utilities or critical raw materials not caused by the affected party.
6. “Incoterms” means the international commercial terms published by the International Chamber of Commerce (ICC) known as “Incoterms 2020” (or any subsequent version that the parties expressly agree in writing to apply), such as EXW, FOB, CIF, DAP and DDP, which allocate responsibilities between seller and buyer as to delivery, risk, costs, customs clearance and insurance in crossborder and domestic trade, and which may be incorporated into an Agreement by express reference in the Order or Order confirmation.
7. “Intellectual Property” or “IP” means all rights, title and interests in and to any and all intellectual property and proprietary rights of every kind and nature, whether registered or unregistered, including but not limited to patents, utility models, designs, design registrations, copyrights, trademarks, service marks, trade names, logos, trade dress, domain names, rights in knowhow, trade secrets, confidential business information, technical information, drawings, specifications, and all applications for, and renewals or extensions of, such rights.
8. “Order” means any written or electronic purchase order, calloff order, release order or other order form issued by or on behalf of the Buyer and received by the Seller, which identifies, inter alia, the type and quantity of Goods, delivery terms, delivery location, requested delivery timeframe or price or pricing basis.
9. “Order Confirmation” means any written communication (including email or systemgenerated confirmation) issued by the Seller confirming acceptance of an Order, in whole or in part, and setting out or incorporating the key commercial details such as quantity, price, Incoterms, delivery point and delivery schedule. For the avoidance of doubt, Seller’s internal order or shipment references shall be treated as part of the Order Confirmation.
10. “Confidential Information” shall include, third party information, intellectual property rights, proprietary technique, material and any and all information relating to the Disclosing Party, including without limitation, financial results and projections, costs and prices, details of suppliers, employees and consultants (past, present or prospective), technologies, technical and business strategies, marketing, pricing and other strategies, trade secrets, the terms of this Agreement as well as any such information not generally known to third parties or received from others, whether such information has been expressly designated as confidential or otherwise, to which the other Party(ies) has or gains access to at any time during the Term of this Agreement or which is available to such Party directly or indirectly, whether in writing, oral, graphic, visual or any other tangible, intangible or electronic form.
11. Any other capitalised terms used but not defined in this Section 2 shall have the meanings ascribed to them elsewhere in these T&Cs or in the relevant Agreement.
3. Scope of Supplies
1. The Seller’s obligations under any Agreement are strictly limited to the manufacture and supply of Goods that conform, in all material respects, to the applicable Specifications and to the quantity, price, Incoterms, delivery point, delivery schedule and other commercial terms recorded in the relevant Order Confirmation and these T&Cs. The Seller does not undertake, under these T&Cs, to provide design, engineering or consultancy services beyond the review and confirmation of Specifications, and any such additional services shall be subject to separate agreement if required.
2. For the avoidance of doubt, any reference in Seller documents to Buyer purchase orders, customer claims, insurance references or other Buyer or thirdparty documents shall not modify, supplement or override these T&Cs or the Order Confirmation unless the Seller expressly and unambiguously accepts such modification or supplementation in a written instrument signed by an authorised signatory of the Seller.
4. Offers, Orders and Contract Formation
1. Any price indication, quotation, proforma invoice, catalogue entry, capacity indication or other communication issued by the Seller in relation to the Goods shall constitute an invitation to treat and not a binding offer. Unless expressly stated otherwise, all quotations and offers issued by the Seller are based on the information and Specifications provided by the Buyer at the time of the request and are subject to confirmation and availability of raw materials, production capacity and logistics at the time of Order Confirmation.
2. Unless a different validity period is expressly specified in the relevant quotation or offer, each quotation or offer issued by the Seller shall remain valid for the period stated therein or, if no such period is stated, for ten calendar days from the date of issue, after which it may be withdrawn or revised by the Seller at any time prior to an Order Confirmation. Any change in Specifications, requested delivery dates, quantity or Incoterms between the date of the quotation and the proposed Order may require a revised quotation or adjustment of price and delivery schedule by the Seller.
3. The Buyer shall place its Order in writing, including by email or other approved electronic means, indicating at a minimum the type and quantity of Goods required, the desired delivery point, the requested delivery period, the proposed Incoterm and any relevant Buyer references such as purchase order numbers. Buyer documentation may, for identification purposes, refer to its own purchase order numbers, but such references shall have no effect on the incorporation of the Buyer’s own terms and conditions, which remain excluded in accordance with Section 1.5.
4. No Order submitted by the Buyer shall be binding on the Seller unless and until it is expressly accepted by the Seller through an Order Confirmation issued in writing, including by email or other agreed electronic means, or until the Seller dispatches or makes available the Goods for collection in accordance with the Order, whichever occurs earlier. Mere silence or inaction on the part of the Seller shall not be construed as acceptance of any Order. The Seller shall be entitled to accept or reject any Order, in whole or in part, at its sole discretion.
5. The Order Confirmation shall set out, or incorporate by reference, the key commercial terms of the transaction including the identified Goods, quantity, unit price, total contract value, currency, Incoterms, delivery point and indicative delivery schedule.
6. The Agreement for the supply of Goods shall come into existence and be binding upon the Seller and the Buyer on the earlier of the date on which the Seller issues the Order Confirmation or the date on which the Seller dispatches or makes available the Goods pursuant to the Order.
7. After an Order has been accepted by the Seller, the Buyer shall not be entitled unilaterally to cancel or amend the Order, including changes to quantity, Specifications, delivery point or requested delivery dates. Any request by the Buyer for cancellation, postponement or amendment shall be effective only if accepted by the Seller in writing and may be subject to such conditions, additional charges or revised timelines as the Seller may reasonably determine. Where Goods have already been produced or raw materials procured specifically for an Order, the Buyer shall remain liable for the agreed price, or for reasonable compensation if the Seller agrees to mitigate losses by reallocating the Goods or materials.
8. The Buyer warrants that the individual submitting the Order has the requisite authority to bind the Buyer, and that all information contained in or provided with the Order, including technical, commercial and logistical details, is complete and accurate. Any delays, additional costs or nonconformities arising from incomplete or inaccurate information provided by the Buyer shall be for the Buyer’s account.
9. If the Buyer fails to make any payment due under these T&Cs or any Agreement by the applicable due date, the Seller shall be entitled, without prejudice to any other rights or remedies available under these T&Cs, the applicable Agreement or law, to charge interest on the overdue amount at the rate of eighteen percent (18%) per annum, calculated on a daily basis from the due date until the date of actual receipt of the outstanding amount in full. The Buyer shall also reimburse the Seller for all reasonable costs and expenses incurred in recovering the overdue amounts, including legal fees and collection charges.
5. Product Specifications and Quality
1. The Goods shall be manufactured in accordance with the applicable Specifications that have been agreed in writing between the parties. Such Specifications may be based on technical data sheets issued by the Seller, on Buyer specifications and drawings approved by the Seller, or on jointly agreed documents.
2. The Buyer shall be responsible for providing complete and accurate information regarding the intended use of the Goods, including the nature and density of the product to be filled, filling and discharge methods, lifting and handling methods, stacking patterns, storage conditions and any regulatory or customer specific requirements that must be met. The Buyer shall review and approve the Specifications supplied by the Seller or jointly prepared with the Seller and shall ensure that such Specifications are suitable for the Buyer’s intended use.
3. The Seller shall manufacture the Goods using materials and processes consistent with the applicable Specifications, accepted industry practice and relevant quality assurance procedures. Palletisation, packaging and labelling shall follow the Specifications and customary practice.
4. Minor variations inherent in the manufacturing process that fall within industry accepted tolerances or the specific tolerance ranges set out in the Specifications for parameters such as fabric weight, dimensions or colour shade shall not constitute a Defect or nonconformity. Specification sheets that define minimum and maximum fabric weights and other tolerances are indicative of the range of acceptable variation and the parties acknowledge that absolute uniformity is neither warranted nor commercially feasible. Further, the parties acknowledge that, owing to the nature of manufacturing and associated human involvement, an incidental human error margin of up to 0.5% shall be deemed acceptable and shall not, by itself, constitute a Defect, non-conformity, breach of specification, or ground for rejection of the Goods.
5. Unless expressly agreed otherwise in writing, the Seller does not warrant that the Goods will be suitable for conditions of use or for products that have not been disclosed to and accepted by the Seller as part of the Specification process. The warranty and quality obligations of the Seller shall be assessed against the Specifications and the intended use explicitly communicated by the Buyer and accepted by the Seller, and not against any undisclosed or changed use conditions or customer requirements.
6. The Buyer shall promptly notify the Seller in writing of any required changes to Specifications prior to confirmation of the Order. Any change requested after the Order Confirmation, including changes to SWL, SF, dimensions, fabric weight, palletisation scheme or labelling, shall be subject to the Seller’s prior written approval and may result in revised pricing, minimum order quantities and extended delivery timelines. If the Seller has already procured specific raw materials or commenced production in reliance on the existing Specifications, the Buyer shall be liable for any additional costs or losses arising from such changes.
7. Any samples of Goods that may be provided by the Seller to the Buyer prior to or during the performance of an Agreement are supplied solely for the purpose of evaluating general characteristics. Unless expressly agreed in writing that a particular sample shall constitute a binding reference sample, variations from such samples that remain within the agreed Specifications shall not constitute a Defect or breach of contract.
8. The Buyer shall ensure that the Goods are stored, handled, filled, lifted, stacked, transported or used in accordance with all instructions, label signs, warnings and guidelines communicated by the Seller. The Seller shall not be responsible for any damage, additional costs, or destruction to the Goods, including its Packaging, that occurs if the Buyer violates, fails to follow, or disregards the storage, handling, filling, lifting, stacking, transporting or using instructions, label signs, warnings, or guidelines as issued by the Seller.
6. Pricing, Taxes and Payment Terms
1. The price payable by the Buyer for the Goods shall be the price specified in the Seller’s Order Confirmation for the relevant Order. Prices may be quoted and invoiced in Indian Rupees for domestic Indian transactions and in foreign currencies for export or import transactions.
2. Unless expressly stated otherwise in the Order Confirmation, all prices are quoted exclusive of any applicable taxes, duties, levies, cess, charges and imposts. For domestic Indian sales, Goods and Services Tax (GST) and any applicable cess shall be charged at the prevailing rates in accordance with Applicable Laws and shall be payable by the Buyer in addition to the basic price. GST is a comprehensive indirect tax levied on the supply of goods and services in India, replacing multiple earlier indirect taxes, and is generally charged at the applicable rate on the taxable value of the supply.
3. In the case of export transactions, the allocation of responsibility for customs duties, import taxes, VAT or similar charges in the country of destination shall be determined by the applicable Incoterm as specified in the Order Confirmation.
4. Payment terms, including the due date for payment, credit period and any milestone or advance payments, shall be as set out in the Order Confirmation and corresponding invoices.
5. All payments shall be made in full without setoff, counterclaim, deduction or withholding, other than any deduction or withholding required by Applicable Laws.
6. If the Buyer fails to pay any amount due under an Agreement on or before the due date, the Buyer shall be liable to pay interest on the overdue amount from the due date until the date of actual payment at the rate specified in the Order Confirmation or, if no rate is specified, at a reasonable commercial rate determined by the Seller, which may be aligned to or exceed one per cent per month.
7. Without prejudice to any other rights or remedies it may have, the Seller shall be entitled, upon written notice to the Buyer, to suspend further deliveries of Goods under any or all Agreements if any amount payable by the Buyer remains unpaid after the due date or if the Seller reasonably believes that the Buyer’s financial condition has deteriorated in a manner that jeopardises timely payment. The Seller may, as a condition of further deliveries, require advance payment, confirmed letters of credit or other acceptable security.
8. Unless otherwise expressly agreed in writing, the Goods shall remain the property of the Seller until the Seller has received payment in full of all amounts due in respect of the relevant Shipment and any other amounts owed by the Buyer under the Agreement.
7. Warranties and Warranty Disclaimers
1. Subject to the terms and conditions of these T&Cs, the Seller warrants that, at the time of delivery in accordance with the applicable Incoterm, the Goods shall conform in all material respects to the applicable Specifications agreed in writing between the parties, and be free from material Defects in materials and workmanship arising from the Seller’s manufacturing process and be subject to the applicable weight tolerances prescribed by the relevant statutory or regulatory authority and/or industry standards. The parties further acknowledge that minor deviations attributable to inherent manufacturing processes and incidental human error, shall not constitute a breach of this warranty or render the Goods defective or non-conforming.
2. The warranty in Section 7.1 shall apply only where the Goods have been stored, handled, filled, lifted, transported or used strictly in accordance with the Specifications, any written instructions, warnings, label signs, or guidelines issued by the Seller, and any applicable industry standards and Applicable Laws. If any deviations cause damage or failure, such are not attributable to a Defect in the Goods, or the Seller, and therefore fall outside the scope of this warranty.
3. Unless otherwise expressly agreed in writing in a specific Agreement, the warranty period for each Batch of Goods shall commence on the date of delivery of such Batch in accordance with the applicable Incoterm and shall continue for a period of two (2) years from such date, having regard to the nature of the Goods and their ordinary intended use.
4. Notwithstanding anything contained herein, and unless otherwise expressly agreed in writing by the parties, the Seller shall maintain production records, batch records, quality control records, inspection reports and other manufacturing documentation relating to the Goods only for such period as may be required under applicable law, regulations, or the guidelines of the relevant statutory or regulatory authorities, and in any event for no longer than two (2) years from the date of dispatch of the relevant Batch of Goods. Upon expiry of such period, the Seller shall be entitled to archive, destroy or otherwise dispose of such records in accordance with its document retention policies and applicable law, and shall have no obligation to preserve or produce the same thereafter.
5. The Seller does not warrant and shall not be liable for any Defect or nonconformity of the Goods arising from any Specifications, designs or instructions supplied or approved by the Buyer, improper or unsuitable storage, handling, lifting, transport, filling or discharge of the Goods, use of the Goods with products, equipment or under conditions not disclosed to and accepted by the Seller, any alteration, repair or modification of the Goods carried out by the Buyer or a third party without the Seller’s prior written consent; or normal wear and tear.
6. To the maximum extent permitted by Applicable Laws, and save as expressly set out in this Section 7, all other warranties, representations or guarantees, whether express, implied, statutory or otherwise, including but not limited to any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose or noninfringement, are hereby excluded.
7. The remedies set out in Section 9 (Claims, Defects and Returns) shall be the Buyer’s sole and exclusive remedies, and the Seller’s entire liability, in respect of any Defect, nonconformity or breach of the warranties contained in this Section 7, and shall be subject to the limitations and exclusions of liability set out in Section 10.
8. Claims, Defects and Returns
1. The Buyer shall carefully inspect the Goods upon delivery, to the extent reasonably possible under the applicable Incoterm and delivery conditions. Any apparent damage, shortage, incorrect delivery or other visible nonconformity shall be notified in writing to the Seller without undue delay and, in any event, within a reasonable period after delivery.
2. In the case of latent Defects that could not reasonably have been discovered upon delivery, the Buyer shall notify the Seller in writing without undue delay and, in any event, within a reasonable period after the Buyer became, or ought reasonably to have become, aware of the alleged Defect, provided always that such notification falls within the overall warranty period for the relevant Batch of Goods as specified in Section 7.3.
3. Any notification of a Claim shall contain reasonably detailed information and supporting documentation, including, where available, photographs and/or videos clearly showing the alleged Defect or failure, batch numbers, production dates and other identifiers visible on the Goods, labels or documentation, copies of the relevant packing lists and invoices, a description of the circumstances of occurrence, including handling, lifting, stacking and storage conditions at the time of the alleged failure, a preliminary quantification of the alleged loss or damage.
4.Upon receipt of a Claim, the Seller shall be entitled to investigate the circumstances of the complaint, which may include, requesting additional information and documents from the Buyer, arranging for physical inspection of the Goods at the Buyer’s or end customer’s premises, obtaining samples of the allegedly defective Goods for testing, and involving independent experts or insurers where appropriate.
5. The Buyer shall cooperate fully and in good faith with the Seller in any such investigation, including by preserving the Goods and relevant evidence, allowing timely access to facilities, and refraining from disposing of or altering the Goods without the Seller’s prior written consent, save where necessary for safety or to prevent further loss.
6. If, following investigation, the Seller determines that the Goods are Defective within the meaning of these T&Cs and that the Buyer has duly complied with its obligations as to inspection, notification and cooperation, the Seller shall, at its option and as the Buyer’s exclusive remedy, repair the Defective Goods where reasonably practicable, replace the Defective Goods with conforming Goods within a reasonable period; or issue a credit note to the Buyer in an amount not exceeding the invoiced price of the Defective Goods. The issuance of a credit note in settlement of a claim shall be documented separately and shall not constitute an admission of liability beyond the terms of these T&Cs.
7. Except to the extent expressly agreed in writing by the Seller, the Seller shall not be liable for, and the remedies in Section 8.6 shall not extend to, any indirect or consequential loss or damage, including without limitation, costs of additional handling, unloading, rebagging, storage and reloading at end customer’s or Buyer’s premises, loss of profits, loss of sales or revenue, or loss due to resale of product at a reduced price, penalties, liquidated damages or other contractual liabilities owed by the Buyer to its customers.
8. No Goods may be returned to the Seller without the Seller’s prior written authorisation. Where the Seller authorises a return for the purpose of inspection or replacement, the terms of such return, including transport arrangements, allocation of freight costs and risk during transit, shall be as agreed in writing. The Seller shall not be obliged to accept the return of any Goods that have been used, contaminated or altered, save where such return is necessary for investigation and has been specifically agreed.
9. Failure by the Buyer to comply with the inspection, notification, documentation, cooperation and return procedures set out in this Section 8 may result in the Claim being rejected, and the Goods shall then be deemed to conform to the Agreement and the Buyer shall be barred from any further remedy in respect of such Goods, subject always to Applicable Laws.
9. Intellectual Property Rights
1. The Seller and its affiliates shall retain sole and exclusive ownership of all Intellectual Property relating to the design, construction, manufacture and supply of the Goods, including without limitation all knowhow, technical information, process parameters, quality procedures, artwork and labelling created by or for the Seller, and any improvements, modifications or derivatives thereof.
2. Nothing in these T&Cs or in any Agreement shall be construed as granting to the Buyer any licence or other right in or to the Seller’s Intellectual Property, except for a nonexclusive, nontransferable right to use the Goods supplied by the Seller for their intended purpose in accordance with the Agreement. The Buyer shall not, and shall ensure that its affiliates and customers do not, reverseengineer, decompile, disassemble, copy, reproduce or otherwise attempt to derive or appropriate any aspect of the Seller’s Intellectual Property embodied in the Goods.
3. Where the Goods are manufactured in accordance with Specifications, designs, artwork, logos or other materials provided or specified by the Buyer, all Intellectual Property in such Buyerprovided materials shall remain vested in the Buyer or its licensors. The Buyer grants to the Seller a nonexclusive, worldwide, royaltyfree licence, for the term of the relevant Agreement, to use such Buyerprovided Intellectual Property solely for the purpose of manufacturing, packaging and supplying the Goods to the Buyer.
4.The Buyer represents and warrants that any Specifications, designs, artwork, trademarks or other materials it provides to the Seller do not infringe the rights of any third party, and the Buyer shall indemnify and hold harmless the Seller from and against any and all Claims, losses, damages, costs and expenses arising out of or in connection with any allegation that the manufacture or supply of Goods in accordance with such Buyerprovided materials infringes any Intellectual Property or other rights of a third party.
5. In the event that any third party asserts a Claim alleging infringement of its Intellectual Property rights by the Goods (other than to the extent such infringement arises from Buyerprovided materials), the Seller shall be entitled, at its option and as the Buyer’s sole remedy, to, modify the Goods so that they become noninfringing while remaining materially compliant with the Specifications, procure for the Buyer the right to continue using the Goods, or recall and refund to the Buyer the price paid for the infringing Goods, less a reasonable allowance for use.
10. Limitation of Liability
1. The aggregate liability of the Seller, whether in contract, tort (including negligence), strict liability or otherwise, arising out of or in connection with any Agreement, the supply of any Goods or any Claim (including any series of related Claims) shall be limited, to the maximum extent permitted by Applicable Laws, to an amount not exceeding the total price actually paid or payable by the Buyer to the Seller for the specific Shipment or Batch of Goods giving rise to such liability.
2. To the maximum extent permitted by Applicable Laws, the Seller shall in no event be liable to the Buyer for any loss of profit, loss of revenue, loss of anticipated savings, loss of production, loss of contracts or business opportunities, loss of goodwill, loss due to resale at a reduced price, or for any indirect, special, punitive or consequential loss or damage, whether suffered by the Buyer or any third party, even if the Seller has been advised of the possibility of such loss or damage.
3. Nothing in these T&Cs shall exclude or limit the Seller’s liability for death or personal injury caused by its gross negligence, or for fraud or fraudulent misrepresentation, or for any other liability that cannot be excluded or limited under Applicable Laws. To the extent that Applicable Laws do not permit the exclusion of implied warranties or certain types of damage, the limitations and exclusions in this Section 10 shall be applied to the fullest extent permitted and shall be interpreted accordingly.
4. The Buyer shall be responsible for mitigating any loss or damage that it may suffer, including by taking reasonable steps to prevent or reduce further losses once an issue with the Goods is discovered.
5. In the event that any third party asserts a Claim alleging infringement of its Intellectual Property rights by the Goods (other than to the extent such infringement arises from Buyerprovided materials), the Seller shall be entitled, at its option and as the Buyer’s sole remedy, to, modify the Goods so that they become noninfringing while remaining materially compliant with the Specifications, procure for the Buyer the right to continue using the Goods, or recall and refund to the Buyer the price paid for the infringing Goods, less a reasonable allowance for use.
11. Force Majeure
1. Neither party shall be liable for any failure or delay in performing any of its obligations under an Agreement (other than the obligation to make payments when due) to the extent that such failure or delay is caused by a Force Majeure Event, as defined in Section 2.5.
2. The party affected by a Force Majeure Event shall promptly notify the other party in writing upon becoming aware of the occurrence of such event and its expected impact on performance, providing reasonable details, use commercially reasonable endeavours to mitigate the effects of the Force Majeure Event, including where feasible by adjusting production schedules, sourcing alternative raw materials or logistics routes, or partially performing obligations, and keep the other party reasonably informed of developments and the anticipated duration of the Force Majeure Event.
3. The obligations of the affected party shall be suspended for the duration of the Force Majeure Event and for such additional period as may be reasonably necessary to remedy its effects, provided that if the Force Majeure Event continues for a prolonged period beyond a threshold to be agreed in the applicable Agreement, either party may, upon written notice to the other, terminate the affected Agreement, in whole or in part, without liability, save for obligations accrued prior to the commencement of the Force Majeure Event.
4. The existence of a Force Majeure Event shall not relieve the Buyer of its obligation to pay any amounts that became due and payable prior to the occurrence of such event, nor shall it relieve the Buyer of obligations that are not affected by the Force Majeure Event. Likewise, Force Majeure shall not excuse a party’s nonperformance where the relevant impediment results from that party’s own acts or omissions contrary to the Agreement or Applicable Laws.
12. Confidentiality and Data Protection
12.1 Each party undertakes to keep strictly confidential and not to disclose to any third party any Confidential Information of the other party that it receives or otherwise obtains in connection with these T&Cs or any Agreement, except as expressly permitted in this Section 12.
12.2 For the purposes of this Section 12, Confidential Information includes, without limitation, all nonpublic technical and commercial information relating to the Goods, including Specifications, technical data sheets, quality test results, process parameters and production data, commercial terms, pricing and payment arrangements reflected in quotations, Order Confirmations, packing lists and invoices and correspondence, complaint files, claim assessments and monetary claim letters exchanged between the parties and with intermediaries and end customers in connection with alleged Defects.
12.3 The obligations of confidentiality in this Section 12 shall not apply to information which the receiving party can demonstrate, is or becomes publicly available other than as a result of a breach of this Section 12, was lawfully in the receiving party’s possession, without restriction on disclosure, prior to its disclosure by the disclosing party, is lawfully disclosed to the receiving party by a third party who is not under any obligation of confidentiality with respect to such information, or is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
12.4 A receiving party may disclose Confidential Information of the disclosing party to its directors, officers, employees, agents, insurers, auditors, professional advisers and subcontractors on a needtoknow basis, provided that such persons are bound by confidentiality obligations no less stringent than those contained in this Section 12. In complaint handling and insurance contexts, Confidential Information is routinely shared with insurers, surveyors and logistics partners and such disclosure shall be deemed permitted under this Section 12 where necessary for evaluation, defence or settlement of Claims.
12.5 If a receiving party is required by Applicable Laws or by order of a court, tribunal or governmental authority to disclose any Confidential Information of the other party, it may do so to the extent required, provided that it gives the disclosing party prompt written notice of such requirement and cooperates, at the disclosing party’s cost, in seeking appropriate protective orders or other remedies.
12.6 Each party shall implement and maintain reasonable technical and organisational measures to protect Confidential Information and any personal data processed in connection with the Agreement from unauthorised access, disclosure, alteration or destruction, taking into account the nature of the information and the risks involved.
12.7 Upon termination or expiry of an Agreement, or upon the disclosing party’s written request, the receiving party shall, at the disclosing party’s option, either return or securely destroy all Confidential Information (including any copies), save to the extent that retention is required by Applicable Laws or for legitimate recordkeeping purposes.
13. Termination and Suspension
13.1 Each Agreement shall continue in force until all obligations of the parties thereunder have been duly performed, unless earlier terminated in accordance with this Section 13. While individual Orders are typically transactional and conclude upon supply and payment, the parties may also enter into longerterm framework or supply agreements.
13.2 Either party may, without prejudice to any other rights or remedies, terminate an Agreement in whole or in part by written notice to the other party if, the other party commits a material breach of the Agreement which, if capable of remedy, is not remedied within thirty days after receipt of written notice specifying the breach and requiring it to be remedied, or
the other party becomes insolvent, is unable to pay its debts as they fall due, enters into liquidation (other than for the purpose of a solvent amalgamation or reconstruction), has a receiver or administrator appointed over any of its assets or undertakings, or is otherwise subject to any analogous event under Applicable Laws.
13.3 Without limiting Section 13.2, the Seller may, by written notice to the Buyer, terminate an Agreement in whole or in part, or suspend further deliveries under any or all Agreements, with immediate effect, if any amount due from the Buyer remains unpaid for more than the period specified in the applicable payment terms, the Buyer repeatedly fails to take delivery of Goods or to provide necessary delivery instructions, or the Seller reasonably believes, based on objective evidence, that the Buyer’s financial condition or conduct presents a material risk to the Seller’s ability to recover payments due.
13.4 Termination of an Agreement, whether by expiry or under this Section 13, shall not affect the Buyer’s obligation to pay all sums accrued and outstanding as at the effective date of termination, including the price of Goods manufactured, delivered or irrevocably committed for the Buyer, the Seller’s right to recover interest on overdue payments and its costs of enforcement as reflected in prior invoice conditions allowing for judicial and extrajudicial recovery, or any rights, remedies, obligations or liabilities of either party which have accrued up to the date of termination.
13.5 Upon termination of an Agreement (in whole or in part) for any reason, the Seller may, at its discretion and without prejudice to any other remedy, invoice the Buyer for all Goods delivered but not yet paid for, invoice the Buyer for all finished Goods not yet delivered but manufactured in accordance with the Buyer’s Orders and Specifications, invoice the Buyer for reasonable costs and expenses incurred in relation to raw materials, workinprogress and commitments entered into in reliance on the Buyer’s Orders, and dispose of any undelivered Goods or materials, subject to any retention of title provisions and applicable legal requirements.
13.6 The provisions of the Agreement which, by their nature or express terms, are intended to survive termination or expiry, including without limitation provisions relating to payment obligations, confidentiality, Intellectual Property, limitation of liability, Claims and dispute resolution, shall continue in full force and effect notwithstanding such termination or expiry.
14. Governing Law and Dispute Resolution
14.1 These T&Cs, each Agreement and any noncontractual obligations arising out of or in connection with them shall be governed by and construed in accordance with the laws of India, without giving effect to any choice or conflict of laws rules that would result in the application of the laws of any other jurisdiction.
14.2 In the event of any dispute, controversy or Claim arising out of or in connection with these T&Cs or any Agreement, including any question regarding their existence, validity, interpretation, performance, breach or termination, the parties shall first seek to resolve such dispute through good faith negotiations. Either party may give written notice of the dispute to the other, whereupon senior representatives of the parties shall meet (physically or virtually) and attempt to resolve the dispute within a period of thirty days from the date of the notice, reflecting the mutual discussion and amicable settlement mechanism contemplated in this section.
14.3 If the dispute is not resolved within the negotiation period referred to in Section 14.2, Any dispute, controversy or claim arising out of or in connection with these Terms and Conditions or any Agreement, including any question regarding its existence, validity, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration administered in accordance with the Arbitration and Conciliation Act, 1996 (as amended from time to time). The arbitral tribunal shall consist of a sole arbitrator, who shall be appointed by mutual agreement of the parties, failing which the appointment shall be made in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The seat and venue of arbitration shall be Indore, India, and the arbitration proceedings shall be conducted in the English language. The award of the sole arbitrator shall be final and binding on the parties and may be enforced in any court of competent jurisdiction, consistent with the governing law and dispute resolution framework adopted in the Seller’s standard terms.
15. Miscellaneous
15.1 Notices. Any notice, demand or other communication to be given under these T&Cs or any Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand, sent by recognised international courier, registered post, by email (with delivery confirmation, where feasible), or by WhatsApp or any other mutually agreed electronic messaging platform, provided that such communication is sent to the mobile number or electronic contact details designated by the receiving party in the relevant Agreement or otherwise notified in writing.
15.2 Unless otherwise specified in the relevant Agreement, any notice shall be deemed to have been received if delivered by hand, upon delivery; if sent by registered post or domestic courier, on the third (3rd) Business Day after posting or dispatch; if sent by international courier, on the seventh (7th) Business Day after posting or dispatch; if sent by email, upon transmission, provided that no delivery failure notification is received and that a copy is retained by the sending party as evidence; and if sent by WhatsApp or any other mutually agreed electronic messaging platform, at the time the message is successfully delivered to the recipient's designated mobile number, as evidenced by the platform's delivery confirmation.
15.3 Assignment and Subcontracting. The Buyer shall not assign, transfer, charge, encumber or otherwise dispose of any of its rights or obligations under these T&Cs or any Agreement without the prior written consent of the Seller. The Seller may, without the Buyer’s consent, assign its receivables, and may subcontract or delegate the performance of any of its obligations (in whole or in part) to affiliates, logistics providers or other subcontractors, provided that the Seller remains responsible for the performance of its contractual obligations.
15.5 No Waiver. No failure or delay by either party in exercising any right, power or remedy under these T&Cs or any Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise of that or any other right, power or remedy. Any waiver of any provision or right shall be effective only if given in writing and signed by a duly authorised representative of the waiving party, consistent with standard waiver provisions in commercial contracts.
15.6 Severability. If any provision of these T&Cs or any Agreement is held to be invalid, illegal or unenforceable by a court or tribunal of competent jurisdiction, such provision shall, to the extent required, be deemed to be severed or modified so as to be valid and enforceable, and the remaining provisions shall continue in full force and effect. Where any restrictive law giving rise to such invalidity or unenforceability is revoked or amended, the severed or modified provision shall, to the maximum extent permitted by law, be reinstated to its original form.
15.7 Entire Agreement. These T&Cs, together with the relevant Order, Order Confirmation, Specifications and any separately executed written contract, constitute the entire agreement and understanding between the Seller and the Buyer with respect to the subject matter thereof and, unless otherwise expressly agreed in writing by the parties, supersede all prior or contemporaneous discussions, negotiations, representations, warranties, understandings or agreements (whether oral or written) relating to that subject matter.
15.8 Amendments. No amendment, variation or modification of these T&Cs or of any Agreement shall be binding unless it is made in writing and signed by duly authorised representatives of both parties. The mere exchange of emails or other correspondence shall not, by itself, be construed as an amendment unless it clearly records the parties’ intention to amend specific provisions and is confirmed in accordance with agreed signing protocols.
15.9 Counterparts and Electronic Execution. Any Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures transmitted by email in PDF or similar format, or affixed using recognised electronic signature platforms, shall be deemed original signatures, consistent with the electronic contracting practices.
15.10 Survival. Without prejudice to any specific survival provisions elsewhere in these T&Cs, the parties expressly agree that Sections relating to definitions, payment obligations, confidentiality, Intellectual Property, limitation of liability, Claims and dispute resolution (including Sections 2, 6, 8, 9, 10, 12, 14 and 15) shall survive the termination or expiry of any Agreement, to the extent necessary to give effect to their purpose.
15.11 Non-solicitation. During the period beginning on the Execution Date and ending two years following termination of the Agreement, You shall, without securing prior written permission of the other Party, directly or indirectly, induce or attempt to induce any employee, officer, director, agent, independent contractor, customer, supplier or other service provider of the other Party to terminate its relationship with, or cease providing services or products to, or purchasing products from, the other Party
15.12 Non-exclusivity. Nothing in the Terms shall prohibit Us from furnishing similar Services to other parties, including Your competitors.