General Terms and Conditions of Purchase
1. Scope
These General Terms and Conditions of Purchase (GTCoP) apply to all purchases of products and services (“Products”) by Atlas Wave Solutions Pvt Limited (“Atlas Wave” or “Buyer”). These GTCoP, along with any formal agreement (“Formal Agreement”), purchase orders, and other documents issued by the Buyer, constitute the entire agreement between the parties regarding the subject matter hereof. The seller of the Products purchased by the Buyer, as named in any of the documents to which these GTCoP are attached (“Seller”), is deemed to accept these GTCoP and all terms of the Buyer upon acceptance of any order, purchase orders, or equivalent documents sent by the Buyer to the Seller (“Purchase Order”). Any terms or conditions of the Seller are not binding on the Buyer and should be disregarded. In case of any conflict between the documents issued by the Seller, the following order of precedence shall prevail: (i) Formal Agreement; (ii) GTCoP; (iii) Purchase Order; and (iv) any correspondence or other document issued by the Buyer, unless explicitly stated otherwise.
2. Orders
The Seller may not withdraw its offers or quotations without the prior written consent of the Buyer. The Buyer may withdraw Purchase Orders before the delivery of the Products by giving notice to the Seller. A Purchase Order placed by the Buyer shall be deemed accepted by the Seller unless rejected within three (3) business days of its receipt. Upon acceptance of a Purchase Order, the Seller shall not refuse delivery of Products. Any document, information, quotations, offers, or written confirmations received by the Buyer from any representative of the Seller shall be deemed to have been sent by an authorized representative of the Seller.
3. Price and Payment Terms
The price of the Products shall be the price stated in the offers or quotations (“Quotation”) made by the Seller, provided such price has been accepted by the Buyer. Upon acceptance of the Quotation by the Buyer, the Seller shall not increase the price of the Products without the prior written consent of the Buyer. The invoice raised by the Seller shall be in the name of the Buyer entity that placed the Purchase Order on the Seller, unless stated otherwise by the Buyer in writing, and shall state the net amount payable by the Buyer and provide an itemized description of the total amount payable. The Buyer shall not be charged any amount not stated in the Quotation provided by the Seller and which has not been agreed upon in advance by the Buyer. The Seller shall pay all taxes, duties, or levies payable in relation to the Products purchased by the Buyer. Unless agreed otherwise, Buyer shall pay the price of the Products within sixty (60) days from the receipt of the invoice from the Seller, provided that the Products are received in (i) good condition; (ii) in accordance with the required specifications, instructions, drawings, data, warranties (express or implied), and other agreed requirements of the Buyer; (iii) in the specified quantity; (iv) on the specified date and time; (v) at the point of delivery mentioned in the Purchase Order (collectively referred to as “Requirements”); and (vi) are accepted by the Buyer upon inspection. If any part of the invoice is disputed by the Buyer, the Buyer shall have the right to deduct, set-off, or withhold payment of the invoice amount, in part or in whole. The Seller shall have no right to delay or cancel any deliveries by reason of any deduction, set-off, or withholding made by the Buyer, and under no circumstances shall any delay in payment of the Products entitle the Seller to claim any lien or security interest in any Product to secure payment of the purchase price.
4. Delivery and Inspection
Time is of the essence in every order placed by the Buyer. Subject to any duly executed Formal Agreement or otherwise agreed by the Buyer in writing, the delivery of the Products shall take place and the risk in the product shall pass in accordance with DDP Incoterms 2020, with the designated place of delivery being as stated in the Purchase Order. All orders must be delivered during the Buyer’s business hours unless otherwise agreed in writing by the Buyer. The Products rendered by the Seller are subject to inspection and approval by the Buyer. In the event that the Seller fails to deliver the Products in accordance with the Requirements, the Buyer may, at its discretion and without prejudice to other remedies, (i) reject the delivery of the Products and require the Seller to re-supply conforming Products; (ii) require the Seller to rectify the Products so that they conform to the Requirements; or (iii) procure similar products from an alternate source. All losses, costs, damages, attorney’s fees, and expenses in relation to or arising out of the Seller’s default, including but not limited to costs relating to re-supply, rectification, disposal, manpower, and shipment, shall be borne by the Seller. These rights of the Buyer shall apply for the entire shelf life of the Products and notwithstanding any inspection by the Buyer at the time of delivery. Payment for Products that do not conform to the Requirements, placing or accepting future orders, shall not constitute acceptance of the Products or waiver of the Buyer’s rights to refuse and/or reject the Products at any time. Where applicable, if the Buyer is unable to obtain clearance for the Products from the relevant authorities due to any discrepancy or deficiency in the documents required to be provided by the Seller for their import, the Seller shall arrange for disposal or return of the Products at its own cost. Any advance paid by the Buyer shall be promptly returned by the Seller. Where requested, the Seller shall render prompt assistance to the Buyer in providing all documents as may be requested by the authorities (and in the language requested) for clearance of the Products, and the Seller shall be liable for all demurrage, detention, port charges, or any other costs and expenses incurred as a result of detention or delay in clearance of the Products.
5. Title
Title in the Products shall pass to the Buyer when the Products are finally accepted by the Buyer after inspection or upon payment of the price for the Products, whichever is earlier.
6. Warranty and Liability
The Seller warrants that (i) the Products delivered hereunder are of good quality, free of material and legal defects, and are fit for the purpose for which they are purchased; (ii) the Products conform to the specifications, drawings, samples, or other descriptions furnished by Buyer; (iii) the Products comply with all standards, codes, and applicable laws in force; (iv) the Seller shall convey good and marketable title to the Products; (v) the warnings provided by the Seller are sufficient and accurate to inform those who come in contact with the product of the safety requirements and the hazards associated with the Product; (vi) all information provided by the Seller in relation to the Products is true and accurate in all material respects; and (vii) the services shall be performed in a skilled, workmanlike manner, and in accordance with good industry practices. The Seller’s inclusion of express warranties and representations does not exclude any warranties that may be implied or expressly set forth in law or fact. This warranty shall survive any inspection, delivery, or acceptance of the Products, or payment for the same by the Buyer.
7. Intellectual Property
The Seller warrants that the transaction contemplated by this GTCoP does not violate the intellectual property rights of any third party. The Seller shall, at its own expense, either (i) procure the Buyer’s right to continue using the Products; (ii) modify or replace the infringing part of the Products so as to avoid the alleged infringement, provided that the Products continue to conform to the specifications supplied by the Buyer; and/or (iii) prepare, execute, and submit, without the assistance of the Buyer, all documents necessary to achieve the aforementioned objective. The Buyer shall have title to all drawings, specifications, and other documents supplied or prepared by the Buyer in connection with the furnishing of Products hereunder. The Seller shall hold all such information supplied by the Buyer in confidence and shall use the same only to the extent necessary for the execution of the Purchase Orders placed by the Buyer. The Seller shall take all necessary measures to protect the intellectual property rights of the Buyer from being infringed by any person under its authority, direction, or control, or by any third party to whom information containing the intellectual property rights of the Buyer is disclosed. The Seller shall promptly return all such specifications, drawings, and data, and any copies thereof, in whichever form maintained, to the Buyer after the supply of the Products.
8. Health Risk and Safety
The Seller warrants that the Seller and the Products sold hereunder will comply with all applicable laws, licenses, permits, and regulations (including, but not limited to, safety and health laws, environmental laws, and laws requiring disclosure of hazardous materials) relating to the manufacture, sale, distribution, delivery, import, export, advertising, marketing, and/or transportation (including labeling and packaging requirements) of the Products. The Seller shall (i) obtain and maintain all required environmental permits and registrations, (ii) conform to applicable labeling and warning requirements, and (iii) identify, manage, store, transport, and handle hazardous substances in accordance with the law. The Seller shall provide the Buyer with all information required to reasonably assist the Buyer and all persons engaged by the Buyer, in the safe handling, storage, transportation, use, and reporting requirements of the Products. The Seller acknowledges and agrees to comply with, where applicable, the current regulations establishing supply chain due diligence obligations. The Seller shall develop, implement, and maintain methods and processes appropriate to the Products to minimize the risk of introducing counterfeit parts and materials into the Products. The Seller shall notify the Buyer in writing, immediately upon becoming aware thereof, (i) of any significant changes in the environmental risks in its business area, and (ii) if the Seller has any reason to believe that
any Product furnished to the Buyer (or the use thereof) has or may have contributed to any illness, bodily injury, or property damage, or (iii) the occurrence of any event which may affect the safety of the Products.
9. INDEMNITY: The Seller shall indemnify and hold harmless the Buyer, its affiliates, and their officers, directors, employees, and agents from any and all claims, losses, costs, damages, attorneys’ fees, and expenses incurred by the Buyer arising out of (i) modification or cancellation or incomplete performance of any Purchase Order that has been accepted by the Seller; (ii) delivery of Products that do not conform to the instructions or Requirements given by the Buyer; (iii) breach of the warranties given by the Seller, whether express or implied; (iv) actual or alleged infringement of any intellectual property rights, including but not limited to patent, copyright, trademark, license or similar rights of a third party; (v) Products provided by the Seller which are not in compliance with the health, safety, and environmental requirements, and which renders the Products defective or unsafe; (vi) provision of inaccurate or incomplete information by the Seller relating to the Products; and/or (vii) any delay in the delivery of the Products.
10. FORCE MAJEURE: Neither party shall be liable for breach of its obligations hereunder, by reason of any delay in performance or the non-performance of any of its obligations to the extent that the delay or non-performance is due to any unforeseeable causes beyond the reasonable control of that party, meaning thereby, interruption, unavailability, or inadequacy of performance of the agreement for any reason, including pandemics, epidemics, wars, hostilities, public disorders, acts of terrorism or terrorist activity or threat thereof, coup d’état, acts of enemies, sabotage, including diminishment or failure of power, telecommunication or data systems or networks, embargoes, strikes, work stoppages, lockouts, labor or employment difficulties, fires, floods, Acts of God, accidents or breakdowns, weather conditions, inability to obtain materials, or any other causes of the same class or kind as those specifically named. For the avoidance of doubt, mere increase in the cost of performance of this GTCoP by the Seller pertaining to Force Majeure shall not entitle the Seller to claim protection under this clause. The Seller shall notify the Buyer in writing within seven (7) business days from the date on which the Seller becomes aware of the Force Majeure event. Such notice must include sufficient details of the Force Majeure event and an explanation on why such event is beyond the control of the Seller, failing which, the Seller shall not be entitled to rely on such alleged Force Majeure event.
11. TERMINATION: The Buyer has the right to terminate these GTCoP in whole or in part at any time (whether before or after acceptance of the Purchase Order) and for any reason, by written notice to the Seller, without incurring any liability. In the event of termination, the Seller may claim only out-of-pocket expenses. Notwithstanding the foregoing, if the Buyer terminates these GTCoP for any breach of the GTCoP committed by the Seller, the Buyer shall not be liable to make any payments to the Seller. Any payments to be made to the Seller upon termination shall be subject to the Buyer’s rights of deductions and set-off for damages incurred to the Buyer arising out of or in relation to the breach of the GTCoP by the Seller. The remedy of termination is without prejudice to any other rights available to the Buyer under contract or law. Upon termination, the Buyer may, at its option, either continue to sell the remaining inventory till its exhaustion or require the Seller to repurchase the remaining inventory at the landed price of the Products, and EXW Incoterm.
12. ASSIGNMENT: The Seller shall not assign its rights, benefits, or obligations under this GTCoP without the prior written consent of the Buyer. The Buyer may assign its obligations or right to any third party without any prior notification to the Seller. Nothing contained herein prevents the Buyer from purchasing the Products through its agents, third parties, other distributors, or affiliates, who may act in their own name.
13. RETURN OF CONTAINERS: Unless otherwise agreed between the parties, the Buyer shall not be responsible to return the packaging materials to the Seller, and all packaging materials shall be disposed of by the Seller at its own cost. In case the delivery is made in returnable containers/drums, the Seller shall, at its own expense and risk, arrange for the storage and return of the aforesaid containers/drums. The Buyer shall, at no time, bear any risk or cost in relation to any returnable containers/drums.
14. DISPUTES & JURISDICTION: If a difference or dispute (together, “Dispute”) between the parties arises in connection with the subject matter of this GTCoP, then either party shall send a written notice of Dispute (and marked as such) adequately identifying and providing details of the Dispute (“Notice of Dispute”). Within thirty (30) days after the date of the Notice of Dispute and provided that it is received by all parties, the parties shall confer at least once to resolve the Dispute or to agree on methods of doing so. If a Notice of Dispute is sent by e-mail, it must be in a letter format attached to the e-mail. A Notice of Dispute sent by e-mail is deemed received, if sent to the correct address, on the next working day on which it is sent, unless a delivery failure notification is received by the sender. In the event that the parties are unable to resolve their Disputes amicably within thirty (30) days from the date of receipt of the Notice of Dispute by its intended recipient, they agree to submit to the exclusive jurisdiction of the courts in India. Any dispute or claim arising out of or in connection with these GTCoP shall be governed by the laws of India, without regard to its conflict of laws rules or principles. The Vienna Convention on the International Sale of Goods is hereby specifically excluded.
15. SEVERABILITY: If any provision of these GTCoP is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these GTCoP and the remainder of the provisions in question shall not be affected thereby.
16. WAIVER: The Buyer’s waiver of any breach, or failure to enforce any of the terms and conditions of this GTCoP, at any time, shall not in any way affect, limit or waive the Buyer’s right thereafter to enforce and compel strict compliance with every term and condition hereof.
17. MISCELLANEOUS: (i) The headings in these GTCoP are for convenience only and shall not affect their interpretation. (ii) The English version of the GTCoP shall prevail in the event of conflict with the Buyer’s GTCoP in other languages. (iii) The Buyer shall be entitled to modify these GTCoP from time to time, and the latest version prevailing at the time of receipt of these GTCoP by the Seller shall be binding. (iv) The Seller shall keep all information deemed confidential (whether or not marked as such) by the Buyer, and supplied to it by the Buyer (including, in particular, information regarding pricing, financial information, market information, customer data, manufacturing and technical information or know-how) confidential. (v) All references to the Seller, where the context permits, shall include its affiliates, employees, agents, officers, and sub-contractors. (vi) The Buyer shall have the right, at any time, to cancel any order placed by the Buyer under these GTCoP in the event of any breaches of these GTCoP by the Seller. (vii) All notices required to be given under this GTCoP shall be deemed to have been validly delivered if sent by email and deemed to be delivered on the next working day after the day on which the email is transmitted and addressed to the account manager or the person reasonably deemed to be authorized to receive such notices on behalf of the Buyer. (viii) The Buyer shall be free to repack, rebrand, relabel, and resell the Products under its own name and on its own account to the maximum extent permissible under the law.
18. ANTI-BRIBERY AND CORRUPTION: Each party undertakes to refrain from (i) offering, promising, or giving intentionally, and (ii) attempting and conspiring to offer, promise or give, any undue pecuniary or other advantage, whether directly or through intermediaries, to a public official, for that official or for a third party, such that the official acts or refrains from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of its domestic and/or international business. The Seller shall fully comply with all applicable national, international, regional, provincial, state, municipal, or local laws and regulations, including but not limited to the Prevention of Corruption Act, 1988, the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010, the United Nations Convention Against Corruption, and all other laws in relation to the fight against corruption, bribery, money laundering, terrorism, and boycotts that are applicable, and as may be amended from time to time (“Anti-Corruption Laws”). Without limiting the foregoing, the Buyer represents and warrants that, in connection with these GTCoP or the business resulting therefrom, neither it nor its affiliates have made, offered, or authorized or will make, offer, or authorize any payment, gift, promise, or other advantage, whether directly or through any other person or entity, to or for the use or benefit of any government official or any person, where such payment, gift, promise, or other advantage would (i) comprise a facilitation payment; and/or (ii) violate any Anti-Corruption Laws. The Seller shall inform the Buyer in writing of any occurrence which might constitute a breach of this clause as soon as possible, and in any event no later than thirty (30) days after it becomes aware of the breach. If the Seller breaches this clause, the Buyer shall have the right to terminate the GTCoP immediately, without the Seller having the right to claim any compensation or damages for such termination, notwithstanding any other remedies available to the Buyer under the GTCoP or the applicable law.
19. SURVIVAL: Not with standing the termination of these GTCoP for any reason whatsoever, the following provisions shall continue to be binding on the parties and shall survive such termination: 1, 2, 3, 4, 5, 6, 8, 9, 11, 12, 14, 16, 17, 18, and 19.