General Terms And Conditions Of Sales
These GTCoS shall apply to all product sales, deliveries, and other services (“Products”) provided by Atlas Wave Solutions Pvt Ltd (“Atlas Wave” or “Seller”). These GTCoS, together with any formal agreement that may or may not be executed (“Formal Agreement”), quotation, sales order confirmation, delivery order, invoices, or equivalent documents issued by the Seller, constitute the entire agreement between the parties concerning the subject matter hereof. There are no understandings, representations, or warranties of any kind, express or implied, other than those stated in these GTCoS. The buyer of the Products sold by the Seller, and as named in any of the documents to which these GTCoS are attached (“Buyer”), is deemed to irrevocably accept the entire GTCoS upon acceptance by the Seller of the purchase order issued by the Buyer. Any terms or conditions of the Buyer are not binding on the Seller even if the order is based upon them or if the Buyer refers to them on forms or in other documents. In case of any conflict between the documents issued by the Seller, the following order of precedence shall prevail: (i) Formal Agreement; (ii) these GTCoS; (iii) order confirmation or delivery order issued by the Seller; (iv) invoice issued by the Seller; (v) quotations issued by the Seller; (vi) unless explicitly stated otherwise therein, any correspondence issued by the Seller.
2. ORDERS:
The Seller may withdraw its offers or quotations without notice, at any time before the acceptance of the purchase order or equivalent (“Purchase Order”) issued by the Buyer. All Purchase Orders placed by the Buyer shall become firm and binding on the Buyer at the time they are confirmed by the Seller or as soon as Seller purchases or commits to purchase the Products or raw materials in connection with the Purchase Order and may not be cancelled or modified in any way without the prior written approval of the Seller. The Seller shall not be bound to supply Products pursuant to any Purchase Orders which do not specify the delivery date and place or if the delivery date or place is not finally confirmed between the parties, and any communication made by the Seller in relation thereto shall not be deemed as acceptance thereof unless stated otherwise by the Seller. The Buyer shall indemnify the Seller and its affiliates against all claims, losses, costs, damages, attorneys’ fees, and expenses incurred by the Seller in connection with any modification, cancellation, incorrect information, or equivalent of any Purchase Order. The Seller may decline or rearrange to provide any Products at any time if the Seller is of the opinion that the Buyer may not be able to pay for such Products. Any document, information, orders, or written confirmations received by the Seller from any representative of the Buyer shall be deemed to have been sent by an authorized representative of the Buyer. In cases where the Buyer places blanket Purchase Orders for any year or makes minimum purchase commitments, the deliveries shall be evenly spread out during the call-off period and the Buyer shall either take the remaining quantities at the end of the call-off period or make payment therefor.
3. PRICE:
Unless otherwise agreed in writing by the Seller, the price of the Products shall be the prevailing price at the time of delivery. The price of the Products is exclusive of any applicable value-added tax, excise tax, sales tax, or taxes or levies of a similar nature, which are imposed or charged by any competent fiscal authority in respect of the Products, and the Buyer shall be additionally liable to pay for such taxes or levies. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to the Seller which is due to (i) any factor beyond the control of the Seller, such as, without limitation, any foreign exchange fluctuation, currency regulation, increase of taxes or levies, alteration of duties, significant increase in cost of labor, materials, sell-in price of the Products or other costs of manufacture, or (ii) any change in the delivery date, quantities or specifications of the Products, or (iii) any delay caused by any instruction of the Buyer, or (iv) failure of the Buyer to give adequate information or instruction to the Seller. The Seller may charge any fees, disbursements, or surcharges incurred by the Seller in supplying the Products. In cases where the Buyer refuses to take delivery of the Products, without prejudice to other rights, the Seller may sell the Products to other customers (in which case the Purchase Order placed by the Buyer immediately becomes void) or require the Buyer to pay, as liquidated damages (and not as penalty), the higher of: twice the price of the Products, or a sum equal to the price of the Products, any disbursements, out-of-pocket expenses, and attorney’s fees in connection thereto. The Buyer acknowledges that such sum constitutes a genuine pre-estimate by the parties of the loss that would be suffered by the Seller as a result of the Buyer’s failure to take delivery of the Products. The Buyer shall further keep the Seller indemnified against all losses as may arise from the refusal of the Buyer to take delivery of the Products and take all such steps as may be required by the Seller to sell, dispose of, and/or transfer the Products at their own cost. If the Buyer requests a change of delivery date and the same is accepted by the Seller, the Buyer shall accept the Products with the reduced shelf life notwithstanding the fact that the remaining shelf life is shorter than the time originally agreed between the parties.
4. DELIVERY & RISK:
Without limiting any other provisions herein, the delivery of Products under this GTCoS is conditional upon the Seller being able to source the Products on commercially viable terms to the satisfaction of the Seller, and conditional upon the Seller’s suppliers (and any other vendors connected with the supply and delivery of the Products) being able to deliver the Products on a timely basis in accordance with the instructions of the Seller. In the event there is any inability or commercial hardship to supply, or delay in delivery of the Products to the Seller by such suppliers, the Seller shall not be held liable to the Buyer for any loss suffered by the Buyer arising in connection with such delay or non-delivery and, in this respect, the Seller reserves all its right to declare Force Majeure under clause 10 herein. Subject to any duly executed Formal Agreement or otherwise agreed by the Seller in writing, the delivery of the Products shall take place and risk in the Products will pass in accordance with EXW Incoterms 2020, with the designated place of delivery being as stated in the order confirmation or equivalent issued by the Seller. The Seller will endeavor to deliver Products on the specified date but shall not be liable for failure to do so for any reason. The time for delivery shall not be of essence. Where the Products are to be delivered in installments, each delivery shall constitute a separate contract, and failure by the Seller to deliver any one or more of the installments or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat this contract as repudiated as a whole. The Seller’s weight and measurement will govern unless proven incorrect. The Buyer shall advise the Seller of and approve all documents as may be required by the relevant authorities at the port of destination for clearance of the Products. The Buyer alone shall be responsible for obtaining translation of any required documents in the local language. The Seller shall not be responsible for clearance of the Products or liable for demurrage, detention or port charges, or any other costs and expenses incurred in connection with detention or delay in clearance of the Products.
5. TITLE:
Notwithstanding delivery and passing of the risk in the Products, or any other provisions of these GTCoS, the Seller shall retain title to the Products until the Buyer has paid the purchase price and other costs in full. The Buyer shall not be entitled to pledge or create any charge of any nature whatsoever on the Products which remain the property of the Seller. If the Buyer contravenes this provision in any manner, all money owing by the Buyer to the Seller, without prejudice to any other right or remedy of the Seller, shall forthwith become due and payable.
6. PAYMENT TERMS:
The time of payment shall be of essence. The Seller shall submit an invoice to the Buyer, based on the weight, quantity, and condition of the Products established by the Seller when the Products leave the Seller’s warehouse or any other places as determined by the Seller. The Buyer shall pay the price of all Products delivered on the payment date stated in (i) the Seller’s sales order confirmation where issued, otherwise (ii) in accordance with the terms stated on the invoice, and if not expressly mentioned on it, within twenty (20) days from the date of the invoice, without any set-off, deduction, or withholding. Notwithstanding the above, the Seller has the right to claim all or partial payment in advance and/or to obtain security for payment. The Seller shall have a lien over the Products and the right to dispose of the Products in any manner it deems fit unless payments therefor have been made by the Buyer, and the Buyer shall be responsible to forthwith reimburse the Seller for all costs associated with the exercise of lien rights and/or Products subject to disposal. Payment shall be deemed to be made on the date funds are credited to the Seller’s account in the Seller’s nominated bank, provided that the Buyer is able to provide proof of payment. Interest on any sums overdue shall accrue from the due date of the invoice till the effective date of payment at the rate of ten dot eight (10.8) per cent per annum. The Buyer shall pay all charges, costs, and legal fees incurred by the Seller in collecting the amounts owed. If any amount payable
to the Seller is overdue for more than fourteen (14) days, without prejudice to other rights, the Seller may suspend further deliveries, and any amount payable to the Seller by the Buyer shall immediately become due and payable. For payment through letters of credit, the letter of credit shall be irrevocable, confirmed, and payable by prime banks acceptable to the Seller and in a format approved by the Seller.
7. PRODUCT DEFECTS AND WARRANTY:
Upon delivery, the Buyer shall inspect the Products and inform the Seller of any missing items, defects, or non-conformance within five (5) working days. If the Buyer fails to notify the Seller within this period, the Products shall be deemed to be accepted. The Seller’s sole liability for any valid claim within this period shall be limited to the replacement of the Products or issuing a credit note. No claim for defects or non-conformance will be accepted after this period, and the Buyer waives any claim for damages, costs, or losses, including but not limited to economic loss, loss of profit, and indirect, special, or consequential damages. The Seller disclaims all warranties, express or implied, including any implied warranties of merchantability or fitness for a particular purpose.
8. LIMITATION OF LIABILITY:
The Seller’s liability to the Buyer shall not exceed the price of the Products. Under no circumstances shall the Seller be liable for any indirect, special, incidental, or consequential damages, including but not limited to loss of profit, revenue, or data, arising out of or in connection with the Products or these GTCoS. The Buyer acknowledges that the limitations of liability set forth herein are reasonable and a reflection of the agreed allocation of risk between the parties.
9. FORCE MAJEURE:
The Seller shall not be liable for any delay or failure to perform its obligations under these GTCoS due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes, labor disputes, shortages of materials, breakdown of equipment, government regulations, or any other event of force majeure. The Seller shall promptly notify the Buyer of such an event and the anticipated duration of the delay.
10. GOVERNING LAW AND DISPUTE RESOLUTION:
These GTCoS and any dispute arising out of or in connection with them shall be governed by and construed in accordance with the laws of India. Any dispute, controversy, or claim arising out of or relating to these GTCoS shall be resolved through negotiations between the parties. If the parties are unable to resolve the dispute through negotiations within thirty (30) days, the dispute shall be finally settled by arbitration in accordance with the Arbitration and Conciliation Act, 1996. The arbitration shall be conducted in English, in Hyderabad, India, by a sole arbitrator appointed by the Seller. The arbitrator’s decision shall be final and binding on the parties.
11. MISCELLANEOUS:
The Buyer shall not assign or transfer any rights or obligations under these GTCoS without the prior written consent of the Seller. The Seller may assign or transfer its rights or obligations under these GTCoS without the Buyer’s consent. If any provision of these GTCoS is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. These GTCoS constitute the entire agreement between the parties and supersede all prior agreements, understandings, and representations, whether oral or written.
12. RETURN OF CONTAINERS:
The Seller retains ownership of all containers/storage equipment and unless agreed otherwise, the Buyer shall, at its own cost, return the containers empty and in good condition to the Seller within the free time stipulated by the Seller, failing which all charges in relation to the delay shall be payable by the Buyer. Unless agreed otherwise, the Buyer shall pay a deposit on all returnable containers, which shall be credited to the Buyer’s account, less the handling fees, if any, upon the return of containers in good condition. The containers shall be returned at the Buyer’s risk and if the Buyer fails to return the containers in good condition or within the period specified herein, the Seller may reject the containers and forfeit the deposit
14. SEVERABILITY:
If any provision of these GTCoS is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these GTCoS and the remainder of the provisions in question shall not be affected thereby.
15. WAIVER:
The Seller’s waiver of any breach, or failure to enforce any of the terms and conditions of this contract, at any time, shall not in any way affect, limit or waive the Seller’s right thereafter to enforce and compel strict compliance with every term and condition hereof. The acceptance by the Seller of any payment after the specified due date shall not constitute a waiver of the Buyer’s obligation to make further payments on the specified dates.
16. COVID-19:
Given the fast-evolving developments in relation to COVID-19, the Seller reserves its right to make any amendments to these GTCoS and/or terms contained in the sales order confirmation or the delivery order, as the case may be, from time to time. Further, the Seller also reserves its right to delay or cancel the delivery of Products without any liability on its part in the event that the Seller’s suppliers and/or logistics partners are unable to deliver such Products ordered on a timely basis, including for reasons due to governmental restrictions, lockdowns, quarantine, commercial impracticality or any other controls or conditions arising on account of or in relation to COVID-19.
17. ANTI-BRIBERY AND CORRUPTION:
Each party undertakes to refrain from (i) offering, promising or giving intentionally, and from (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 domestic and/ or international business. The Buyer shall fully comply with all applicable national, international, regional, provincial, state, municipal or local laws and regulations. Without limiting the foregoing, the Buyer represents and warrants that, in connection with these GTCoS 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 the Anti-Corruption Laws applicable to the Buyer.
18. TRADE COMPLIANCE:
The Buyer shall comply with all applicable laws, regulations, and orders imposing Sanctions on countries, individuals, or entities and/or regulating the export, re-export, import, re-import, transfer, disclosure, provision, and/or end use of goods and services, and will instruct and require its contractors, agents, and business partners to do the same. The Buyer warrants that neither the Buyer nor any person that controls or owns the Buyer is a Restricted Person and that to the best of its knowledge, no part of the Products purchased from Seller (either in itself or in combination with other products) will be supplied to a Restricted Person, or to any territory, person or entity subject to Sanctions. The Buyer confirms that to the best of its knowledge, the Products will be used by them or their direct customers for civilian end-uses and will not be used for internal repression, improvised explosive devices, military and space applications unless agreed in advance by the Seller and/or by the competent authorities in writing. “Sanctions” or “Trade Control” means the economic sanctions laws, regulations, embargoes, export/import controls, or restrictive measures administered, enacted or enforced or imposed from time to time, including without limitation those enacted or enforced by any other governmental entity; or any country that the Buyer and/or Seller is incorporated in or conducts business in. “Restricted Person” means a person that is (i) located in, incorporated under the laws of, or owned or controlled (directly or indirectly) by, or acting on behalf of, a person located in or organized under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or (ii) otherwise a target of Sanctions, that is, a person who would be prohibited or restricted by law or otherwise from engaging in trade, business or other activities.
19. HUMAN RIGHTS AND LABOUR LAWS:
The Buyer shall comply with all applicable laws, statutes, regulations, and codes relating to prevention of violation of human rights, child and forced labor, exploitation, and slavery, including but not limited to the U.K. Modern Slavery Act, 2015, Australia Modern Slavery Act, 2018 (Commonwealth Act), and US Trafficking Victims Protection Act, 2000, and will instruct and require its contractors, agents, and business partners to do the same. The Seller’s due diligence obligations to the Buyer, with respect to prevention of human rights violations in supply chains, shall be determined in accordance with the relevant laws and regulations that are applicable to the Seller.
20. DATA PRIVACY AND PROTECTION:
The Buyer shall (i) comply with all applicable data protection laws in respect of the Processing of Personal Data, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”); (ii) only Process Personal Data to the extent necessary to perform its obligations under this GTCoS and for no other purpose; and (iii) implement and maintain appropriate technical, organizational and security measures to ensure that Personal Data is adequately protected against unauthorized Processing, disclosure, loss or misuse. The Buyer shall not transfer any Personal Data to any recipient without the Seller’s prior written consent. The Buyer shall promptly notify the Seller if it suspects, or is aware of, any data breach involving Personal Data within 24 hours after having become aware of it, in which case, the Seller shall be entitled to terminate all transactions and business relationship with the Buyer. As used in this clause, “Personal Data” and “Process/Processing” have the meanings set out in the GDPR. The Buyer shall comply with any directions and/or requirements of the Seller pertaining to any mandatory breach of Personal Data notification requirements under any applicable law.
21. COMPLIANCE WITH LAWS:
The Buyer shall at all times conduct its business in all respects in accordance with all applicable laws and regulations of the Relevant Seller Country and any other jurisdictions in which the Buyer conducts business, or which is applicable to the Buyer and/ or its business. Further, the Buyer must obtain all licenses, permissions, consents and other approvals required to perform its obligations under these GTCoS. The Seller has the right to suspend and/or terminate all transactions with the Buyer in the event of breach of any laws or regulations. The Buyer undertakes to indemnify the Seller against all claims, losses (including direct and indirect losses), costs, damages, attorneys’ fees, and expenses incurred by the Seller in connection with any breach of the laws, whether explicitly stated in this GTCoS or not.