These shall be applicable when JMC Projects (India) Ltd. (hereinafter referred to as "Buyer") place a Purchase Order / Contract Order on any party in India and/or outside the territory of India (hereinafter referred to as the "Seller").
This Purchase Order shall be governed by the terms and conditions stated hereunder which supersedes all previous negotiations and communications between the Buyer and the Seller (the Parties) and any terms and conditions that are agreed between the Parties. This Purchase Order is the complete and exclusive statement of the terms and conditions of the agreement between Seller and Buyer. No variation, modification or addition to this Purchase Order shall be valid without written consent signed by Buyer's authorized representative.
1 Acceptance & Effective Date of the Purchase Order
1.1 Acceptance of Purchase Order
1.1.1 Buyer shall not be bound by this Purchase Order until Seller confirms their acceptance of the Purchase Order in it’s entirely to Buyer within 3 days of the date of the Purchase Order.
1.1.2 In case, the Purchase Order confirmation is not received within aforesaid 3 days period, the Purchase Order shall be deemed to be accepted and the Seller agrees and undertakes that Seller shall be bound by the terms & conditions of this Purchase Order.
1.2 Effective Date of Purchase Order
These terms and conditions shall come into force upon signing of the Purchase Order.
2 Purchase Order Amendments & Changes
2.1 The goods/services supplied against this Purchase Order should strictly adhere to the specifications and conform to the stipulated delivery schedule or any other further modification to the delivery schedule provided by the Buyer.
2.2 Buyer reserves the right at any time to make changes in any one or more of the following:
2.2.1 Specifications, drawings and data incorporated in this order
2.2.2 Methods of shipment or packing
2.2.3 Place of delivery
2.2.4 Time of delivery
2.2.5 Manner of delivery and
2.2.6 Quantities
2.3 Any subsequent change in the terms of this Purchase Order by way of adding to altering or rescinding the terms shall be valid only when it is made in writing and signed both the Parties
3 Scope of supply and pricing
3.1 The Seller shall design and manufacture or arrange from OEM and supply the materials as specified in the Purchase Order. The Seller shall arrange for testing, packing and forwarding, loading, transportation, insurance, octroi clearance and unloading at Buyer’s site and documentation, as are necessary to ensure the supply of goods and/or services as specified in this Purchase Order, unless otherwise agreed by the parties in writing.
3.2 The Seller agrees that the price(s) stated in the Purchase Order shall be firm and valid till completion of supply of total quantity of this Purchase Order and not subject to price adjustment or escalation unless execution of a written subsequent Amendment to the Purchase Order.
4 Delivery Conditions
4.1 The delivery schedule as stipulated in this Purchase Order shall be the essence of the contract and no change or variation therein shall be permitted unless prior consent in writing has been obtained from the Buyer. If the delivery schedule is not included in this Purchaser Order and is communicated separately to the Seller by the Buyer, such delivery schedule shall be treated as part of this Purchase Order.
4.2 The goods/services shall be dispatched /rendered and delivered strictly as stated in this Purchase Order and the delivery of the material shall be accepted at Buyer's respective stores/specific site locations on the day and time intimated and agreed.
4.3 The Seller shall send an Advance Shipping Notification to Buyer of at least 5 days before dispatching.
4.4 Time is essence in the performance of this Purchase Order.
4.5 In the event of goods/services not meeting the specifications in terms of quality, quantity or timelines, the Buyer shall levy liquidated damages at the rate of 0.5% of the total purchase order price, per week or part thereof for every week or part thereof of delay until actual delivery or performance, up to a maximum reduction of 10% (ten percent) of the Purchase Order Value.
4.6 In case of delay beyond 30 days in supplying/providing the goods/services by the Seller, Buyer reserves the right to procure the goods/services from alternate source at the risk and cost of the Seller.
5 Packing & Forwarding
5.1 It shall be the responsibility of the Seller to properly pack the consignment to suit the mode of transport namely, by road, rail, sea or air as the case may be, so as to ensure its delivery at destination free of loss, damage, pilferage, etc. All goods shall be packed consignee-wise in suitable weather proof strong cases, wherever essential for air lifting to India and truck transport to the site in India. The packing shall be sufficient to withstand, without limitation, rough handling during transit and exposure to extreme temperatures, dust and precipitation during transit and open storage. The Seller shall also consider packing case size and weights, the location of the final destination etc. The Seller is aware that some of the locations of the Buyer are in remote areas which may not have heavy handling facilities. The Seller shall adhere to all the statutes /laws/regulations of India in this regard. .
5.2 The consignment shall be prominently marked showing the Purchase order number and date clearly. The Seller shall mark all details for identification of packing as required by relevant authorities and so as to make it most convenient to identify the packages at the ultimate consignee's end.
5.3 All packages that require special handling and transport should have their centre of gravity and points at which they may be slung or gripped clearly indicated. Proper directional indications shall be given for fragility and mounting.
5.4 On each package it shall be clearly marked in indelible ink, on two opposite sides and the top thereof, the name of the ultimate consignee, gross weight, Net Weight, outer dimension in cms and C.V. measurements.
5.5 All fragile and all exposed parts shall be packed with care and the packages shall bear the words "HANDLE WITH CARE" and "THIS SIDE UP"
5.6 Each package shall contain packing list indicating each item. Container wise packing list (wherever applicable) shall also be provided in advance. Packing List shall contain information such as the name of the ultimate consignee, gross weight, Net Weight, outer dimension in cms and C.V. measurements
5.8 All packing charges are to the account of Seller only unless specifically agreed to otherwise in writing by the Purchaser.
5.9 The Seller shall be liable for damage to goods / materials or articles caused by improper boxing, crating or packing as well as corrosion due to insufficient protection. In case of any damage during transportation by the Seller or during the storage by the Buyer, due to poor packing by the Seller, the damage shall be compensated by Seller to the Buyer.
6 Transportation & Insurance
6.1 Seller shall arrange for the transportation of goods from the Seller’s works / Plant (s)/ warehouse(s) to the destination of the Purchaser as mentioned in Purchase Order.
6.2 The charges towards transportation are included in basic rates unless specified otherwise in the Purchase Order. In case the Purchase Order specifies that transportation charges will be paid, the Seller shall either claim the same on the face value of invoice itself or by way of separate debit note supported by invoice.
6.3 The Seller has to arrange necessary insurance coverage at his cost for the goods/services to be supplied by him. Seller shall be liable for insurance and insurance charges till the goods are handed over to the Buyer at the destination specified by the Buyer. All the goods supplied under the Purchase Order shall be fully insured against loss or damage incidental to transportation, storage and delivery, by the Seller at Seller’s cost.
6.4 The insurance shall cover transportation ex-works to the destination as specified by the Buyer. The Seller shall arrange and pay for insurance naming Buyer as the beneficiary. The Way bills shall be drawn so as to indicate the name of the Seller, the shipper and names of port and the ultimate consignees. In case of imports, the insurance cover shall be for 110% of CIF value of the goods in a freely convertible currency.
7 Inspection
7.1 The Buyer reserves the right to inspect the goods prior to dispatch and also stage wise at the Seller's place, as the case may be. Before dispatch inspection shall be conducted at Seller's workshop/manufacturing unit/yard. The Buyer shall, at their discretion, depute representatives for examination of the goods at the time of packing and delivery. The Seller shall give 15 days prior notice and a letter of invitation for carrying out pre dispatch inspection. The goods shall not be dispatched unless the duly authorised person by the Buyer inspects and issues a certificate of inspection or the Buyer does not insist upon exercising the right to inspect.
7.2 The Buyer shall, at their discretion, conduct detailed inspection of the goods under Purchase Order, at destination as specified in the Purchase order for ascertaining whether the goods are in conformity with the Purchase Order. Until then, in no event the Buyer shall be deemed to have accepted such goods. Upon any rejection of the goods in question, the Seller shall be deemed to have failed to deliver the concerned goods in accordance with the Purchase Order.
7.3 Buyer’s Weighment of goods supplied by the Seller shall be final and binding. Weight variation if any, will be settled at the Buyer's discretion and will be considered at the time of payment of the Seller's bills/invoices.
7.4 Goods received by the Buyer or any other receiving department shall be subject to subsequent inspection, verification or rejection and reserving the Buyer's right to reject the material found defective which shall be replaced by Seller free of cost, failing which, the Seller confirms and authorizes the Buyer to deduct the cost of the rejected material from the pending or future bills of the Seller.
8 Receipt of Goods and documentation required
8.1 Goods shall be delivered at the delivery address as mentioned in PO.
8.2 Goods shall be accepted subject to:
a) Providing Delivery Challan having mentioned the item No., item code along with corresponding material description, quantity and PO No. on Challan;
b) Duplicate for transporter’s copy of excise invoice in case of excisable goods;
c) Packing list (If required)/Measurement /Weighment slip;
d) Receipt of Material Test Certificate / Internal Test & Inspection reports (as mentioned in PO);
e) Receipt of any and all other documentation, which may be required, including drawings, data, installation/Commissioning, instruction Manual, DOs & DONTs and all documents as called for elsewhere in the PO.
8.3 Seller has to ensure that the vehicle carrying ordered goods should report at the destination during day time between 9.00 am to 5.00 pm.
8.4 No charges for detention shall be claimed by the Seller for delay in unloading due lack of proper documents, rejection of goods or any cause beyond control of Buyer.
9 Rejections and Replacement
9.1 The Buyer shall have the right to withhold payment for material found not in conformity with the Buyer's specification irrespective of the title therein passed on to the Buyer. The rejected material shall be replaced or its price refunded to Buyer, where already paid in advance, within 30 days from the date of receipt of the Buyers intimation of rejection failing which the Buyer shall charge interest at 18 % per annum on the value of rejected goods not replaced or not refunded.
9.2 All the rejected goods shall be removed by the Seller from the Buyer's premises within a period of one week from the date of intimation of rejection at the Seller's cost, failing which, the Buyer shall not be responsible for its care and protection or any loss or deterioration. The Buyer shall be entitled to dispose the same without any further notice to the Seller.
9.3 Buyer shall be entitled to recover or deduct from the bills of the Seller, freight, other levies and costs, if any, incurred by the Buyer in respect of rejected consignment including but not limited to the cost of shifting the rejected materials within the site and any expenses incurred to carry out test either at Buyer's testing facility or any other test facility appointed by the Buyer.
9.4 In case complete goods are not inspected due to packing or huge quantity and time constraint at the time of receipt, Seller shall replace/repair the rejected/damaged goods, if any as and when it is intimated to the satisfaction of Buyer at no extra cost.
9.5 Buyer shall be entitled to recover losses and/or rectification expenses which may occur due to supply of poor quality material discovered in later stage from Seller, over and above cost of the material supplied.
10 Invoicing Instruction
10.1 Invoice should be made out by the Seller in name of the Buyer and should be delivered within seven (7) days of dispatch of goods.
10.2 Buyer will not accept any invoices for excess quantities in respect of goods / services supplied under this Purchase Order. However, wherever such excess quantities are within reasonable limits in the opinion of the Buyer, keeping in view the standard lengths / sizes of individual products, such excess quantities may be accepted at Buyer’s sole discretion. The Seller shall have no right to demand acceptance of any such excess quantities.
10.3 It is essential that the Seller should mention the item no., item code along with corresponding material description, quantity, rate and Purchase Order No., Challan no. with date etc. on invoice in the same sequence as mentioned in Purchase Order.
10.4 Invoices shall be fully supported by the following document(s):
a) Test Certificate of internal testing at factory, if required .
b) Acknowledged Challans duly stamped by site security personnel of the Buyer.
c) Weighment/measurement slip.
d) Other supporting(s) as mentioned in the Purchase Order.
e) Manufacturer's Guarantee/warranty certificate.
f) The word TAX INVOICE shall be mentioned on the top of the invoice. Only then VAT/CST- ITC will be allowed.
g) In case of excisable goods, Seller will issue relevant Excise Invoice.
h) Seller shall clearly indicate Tax rates and the tax amount thereof separately.
i) Supplier shall also mention in the invoice(s) their TIN No. / ST No. / VAT No. / CST No. and date thereof.
j) Invoice shall be duly signed and sealed by the Seller or his authorized representative.
11 Duty, Taxes, Octroi and other levies
11.1 Excise duty is included in the basic rates, if not specified separately in Purchase Order. However Seller shall show the same separately in the invoice.
11.2 VAT/CST is included in the basic rates, if not specified separately in PO. However, Seller shall show the same separately in the invoice.
11.3 Octroi/ Entry Tax/Cess are included in the basic rates, if not specified separately in PO. However Seller shall show the same separately in the invoice supported with original receipt of Octroi.
11.4 If Octroi/ Entry Tax/Cess receipt is not submitted along with the invoice, invoice shall not be processed and NO PAYMENT shall be made towards these invoices.
11.5 In case of any shortfall/no payment of Octroi/ Entry Tax/Cess, it will attract the penalty equivalent to 10 times of actual Octroi/ Entry Tax/Cess amount (calculated on invoice value) as per act of local municipal corporations / statutory bodies.
11.6 If Seller insists for payment without Octroi/ Entry Tax/Cess receipt, Buyer may, at Buyer’s sole discretion, release the payment against those invoices after deducting the amount equivalent 11 times of Octroi/ Entry Tax/Cess amount (actual Octroi/ Entry Tax/Cess amount + 10 times of Octroi/ Entry Tax/Cess amount towards penalty) subject to submission of following by the Seller:
a) Request letter informing the inability to furnish the original Octroi/ Entry Tax/Cess receipt of full value of Octroi/ Entry Tax/Cess amount payable and accepting for deduction of amount equivalent to 11 times of Octroi/ Entry Tax/Cess amount as per act mentioned above.
b) Letter confirming the assurance of submitting the original Octroi/ Entry Tax/Cess receipt of full amount within the current financial year before closure of books of accounts and refund of deducted amount as per clause 11.6 (a). In case of failure to submit the same, no refund shall be made and whatever payment has been made towards the said invoice(s) shall be full and final and no claim shall be made by Seller in future.
12 Variations in Taxes, Duties and Levies
12.1 The total order value shall be adjusted on account of any variations in Statutory Levies imposed by Competent Authorities by way of fresh notification(s) within the stipulated delivery period only. However, in case of reduction in Taxes, Duties and Levies after the stipulated delivery period, the benefits of the same shall be passed on to Buyer.
12.2 No other Taxes, Duties & Levies other than those specified above will be payable by Buyer except in case of new Levies, Taxes & Duties imposed by the Competent Authorities by way of fresh notification(s) subsequent to the issue of PO but within the stipulated delivery period.
12.3 Notwithstanding what is stated above, changes in Taxes, Duties & Levies shall be applied only to that portion of PO (Purchase Order) not executed on the date of notification by Competent Authority. Further, changes in Taxes, Duties & Levies after due date of Delivery shall not affect PO Terms and Value.
13 Payments
13.1 Prices/ rates mentioned in this Purchase Order shall be firm prices/ rates and not subject to any increase or escalation. Any request for changes or revisions thereof shall be made in writing and will be considered only in exceptional circumstances e.g. increase in Government levies or taxes or disproportionate rise in prices of raw materials. In case of any fall in price/levies the same shall be passed on to the Buyer forthwith.
13.2 Buyer shall have no liability for payment of items delivered to Buyer which are in excess of quantities specified in this order and delivery schedules. Such items shall be subject to rejection and returned at Seller's expense, including transportation charges both ways. Buyer shall not be liable for any material or production costs incurred by Seller in excess of amount or in advance of the time necessary to meet Buyer's delivery schedules.
13.3 Seller shall mention complete Purchase Order number and item codes on Challan, invoices and correspondence. The Seller shall mention name of the company correctly, address and registration number on the tax invoices. Payment of the Seller's bills/invoices shall be effected as per the period mentioned in the Purchase Order, which period shall be taken from the receipt of the Seller's relevant bills/ invoice by the Buyer's Accounts Department or receipt of material by stores/concerned plant .Payment of any item under this Purchase Order shall not constitute acceptance thereof. In case of delay in payment due to any unavoidable circumstance, seller will not ask for any interest on outstanding amount from buyer.
13.4 In the event of any dispute between the Buyer and Seller with respect to the invoiced services or other related matters, the Buyer may, at their discretion, pay the undisputed amount and the Buyer and the Seller shall promptly seek to resolve the disputed amount. Non-payment of prices by the Buyer in such circumstances shall not constitute a default or breach of contract.
13.5 The Seller shall be responsible for all taxes, levies, duties, assessments, deductions of every nature required by law in connection with the provision of services.
13.6 In no event shall the Buyer be responsible for any taxes based on the Seller's net income or gross receipts, or other such taxes based on the Seller doing business in any particular jurisdiction. The Buyer shall make all deductions on payment of prices as required by law and provide the Seller with the requisite certification for deduction of tax at source.
13.7 Subject to the Clause 18 (Force Majeure), if the Seller fails to deliver any or all the goods and/or perform the services within the time period(s) specified in the Purchase Order, without prejudice to its other remedies under the Purchase Order / Contract, price reduction shall applicable to the Total Purchase Order Value at 0.5% of the Purchase Order Value for each week or part thereof of delay until actual delivery or performance, up to a maximum reduction of 5% (five percent) of the Purchase Order Value. Once the maximum is reached, the Buyer may consider termination of the Purchase Order / Contract. The reduction will be effected while release of pending payments on delivery of goods. Notwithstanding what is stated in this clause, the Buyer shall also have a right to terminate the Purchase Order in the event the delay in supplying the goods/services by the Seller exceeds 30 days of the scheduled dates of supply. Notwithstanding the above, in case of any delay the Buyer also has the right to procure the goods/services from alternative source at the risk and cost of Seller.
14 Transfer of Title
14.1 The goods shall be consigned to the Buyer. The title of the goods shall be passed to the Buyer as soon as the goods reaches to Buyer’s designated destination and the documents evidencing the title and despatch are transferred in favour of the Buyer. However, such passing of the Title of Ownership to the Buyer shall not in any way absolve, diminish or dilute the responsibility and obligation of the Seller, as per Purchase Order / Contract, including transit loss/ damages or delay in receipt of the goods at site.
14.2 The Seller warrants that the title to and ownership of goods is free of all liens and charges, whether during design, engineering, manufacturing or shipment, or when incorporated into the scope of work or in storage on-site or off-site.
14.3 The Seller further warrants that prior to transfer of title to the Buyer it has and shall have good and marketable title to and ownership of all goods and other materials incorporated into the scope of work and which shall pass on to and vest in the Buyer free and clear of any lien or rights of other parties
15 Cancellation
15.1 The Buyer shall reserve the right to cancel or rescind this Purchase Order in full or in part (at the discretion of the Buyer) by a written notice to the Seller in the event of:
15.1.1 Failure on the part of the Seller to comply with the terms and conditions of this Purchase Order.
15.1.2 Failure on the part of the Seller to deliver the goods in time and/or failure to give replacement of rejected goods promptly.
15.1.3 Seller becoming bankrupt or insolvent.
15.2 In the event of cancellation the Buyer shall be entitled to procure the goods through other sources and recover the excess amount, if any, over the Purchase Order price from the Seller, reserving the right to any or all of the following remedies:
15.2.1 Forfeiture of the security, if any.
15.2.2 Invoking of the provision of penalty and compensation, if any, for delayed delivery.
15.2.3 Damages for non-delivery by way of difference between the market price and compensation for loss of production and consequently for loss of profit to the Buyer.
15.2.4 Full refund of the advance payment if any paid by the Buyer.
16 Warranty & Defects
16.1 The Seller warrants that the goods supplied under the Purchase Order are new, unused, of the most recent or current models / makes and incorporate all recent improvements in design and materials unless provided otherwise in the Purchase Order. The goods supplied under this Purchase Order shall have no defect arising from standard materials or workmanship or from any act of omission of the Seller that may develop under normal use of the supplied Goods in the conditions obtaining at Site, Goods will be under warranty for a period of 12 months from date of installation or 18month from date of supply whichever is early, unless specified anywhere in the PO.
16.2 The Seller further warrants that the goods has been designed, engineered, supplied, and commissioned in a manner so as to perform all its obligations under this Purchase Order:
a) Using skill, care and diligence to be expected of appropriately qualified and experienced professional engineers and manufacturers with experience in works of a type, nature and complexity similar to the goods.
b) In accordance with good modern engineering principles and practices of International standard;
c) The standards of all workmanship, manufacture and fabrication shall conform in all respects to the standards and codes of practice referred to in the Technical specifications and existing as on the date of signing of the Purchase Order;
d) Goods upon Taking-over and Final completion, will be in accordance with all relevant requirements of the Purchase Order unless otherwise agreed in writing by the Buyer, or altered in accordance with a variation instructed by the Buyer;
e) The goods are capable of being operated in accordance with the requirements of the Purchase Order and Good Industry Practice consistent with the Supplier’s operating and maintenance manuals; and
f) The goods shall comply with the provisions of the Applicable Laws in effect on the date of taking over of the goods.
16.3 The Seller shall be responsible for promptly making good by replacement at FOR Site, repair and/or modification, as per the instruction of the Buyer at its expense any defect in any part of the goods which may appear during the Warranty Period in relation thereto and which arises from any failure to comply with the provisions of Clause
16.1 (Warranty) hereof. The warranty for such replaced items/components/parts shall be for a period of 12 months from the date of such replacement or as per the warranty agreed against the Purchase Order whichever is later.
16.4 If the Seller fails to commence and proceed diligently with the remedy of any such defect within 30 (thirty) days of receipt of notification thereof from the Buyer, the Buyer may remedy the defect at the Seller's expense provided that it does so in a reasonable manner in accordance with Good Industry Practice, notifies the Seller of its intention to do so and permits the Seller to inspect such repaired or replaced goods to ensure that quality standards have been maintained. The reasonable cost so incurred by the Buyer shall be deducted from the payables or from any of the securities provided by the Seller.
16.5 The Seller may with the consent of the Buyer, remove from the site at its own cost any part of the goods which is defective, if the nature of the defect is such that repairs cannot be expeditiously carried out on the Site.
16.6 Wherever it is established that a defect in a component is due to faulty design, the Seller shall replace all identical components, performing the same function, under the same working conditions with new ones based on the correct design even though, such components may have till then not given rise to any failure.
16.7 If any replacement, repair or modification is of such a character as may affect the subsequent performance of the goods or any part thereof in accordance with the Performance Guarantees (if applicable), the Buyer may within 90 (ninety) days after such replacement, repair or modification give to the Seller notice requiring that such further tests be conducted in respect of the relevant part as may be necessary and mutually agreed to demonstrate the adequacy and efficacy of the replacement, repair or modification.
16.8 If any Defect of the kind (i) significantly affects the operation or output of the goods, or (ii) arises as a result of any act or omission on the part of the Seller which a prudent Seller would have foreseen or avoided, shall appear in any part of the goods within a period of 3 (three) years after the expiry date of Warranty Period or in line with the agreement of the Purchase Order whichever is later for such part of the goods, the same shall be made good by the Seller by repair or replacement, provided that the Defect was "latent", i.e. could not have been discovered by a reasonable examination prior to the expiry of the Warranty Period. Such Defects shall not include those defects where (i) at the time of discovery of the defect, the repair or replacement is already contemplated for such parts under the recommendations contained in the operating and maintenance manuals, or (ii) if and to the extent that such defect has occurred due to the operation of the goods in a manner other than that advised in the final operation and maintenance manual submitted by the Seller to the Buyer.
17 After sales service & spares
17.1 Seller shall ensure to render effective after sales service, as applicable, by keeping the sufficient stock of goods (same type/brand/model) supplied under this Purchase Order to meet any future requirement of the Buyer at least for 5 years.
17.2 Seller shall supply the necessary spares for the goods supplied under this PO as and when required at any point of time in future at mutually negotiated rates and Terms.
18 Force Majeure
18.1 In the event of causes of force majeure as specified in Clause 18.2 herein below occurring within the agreed delivery times, the delivery date can be extended at the sole discretion of the Buyer on receipt of application from the Seller on such terms and conditions as may be directed by the Buyer.
18.2 The Force Majeure Events shall comprise the acts, events and circumstances, such as (i) act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot insurrection, civil commotion, act of terrorism or sabotage, in each case occurring inside or directly involving India and affecting the Seller in any way ( the way in which this is affecting is to be proven with evidence); (ii) strikes, lockouts or other generalized labour action occurring throughout the Industry / country as a whole within India and affecting the Seller directly (excluding such events which are attributable to the Seller); (iii) Radioactive contamination or ionizing radiation or chemical contamination originating from a source in India and affecting the Seller directly or resulting from another Force Majeure Event; (i.e.) flood, cyclone, lighting, earthquake, drought, storm or any other extreme effect of the natural elements and affecting the Seller's work directly; (v) epidemic or plague, affecting the Seller directly; (vi) fire or explosion, affecting Seller directly except as may be attributable to the Seller; (vii) air crash or shipwreck which affects Seller's work directly; or (viii) an act of God.
18.3 If the effect of any events specified in clause 18.2 (Force Majeure) lasts for a continuous period of less than 3 (three) days, such events shall not be construed to be Force Majeure Events.
18.4 If Force Majeure Event continues beyond the period of 1(one) month from the beginning of the Force Majeure Event preventing the Seller from performing their obligations under the Purchase Order /Contract, the Buyer shall have the right to terminate the contract. No consequential damages shall be payable by the Buyer to the Seller in the event of such termination.
19 Disputes Resolution and Arbitration
19.1 Any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Purchase order or the validity or the breach thereof shall be settled by arbitration in accordance with the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be governed by the rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties.
19.2 The arbitration shall be conducted by a sole arbitrator. The Seller will select the sole arbitrator from a panel of three (3) arbitrators provided by the Buyer.
19.3 The seat of arbitration shall be Mumbai, India. Courts in Mumbai shall have exclusive jurisdiction.
19.4 The language to be used in the arbitral proceedings shall be English language.
19.5 Performance under the Contract shall be continued during the arbitration proceedings unless otherwise directed by the Employer in writing or unless the matter is such that the performance cannot be possibly continued until the decision of arbitrator is obtained.
20 Governing Law, Jurisdiction and Language
20.1 This Purchase Order, the construction and enforcement of its terms and the interpretation of the rights and duties of the parties hereto shall be subject to and governed by laws of India without reference to the provisions of conflict of laws.
20.2 All disputes relating to the Purchase Order shall be subject to the Jurisdiction of courts in Mumbai only.
20.3 All literature, correspondence and other documents between the Parties shall be in written and shall be in English.
21 Notices
21.1 All notices by either party to the other shall be in writing and shall be valid and sufficient if dispatched by registered mail or courier or email and sent to address of the parties as specified in the Purchase Order with ‘kind attention’ to the officer specified in the Purchase Order or at such other address as the parties may from time to time designate in writing.
20.2 Any notices provided for herein shall be deemed to have been given, unless expressly provided herein, at the time of receipt. When sent by registered mail or courier, said notice shall be deemed to have been received at the commencement of the business day seven (7) days following posting or the next business thereafter if the seventh day is not a regular business day in the place of receipt unless, receipt is acknowledged earlier. If notices are sent by email to the recipient at the address stated above, said notice shall be deemed to have been received at the time of transmittal provided it is transmitted on a regular business day in the place of receipt.
21 Assignment
21.1 This Purchase Order or any part thereof shall not be assigned to any other party by the Seller without obtaining prior written consent of the Buyer. None of the sums due or to become due nor any of the work to be performed under this order shall be assigned nor shall Seller subcontract for completed or substantially completed material called for by this Purchase Order without Buyer's written consent.
21.2 The Seller shall not assign this Purchase Order or any of its rights and obligations hereunder, without the prior written consent of the Buyer; any such attempted assignment shall be null and void.
21.3 This Purchase Order is and shall be binding upon and inure to the benefit of parties and their respective legal representatives, successors and permitted assigns with respect to all covenants herein.
22 Waiver
22.1 The failure of the Buyer to insist in any one / more instances upon the performance of any of the terms, covenants or conditions of this Purchase Order or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation of Seller with respect to such future performance shall continue in full force and effect.
23 Right to set off
23.1 The Buyer shall be entitled to recover from the Seller any sum due to the Buyer on account of any damages or otherwise whether in respect of supplies under the Purchase order or otherwise, by deduction of sums from the amount due by them to the Seller in respect of supplies made under any earlier or subsequent Purchase Order.
24 Secrecy and Confidentiality
24.1 The Seller shall treat the details of this Purchase Order and any information made available in relation thereto including but not limited to specifications, plans, drawings, samples and technical data, as private and confidential and shall not publish or disclose the same or any particulars thereof, without the previous written consent of the Buyer, provided that nothing in this Clause shall prevent the publication or disclosure of any information that has come within the public domain otherwise than by breach of this Clause.
24.2 The Seller shall not, without the Buyer's prior written consent, make use of any document or information, enumerated in aforesaid Para 24.1, (Confidential Information) except for purposes of performing the Contract.
24.3 Any document, other than the Purchase Order / Contract itself, enumerated in aforesaid Para 24.1, (Confidential Information) shall remain the property of the Buyer and shall be returned (in all copies) to the Main Contractor on completion of the Seller's performance under the Purchase Order / Contract, if so required by the Buyer.
25 Severability
25.1 In the event any one/more of the provisions of this Purchase Order shall, for any reason, be held to be invalid, illegal or unenforceable, the remaining provisions of this Purchase Order shall be unaffected and the invalid, illegal or unenforceable provisions shall be replaced by mutually acceptable provisions, which being valid.
26 Business Ethics
26.1 Buyer requires that the Seller, including any person acting on their behalf, observes highest standard of ethics during the procurement and execution of the Purchase Order. In pursuance of this policy, Buyer shall be within their right to terminate this contract, if it determines that the Seller had engaged in corrupt or fraudulent practices.
27 Statutory Compliances
27.1 Seller shall at all times comply with all applicable laws, statutes, ordinances, rules, regulations and other governmental requirements, and to the fullest extent permitted by applicable law Seller shall fully defend, indemnify and hold Buyer, its affiliates, subsidiaries, directors, officers, agents, servants and employees, harmless from and against any and all claims, demands, suits, judgments, actions, causes of action, losses, damage, liabilities, costs and expenses, including actual attorneys’ and experts’ fees and costs, arising from the death of or personal injury to any person including but not limited to Seller’s own employee(s), from damage to or destruction of personal or real property, or from the breach of any warranty in this Purchase Order, arising from or in any way related to the supply, delivery or provision of any equipment, product, materials, supplies, tools, work or services by Seller, its agents, servants or employees.
27.2 The Seller shall in their performance of the Contract and carrying out of the scope of works ascertain and comply with the applicable laws. The Seller shall indemnify the Buyer, their Affiliates and their respective directors, officers, employees and agents against losses, claims and liabilities, including any governmental penalties and sanctions payable to a Competent Authority, together with any legal expenses incurred in connection therewith, to the extent arising out of any failure of the Seller, any Sub-Supplier or their respective agents or employees to comply with applicable laws and / or in the performance of the Contract.
27.3 If the Seller finds any divergence between the Applicable Law and the Performance Guarantees or the Technical Specifications (other than Change in Law) they shall immediately give to the other Party written notice specifying the divergence. The Seller shall promptly upon becoming aware of the same, inform the Buyer in writing of its proposed amendment for removing the divergence, and with the Buyer's consent the Seller shall entirely at their own cost and expense complete the Works in accordance with the amendment.
27.4 For allotted / assigned job work, seller shall be solely responsible for all taking necessary safety precautions for all labours engaged directly/indirectly by him. Seller shall be responsible for cover all labours engaged directly or indirectly by him under ESIS & PF Acts and any other such prevailing Acts and proof of the same shall be produced before commencing the work.
27.5 Seller shall be solely responsible for any compensation towards their labours appointed directly or indirectly, which may arise due an accident of fatal or non-fatal by nature during execution of the assigned job.
27.6 Seller shall be responsible for practicing and following all the safety norms and standards laid by Buyer time to time, upon breaching of which, Buyer may terminate above said Purchase Order/ Contract or may impose penalty for the same which shall be recovered from any pending invoices / bills due to the Seller. In case of the termination of Purchase Order / Contract Buyer shall not be liable to pay any compensation towards cancellation of the job / work assigned to the Seller.
28 Erection & Commissioning, technical assistance and Training
28.1 Where the goods supplied require Erection & Commissioning or supervision of such activities, the Seller shall depute such number of technicians as required by the Buyer for period specified by the Buyer for erection and commissioning or supervision of such activities at the location(s) specified by the Buyer.
28.2 Seller's technicians shall also train a few of the Buyer's personnel for the operation and maintenance of the equipment and provided with all relevant information as per the terms of the Purchase Order/ Contract.
28.3 Cost of such technicians shall be borne by the Seller unless specifically provided for in the Purchase Order.
28.4 Any loss incurred due to damage during the Erection & Commissioning shall be borne by the Seller.
28.5 If Buyer requires any technical assistance at any point of time related to functioning/performance of the goods supplied under this Purchase Order, the Seller shall arrange for the same free of cost during warranty period.
28.6 Seller shall provide sufficient training to Buyer's engineers/technicians for installation, operation and maintenance of the goods wherever required at free of cost.
29 Indemnification
29.1 The Seller shall indemnify and keep indemnified the Buyer against all claims including but not limited to demands, fines, penalties and damages arising from any breach or non-compliance of any statutory duty or liability under the existing statute or statutes which would come into force in future in respect of the Seller's acts or commission during the period of and pertaining to the Purchase Order or after its termination but related to the events that have occurred during the period and pertaining to the Purchase Order.
29.2 The Seller shall agree and undertake that in all cases where the price quoted by Seller is inclusive of duties / levies / imposts or shown separately then in that event, it shall be the Seller's responsibility to pay the same on the Seller's own account. Wherever the Purchase Order is inclusive of Octroi Duty the Seller shall pay full Octroi at concerned check-post and submit the Octroi receipt and Form B (where applicable) along with the invoice. Wherever the Purchase Order is exclusive of Octroi Duty, the Seller shall pay full octroi at concerned check-post in the name of the Buyer and submit the Original Octroi receipt and Form B (where applicable) along with the invoice and the same shall be reimbursed by the Buyer.
29.3 The Seller shall agree and confirm that Seller shall never hold the Buyer responsible for the discharge of liability towards payment of such statutory dues and further agree to indemnify / keep indemnified the Buyer against all losses / claims / demands that the Buyer has to incur / suffer / be put to for non-payment of such dues by Seller and to reimburse the same to the Buyer together with interest at 18% p.a. The Seller shall produce original octroi receipt along with invoice / bill whenever it is shown separately in Purchase Order.
30 Headings
30.1 The headings in this Agreement are for purposes of reference only and shall not in any way limit or otherwise affect the meaning or interpretation of any of the terms hereof.
31 Integration
31.1 The Purchase Order along with these General Terms and Conditions of Purchase conveys the final agreement between the parties on the terms and conditions and is a complete and exclusive statement of the terms of their agreement.
31.2 In the event of conflict between any terms and conditions specifically mentioned in the Purchase Order and these General Terms and Conditions, the Purchase Order shall take precedence.
