General Terms And Conditions Of Sale
1. General Scope
1.1 These General Terms and Conditions of Sale (hereinafter "Sales Conditions") as may be amended from time to time (including the General Terms and Conditions of Sale available on the website) shall apply to all offers, declarations of acceptance and contracts made by Henkel Adhesives Technologies India Private Limited, a company incorporated under the Companies Act, 1956 having a Corporate Identity Number U28933MH1990PTC234233 and having its Registered Office at at 401, B Wing, 4th Floor, Tower 1, L&T Seawoods Grand Central, Seawoods, Navi Mumbai 400706, Maharashtra, India (hereinafter referred to as "Seller") regarding the delivery of products (hereinafter referred to as "Deliveries").
1.2 Any special conditions specified by the Seller on a quotation or any Agreement (in writing) to the extent they are inconsistent with these Sales Conditions, take precedence over these Sales Conditions.
1.3 By placing an order, the Customer is deemed to have agreed to these Sales Conditions.
2.1 All orders placed by the Customer shall be in writing and subject to Seller’s written acceptance. No cancellation or amendment of an order will be valid without the Seller’s written consent and on payment of a reasonable cancellation charge. The cancellation charge shall constitute all the expenses and reasonable costs incurred by the Seller up to and including the date of acceptance of the cancellation of the order by the Seller.
3.1 The price will be the amount quoted by the Seller to the Customer in writing, or, prices appearing on e-shop tool basis which the customer submits the Purchase Order.
3.2 All prices are in Rupees, unless explicitly mentioned otherwise and calculated net plus Goods and Services Tax, if applicable, and exclusive of any other taxes, tariffs, contributions and levied by Central, State, Local or any other authority. The Customer shall bear all taxes, tariffs, and contributions as may be levied by various authorities in connection with the Delivery now in force or hereafter be imposed on the sale, transportation or supply/delivery of products or shall reimburse them to the Seller.
3.3 The Seller reserves the right to revise the prices without any advance, further notice to the Customer and without assigning any reason therefor.
4. Obligations of the Customer
4.1 The Customer may not refuse acceptance of Delivery save and except in case of damaged goods and Products not being in conformity to the agreed specifications.
4.2 Should the Customer be in default with the acceptance of the Delivery, the Seller shall be entitled to rescind the contract after having granted an appropriate grace period. Should the Customer be at fault for the default of acceptance, the Seller shall be entitled to claim liquidated damages for the damage caused by the Customer's default of acceptance (also after the Seller 's rescission) in the amount of 10% of the agreed net order value of the part of the Delivery that has not been accepted. Any further claims for damages and other rights shall remain unaffected.
4.3 It is the Customer's responsibility to examine the Delivery with respect to its suitability for the objectives pursued by him.
4.4 The Customer undertakes to comply with all eventual property rights of third parties, such as patents or utility patents, as well as any statutory provisions in the course of the processing of the Delivery.
4.5 The Customer will provide product data sheet and information supplied by the Seller to the end-users. The Seller does not accept responsibility for the results achieved by others where the products are within the manufacturer’s specification or are not stored or used in accordance with product data sheet. The Customer shall notify the Seller as soon as it becomes aware of any product claim or injuries as a result of use of the Delivery.
4.6 Transportation devices, returnable packaging/pallets and containers provided on loan shall not be regarded as objects of purchase. They have to be returned without request at the Customer's cost and risk and in cleaned condition.
4.7 The Customer shall be responsible for complying with all rules and regulations regarding license, import, purchase of, transport, storage and use of goods.
4.8 In case the Customer has deducted TDS (from relevant payments) under section 194Q then the Customer has to file quarterly TDS returns on time so that the corresponding TDS credit is reflected in Seller’s PAN i.e. 26AS Statement failing which Seller shall raise a debit note for such TDS amount along with corresponding interest.
5.1 Invoiced amounts shall be paid by bank debit memo by means of an authorized collection procedure, unless the parties agreed on payment using bank transfer. If the Customer is in default with payment, the Seller shall be entitled to claim interests @ 18 % per annum. Interest for default in payment shall be immediately due. All expense incurred by the late receipt of payments shall be borne by Customer.
6.1 The Delivery will be free of shipping costs to the place of destination at the address as notified by the Customer. Cartages and demurrages at the place of destination, freight charges and supplementary freight charges for express goods and airfreight shall be borne by the Customer in each case.
6.2 The Customer hereby authorize the Seller to engage, at its sole discretion and without prior consultation, third parties to perform transport services on behalf of Customer. The Customer indemnifies Seller against any claims against Seller that may arise from such arrangements.
6.3 The weight or quantity stated at the delivering plant or the warehouse upon dispatch shall be decisive for the determination of the weight of the Delivery.
6.4 The Seller shall be entitled to make the Delivery in instalment and each instalment will be deemed to be separate Contract to which these Sales Conditions will apply. The Seller shall be entitled to invoice each instalment delivery separately.
6.5 Delivery conditions, such as Incoterms clauses, which the Customer refers to in his order, shall only become integral part of the contract if the Seller confirms them in writing. The Incoterms valid on the day of the formation of the contract shall apply to any interpretation of trade terms
6.6 If performance of any of the Seller's obligations under these Sales Conditions is prevented, restricted or delayed by reason of an event of force majeure including any act or God, war, riot, fire, strike, lock out, industrial dispute, raw material shortage, plant or equipment breakdown, transport interruption or any other cause beyond the Seller's reasonable control, the Seller will give notice of the event to the Customer. The Seller may, in such notice, elect to terminate the Contract or extend the delivery date for such period as may be reasonably necessary.
7. Transfer of Risk
7.1 Unless agreed upon otherwise, the risk shall be transferred to the Customer when the Delivery leaves the delivering plant or the warehouse where the dispatch of the Delivery is effected, but at the latest upon handing over to the carrier. Furthermore, the risk shall be transferred to the Customer in the moment when the dispatch or the delivery is delayed out of reasons the Customer is at fault for or if the Customer is in default of acceptance. The Customer undertakes to comprehensively insure the Deliveries until paid for in full and hold any moneys received from any insurer relating to those products, on trust for the Seller.
7.2 The Customer shall bear the risk during the return transport of the Delivery regardless of whether the Delivery is returned in connection with the cure of a defect, following a rescission, if the Delivery is being taken back out of goodwill or out of any other reasons.
8. Rights due to Defects
8.1 The Customer must inspect the Delivery and give written notice of apparent material defects or shortage of weight without undue delay within 8 (eight) days following the reception of the Delivery at the place of destination. Otherwise, the Delivery shall be deemed as delivered to and approved by the Customer and no claims by Customer will be recognized.
8.2 Upon Seller’s request, the Customer shall send samples of the rejected Delivery without undue delay. The Customer shall bear the costs.
8.3 In case of unconditional acceptance of the Delivery by any carrier it shall be presumed that the packaging of the Delivery was impeccable upon handing over to the carrier.
8.4 Delivery is guaranteed according to the manufacturer’s published specifications for the particular products concerned. All other guarantees including any warranty condition, statutory or otherwise, as to quality of fitness for any purpose, are hereby specifically excluded.
9. Damages and Compensation of Expenses
9.1 Any claims for damages and claims for compensation of expenses of the Customer, irrespective of their legal bases (infringement of obligations, contract, tort, etc.) shall be excluded.
9.2 The exclusion of liability pursuant to Section 9.1 shall not apply
a) in case of intent or gross negligence,
b) in case of death, injury or detriment of health the Seller is at fault for, or
c) in case of an infringement of essential contractual obligations the Seller is at fault for. Essential contractual obligations are those obligations which must be fulfilled in order to duly execute the contract and on the performance of which the Customer generally relies and may duly rely on. However, the Seller’s liability for an infringement of essential contractual obligations shall be limited to a reimbursement of foreseeable, contractually typical damages, unless the Seller is liable due to intent or gross negligence, for death, injury or detriment of health.
9.3 To the extent that the liability of the Seller is excluded or limited, this shall also apply to the benefit of any statutory representatives, employees, sub-suppliers and auxiliary agents of the Seller in case the Customer asserts claims directly against them.
Goods once sold will not be taken back subject to clause 8
11. Trademarks and other Intellectual Property Rights
11.1 The Seller retains all intellectual property rights under which the Products are sold ("IPR") notwithstanding any contribution by the Customer (if any) and the Customer must not claim any IPR in the Products or the information supplied to it by the Seller, make representations to any person, or do anything inconsistent with the IPR.
12.1 "Confidential Information" shall mean all Henkel-Know-How, information belonging to business, trade, commercial, financial, economic, technical, risk, insurance, legal or personal nature including but not limited to specifications, information, know-how, samples, product pricing and the like pertaining to the field of activity of Seller and furnished by Seller to the Customer in any form or medium whatsoever whether on paper, electronic, written, verbal, or otherwise.
12.2 The Customer undertakes to keep secret and confidential and not to disclose to anyone, any Confidential Information received from Seller, and to use the Confidential Information only for the performance of its obligations and for no other purpose unless otherwise obtaining prior consent in writing from Seller.
13. Final Provisions
13.1 The Seller reserves the right to sub-contract the production, manufacture or supply of the whole or any part of the products.
13.2 These Sales Conditions do not imply any shift in the burden of proof.
13.3 Should any individual provision of these Sales Conditions or of the contract be or become invalid, the validity of the other provisions shall remain unaffected.
13.4 Exclusive place of jurisdiction for all disputes arising from or in connection with the Products shall be Mumbai, India.
13.5 Any dispute arising out of or in connection with this Agreement (including any question as to its existence, validity or termination) shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration (“MCIA Rules”), which rules are deemed to be incorporated by reference in this clause. The venue and seat of the arbitration shall be Mumbai. The Tribunal shall consist of a Sole Arbitrator. The language of the arbitration shall be English. The Request for Arbitration (“RFA”) filed with the MCIA under the MCIA Rules shall constitute the invocation of Arbitration by a party and such RFA shall be deemed to have been served upon the Respondent to the Arbitration if sent to the usual / regular / last communicated e-mail address of the Respondent (if sent by e-mail) or dispatched to the last known business address of the Respondent by Courier / Speed-Post / Registered Post A.D (if sent by courier / post, as the case may be). The date of commencement of Arbitration shall be such as notified by the Registrar of the MCIA to the parties.
13.6 Force Majeure : Any delays in or failure by either party in the performance of any obligations hereunder shall not be deemed a breach of these General Terms & Conditions if and to the extent caused by occurrences of any event beyond such party’s reasonable control, including but not limited to epidemic, pandemic, wars, hostilities, riots, fires, labor troubles, strikes, Acts of God, shortage of materials or equipment, interruption of or delay in transportation or by compliance with any law or other governmental action, or decision of any court, board or other governmental authority (hereinafter referred to as “Force Majeure”). In the event of a claimed Force Majeure, the party claiming the benefit of this provision shall promptly notify the other party of the nature and extent of the matter causing the delay and the estimated duration of the suspension period.
13.7 The relationships between the Seller and the Customer shall be subject to the laws of the India.