Shiv Om Brass Industries Terms And Conditions
This sale of goods and products (“Goods”) described in the Contract Documents, as defined below, is between SHIV OM BRASS INDUSTRIES , a Partnership Firm, with an office at Plot No. 3690/3691, Opp Pramukhswami Circle, Road No. 7, GIDC Phase-III, Dared, Jamnagar – 361005, Gujarat, India (“Seller”), and the party placing the order or accepting Seller’s quotation (“Buyer”) named in the Seller’s Order Acknowledgement (the “OA”).
Delivery Penalty & Policy
1. DELIVERY AND LEAD TIMES
- Lead times are only approximate insofar as a variation of up to one (1) month is possible, even if a delivery date has been agreed upon with the customer, unless a fixed delivery date has been agreed upon in writing. Confirmed delivery dates are subject to the correct, complete and punctual delivery of goods to our premises. A lead time is considered to be on schedule if the delivered item leaves our factory before expiry of the deadline, or if we have informed the customer of its readiness for dispatch. The lead time does not come into effect for as long as the customer has not accordingly fulfilled his obligations such as the provision of technical details and documents, loan approvals, part payments or guarantees of payment.
- We are entitled to carry out partial deliveries insofar as these are deemed reasonable by the customer and are not subsequently detrimental to usage.
1.3. Seller( Shiv Om Brass) reserves the right to deliver Goods in installments, insofar as they are deemed reasonable by Buyer and will not disrupt the production process. Each installment shall be invoiced and paid for separately as though it constituted a separate contract. Shipments made thirty (30) days after a specified delivery date, if date is so specified, shall constitute good delivery, unless a firm delivery date is agreed upon in writing.
- Any delay in delivery or defect in an installment shall not entitle the Buyer to cancel any other installment, or delay payment for a prior delivery. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s facility is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within seven (7) business days of the date when Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of Goods shall be limited to replacing Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.1.6. Force majeure occurrences, industrial action measures including strikes and/or lockouts, and other circumstances for which we are not responsible, which are beyond our control, and which make it impossible to complete an order within the deadline release us from our delivery obligations for the duration of their occurrence.
- The return of sold, defect-free goods is prohibited in principle.
1.8. Applications for insolvency, declarations as per Indian Government Law, emergent payment difficulties or signs of significant deterioration in the customer’s financial position entitle us to call off deliveries immediately and to refuse the fulfillment of current contracts for as long as the customer has not provided consideration in return or provided the appropriate security at our request, without the customer being able to withdraw from the contract or demand damage compensation.
- If the parties have agreed that the Customer shall collect the Goods, the Customer shall collect them from the Supplier’s premises as set out in the Order within 3 Business Days of the Supplier notifying the Customer that the Goods are ready.Otherwise, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed in the case of Customer collection on the Goods’ arrival at Supplier’s premises as set out in the Order, or in the case of Supplier delivery on the Goods’ arrival at the Delivery Location.
- If the Seller (Shiv Om Brass) fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- The Supplier shall not accept the return of Goods by the Customer to the Seller unless the Goods are defective, in which case the Customer may only return the Goods if asked to do so by the Supplier in accordance with clause of QUALITY POLICY. The Supplier shall not accept the return of any packaging materials by the Customer to the Supplier and shall not be responsible for any costs incurred by the Customer in attempting such return. The Supplier may accept the Customer’s own packaging for packing of the Goods, but in such case shall have no responsibility for any losses or damage occurring as a result of the use of the Customer’s own packaging.
2. DISPATCH AND TRANSFER OF LIABILITY
- Liability for the delivery is transferred to the customer upon departure from our factory premises.
- Liability is transferred to the customer when the goods are ready for dispatch but dispatch is held up for reasons beyond our control and for which we are not responsible.
- The risk in the Goods shall pass to the Customer upon delivery, or in the case of Customer collection, upon loading upon the Customer’s vehicle at the Supplier’s premises.
- Single-use packaging is not taken back.
- We reserve the right to ownership of all our delivered good up until the time that all receivables, including partial and incidental ones owed to us by the customer within the scope of our business relationship, have been paid; in this respect, all deliveries are considered as being one comprehensive delivery transaction. With regard to current invoices, reserved ownership is held to be a security for receivables due. The above provisions also apply to future receivables.
- The customer is entitled to sell on the purchase item in due course of business. He is also entitled to process or combine it; as such, he thereupon assigns us all receivables resulting from subsequent disposal, processing, combination or other judicial reasons relating to the purchase item (in particular from insurance contracts or unauthorised dealings) to the value of the invoiced total (incl. VAT). Subsequent disposal denotes usage made by the customer for the purpose of contracts of manufacture or supply.
- The ownership claim also extends to those products resulting from the processing, mixing or combination of our goods, at their full value, with the outcome being that we are considered as the manufacturers of these products.
Should the processing, mixing or combination with goods of a third party give rise to the latter’s proprietary rights, we shall then acquire co-ownership in proportion to the objective value of these goods. Should our ownership expire due to the combination or mixing of goods, the customer shall thereupon assign us his ownership and/or reversion rights to the new stock or item to the extent of the invoiced amount of the goods supplied by us, and shall safeguard them for us free of charge.
- Notwithstanding the assignment of his rights, the customer is entitled to call in receivables arising from subsequent disposal, as long as we have not withdrawn this entitlement. We will not call in the receivables ourselves, provided that the customer duly fulfils his payment obligations towards us. Upon our first written request, the customer is obliged to provide us with the details of the debtors of the assigned receivables, and to inform the debtors of the assignment.
- In accordance with clause 4.2, we are entitled to withdraw the customer’s right to further disposal and to collection of receivables assigned to us with immediate effect if the customer defaults on payments due to us, if he encounters payment difficulties due to a significant deterioration in his financial position, or if he fails to fulfil his commitments towards us accordingly. In the event of the customer’s application for insolvency, in the event of any default in payment, in the event of a declaration being made in lieu of an oath as per Indian Government Law or in the event of changes in ownership of the customer’s company due to payment difficulties, the right to further disposal and collection of receivables assigned to us will expire automatically.
- The customer shall safeguard the items forming part of our (joint) property with the care of a respectable trader and free of charge, and will ensure these items against fire, burglary and other risks.
- The customer is prohibited from mortgaging or pawning any supplied goods that are subject to reservation of proprietary rights. In the event of seizure or any other prejudice to our proprietary rights on the part of a third party, the customer shall immediately inform us thereof and also confirm the proprietary rights both toward us and the third party in writing. Any remaining costs incurred upon us in spite of the successful outcome of an ensuing legal dispute shall be borne by the customer.
- Applications for insolvency, declarations in lieu of an oath as per Indian Government Law, or signs of significant deterioration in the customer’s financial position, which pose a serious threat to our payment claim and entitle us to cancel the contract, entitle us to recover the goods; in such an instance, the customer hereby agrees to such recovery. Should this recovery occur, the Parties agree that we will refund or otherwise settle the costs at the usual market value at the time of recovery. Recovery of goods is only tantamount to withdrawal from the contract if this is expressly stated by us. Costs incurred by recovery (such as transportation costs) shall be borne by the customer. In cases where there has been no official notice of withdrawal, the customer may only request the delivery of recovered goods once he has paid the full purchase price and all other costs.
- Securities owed to us will not be collected if the value of our securities exceeds the nominal value of the securable receivables by 20 %. The customer can request the express removal of supplied goods from the reserved property as long as the overcollaterisation does not exceed 20%.
- If shipment or delivery is delayed for any reason caused by Buyer or in its sphere of control, including, but not limited to, requests for changes with respect to Goods, then (i) risk of loss to Goods shall pass to Buyer; (ii) Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- Seller will not be liable for any delay in the performance of this Contract, or in the delivery or shipment of Goods, or for any damages suffered by Buyer by reason of such delay, when such delay is directly or indirectly caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, terror or insurrection, governmental interference or embargoes (whether by priorities, rationing or otherwise), strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays or any other cause (whether or not similar to any of the foregoing) beyond Seller’s control. Seller shall have the additional right if any of the above mentioned contingencies occur, at Seller’s option, to cancel in whole or in part, this Contract without any resulting liability and to allocate production and deliveries among customers.
SUBJECT TO JURISDICTION
1. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, OTHER AGREEMENTS
- The customer is only entitled to bring claims arising from the contract subject to our prior agreement.
- The place of performance for all claims arising from business ties and more specifically from our deliveries is the place from which the delivery was performed.
- The place of jurisdiction for all claims arising from business ties and more specifically from our deliveries is that of the current head office of the Shiv Om Brass Group member responsible for the delivered item. This place of jurisdiction also applies for disputes regarding the conclusion and effectiveness of the contract. However, we are also entitled to bring an action against the customer before the competent courts for his head office.
- The law of the Indian Constitution Legal System applies exclusively, without possibility of recourse to its international private legislation, insofar as it refers to the validity of another legal system. Application of the United Nations Convention on Contracts for the International Sale of Goods is not admissible.
2. THIRD PARTY RIGHTS
- A person who is not a party to the Contract shall not have any rights under or in connection with it.
3. GOVERNING LAW AND JURISDICTION.
- The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Indian law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of India save that the parties irrevocably agree, for the sole benefit of the Supplier, that the Supplier may bring a claim in any court of competent jurisdiction.
- Any contract resulting from Seller’s quotation, or acceptance of a purchase order, and all obligations of the parties thereto, shall be construed in accordance with, and all disputes governed by, the laws of the Indian Legal System (without reference to its conflicts of laws rules), including provisions of the Uniform Commercial Code as adopted by Indian Law. The parties expressly reject the applicability to any such contract of the United Nations Convention on Contracts for the International Sale of Goods. Seller and Buyer submit to the exclusive jurisdiction of the courts, both State and National, located in India. in the event of any proceedings therein in connection herewith brought by either of them. Any claim arising out of the Contract shall be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party.
- The parties shall endeavor to resolve their claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Commercial Mediation Rules of the Indian Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the Indian Arbitration Association. The request may be made concurrently with the filing of a civil action but, in such event, mediation shall proceed in advance of legal or equitable proceedings which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or by court order. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Seller’s State & Country , unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
5. LIMITATION OF ACTIONS
- No action regardless of form arising out of any contract with the Buyer may be commenced more than one (1) year after the cause of action has accrued except an action for nonpayment. Buyer shall reimburse Seller for any attorney’s fees and other legal expenses incurred in enforcing or defending its rights under any contract arising from Seller’s quotation or an acceptance of Buyer’s purchase order.
6. EXPORT COMPLIANCE
- Any purchase order directed to Seller for any Goods quoted to Buyer must contain the statement: “REPRESENTATIONS AND AGREEMENTS OF COMPLIANCE WITH INDIAN EXPORT LAWS AND REGULATIONS ACCEPTED.” Failure to include such phrase may result in rejection of purchase order.
PRICES AND PAYMENT
- Our prices are given in INR/EURO/USD/GBP. Ex works for Domestic customers, Ex Works, FOB, CIF, DDU for Foreign customers – exclusive of (a) all sales, value added, use, excise and similar taxes, including, without limitation, taxes on manufacture, sales and receipts, and (b) all costs of transportation, packaging, insurance and any other costs incurred in respect of shipping and delivery, including export and import duties. All such taxes and costs will be added to Seller’s invoice and paid by Buyer. Prices are based on current costs and therefore subject to change up to a maximum of 5% to account for foreign exchange fluctuations, changes in the cost of materials and other direct costs beyond Seller’s control, provided twenty (20) days’ notice is given to Buyer prior to the delivery date.
- Unforeseen changes in the cost of raw materials, labour, material and energy beyond our control entitle us to adjust our prices accordingly, of up to 5 %, if at least four (4) weeks lie between the conclusion of the contract and the anticipated delivery date. In the event of part deliveries, each delivery may be invoiced separately. If no prices have been set upon conclusion of the contract, we shall apply the price in effect on the day of delivery.
- If no other payment arrangements have been agreed upon in writing, our invoices fall due for payment immediately with no deductions.
- We are not obliged to accept bills of exchange, cheques and other promissory notes; they are always accepted for the sake of fulfilment.
- The date of receipt of payment is the date on which the amount is made available to us or has been credited to our bank account. If the customer delays payment, we are entitled to charge interest at a rate of 8 % p.a. above the basic interest rate for the duration of the default period. This does not restrict our right to demand further damage compensation.
- If the customer is unable to pay, all receivables owed by the customer from this and other contracts fall due immediately. Furthermore, deliveries forming part of this or of other contracts may be detached from a previous security or a step-by-step payment method.
- We do not allow interest on advance and/or interim payments.
- The customer is not entitled to offset or withhold payments if his counterclaim is undisputed or deemed to be legally valid by us.Terms of payment are ___________________, unless otherwise specified on the face of Seller’s quotation. Payment shall not be deemed to have been received by Seller unless and until the respective amounts have been finally credited to Seller. All payments shall be made in currency of respective Invoices, without any right of setoff or deduction and all bank fees and charges shall be borne by Buyer. For export shipments, Seller reserves the right prior to manufacture of any Goods to require payment pursuant to an irrevocable letter of credit issued by a financial institution acceptable to Seller or by documentary draft specified on the front of Seller’s quotation or acceptance. Seller may also elect to obtain credit risk insurance, in which event the premium will be added to the price. Any payment terms specified on the front of Seller’s quotation supersede any inconsistent part of this section. Seller reserves the right to impose a monthly service charge at the rate of one and one-half percent (1 1/2%) on invoices unpaid after __________. Buyer’s failure to timely and fully to pay an invoice shall operate to make all other outstanding invoices of Seller to Buyer immediately due and payable, and at the discretion of Seller, shall be grounds for cancellation of any further performance by Seller. Any collection expenses incurred by Seller shall be borne by Buyer. Such collection expenses shall include Seller’s reasonable costs and expenses (including attorney’s fees and court costs) for pursuing, searching for, receiving, taking, keeping, storing, advertising and selling Goods as well as any deficiency resulting from a sale of Goods. The reasonable costs and expenses (including attorney’s fees and court costs) of Seller incurred in any defence against third party claims to Goods shall also become part of Buyer’s indebtedness to Seller. In addition to the foregoing provisions, and in addition to any other remedies it may have under the Contract or under applicable law, if Buyer fails to make payment when due, Seller may repossess Goods and put the same into storage, at Buyer’s expense, or dispose of Goods as Seller, in its sole discretion, deems practicable under the circumstances. Buyer hereby authorizes Seller or its agent to enter the premises of Buyer for such purposes and to do such acts and things relating thereto (e.g., bringing in manpower, rigging and lifting equipment, etc.).
- We are liable for defects found on goods supplied by us in accordance with the following provisions only:
i) The customer shall duly fulfil his inspection and claim obligations in accordance with § 377 HGB.
ii) Complaints shall only be accepted by us if they are submitted in writing and within 90 days from receipt of Goods. Complaints lodged against sales representatives, carriers or other third parties shall not be deemed to be filed in due form and due time.
- In the event of a defective consignment, we reserve the opportunity – prior to the start of production (processing or installation) – to resolve/eliminate the defect or redeliver the goods, unless the customer deems this unreasonable. In the event of our inability to do this or in the event of our failure to fulfil this commitment immediately, the customer may then return the goods at our risk. In urgent cases, he can – subject to our approval – eliminate the defect by his own means or by means of a third party at our cost.
- If the defect is detected only after the start of production – despite compliance with the obligation stipulated in Clause 1.1 i) – the customer may demand rectification (either in the form of rework or replacement, depending on our choice).
- In the event of a replacement, the customer is obliged to return the defective item upon our request.
- Annulment of the contract or a reduction in the purchase price shall only be granted if the defect cannot be rectified within a reasonable period, if rectification of the defect is likely to incur disproportionate costs, if rectification of the defect is deemed to be unreasonable or for other reasons, is deemed to have failed. Only in the event of insignificant defects is the customer not entitled to withdraw from the contract.
- In the event of a complaint, the customer shall immediately grant us the opportunity to inspect the goods in question; in particular, the incriminated goods shall be made available to us at our request and at our cost. In the event of unfounded complaints, we reserve the right to demand that the customer bear any transportation and inspection expenses.
- Defect claims shall not be accepted if the fault is due to non-compliance with operating, maintenance and installation instructions, to inappropriate or improper use or storage, to improper or negligent handling or assembly, to natural wear and tear, or to intervention on the part of the customer or a third party.
- The customer may only demand damage compensation and reimbursement for defects due to costs incurred through dismounting and assembly, as well as associated transportation costs, if this has been agreed upon by contract. This does not apply if the defect was caused deliberately or through gross negligence and/or resulted in injury to life, body or health.
- For products that are not delivered as new in accordance with the agreement, the customer is not entitled to the above-mentioned claims.
QUALITY REPORTS & POLICY
- 1.1. For the entire duration of the contract, the supplier undertakes to implement a DIN EN ISO 9000 ff. quality management system guaranteeing us flawless quality of his goods, to carry out internal audits at regular intervals and to take the requisite measures in the event of deviations being detected. We are entitled to inspect the supplier’s quality assurance programme at any time, subject to prior notice. At our request, the supplier shall grant us access to accreditation and audit reports as well as to testing procedures including all inspection records and documents pertaining to supplies.
1.2. An inherent part of all orders and agreements between suppliers and ourselves is our set of “quality standards” in their current version, which we provide to our suppliers upon request.
- 2. MODIFICATION
Modifications, additions, cancellations or suspensions of any order resulting from Seller’s quotation, or any acceptance of a purchase order, shall not be effective or binding upon Seller unless evidenced in writing on the face of the order or in a separate writing, signed by an authorized manager of both the Buyer and the Seller, expressly stating the terms modified and the nature of the modification.