Terms and Conditions of Sale

Conditions of Sale

These Conditions contain limitations of Seller’s Liability
1. General
(a) These conditions supersede all prior representations or arrangements and contain the entire agreement between the parties in connection with the products. All other terms and conditions, express or implied, are excluded. None of Seller’s employees or agents has authority either to modify or supplement these conditions except expressly by written agreement between Seller and Buyer.
(b) “The Buyer” means the person buying the products (or, where such person acts as agent for another, that person and the Principal jointly and severally).
(c) Nothing in these conditions shall restrict the statutory rights of a buyer who deals as a consumer.
(d) References to the products include their packaging. If seller has not issued an order confirmation, “Seller’s order confirmation” means any document issued by Seller indicating the terms on which the products are supplied.
(e) Subject to the provisions of this contract, terms defined in the 1990 edition of Incoterms* have the same meaning when used in these conditions.

2. Delivery
(a) Delivery or despatch dates quoted or requested are given or accepted by Seller in good faith but are not guaranteed unless stated to be “guaranteed” in writing.
(b) Delivery shall be to the place stated on Seller’s order confirmation or if none, to such point as Seller may reasonably specify prior to delivery. Buyer is responsible for unloading. Buyer’s, or its carrier’s, receipt or that of a common carrier shall be conclusive evidence of delivery.
(c) Packaging is included in the price and is not returnable unless otherwise agreed in writing by Seller. Returnable packaging will be charged to the Buyer but is returned empty, clean, securely closed and in good condition within 60 days after receipt by Buyer, Seller will credit Buyer with the amount charged. Any special packaging requirements will incur a non-refundable additional charge.
(d) The weight or quantity stated on Seller’s despatch note shall be conclusive evidence of the amount delivered in the event of failure by Buyer to notify any alleged deficiency within the period stated in Clause 4 (c).
(e) Save for the purposes of Clause 3 (e), 6 (b) and 7, each delivery shall be treated as a separate contract and partial deliveries are permitted unless otherwise stated on Seller’s order confirmation. Accordingly, failure to make any particular delivery or any breach of contract by Seller relating thereto shall not affect any other deliveries.
(f) Buyer shall take delivery of the products by any date quoted by Seller or requested by Buyer or (if none) within a reasonable time. Seller may deliver early where reasonable. Buyer shall be responsible for all storage and other costs arising from Buyer’s failure to comply with the contract.
(g) Buyer shall promptly supply all information and assistance required for Seller to execute Buyer’s order.
(h) If the products are sold FAS, FOB, Free Alongside Quay (FAQ) or to Buyer’s agent, an on board bill of lading, a mate’s receipt or other document in proof of such delivery is conclusive evidence of delivery irrespective of whether the person giving the receipt or document has authority from Buyer so to do. If Seller or its carrier is unable for any reason to place the products on board ship upon their arrival at the port of delivery, a warehouse receipt for the products shall be treated as sufficient delivery.
(I) If the products are sold CIF or C&F, a receipted bill of lading or way bill is conclusive evidence of delivery.
(j) If appropriate, Seller undertakes to obtain any Indian licence(s) required for the export of the product from India by Seller. Buyer undertakes to comply with any such licence(s) and to obtain and comply with all other necessary licences, permits and consents (including all other export / import licences).
(k) It is Buyer’s responsibility to ensure that any vessel receiving products as “ship stores in transit” is entitled to receive such stores free of taxes and other duties.

3. Price
(a) Unless otherwise agreed prices are exclusive of tax and all other duties, fees or taxes. Any delivery charge will be as agreed in writing with the Buyer. In the absence of such agreement delivery will be charged to Buyer at cost.
(b) Unless otherwise agreed in writing by Seller payment is due thirty days from date of invoice but Seller may require security or payment before despatch in the circumstances described in Clause 6 (c).
(c) Charges for products will normally be stated in the currency shown in the price list. However, payment may be made in any freely negotiable currency using the middle rate of exchange at which major clearing banks in London will exchange those currencies on the earlier of the date on which payment is made and the due date of payment. Seller reserves the right to recover any loss on exchange due to delays in payment.
(d) Unless the contract states price(s) to be fixed, Seller may increase prices for undelivered balances in accordance with increases in Seller’s costs and / or general price list increases occurring after the date of acceptance of order but before despatch. Buyer shall pay for any increases in delivery costs after the date of acceptance of order.
(e) In the circumstances described in Clause 6(c), all unpaid balances owing to Seller from Buyer shall become a debt immediately due and payable to Seller, irrespective of whether property in the products has passed to Buyer.
(f) Time of payment is of the essence of the contract. Without prejudice to any other remedy Seller may, unless otherwise agreed in writing between Buyer and Seller, charge interest at 4% above State Bank of India base rate per annum for the time being (to accrue from day to day) on any sum owed to Seller under the contract which is not paid on the date specified in Clause 3(b) after as well as before any judgement. Buyer may not withhold payment or make any set off on any account.
(g) Seller may appropriate sums received from Buyer against any debt due to Seller from Buyer (under this or any other contract), irrespective of any purported appropriation by Buyer.
(h) Costs, charges and expenses (including legal costs) incurred by Seller in recovering sums owed by Buyer under the contract (including without limitation in seizure of vessels) shall be a further debt owing by Buyer to Seller and be paid b Buyer on demand on a full indemnity basis.

4. Seller’s Warranty
(a) Seller warrants that upon delivery the products:
(i) are sold with good title; and
(ii) are made with sound materials and workmanship and comply with Seller’s then current published data sheets (“Seller’s Warranty”). Seller does not warrant that the products are fit for any particular purpose or an intended use by buyer and it is for Buyer to satisfy itself that the products are so fit. If the products correspond to any sample supplied or accepted by Seller they shall be considered to comply with Seller’s Warranty.
(b) Liability of Seller under Seller’s Warranty is conditional on Buyer satisfying Seller that it has complied strictly with any instructions of Seller relating to the products.
(c) Buyer shall examine the products as soon as reasonably practicable after delivery. Buyer shall immediately notify Seller of any incomplete or failed delivery, loss or damage during carriage or if the products fail to comply with Seller’s Warranty. Unless Buyer so notifies Seller within 30 days after the date when Buyer became or ought reasonably to have become aware of any of the above Buyer shall ( subject to clause 8 (a)) be treated as having waived all claims connected with the matter which should have been notified.
(d) Subject to notification within the period required by Clause 4 (c) if it is shown to Seller’s reasonable satisfaction that the products fail materially to comply with seller’s Warranty, Seller shall be given a reasonable opportunity to correct such failure, and, if Seller does not or is unable to do so, Seller will at Buyer’s option either refund the purchase price (or, if the products have depreciated for reasons other than Seller’s default or been used or put into process, a reasonable part of the purchase price), or replace part or the whole of the products (if reasonably practicable) within a reasonable time, free of charge. Such correction, refund or replacement shall, subject to Clause 4 (f) and Clause 8 (a), be Seller’s sole liability in relation to any such failure. Replacement products are covered by these conditions, including Seller’s Warranty. Products which are alleged not to comply with the contract shall as far as possible be preserved for inspection by Seller, and if replaced or if a refund is made shall be returned to Seller (at Seller’s cost) if Seller reasonably so requests.
(e) Clause 4 (a) (ii) does not apply to samples or to goods sold as obsolete or substandard.
(f) Seller does not exclude any liability which cannot be excluded as between Buyer and Seller under any Indian legislation.
(g) With respect to any liability referred to in Clause 4 (f) Buyer shall promptly notify Seller of any relevant claim, shall comply with the Seller’s reasonable requirements to minimise liability and / or avoid further liability and shall allow the Seller conduct of any action and / or settlement negotiations.
(h) With respect to any performance liability of the product referred to in clause 4(f), if given in writing, is enforceable only if the same is signed by MD/CEO of the company.

5. Events Beyond Seller’s Reasonable Control
(a) Seller shall not be liable for any failure to comply with the contract related to any circumstances whatever (whether or not involving Seller’s negligence) which are beyond Seller’s reasonable control and which prevent or restrict Seller from complying with the contract.
(b) Without prejudice to Clause 5 (a) Seller may where reasonable in all the circumstances (whether or not involving Seller’s negligence) without liability suspend or terminate (in whole or in part) its obligations under the contract, if Seller’s ability to manufacture, supply, deliver or acquire materials for the production of the products by Seller’s normal means is materially impaired.

6. Termination and Suspension
(a) Except where Buyer has caused or contributed to any delay, Buyer may (as Buyer’s sole remedy, without affecting the balance of the contract quantity) terminate the contract by notice to Seller in respect of any installment of products which is not despatched :
(i) by any date stated to be “guaranteed” on Seller’s order confirmation or;
(ii) within 60 days after any date indicated by the Seller or quoted on Seller’s order confirmation (unless the goods have been specially manufactured or adapted for Buyer).
(b) Seller may (without prejudice to its other rights or remedies) terminate or suspend Seller’s performance of the whole or any outstanding part of the contract in the circumstances described in Clause 6 (c). Seller may also suspend deliveries while investigating any claim relating to prior shipments (under any contract) of products.
(c) The relevant circumstances are if :
(i) Buyer fails to take delivery of or to pay for the products by the date required under Clause 2 (f) or 3 (b) respectively, or breaches any other term of the contract ; or
(ii) Buyer becomes bankrupt or insolvent or if a receiver or administrator or encumbrancer takes possession of any material part of Buyer’s assets, or Buyer suffers any foreign equivalent of the foregoing ; or
(iii) Seller has reasonable grounds for suspecting that an event in Clause 6 (c) (ii) has occurred or will occur or that Buyer will not pay for the products on the due date, and so notifies Buyer ; or
(iv) where the contract provides for fixed price(s), there has been a substantial increase(s) in Seller’s costs of manufacture and supply of products between the date of contract and date of despatch arising from circumstances beyond Seller’s reasonable control and Seller and Buyer have failed within 30 days of Seller notifying Buyer of such increase(s), to reach agreement on a reasonable adjustment in the price for remaining deliveries to recognise such increase(s).
(d) If Buyer provides Seller with security for the contract price, reasonably acceptable to Seller, within 3 working days after a notice has been given under Clause 6 (c) (iii), Seller shall withdraw the notice.

7. Risk and Title
(a) Risk in the products shall pass to Buyer upon delivery.
(b) However, Seller shall retain ownership of the products until :
(i) Seller has received payment in full for the products; or
(ii) Buyer mixes, processes or uses the products so that they lose their identity or are irrecoverably incorporated in, mixed with, or applied to other goods ;or
(iii) Buyer sells them at arm’s length in good faith to an unrelated third party.
(c) Until ownership of the products passes to Buyer, Buyer shall insure them against all usual risks to full replacement value, shall sell, use or part with possession of them only in the ordinary course of trading and shall, where reasonably possible, keep each delivery separate and clearly identified as Seller’s property. In the circumstances described in Clause 6 (c). Buyer’s right to sell, use or part with possession of the products shall terminate and Seller shall recover and / or sell the products and may enter Buyer’s premises for that purpose, without prejudice to Seller’s other remedies.

8. Intellectual Property : And Third Party Claims
(a) Seller will defend Buyer against any third party claim made against Buyer in the country where the products were supplied alleging that the products as such, in the original state sold by Seller, infringe any patent effective in the said country, and Seller will pay any damages and costs finally awarded against Buyer in respect of such a claim. Seller may modify the products so that they cease to infringe so long as Buyer is not substantially prejudiced by the modification.
(b) Clause 8 (a) shall not apply to the extent that the products are manufactured to Buyer’s specification (or as provided in Clause 8 (d) (i) or in respect of any use of the products not contemplated by Seller at the date the order was accepted.
(c) Buyer shall not use any trademarks or trade names applied to or used by Seller in relation to the products in any manner not approved by Seller.
(d) Buyer shall indemnify Seller against any liability incurred by Seller:
(i) as a result of incorporating property of Buyer in the products or applying any trademark, trade name or design to the products on Buyer’s instructions, or complying with any specification or other instructions of Buyer relating to the products ; and
(ii) in relation to any third party claims arising from the use made of or dealings by Buyer, its agents, or sub-contractors or employees in the products (irrespective of whether they involve the negligence of Seller, its agents or employees), except as provided in clause 4 (f) and Clause 8 (a) or if arising from Seller’s willful default.
(e) The indemnified party shall promptly notify the other of any claim, shall comply with the other’s reasonable requirements to minimise liability and / or avoid further liability and shall allow the other conduct of any action and / or settlement negotiations, on reasonable terms.

9. Advice and Assistance
Seller shall not be liable, in contract, tort or otherwise, and irrespective of the negligence of Seller, its agents or employees, for any representations, advice or assistance given (under this contract or otherwise, and whether before or after the date of the contract) by or on behalf of Seller in connection with the products or the contract, unless and then only to the extent that Seller has made such representations and / or agreed to provide such advice or assistance for a fee under a separate written contract with Buyer.

10. Limitation of Liability
(a) Without prejudice to any other limitation of Seller’s liability (whether effective or not) :
(i) In no circumstances whatever shall Seller be liable (in contract, tort or otherwise, and irrespective of any negligence or other act, default or omission of Seller or its employees or agents) for any indirect or consequential losses (includ ing loss of goodwill, business or anticipated savings), loss of profits or use, or (subject to Clause 4 (f)) any third party claims, in connection with the products or the contract.
(ii) Except as provided under Clauses 4 (f) and 8 (a), Seller’s total aggregate liability in connection with the products or the contract (in contract, tort or otherwise and whether or not related to any negligence or other act, default or omission of Seller or its employees or agents), is limited to the contract price (for the installment(s) concerned) ex tax.
(b) Without prejudice to Seller’s warranty or Clause 6 (a) Buyer’s sole remedy shall be in damages.
(c) Seller’s warranty and Buyer’s remedies under Clauses 4 (f), 6 (a) and 8 (a) are in substitution for any other warranties, obligations, representations, liabilities, terms or conditions (whether they are express or implied, or arise in contract, tort or otherwise and irrespective of the negligence of Seller, its employees or agents) in connection with the products (including, without limitation, any relating to merchantability, fitness for purpose, conformity with description or sample, care and skill or compliance with representations) and all such warranties, obligations, representations, liabilities, terms or conditions are hereby expressly excluded.
(d) Without prejudice to Clause 4 (c), no action may be brought against Seller in connection with the products or the contract unless proceedings are issued against Seller within two years after Buyer became or ought to have become aware of the circumstances giving rise thereto.
(e) This Clause 10 applies notwithstanding any fundamental breach or breach of a fundamental term of the contract by Seller.
(f) Without prejudice to clause 4(f), the seller’s liability is restricted to buyer complying to all the terms and conditions of the contract. In the event of non-compliance, the seller is not liable to comply with clause 4(f), if invoked by the buyer.

11. Health and Safety at Work
(a) Buyer shall ensure that all products are safely and lawfully received, stored, maintained, used or applied by Buyer and that Buyer obtains relevant information in Seller’s possession relating thereto.
(b) Buyer shall ensure that all appropriate safety information (whether supplied by Seller, Buyer or others) is distributed and drawn to the attention of customers and all others (including Buyer’s employees) who require it for the safe handling or use of the products.

12. Miscellaneous
(a) The contract may not be assigned by Buyer without Seller’s prior written consent.
(b) Notices must be in writing to Seller’s or Buyer’s address and are deemed delivered on the first working day after sending by hand (or subject to confirmation of transmission) by telex or facsimile, or, within India, on the third working day after being placed prepaid in the post to Buyer’s, or Seller’s, Indian address. Qualified acceptances by Buyer on delivery notes shall not constitute notice of any claim or acceptance by Seller of any such qualification.
(c) No failure by Seller to enforce any provision of this contract shall be construed as a release of its rights relating thereto or to sanction any further breach.
(d) If any provision of the contract is found to be valid or unenforceable it shall have effect to the maximum extent permitted by law, or, if not so permitted, shall be deemed deleted.

13. Law
This contract shall be governed by and construed in accordance with the law of India. Buyer hereby agrees, for Seller’sexclusive benefit, that the India courts shall have sole jurisdiction to hear all claims or proceedings connected with the products or the contract. Seller may nevertheless bring claims in any other courts of competent jurisdiction.
* a copy of the 1990 edition of Incoterms will be made available by Seller at the request of Buyer.

Akzo Nobel India Limited
Plot # 62P 62A 62B 43E,70/1,70/3BP,71/P,73/P,50,53,54,56&57
Hoskote Industrial Area, Bangalore - 562 114. Karnataka
Tel +91 (0) 80 22895000 Fax +91 (0) 80 22895500