TERMS AND CONDITIONS OF SALE AND DELIVERY

1. Scope

1.1 The General Terms and Conditions of Sale and Delivery (“Terms”) shall be applicable to all sales of goods and services (“Product(s)”) provided by Gopani Product Systems (“GPS”). These Terms shall be incorporated in the offer or proposal made by GPS to any customer (“Buyer”) for the supply of Product(s) (“Quote”).
1.2 All Quotes provided by GPS shall have a period of validity (“Validity Period”) upon the expiry of which, GPS shall be relieved of all obligations stated therein including the obligation to sell the Product(s).
1.3 Any amendment, modification, addition or subsidiary agreement by the Buyer after agreeing to the Terms shall not be valid unless GPS has expressly approved its validity in writing.
1.4 Any amendment to these Terms shall be effective from the date as may be notified by GPS.
1.5 These Terms shall be deemed constructive notice to the Buyer relating to the matters pertaining to the sale of Product(s) to the Buyer by GPS & shall be binding on the Buyer.
1.6 These Terms shall also apply as a framework agreement for future contracts between the same Buyer and GPS without GPS having to make reference hereto again in each individual case.

2. Offers

2.1 Any Quote given by GPS or any Purchase Order given by the Buyer may be amended by GPS at any point of time without prior notice, notwithstanding the existence of a validity period. In case of extenuating circumstances, the Quote & Purchase Order may be declared null and void, at GPS’ discretion.
2.2 Buyer’s order (“Purchase Order”) for any Product(s) whether communicated to GPS verbally, in writing, by electronic data interface, shall constitute acceptance of these Terms. GPS objects to any contrary or additional terms or conditions of the Buyer.
2.3 Buyer shall assume all risks and shall pay all charges applicable to cancellation or modification of any Purchase Order which has been accepted by GPS in writing.
2.4 Purchase Order of the Buyer shall not be considered to have been accepted unless expressly confirmed in writing by GPS. The acknowledgement of receipt of a Purchase Order is not considered as an acceptance of the Purchase Order.
2.5 Any amendment, modification, addition or subsidiary agreement made to the Purchase Order shall not be valid unless accepted by GPS in writing.

3. Price and Payment

3.1 The price stated in the Quote shall remain valid till the expiry of the Validity Period.
3.2 The price stated in the Quote may be amended and the Buyer shall be deemed to have consented to such price adjustment unless written rejection of any price adjustment is given to GPS within a reasonable period of time. In case the Buyer rejects the price adjustment, GPS shall be relieved from all further obligations to deliver the Product(s) till such time both parties agree to an adjusted price in writing or till such time GPS consents in writing to re-establish the last prevailing contract price.
3.3 Buyer shall pay the aforesaid adjusted price for all Product(s) within the time stipulated in the Quote. In case the Buyer has made a partial advance payment, the advance amount shall be forfeited if the Buyer fails to complete the balance payment within the time stipulated in the Quote. In case the Buyer has paid the full amount in advance but the Product(s) have not been dispatched at the behest of the Buyer and the price of the Product(s) increases, then the Buyer shall be liable to pay the difference in the price within the time stipulated by GPS.
3.4 The Buyer shall be liable to bear any increase in third party charges including transportation charges of shipments provided that the Buyer is liable to pay such third party charges.
3.5 In the event of late payment, late payment fees shall become due automatically and without prejudice to any other damages/claims, from the day following the due date of payment or the end of the payment period stipulated in the Invoice. GPS is not obliged to send the Buyer a reminder for payment.
3.6 GPS may charge late payment fee by way of interest on the price at the rate of 18% per annum from the due date of payment till the date of actual payment. This shall not restrict GPS’ right to, inter alia, claim additional damages or costs.
3.7 Buyer shall be deemed as having defaulted on payment if the payment period expires without payment being received by GPS. Default on payment shall result in a fundamental breach of the Terms by the Buyer. A fundamental breach of the Terms shall allow GPS to consider all outstanding Quotes and pending Purchase Orders terminated and it shall entitle GPS to, inter alia, immediately suspend all further delivery of the Product(s) without giving written notice to the Buyer. GPS reserves the right to assert further claims for damages incurred by such default.
3.8 In the event that the Buyer acts in breach of these Terms, in particular, if it defaults on the payment for the Product(s), GPS shall be entitled to demand that the Product(s) be returned in the same undamaged state as supplied or GPS may independently take possession of the Product(s) without giving prior notice to the Buyer. Buyer hereby undertakes to grant GPS access to the Product(s) and/or return them to GPS in such instances. All costs resulting from the retrieval of the Product(s) shall be borne by the Buyer.
3.9 Buyer shall issue a demand draft/cheque payable towards payment for the Product(s) supplied by GPS. Such demand draft/cheque should be crossed and marked “A/c Payee” and drawn in favour of ‘Gopani Product Systems’. The payment can also be made by RTGS/ NEFT to the bank accounts as advised by GPS. The Buyer shall be liable to pay all additional banking charges with respect to such payment.

4. Credit Limits and Solvency

4.1 GPS has discretion to change the credit terms as stipulated in the Quote, at any point of time, based on the financial position of the Buyer.
4.2 If, in the judgment of GPS, the financial solvency of the Buyer, at any point of time, becomes impaired or substantially reduces, without prejudice to any other remedy available to GPS, GPS may refuse to make further deliveries of the Product(s) except upon receipt, before shipment, of the due amount in cash or a satisfactory security, according to GPS, for such payment.

5. Delivery

5.1 GPS shall give an approximate time for dispatch of the Product(s) (“Expected Shipment Date”). However, such Expected Shipment Date is simply an approximate timeline and is not binding on GPS.
5.2 The Expected Shipment Date or the dispatch date agreed upon by both parties presumes that all technical requirements and commercial questions have been clarified between the parties and payments have been made or are made available and other obligations of the Buyer have been fulfilled within stipulated time.
5.3 In case, the technical requirements and commercial questions, including third party inspections, have yet not been clarified/executed, the time taken to clarify those technical requirements and commercial questions shall be added to the timeline communicated and the Expected Shipment Date or the dispatch date agreed upon by both parties shall be postponed accordingly. In such cases, the Buyer is not entitled to cancel the Purchase Order, reject the Product(s) or claim any compensation from GPS.
5.4 The Expected Date of Shipment shall be deemed to have been complied with if the Product has left the GPS factory by its expiry or if GPS has reported that the Product(s) are ready for dispatch before or on the date of the Expected Date of Shipment.
5.5 In the event that dispatch is delayed at the Buyer’s request, the Product(s) shall be stored with GPS at the Buyer’s risk. The costs incurred due to such delay, in particular the storage cost, shall be charged to the Buyer.
5.6 The Expected Date of Shipment shall be extended by the duration of the impediment in case of Force Majeure Events. GPS shall inform the Buyer of such Force Majeure events as soon as possible in writing.
5.7 Unless otherwise specifically agreed in writing between the Buyer and GPS, risk of loss or damage to the Product(s) shall pass from ex-works of GPS to the Buyer.
5.8 Upon the Buyer’s request, GPS may help organise the transportation for the delivery of Product(s) on the Buyer’s behalf. However, in such circumstances, risk of loss or damage to the Product(s) shall pass from ex-works of GPS to the Buyer.

6. Separate Transaction

6.1 Each shipment shall constitute a separate and independent transaction (“Transaction”) and GPS may recover the invoice amount for each shipment without reference to any other shipment.
6.2 If the Buyer is in breach of any provisions set forth herein, GPS is entitled to, in addition to any other legal remedy available, either defer further shipments until such default is remedied by the Buyer, or decline further performance of the Purchase Order.

7. Warranties

7.1 GPS warrants that the Product(s) delivered under the Purchase Order meets the specifications set out by GPS.
7.2 GPS makes no other express warranties. The above warranty is the sole and entire warranty pertaining to the Product(s). GPS disclaims all other warranties, express or implied, including without limitation merchantability or fitness for a particular purpose.
7.3 Buyer assumes all risk and liability for all loss, damage or injury to person or property, including without limitation pollution, environmental damage and restoration liability, resulting from, inter alia,
7.3.1 the use of Product(s) in any manufacturing process,
7.3.2 the use of the Product(s) in combination with other substances or otherwise, and/or
7.3.3 the handling and disposal of the Product(s).
7.4 Determination of the suitability of the Product(s) supplied hereunder for the uses and applications contemplated by the Buyer and others shall be the sole responsibility of the Buyer.

8. Claim for Defect

8.1 A Product may be considered defective if it does not meet the specifications set out by GPS or as agreed by both parties in advance (“Defective Product”).
8.2 A claim for Defective Product(s) shall be valid only if such defect is communicated to GPS by way of a written notice within 7 days of the delivery of the Product(s). Buyer’s failure to give a written notice of Defective Product to GPS within the aforementioned period shall result in the Buyer waiving all claims with respect to the Product(s).
8.3 No claims for defects may be raised in case of merely insubstantial deviations from the specifications, insubstantial impairment of serviceability, or if the defect can be attributed to a violation of operating, maintenance or installation instructions, unsuitable or improper use or storage. This shall also apply in case of faulty or negligent handling or assembly, normal wear and tear or tampering with the delivered Product(s) by the Buyer or a third party.
8.4 Damages and reimbursement for Defective Product shall be given in accordance with clause 9 (Limitation of Liability).

9. Limitation of Liability

9.1 In the event of a breach of the abovementioned warranty, GPS will, at its option, replace the non-conforming Product(s) or reimburse the amount paid by the Buyer for said Product(s) within a reasonable period of time.
9.2 In no event shall GPS be liable for any special, incidental, indirect, consequential, punitive, or exemplary damages of any kind arising from or relating to the sale, deliver, non-delivery, installation, non-completion of services, use, loss of use of or inability to use the Product(s) or any part thereof or for any charges or expenses of any nature incurred without GPS’s written consent. The term “consequential damages“ includes, but is not limited to, loss of use, loss of income, revenue and cost of capital or pain and suffering. In no event shall GPS’ liability under any claim made by the Buyer exceed the amount paid for the Product(s) that is defective.
9.3 GPS’ employees and representatives shall not be held personally liable for any breach of Defective Product.

10. Indemnity

Seller shall indemnify, defend, and hold harmless the Buyer from, against and with respect to any claim, liability, obligations, loss, damage, assessment, judgment, cost and expense (including, without limitation, reasonable attorneys’ and accountants’ fees and costs and expenses reasonably incurred in investigating, preparing, defending against or prosecuting any litigation or claim, action, suit, proceeding or demand) or any kind or character (collectively, “Losses”) arising out of or in any manner, incident, relating or attributable to any failure by the Seller to perform or observe, or to have performed or observed, in full any obligation, covenant and condition to be performed by the Seller as stated in these Terms.

11. Force Majeure

11.1 GPS is not liable for delay or failure to perform any obligations by reason of events or circumstances being outside the reasonable control of GPS, which shall include, inter alia, war, pandemic, mobilization, strike or lock-out, riot, labour dispute, machinery breakdown, factory stoppage, explosion, fire, natural disaster, flooding, restriction or blockage in means of transport, acts of nature, difficulties in sourcing raw materials or power, any intervention by public authorities or any other cause beyond GPS’ reasonable control (“Force Majeure Events”).
11.2 Force Majeure Events shall entitle GPS, as it deems fit, to terminate, reduce or suspend performance of the Purchase Order. Buyer is not entitled to claim any damages for such delay in performance
11.3 In case the Force Majeure Events continue for a period of more than 10 days, GPS is entitled to terminate any outstanding Quotes and/or Purchase Orders immediately without giving prior notice to the Buyer.
11.4 Force Majeure Events do not relieve the Buyer from its obligation to make payments for the Product(s) supplied by GPS.

12. Taxes

Buyer shall reimburse GPS all taxes, including any increase in the tax rate, any new taxes, GST or any other charges which GPS may be required to pay any government authority including local, provincial, state and national government authorities, basis the sale, production, transportation or use of any Product(s) sold hereunder.

13. Entire Agreement

13.1 These Terms, along with the terms set forth in the main body of the Quote, form the entire agreement between the Buyer and GPS and constitutes the final, complete and exclusive expression of the terms of sale, replacing any pre-printed or other terms in any Purchase Order, Invoice or any other document issued by either party. These Terms shall prevail in the event of a conflict between any term set forth in the Quote and these Terms.
13.2 All prior or contemporaneous written or oral agreements or negotiations between both parties with respect to the subject matter shall have no effect. These Terms may not be modified unless in writing and signed by an authorized representative of both parties.

14. Assignment

These Terms shall be binding upon the respective successors and assigns of each of the parties hereto. However, these Terms shall not be assigned or otherwise transferred, in whole or in part, by the Buyer without the prior written consent of GPS.

15. Waiver

15.1 No provision of these Terms shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by an authorized representative of both parties.
15.2 No waiver by either party of any breach of, or of compliance with, any condition or provision of these Terms by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at any another time.

16. Governing Law and Jurisdiction

16.1 Unless otherwise agreed between the parties, the Buyer and GPS agree that any sale pursuant to these Terms shall be deemed to have been made and executed where the registered office of GPS is situated. Further, the interpretation of these Terms and any disputes pursuant to the same shall be governed by the laws of the country where the registered office of GPS is situated, without regard to conflict-of law rules or principles.
16.2 Any dispute arising out of these Terms shall be exclusively submitted to the court having territorial jurisdiction over GPS’ registered office.

17. Severability

17.1 In the event any provision of these Terms is declared invalid or unenforceable, the remaining provisions will continue to apply and will retain their validity and significance.
17.2 In such case(s) the parties shall, to the extent possible, replace in good faith the invalid and/or unenforceable provision(s) with valid provision(s) which legally and economically are the closest to the desired purpose and intent of such invalid and/or unenforceable provision(s).