GENERAL TERMS CONDITIONS OF SALE
These General Terms and Conditions (the “terms”) for the Sale of Products or Services submitted (referred to as , but not limited to, “Products”, “Equipments”, “Services” etc.) by the Customer (“Buyer”) to KDU Marine Equipment Trading and Maintenance LLC (“Seller’’).
SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THESE TERMS.
GENERAL TERMS AND CONDITIONS OF SALE
The terms and conditions under this article are developed for protecting the interest of both Seller & Buyer. Failure of Buyer or Seller to enforce any terms and conditions of this Agreement shall not prevent a subsequent enforcement of such terms and conditions or be deemed a waiver of any subsequent breach. Should any provisions of this Agreement, or portions thereof, be unenforceable or in conflict with the governing country, province or local laws, then the validity of remaining provisions and portions thereof, shall not be affected by such unenforceability or conflict, and this Agreement shall be constructed as if such provisions supersede all prior verbal or written agreements and representation. Buyer acknowledges that it has not relied on any representations other than those contained in this Agreement.
2. CONFIDENTIAL INFORMATION
Each party recognize and acknowledges that, it shall maintain all data, information disclosures, documents, drawings, specifications, calculations, technical information and any other documents or/and Intellectual property obtained from the other party in strict confident subject only to disclose as agreed or by legal process. In the event that Seller owns copyrights of all such documents, drawings, specification etc. and if Seller makes any improvements on such technology, then such improvement shall not fall within the confidentiality obligations herein and the Seller shall own all such improvement including drawings, specifications, technical details etc. However, this shall not affect any Agreement which is already processed.
Price of equipment, Parts or Service will be stated in proposal and if there is no proposal as otherwise agreed to in writing by the Seller. All prices in quotations are ex works (EXW) or as agreed per quote and subjected to change without notice. All taxes, duties, and handling charges at local or international shall be charged to and borne by Buyer. Seller bears no responsibility for any consular fee for legalizing the invoices, certificate of origin, stamping of bill of lading or any other charges required by the laws of any country or any fines imposed due to incorrect declarations of goods. Other charges like packing, freight, insurance is chargeable, and Buyer bears this cost unless otherwise agreed by Seller in writing. Unless previously withdrawn, Seller’s quotation is open for acceptance within the period stated on the Quotation or when, no period is stated, within 30 days after its date.
4. PAYMENT TERMS
All payment shall be made as per quote unless alternative terms are agreed by Seller’s authorized representative. Buyer has no rights to deduct any charges including bank charges unless and until agreed by Seller in writing. All payment shall be made in agreed currency as per quote. Interest shall be due from Buyer to Seller on overdue accounts at specified rate mentioned in the invoice, in the event Buyer fails to pay on time. When partial shipments are made, the goods will be invoiced as shipped and each invoice will be treated as separate accounts and be payable accordingly. Payments for goods are due, whether or not technical documentation and/ or any third-party certification are complete at the time of shipment.
Seller reserves the right where genuine doubts arise as to Buyer’s financial position or if Buyer default of any payment, to suspend delivery or performance of any order or any part thereof without liability or without prejudice to and without limitation of any other remedy until Buyer cures the default and payment or satisfactory security for payment has been provided. Seller shall have the option to extend the delivery date by time at least equal to the period of suspension. Buyer shall notify Seller in writing of any dispute with any invoice (along with substantiating documentation) within 7 days of receipt of invoice over email or physical copies. Invoices for which no such timely notifications are received shall be deemed accepted by Buyer as true and correct. The parties shall seek to resolve all such disputes expeditiously and in good faith. Should any dispute arise with respect to any Product delivered or
service provided by Seller to Buyer, Buyer shall nevertheless pay all invoices covering Products/Services not in dispute, without setoff, defence, or counterclaim. On any invoice not paid when due, Buyer shall pay a late charge of, from the due date to the date of actual payment, an interest on the overdue amount at the rate of 18% per annum. Buyer shall reimburse Seller all costs incurred in collecting any late payments, including, without limitation, attorney fees. In addition to all other remedies available under law (Which the Seller doesn’t waive by the exercise of any rights hereunder), Buyer shall be entitled to suspend the delivery of any Products or Services, if the Buyer fails to pay any amounts when due.
Unless otherwise specified, all local and international sales shall be ex-works (incoterms2010) seller’s premises. Partial delivery may be made as agreed by Buyer and seller prior to such delivery in writing. Stated delivery dates are approximate and cannot be guaranteed. Seller shall have no liability for damage arising out of the failure to keep a delivery date, irrespective of the length of the delay. In the event Buyer unable to accept the delivery of goods when tendered, seller may at its option, arrange storage of goods at seller premises for an agreed time. Seller has all rights to invoice to Buyer for such goods which may include the charges for storage. Seller has all rights to dispose such goods after the agreed time and has no liability/ risk for any damages to the goods The following steps and processes will be part of any delivery process by the seller and the buyer shall guarantee to furnish true and compliant information to uphold the same:
a) For any delivery onboard vessel(s) – The full name of the receiver, his/her Position and Ship stamp is to be provided on the Delivery Note.
b) For any delivery at the buyer/Customer’s Office – The Full name, Position of the collecting party/receiver, Name of vessel (if not already provided to the Seller) and official company stamp shall be provided.
c) For any collection by Buyer appointed Agent(s) / Ship Chandler(s) / Driver(s) from Seller’s Office / Others, a valid photo ID proof of such collecting party MUST be provided and, only upon furnishing such ID, will the item be handed over by the Seller.
6. TIME OF DELIVERY
The delivery time shall be stated in the order confirmation issued by Seller.
7. EXPORT TERMS
Buyer agrees not to disclose or export, either directly or indirectly, any KDU technology or information, or the direct product thereof, to any destination or person if such disclosure or export prohibited by US laws and regulations or any other government regulations. Buyer will not use and will not permit any third party to use KDU technology or information in connection with the design, production, use of storage of chemical, biological or nuclear weapons or missiles of any kind. This paragraph will survive the termination of this Agreement.
8. FORCE MAJEURE
If either party is unable by reason of Force Majeure to carry out any of the obligations under the Agreement, other than obligations to pay money, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligation shall be suspended. “Force Majeure” shall include act of God, laws and regulations, government actions, war, civil disturbance, strike and labor problems, delay of vendor, carriers, natures action like fire, flood, storm etc., machinery damaged and any other causes that are not reasonably within the control of party so affected.
Any order cancelation shall result in restocking fee, as applicable, if the item is COTS and such fee may exceed to 100% of order value if the equipment is customized or the concerned OEM does not offer restocking option against a fee. In the matter of project(s)/manufacturing/others specific to a particular buyer requirement- Orders placed by Buyer and accepted by Seller may be
cancelled only with the consent of seller and will subject Buyer to pay cancellation charges. All of Seller documents, such drawings, technical documents etc. shall be returned to Seller upon
Buyer’s request for cancellation. No orders may be cancelled subsequent to shipment. Buyer agrees to pay Seller the greater of seller’s actual cost incurred prior to cancellation plus a reasonable profit or the following minimum cancellation charges
a. 20% of order value if cancelled during the engineering stage
b. 60% of order value if cancelled there after
c. 100% of order value for all nonstandard items (items built to customer specification)
Buyer shall verify the amount of cancellation charges prior to cancelling an order.
All transportation of goods shall be arranged by Buyer unless otherwise agreed by Seller in writing. During such transportation or in the event when Seller agrees to arrange Transportation upon the request of Buyer, all risk of damaging goods during transportation to Buyer premises is not a liability to Seller.
11. PACKING OF GOODS
Unless otherwise agreed, Seller shall decide the type of packing required for the goods being delivered. Seller shall arrange all such packing depends on the mode of transport, distance of
travel and the climatic conditions. Seller shall assure that, Seaworthy packing is used for all international delivery. Buyer shall inform the seller in writing, if any special arrangement/ criteria need to be met depending on the laws of country where the goods are being shipped.
Insurance shall be arranged by Seller upon request of Buyer. All cost towards this will be added in the invoice with 10% administration charges
All new Products/Equipments are pledged for a period of 18 months from the date of supply or 12 months from the date of installation, whichever is earlier. If there’s a conflict between this document and warranty offered in official Quotation, the terms offered in Quotation shall be binding. Unless otherwise agreed in quote, no warranty claims will be entertained by Seller for any of his Products/Equipments being supplied. Warranty for services provided only upon mutual agreement with Buyer at the time of contract. The Seller shall not be liable for any defects or non-
compliance whatsoever in material supplied and design made/provided by the Buyer or in any products made by Seller as per design provided by the Buyer. At any circumstance, warranty will be void for defects caused by incorrect installation, by improper assembly and improper use, by changes carried out by Buyer without written consent from Seller, by repair carried out by Buyer and by usual wear & tear. for any products/Equipments sold 18 months prior, claims of any type will not be accepted, from the date of delivery. In case of warranty claim, Buyer shall arrange to send the defective product to seller’s place. Charges like, travel, visa, boarding & lodging will be paid by Buyer where it is not practical to send the products to seller.
14. RETURN OF GOODS
Seller complies with a non-returnable policy and No Products/Equipments are acceptable to seller’s store once it is sold to Buyer. Any discrepancies or shortage found during regular inspections/checks should be finished and reported to Seller within 7 days after delivery.