The following terms and conditions shall be applicable in case of every B2B Sale:
In addition to terms that are defined elsewhere in this Agreement, the following terms have the meanings set forth in this Section 1:
“Acceptance Criteria” means substantially conforming to the procedure specified in the relevant Purchase Order, by which Company accepts the Goods or Services; Unless otherwise agreed by the parties in writing, the Acceptance Criteria for Goods & Services shall mean Practical Completion of supply of the goods and services as mentioned in the purchase order.
“Affiliate” means, with respect to any entity, any other entity controlling, controlled by or under common control with such entity, where control and its derivatives means: (a) with regard to any entity, the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the outstanding voting stock (or other comparable interest, if not a corporation) of such entity; (b) the power to designate a majority of the board of directors or otherwise exercise management control over such entity; or (c) any joint venture or partnership in which Company or an Affiliate of Company is a managing participant; and explicitly listed in Exhibit A.
“Agreement” means this Agreement and includes any and all Exhibits and Schedules hereunder, provided that in the event of any inconsistency, this Agreement shall govern.
“Company” means the Purchaser or Buyer
“Confidential Information” means any information and data, whether oral, written or otherwise, including without limitation trade secrets, obtained in connection with this Agreement or otherwise that: (i) is confidential or proprietary to the party disclosing such (the “Disclosing Party”), or which reasonably ought to be known to be confidential or proprietary, that is received by the other party (the “Receiving Party”); (ii) relates to the Disclosing Party’s and/or its affiliate or subsidiary’s business, including without limitation, business, financial and technical information, and materials, operations, policies, procedures, techniques, and pricing; or (iii) is confidential or proprietary to a third party and are in the possession, custody or control of the Disclosing Party. Any information arising from or relating to the other’s business obtained as a consequence of performing obligations under this Agreement, or a Supplement, shall be considered the “Confidential Information” of the other party. Neither party will have any obligation with respect to (i) information that is in the public domain at the time of its disclosure to the Receiving Party through no breach of any confidentiality agreement, (ii) information that, through no violation of the obligations of confidentiality owed by the Receiving Party, enters the public domain; (iii) information that the Receiving Party can demonstrate was known by or in the possession of the Receiving Party at the time of its disclosure to the Receiving Party unless the Receiving Party agreed to keep such information in confidence at the time of its receipt; (iv) information that is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information; and (v) information the Receiving Party can demonstrate was disclosed in good faith by a third party, and such information is not subject to a confidentiality agreement with the Disclosing Party or an Affiliate of the Disclosing Party.
“Defect” means any material defect or deficiency in the Goods or Equipment substantially impairing the value of the same.
“Effective Date” means the date specified on the first page of this Agreement.
“Goods” means any products or equipment to be provided pursuant to a Purchase Order from time to time by Novonanmek to Company as required by this Agreement
“Law” means any international, federal, state or local law, rule, code, ordinance, or regulation.
“Loss” means any and all liabilities, claims, actions, proceedings, demands, damages, losses, costs or expenses, of any kind or description (including without limitation, judgments, amounts agreed upon in settlement and attorneys’ fees) arising out of or under this Agreement.
“Novonanmek” means the company Novonanmek and its Affiliates, or its Representatives designated in a Supplement.
“Purchase Order” means a written purchase order that is issued by Company for specific Goods, Services in accordance with and specifically referencing this Agreement.
“Representative” means, with respect to each party, the person identified in a Supplement to whom that party has delegated the authority to act for it in coordinating and managing the provision of Goods or Services specified in the relevant Supplement.
“Services” means the services to be performed, from time to time, by Novonanmek as required by this Agreement as detailed in the purchase order.
“Supplement” means the contract between Company and Novonanmek in which Novonanmek agrees to provide specific Goods or Services. Company and Novonanmek from time to time may enter Supplements. Each Supplement, which may be incorporated into a Project Schedule, shall incorporate this Agreement by reference, as fully as if they were set forth in the Supplement. If and to the extent that any Supplement conflicts with this Agreement, this Agreement will control. Any communication, technical or commercial, in relation to goods and services supplied, to be supplied or intended to be purchased by the Company from Novonanmek, initiated by one and closed/agreed by the other party, at any stage since the first communication, shall also be called as a Supplement.
“User Documentation” means written materials provided by Novonanmek that specifies the functionality, operational capabilities, and/or operating environment of the material supplied.
2.1 Scope of Agreement. This Agreement is a framework agreement. Novonanmek may sell and Company may purchase Goods and Services according to the quantities and at the prices specified in the Quotation or purchase order or any Supplement to this Agreement. Each Supplement, together with this Agreement shall constitute an agreement between the parties. Any communication, technical or commercial, in relation to goods and services supplied, to be supplied or intended to be purchased by the Company from Novonanmek, initiated by one and closed/agreed by the other party, at any stage since and including the first communication, shall be called as a Supplement.
2.2 Order of Precedence. In the event of any inconsistency between the terms of this Agreement and a Supplement said inconsistency shall be resolved by giving precedence in the following order: (a) this Agreement; (b) a Supplement; (c) an Order Confirmation and (d) a Purchase Order.
2.3 Purchase Orders. Purchase Orders or any other agreement, oral or written, issued by Company under this Agreement are for administrative, payment and accounting purposes only and shall not vary the terms of this Agreement. To the extent that the terms of any Purchase Order issued pursuant hereto purports to introduce different and/or additional terms, said Purchase Order shall have no force or effect.
3.1 Company may, from time to time, issue Purchase Orders for specific Goods that Novonanmek agrees to deliver as specified or as associated with a particular Supplement. The terms of this Agreement shall govern the purchase of Goods by Company to the complete exclusion of any different or additional terms in a Purchase Order unless said different or additional terms are explicitly agreed in a writing signed by both parties.
3.2 Company may, from time to time, issue Purchase Orders for specific Services that Novonanmek agrees to deliver as specified. The terms of this Agreement shall govern the purchase of Services by Company to the complete exclusion of any different or additional terms in a Purchase Order.
3.3 Change Orders. Company may, from time to time, initiate changes in the Goods & Services including modifications, additions, and deductions, by issuing Change Orders. Novonanmek will comply with the terms of all Change Orders explicitly agreed by the parties in writing. Each Change Order will be subject to the terms and conditions of this Agreement; provided, however, that any price increase or reduction shall be explicitly agreed by the parties in writing.
3.4 Company may, from time to time, issue Supplements. Such Statements may specify, among other things, what materials or work, if any, Company will furnish or perform in connection with the Goods and/or Services described in such Supplements. Novonanmek will comply with the terms of all Supplements explicitly agreed by the parties in writing, each of which will be subject to the terms and conditions this Agreement.
3.5 All sales are final and the return of any products will be at Novonanmek’s sole discretion and subject to a cancellation fee.
4.1 Acceptance Criteria. Goods and Services delivered by Novonanmek shall be deemed accepted by the Company unless Company reasonably rejects the same in writing by providing Novonanmek with written notice of rejection detailing the reasons thereof within thirty (30) days. Novonanmek shall have thirty (30) days to cure rejected Goods, Services, or request additional time to cure, said request shall not be unreasonably denied.
4.2 Company may not revoke the acceptance and may only reject Goods and Services for defects substantially impairing the value of the same. If Company wrongfully rejects or revokes acceptance of items tendered under this Agreement or fails to make a payment due on or before delivery, or repudiates this Agreement, Novonanmek shall at its option have a right to recover as damages either the price set forth in this Agreement (upon recovery of the price the items involved shall become the property of the Company) or the profit which Novonanmek would have made from full performance, together with incidental damages and reasonable costs.
5.1 Except as otherwise agreed in a writing signed by both parties, all Goods shall be shipped Ex-Works Novonanmek’s point of origin, and Company assumes full risk of loss of Goods at Novonanmek’s point of origin and shall be solely responsible for insuring said Goods. All delivery dates are approximate unless otherwise agreed by the parties in writing but Novonanmek agrees to utilize reasonable efforts to meet the delivery dates quoted to Company. Novonanmek assumes no liability and shall not be in default for failure to deliver as estimated. Novonanmek reserves the right to make partial shipments and to ship Goods as they become available where Company is provided with reasonable prior written notice.
5.2 Title to Goods shall remain with Novonanmek and shall not pass to Company until payment for Goods is received in full.
6.1 Company shall pay the amounts for the Goods and/or Services delivered by Novonanmek. All amounts are due and payable in Indian Rupees (INR) otherwise agreed by the parties in writing. Any payment due and payable upon order shall be due and payable as 50% advance and Balance against Proforma Invoice prior to dispatch. Subject to credit approval, all other amounts are due in full, thirty (30) days from the date of invoice (net 30), unless otherwise agreed by the parties in writing. Company shall have fifteen (15) days from receipt of invoice to reasonably dispute amounts or items charged. If Company disputes any part of an invoice, then in order to withhold such amount from its payment, Company must notify Novonanmek in writing as to the specific amounts contested and the reasons for such dispute on or before the invoice due date. Any invoice or portion thereof not disputed within said fifteen (15) day period shall be deemed final as to the amount due and owing. Periodic charges under this Agreement will be prorated for any partial-month.
6.2 Failure to pay any fees or other charges or amounts (including without limitation taxes) due to Novonanmek on or before the due date shall be a breach of this Agreement. Where the full price of goods and/or services is not paid prior to delivery, Novonanmek hereby retains and Company grants to Novonanmek a purchase money security interest therein, all additions and accessions thereto, and the proceeds thereof, to secure payment of Company’s obligations to Novonanmek. Company agrees to reasonably assist Novonanmek in protecting Novonanmek’s security interest and Company agrees that a filing of a photocopy of this document shall serve as a financing statement.
6.3 All prices and charges for Goods and/or Services are exclusive of any applicable taxes and withholdings, including but not limited to tariffs, customs and import duties, value-added taxes, sales taxes, use taxes, and/or any other governmental charges levied or otherwise exacted upon goods and services hereunder all of which are the responsibility of Company to pay, provided, for the avoidance of doubt, that Company shall not be responsible for payment of any taxes based on the income of Novonanmek.
6.4 All orders placed under this Agreement are subject to acceptance by Novonanmek. Upon Novonanmek’s acceptance, orders may be canceled thirty (30) days prior to the shipment date. Company will pay an order cancellation fee equal to, not less than 5% of the purchase order value. Additionally, where Company exercises its right to cancel an order, shall pay Novonanmek’s reasonable direct losses, expenses, and costs, to the extent that any products, components, or materials in a canceled order cannot reasonably be used or re-sold by Novonanmek. This may include costs for any employee hours Novonanmek incurred under this provision.
7.1 Each party agrees to hold the other party’s Confidential Information in the strictest confidence and shall not disclose or distribute such information to any third party without the written consent of the other party’s chief legal counsel. The parties agree to disclose Confidential Information on a need-to-know basis, only to those employees who have agreed in writing to protect said Confidential Information from unauthorized disclosure. The parties agree that these obligations of confidentiality shall survive for a period of five (5) years after expiration or termination of this Agreement.
7.2 At any time, upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy, at the Disclosing Party’s sole discretion, all Confidential Information within the Receiving Party’s possession or control, including but not limited to all electronic documents, computer programs, documentation, notes, plans, drawings, and copies thereof; and provide the Disclosing Party with written certification thereof.
7.3 Nothing in this Agreement shall prevent the Receiving Party from disclosing the Disclosing Party’s Confidential Information in accordance with a judicial or other government order from a body of competent jurisdiction, provided that the receiving party reasonably notifies the disclosing party prior to such disclosure to allow the Disclosing Party to legally contest, request confidential treatment, or otherwise avoid such disclosure.
7.4 Without the written consent of the other party, neither party shall disclose the terms of this Agreement or any related facts to any third party except that Reseller may disclose the terms of this Agreement or any related facts to its subsidiaries, whether direct or indirect.
7.6 If the parties have executed a confidentiality or nondisclosure agreement, then the terms of said agreement shall govern to the complete exclusion of any conflicting or inconsistent terms in this section.
8.1 Compliance with Laws. Novonanmek will perform and deliver the Goods and/or Services, in a manner that complies with all applicable Laws.
8.2 Safety and Security. When and to the extent that Novonanmek or any of its employees or agents are on the Company’s property, Novonanmek will comply and will cause each of its employees and agents to comply, with Company’s safety rules and regulations and Company’s security requirements, were provided in writing to Novonanmek.
8.3 Contractor Relations. Company reserves the right to reasonably control and regulate access to the Project Site. Novonanmek will plan and conduct its operations so that its employees and agents work in harmonious relationships with other groups of workers at the Project Site and so that they do not delay, endanger or avoidably interfere with the operations of others. Company shall have the right to deny or revoke access to the Project Site and to reject or remove from the Project Site (or require Novonanmek to reject or remove from the Project Site) any or all employees and agents of Novonanmek whom Company reasonably determines to be incompetent. Company will give Novonanmek prompt written notice of such denials, revocations, rejections, and removals.
9.1 Company expressly agrees to comply with reasonable requests of Novonanmek with respect to the agreed Project Schedule and promptly provide all necessary ancillary services, inputs, and resources and to perform all responsibilities reasonably requested to assist Novonanmek in providing the installation services hereunder. Company shall also furnish to Novonanmek, free of charge for the period of time required for installation of the System and/or components: (i) access to the installation location as reasonably required to perform the services hereunder; and (ii) the time, attention and availability of a sufficient number of skilled and knowledgeable Company employees necessary for Novonanmek to perform the services hereunder.
9.2 Company acknowledges and agrees that Novonanmek’s ability to perform the installation services in a timely manner is contingent upon its receipt from Company of information, resources and assistance detailed in this Section 10 (Company Responsibilities) and Company obtaining or providing to Novonanmek ancillary goods, facilities, services, and resources reasonably requested. Company’s failure to meet any of the foregoing will adversely impact Novonanmek’s provision of the installation services under this Agreement. Where Company, for whatever reason, is unable to meet any obligation under Company Responsibilities and where said failure results in idle Novonanmek resources, Novonanmek reserves the right to charge Company a reasonable amount for said delay at Novonanmek’s then-current stand by rate.
9.3 Novonanmek agrees to use commercially reasonable efforts to inform Company in advance of ancillary goods, facilities, services, and resources required for the provision of the installation services hereunder. For the avoidance of doubt Company and Novonanmek will use the Project Schedule to determine all goods and services required.
10.1 This Agreement shall enter into force on the Effective Date and shall expire one (1) year therefrom (“Initial Term). For the avoidance of doubt, any Supplement in effect prior to the termination of this Agreement shall survive.
10.2 Material Breach. Where a party breaches any material term of this Agreement or any Supplement the non-breaching party may terminate the relevant Agreement or Supplement after providing the breaching party with written notice thereof and a reasonable period of time to cure said breach. The expiration, cancellation, or termination of the Supplement will have no effect upon any other Supplement.
10.3 The following provisions shall survive expiration or termination of this Agreement: Section 7 (Confidentiality), 11 (Indemnity), 13 (Liability), 14 (Arbitration; Choice of Law; Equitable Relief); and any other obligation which is intended to survive expiration or termination of this Agreement.
11.1 Each party will defend, protect, indemnify and hold harmless the other party, including without limitation said party’s directors, officers, employees, representatives and agents, and its Affiliates, and each of them, for, from and against any and all personal injury, disease or tangible property Losses, including without limitation third-party claims, arising out of, caused by, relating to, resulting from or in connection with, and to the extent of, the negligence or willful misconduct, of the indemnifying party.
11.2 Company will defend, protect, indemnify and hold harmless Novonanmek, including without limitation Novonanmek’s directors, officers, employees, representatives and agents, and its Affiliates, and each of them, for, from and against any and all Losses, including without limitation third-party claims, arising out of, caused by, relating to, resulting from or in connection with goods and/or services supplied or about to be supplied as per purchase order placed by the Company.
12.1 Transit insurance shall be borne by the Company.
13.1 Limitation of Liability. NOVONANMEK’S TOTAL LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR ANY LOSSES OF ANY TYPE WHATSOEVER ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY NOVONANMEK IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY COMPANY TO NOVONANMEK UNDER THIS AGREEMENT REGARDLESS OF THE LEGAL THEORY UNDER WHICH SAID LIABILITY IS IMPOSED.
13.2 No Consequential, Special Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUE, DATA, OR DATA USE) WHETHER AN ACTION IN CONTRACT, TORT OR BASED ON ANY OTHER LEGAL THEORY EVEN WHERE A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE RESULTING FROM ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.1 All disputes, claims or controversies of any kind arising from this Agreement, which cannot be settled amicably by the parties, shall be submitted to arbitration to the exclusion of any court.
14.2 Choice of Law. This Agreement shall be governed by the laws of India, without regard to conflict of laws principles.
14.3 Equitable Relief. Notwithstanding anything to the contrary herein, each party acknowledges that a breach of this Agreement may cause the other party irreparable harm which for which there are inadequate remedies at law and that such other party may be entitled to seek equitable relief in addition, and without prejudice, to any and all other available rights or remedies at law or otherwise.
15.1 Entire Agreement. This Agreement and any and all appendices, exhibits, and/or schedules herein incorporated by reference, encompass the entire understanding between the parties with respect to the subject matter of this Agreement and supersede all prior or contemporaneous agreements or statements regarding the subject matter hereof. There are no representations, warranties, covenants, agreements, collateral understandings, oral or otherwise, expressed or implied, affecting this instrument not expressly set forth or provided for herein.
15.2 Execution in Counterparts. This Agreement may be executed by the parties in separate counterparts and delivered by electronic transmission such as e-mail, facsimile, or otherwise, each of which when so executed and delivered shall be deemed to be an original, and all such counterparts shall together constitute one and the same instrument.
15.3 All waivers under this Agreement must be made in writing to be effective. No delay on the part of either party in exercising any of their respective rights under or the failure to exercise the same, nor the acquiescence in or wavier of a breach of any term, covenant or condition of this Agreement shall be deemed or construed to operate as a waiver of such rights or acquiescence thereto except in the specific instance for which given.
15.4 None of the terms, conditions or provisions of this Agreement shall be deemed modified or altered by any act, course of conduct, or knowledge of either party, their respective agents, servants or employees. The terms of this Agreement may not be amended, changed, waived, varied or modified except by a statement in writing signed by duly authorized representatives of the parties expressly assenting to the amendment.
15.5 The invalidity or unenforceability of any provision of this Agreement pursuant to any applicable law shall not affect the validity or enforceability of the remaining provisions hereof, however, this Agreement shall be construed as if not containing the provisions held invalid or unenforceable in the jurisdiction in which so held, and the remaining provisions shall remain in full force and effect and shall be construed as nearly as possible as if such invalidity or unenforceability had not been declared.
15.6 Rule of Construction. No rule of construction applies to the advantage of a Party because the other Party was responsible for the preparation of this Agreement.
15.7 Force Majeure. Except for a party’s pre-existing payment obligations, neither party shall be liable to the other for any failure in the performance of their respective obligations hereunder where such failure is due to a cause beyond said party’s reasonable control and is not otherwise a result of the negligence of the party claiming such cause, and which by the exercise of due diligence by the said party could not be overcome or avoided, including but not limited to, acts of God, acts of terrorism, epidemics, or war (“Force Majeure Event”). Upon the occurrence of a Force Majeure Event which prevents a party either wholly or in part from fulfilling any of its obligations under this Agreement, such obligation shall be suspended to the extent and for as long as such obligation is affected by the Force Majeure Event. The party claiming the benefit of this section shall be entitled to an extension of time to fulfill such obligation as may be reasonably necessary for the circumstances, provided that the non-claiming party may terminate this Agreement after a period of ninety (90) days.
15.7 Successors and Assigns; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and lawful assigns. The parties specifically acknowledge that this Agreement is not intended to create any rights in or for any third party. Company may not assign or transfer any interest in or obligation under this Agreement without the prior written consent of Novonanmek.
15.8 Unless otherwise specifically provided in this Agreement, all notices provided for or required shall be in writing and delivered personally, mailed or sent via express delivery service (i) if to Company, to the Company Representative at the address specified in the Supplement, or (ii) if to Novonanmek, to the Novonanmek Representative at the address specified in the Supplement. Unless otherwise specifically provided by this Agreement, all such notices will be deemed given when received. Either party may, from time to time and in accordance with the procedures set forth in this section 18.10, specify a different address for receipt of notices.
15.9 Legal Costs. The parties endeavor to resolve disputes under this Agreement by mutual consultation. Where legal action is pursued to enforce any provision of this Agreement, the prevailing party shall be entitled to recover all associated legal costs, including without limitation, reasonable attorney fees.
15.10 This Agreement has been prepared in English and the Parties expressly agree that English shall be used as the official language of choice in any dispute or arbitration process.
15.11 Company irrevocably and unconditionally waives any objection it may have to the jurisdiction of the courts of Kolkata and Mumbai including without limitation, objections to venue or the convenience of such forum. Final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment.