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Thermo Fisher Scientific India Private Limited
ALL ORDERS ARE ACCEPTED SUBJECT TO OUR STANDARD CONDITIONS OF SALE, A COPY OF WHICH IS REPRODUCED BELOW.
In these conditions the following expressions shall, where the context so admits, have the following meanings:
"business day" shall mean any day other than a Saturday, Sunday or a day which is a public or bank holiday in India.
" goods" shall mean the goods which are the subject of this contract of sale or supply between us and the customer.
"us" shall mean Thermo Fisher Scientific India Private Limited, the seller of goods under these terms
"you" or the "customer" shall mean the purchaser of the goods in accordance with these terms
The following conditions shall apply to all our contracts with customers except to the extent that they are varied in writing in the express terms of the contract.
No alteration, variation, amendment of or addition to these conditions shall be valid unless made in writing and signed by our authorised representative.
If the terms and conditions stated in the customer's order are inconsistent with these conditions or if they contain a provision purporting to override these conditions, our acknowledgement of order referencing these terms and conditions shall constitute a counter-offer. The contract shall come into being when the customer has accepted our counter-offer either expressly or impliedly. If the customer, after receiving our counter-offer, notifies us that it does not accept these conditions, then the formation of a contract shall be subject to negotiation. The customer agrees that, in entering into this contract, it does not rely upon any express or implied representation made by any of our employees or agents or any representations made in any of our sales/ promotional literature and that such representations shall not form part of the contract or a collateral contract.
Acceptance of orders and completion of contracts including delivery of goods are subject to such materials, components and services (including supplies from sub-contractors) and such specifications, information and other material being available or being made available as will enable us to proceed with and complete the contract and to continue manufacture without interruption.
The price of the goods to be paid by the customer shall take into account fluctuations in the cost of materials, components, labour and services, including services provided to us (such as energy, electricity, water, etc.) as well as services provided by us (such as metal handling and financing) at the date of despatch of the goods. Where a contract is for the sale of goods by a number of separate deliveries, we shall be entitled to take fluctuations in the cost of goods for each consignment of goods into account up to the date of despatch of each delivery. Unless otherwise agreed:
4.1 products containing Gold or Silver will be charged at prices based on the next available market fixing following the receipt of the customer's order, or on a subsequent date at our discretion;
4.2 products containing Platinum Group Metals and/or metals other than Gold or Silver will be charged at the prices ruling either:
4.2.1 on the day of receipt of the customer's order, or where this is not possible on the next available business day thereafter; or next available business day thereafter at our discretion.
4.2.2 on the day of despatch of the goods or, where this is not possible, on the next available business day thereafter at our discretion. Unless otherwise stated, freight and insurance will be charged to the customer at the rates ruling on the day of despatch of the goods.
The price shall be exclusive of any value-added, sales, excise, customs or other tax or duty payable on the sale of the goods, which shall be paid by the customer in addition to the price for the goods. Any customs duties or other charges, fines or assessments, whatsoever, levied in respect of the goods on importation shall be borne by such customers and shall be reflected in the price payable by the customer. If we have already made such payments, the Customer shall reimburse us the amounts so paid.
All statutory duties and /or any other charges as applicable will be reflected in the price for the goods. Any liability/s arising there from with retrospective effect shall be recoverable by us from the customer . VAT, if charged at concessional rate, is subject to furnishing of relevant declaration forms on receipt of this invoice. Failure to furnish declaration forms within 60 days from this invoice will entitle us to recover the differential tax.
Although we will use our reasonable efforts to supply the exact quantity of goods ordered, the customer shall accept the supply of a quantity (whether more or less) within 5 per cent of the stipulated amount of its order. In such circumstances the invoice value of the goods shall be subject to a corresponding adjustment except where, in the case of sales overseas, such course shall be impracticable. Subject as aforesaid, the prices quoted are for the quantities and despatch conditions stipulated in our quotation and do not necessarily apply to other quantities or to different conditions of despatch.
Although we will use all reasonable efforts to meet our despatch forecasts, such forecasts are estimates only and, accordingly, time for delivery shall not be of the essence. We shall not in any circumstances whatsoever be liable (whether in contract, tort (including negligence) or otherwise) for any loss of profit or for any other loss, damage, expense, or injury suffered or incurred by the customer whether direct, indirect, contingent, consequential or special (whether for loss of business, depletion of goodwill or otherwise) arising out of, or in connection with any delay in despatch. In the case of orders for despatch overseas, despatch will be conditional upon all necessary governmental or other consents governing the importation of goods into the country of destination being obtained by the customer prior to despatch.
We shall be entitled without prejudice to any of our other remedies to withhold delivery of any goods if either:
8.1 any amount is outstanding and overdue from the customer in respect of any invoice issued by us ; or
8.2 upon the invoicing of such goods, the customer's credit limit (if any) either with us would thereby be exceeded. In determining the customer's credit limit for such purposes, the aggregate invoice value of all invoices issued to the customer by us or by any other company in Thermo Fisher Scientific (as the case may be) and which are then outstanding, including unpaid accounts, shall be taken into account.
9.1 The risk in the goods shall pass to the customer either:
9.1.1 on delivery by us or by our delivery agent or by a common carrier to the address specified by the customer; or
9.1.2 on delivery to the customer, the customer's servant or the customer's agent.
10.1 So long as any amounts whatsoever remain owing from Customer to us (whether immediately due or not) title to and property in any products supplied to customer by us will remain with us and will not pass to customer until we have received such amounts in full. Until such time customer :
10.1.1 Shall hold the products in a fiduciary relationship as our bailee;
10.1.2 Shall store the products separately from other goods in Customer's possession;
10.1.3 Shall ensure that no charge, lien or other encumbrance is created over the products;
10.1.4 Shall deliver up the products to us upon demand
"We shall be entitled upon providing prior notice to recover possession of any products to which we retain title and for that purpose to enter Customer's premises where the same may be situated without prejudice to any other rights, which we may have.
The Customer acknowledges that he shall not be entitled to and undertakes not to sell or transfer interest in the goods until Customer gets the title to the goods. Until such time, Customer shall only be entitled to enter into a contract for sale of such goods on the condition that the sale proceeds shall be directly remitted to us herein. We however shall not be liable for any obligations to such third part. We may maintain an action for the price of the products notwithstanding that title to them has not passed to the Customer.
Where the risk in the goods has not passed to the customer, we will accept responsibility
11.1 for damage in transit (by repairing or, at our option, replacing the goods) provided that we are given written notice of such damage within five days after the products have been received by the customer and in such manner as will enable us to comply with the carrier's conditions of carriage applicable to damage in transit and are given the opportunity to inspect the goods and on the condition that the customer shall make no further use of the goods and will not attempt to alter or repair the goods itself; and
11.2 for non-delivery (by, at our option, recovering or replacing the goods within a reasonable time) provided that where we have notified the customer of despatch of the goods we are given written notice of non-delivery within five days and in such manner as will enable us to comply with the carrier's conditions of carriage applicable to non-delivery.
Payments should be made to Thermo Fisher Scientific India Private Limited. All payments must be in Cheques or Demand Drafts drawn in favour of the company in any of the scheduled bank or by bank transfer (details provided in our invoice copies) unless otherwise agreed. Payment must be made within 30 days of invoice, unless otherwise stated. If there is any delay in payment beyond 30 days, we shall be entitled to interest at the rate of 18% per annum till the date of actual payment. All payments shall be made without deduction or setoff. When deliveries are spread over a period, each consignment will be invoiced as a despatch and will be treated as separated account and be payable accordingly. We reserve the right, where genuine doubts arise as to a Customer's financial position or in case of failure to pay for any goods or any delivery or instalment as aforesaid, to perform of any order or any part or instalment without liability until payment or satisfactory security for a payment has been provided.
Without prejudice to any other remedies we may have in respect of unpaid debts due to us from customers we shall have a general lien on all such customers' goods or property in our possession (whether worked on or not) and we shall be entitled, on the expiration of 21 days' notice in writing to the customer, to dispose of such goods or property as we think fit and to apply any proceeds received towards such debts.
14.1 Although we use every effort to ensure that all goods are manufactured to specification, it is in all cases, including repeat orders, for the customer to ensure by tests or otherwise, that the goods are fit and suitable for the purpose for which the customer requires them in the conditions in which they will be used. We accept no liability for misuse of the goods or failure of the customer to carry out its statutory obligations. Purity values, where quoted, are typical figures and may vary from batch to batch. Reasonable variation from purities quoted shall not be deemed to be non-conformance to specification.
14.2 Any customer who claims that goods are defective as regards materials or workmanship must give us written notice to that effect giving details of the alleged defect and, if requested by us, return the goods to us properly packed, carriage paid within 30 days of the date of receipt of the goods.
14.3 We will replace goods which we accept are defective either as regards materials or workmanship provided that they have not been tampered with or subjected to improper treatment and provided that the defects are not as a result of faulty design or incorrect specification by the customer. Goods returned to us and replaced shall become our property.
14.4 Under no circumstances shall our liability to the customer in respect of any claim shall not in any circumstances exceed the purchase price of the goods that are the subject of (or giving rise to) such claim.
14.5 We shall not in any circumstances whatsoever be liable (whether in contract, tort (including negligence) or otherwise) for any loss of profit or for any indirect, contingent, consequential or special loss, damage, expense or injury suffered or incurred by the customer (including by way of loss of business, depletion of goodwill or otherwise).
14.6 We shall not be under any liability in respect of any claim made against the customer by any third party and the customer shall indemnify us against any claims brought by third parties against us relating to the goods.
14.7 Goods supplied are intended for laboratory research and development purposes. In particular, for the avoidance of doubt, no warranty is given as to suitability for food, drug, agricultural, cosmetic or household use. This condition 15 is in substitution for and (to the extent permitted by Indian Law) excludes all conditions, warranties and terms as to satisfactory quality and fitness whether express or implied and whether conferred by statute, common law or otherwise provided that nothing in this condition shall exclude or limit our liability for fraudulent misrepresentation.
15.1 No order for goods may be cancelled or varied by the customer without our written agreement. If the customer purports to cancel or vary his order without such agreement or refuses to accept delivery and at the time of such purported cancellation or variation or refusal the market price of any item purchased by us for the execution of the order is lower than the price at which we acquired the same, then, without prejudice to any other contractual rights that we may have, we shall be entitled to charge the customer the difference. In addition, we shall be entitled to charge the customer the full cost of manufacture incurred by us up to the date of the purported cancellation, variation or refusal of any goods manufactured to the customer's order, including the costs incurred by us in respect of all items ordered, supplied or manufactured specifically for execution of the order in question. In such circumstances we shall be entitled to store the goods at the customer's cost and to dispose of the goods on such terms as we see fit to any third party.
15.2 If work on an order is suspended because of the customer's instructions or lack of instructions, we reserve the right to treat such circumstances as a cancellation by the customer and the provisions of this condition 16 shall apply.
We shall be entitled to cancel the contract by written notice and to suspend all future deliveries without prejudice to any other rights which we may have if:
16.1 the customer shall commit a material breach of this contract;
16.2 the customer shall go into liquidation or be declared bankrupt;
16.3 the customer shall have an administration order made against it;
16.4 a distress or execution is levied or enforced upon any of the property or assets of the customer and is not paid out or discharged within 14 days;
16.5 an encumbrance takes possession or a receiver is appointed over the undertaking of the customer or any of his property or assets;
16.6 the customer stops payment or ceases or threatens to cease to carry on his business or to pay his debts as and when they fall due; or
16.7 if the equivalent of any of the foregoing occurs in any jurisdiction.
In the event of the normal course of manufacture or delivery of the goods being prevented, interrupted, hindered or delayed by any cause whatsoever beyond our control, (including, but without limitation, Acts of God, strikes, war (whether declared or not) or lock-out), we shall have the option without incurring liability to the customer, either to defer the date of despatch or, according to the nature and extent of such supervening event, to cancel the order on the terms referred to in condition 17.
18.1 We accept no liability (to the extent permitted by Indian Law) for any claims made against the customer for any infringement of patent, registered or unregistered designs, copyright, trade names, trade marks or other intellectual property rights of any third party in connection with the use, possession, resale or offering for resale of the goods either as originally sold by us or otherwise;
18.2 Where we execute the order in accordance with the customer's designs, plans or specifications, the customer shall indemnify us against all actions, losses, damages, expenses, cost or other liabilities (including legal fees) arising from any claims made against us for infringement of any third party's patent, registered or unregistered designs, copyright, trade names, trade marks or other intellectual property rights arising therefrom.
18.3 Nothing contained herein shall be construed as, or operate to grant, any licence to the customer in respect of any of our existing or future patent rights, registered or unregistered designs, copyright, trade names, trademarks or other intellectual property rights.
Each of the foregoing conditions is to be constructed as a separate provision applying and surviving even if for any reason one or other of the said conditions is held void or unenforceable in any circumstances.
The customer will not in connection with the order or the goods purchased or to be purchased under it, offer, pay, promise to pay, or authorize the giving of any financial or other benefit to any person for the purpose of obtaining an improper advantage, or otherwise conduct itself in a manner contrary to the UK Bribery Act, FCPA or other applicable anti bribery laws. We may terminate the order immediately upon written notice where the customer is found to have breached this Clause, and the customer shall indemnify us from all damages, penalties, fines and/or costs of any kind arising from, or relating to, any such breach.
The waiver by us of any breach of any of these conditions shall not prevent the subsequent enforcement of that condition and shall not be deemed to be a waiver of any subsequent breach of that or any other condition hereof.
All disputes as to the legality, interpretation, application or performance of this order, or any of its terms and conditions, shall be governed by the laws of India excluding its conflict of laws principles. Both parties submit themselves to the exclusive jurisdiction of the Courts in Raigad/Mumbai, India.