These General Terms and Conditions (“Terms and Conditions“) shall apply to the quotes, quotations, RFQs, Sale of products (“Products”) by GNH India Pharmaceuticals Limited (“GNH”) unless GNH has executed a separate written agreement with the buyer (“Buyer”) in respect of sale of any Products which categorically supersedes these Terms and Conditions.
On receipt of an enquiry from the Buyer, GNH shall provide a tentative price ExWorks (EXW) quote which shall be valid for a period of thirty (30) days. Within this thirty (30) day period, the Buyer is to provide to GNH the exact quantity of the Products required along with delivery terms, based on which GNH shall provide a revised quote (including freight and insurance, if applicable) and request the Buyer for a purchase order or a prescription, in case of individual Buyer.
- Each written signed and stamped purchase order or prescription (“Purchase Order”), is to be accepted by GNH in writing by issuance of a Proforma Invoice. Upon issuance of the Proforma Invoice, the same shall constitute an agreement by the Buyer to purchase the Products subject to these Terms and Conditions.
- Any Purchase Order which does not have a valid purchase order number, bill to address and ship to address shall not be accepted by GNH.
- Any different or additional terms and conditions referred to in the Buyer’s Purchase Order shall not form part of the agreement between the Parties in relation to the purchase of the Products. The Buyer expressly waives its terms and conditions which shall have no relevance and confirms that only these Terms and Conditions will govern the sale of Products between GNH and the Buyer, unless the same are separately agreed to by GNH in writing at its discretion.
- No accepted Purchase Order may be cancelled, varied, or deferred by the Buyer (in whole or in part) except with the agreement in writing of GNH and subject to the payment of corresponding costs incurred by GNH, if any.
- The orders shall be processed and Products shall be delivered by GNH to the Buyer ExWorks (EXW) or Cost on Freight (CNF) or Cost Insurance Freight (as may be agreed between the Parties), as per the Incoterms 2020 only after payment of the Price is received in full by GNH unless the Buyer is entitled to credit, in which case the Products will be delivered only after GNH receives the Proforma Invoice duly signed and stamped as “Accepted” by the Buyer.
- In the event the Buyer fails to take or accept delivery of any order of Products in case of delivery EXW or fails to notify GNH to ship the Products in case of delivery of Products on CNF or CIF basis, within thirty (30) days of notification to the Buyer that the Products are ready for shipping, GNH may store such products at the Buyer’s risk in a warehouse or upon GNH’s premises. In such an event, the Buyer shall pay to GNH USD 200 (or equivalent in the billing currency of the buyer) per week to cover all handling, transportation, storage and insurance costs after the above mentioned thirty (30) day period of free storage upon submission of invoices by GNH. Alternatively, GNH reserves the right to ship the orders to the Buyer via common carrier at the Buyer’s expense, thirty (30) days after notification to the Buyer that said Products are ready for shipment.
- GNH may make delivery in installments and each installment may be separately invoiced and paid for without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve the Buyer of his obligations to accept subsequent deliveries.
- All delivery dates are approximate dates only, estimated in good faith to the best of GNH’s ability and time for delivery shall not be deemed to be of the essence. GNH shall neither be liable for any delay in delivery of the Products howsoever caused nor shall the Buyer be entitled to refuse to accept the Products due to delay in delivery.
Risk and Title
- Title to the Products shall be transferred to the Buyer upon GNH’s receipt of the Price of the Products in full.
- Notwithstanding that title therein may not yet have passed to the Buyer, the risk of loss or damage to the Products shall be transferred to the Buyer in accordance with the delivery terms EXW or CNF or CIF as per Incoterms 2020 as agreed between GNH and the Buyer.
Price and Payment Terms
- The price of the Products will be that as set out in the Proforma Invoice or any increased price as notified by GNH to the Buyer (“Price”). GNH shall have a right, by giving written notice to the Buyer to revise the Price of any Products anytime before delivery to reflect any increase in cost to GNH which is due to new or increased taxes or Government order or notification or any change in delivery dates, quantities or specifications for the Products requested by the Buyer and accepted by GNH.
- The Price will include delivery on an EXW or CNF or CIF basis (as the case maybe) as well as taxes.
- The Buyer is to pay the Price in full (without set-off or deduction of any kind) within ten (10) days of issuance of the Proforma Invoice, unless the Buyer is entitled to credit, in which event payment is to be made as per credit line extended to the Buyer.
- The time of payment shall be of the essence and in the event Price is not paid within ten (10) days of receipt of Proforma Invoice by the Buyer, GNH shall be entitled to revise the Price of the Products at its discretion and issue a revised Proforma Invoice to the Buyer. In case of credit payments, any failure by the Buyer to pay GNH by the due date shall entitle GNH, without limiting any other remedy available to it to charge interest at the rate of eighteen (18%) per annum calculated from the date payment is due until the date of receipt of payment by GNH.
- Additionally, GNH shall be entitled to set off any amount owed by it to the Buyer against any amount owed by the Buyer to GNH on any account whatsoever and/or immediately terminate the order, or suspend or cancel the further delivery of any Products to the Buyer.
- GNH shall not be liable to the Buyer or be deemed to be in breach by reason of any delay in performing or any failure to perform any of its obligations hereunder, if such delay or failure was due to any cause or circumstance beyond GNH’s reasonable control including but not limited to act of God, natural disaster, explosion, flood, typhoon, earthquake, tempest, fire, accident, outbreak of an epidemic or pandemic, war or threat of war, sabotage, insurrection, civil disturbance, acts, restrictions, regulations, byelaws, prohibitions or measures of any kind imposed by the government or any municipal, local or other regulatory authority, import export restrictions, strikes, lockdown, lockouts or other industrial actions or trade disputes or difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, etc. (“Force Majeure Event”).
- In case of a Force Majeure Event, the delivery date shall be extended for the duration of the delay caused by said Force Majeure Event. If the Force Majeure Event continues for a period of forty-five (45) days, GNH may terminate the pending orders by written notice to the Buyer.
Representation and Warranties
GNH represents that its Products shall conform to the description of such products as provided to the Buyer by GNH in GNH’s product listing. Except as expressly provided in these Terms and Conditions, GNH does not give any further representations or warranties and all warranties, conditions, representations or other terms implied by statute or law or otherwise are excluded to the fullest extent permitted by law and GNH shall not be liable to the Buyer in respect of any such matters.
Damages and Liability
- Save as provided in this clause and the clause on Indemnity below, Products once delivered cannot be returned or replaced.
- The Buyer shall be responsible for ensuring that its representative checks the products for obvious damage on delivery.
- In the event any of the Products are shown to the satisfaction of GNH to be damaged at the time of delivery of the Products to the Buyer, GNH may at its option and sole discretion replace the damaged products or credit that proportion of the Price of the damaged Products. GNH shall have no further liability, except for replacement of damaged products at its discretion as set out herein.
- All such claims for damages are to be made in writing along with supporting evidence within two (2) days of delivery to the Buyer. Any claim for damage should be accompanied with photo of outer packing / carton in which the product was shipped by GNH.
- GNH shall not entertain any claims after the said period of two (2) days. The above however shall not apply to Products which in GNH’s opinion have been (i) misused or subject to neglect, improper or inadequate care or (ii) dealt with, used or stored contrary to good trade practice or any oral or written instructions of GNH or the manufacturer or (iii) adversely affected by anything done or not done after the Products have been delivered by GNH.
- GNH shall not in any event be liable for direct, indirect, incidental or special damages of any kind resulting from any use of the Products including, without limitation, liability for loss of use or loss of business, revenue or profits.
The Buyer hereby indemnifies and agrees to indemnify and keep harmless GNH, including its directors, officers, employees and agents, from any claims asserted by third parties for damages, costs and expenses (including legal fees) in connection with the use of the Products and/or further processing and use of the Products and/or the integration or combination of the Products with other medical products or with any other products.
If the Buyer makes a composition or voluntary arrangement with its creditors or becomes bankrupt or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a receiver, corporate insolvency resolution professional (interim or otherwise) or administrator is appointed, of any of the property or assets of the Buyer or the Buyer ceases, or threatens to cease, to carry on business or an application for corporate insolvency resolution is made in respect of the Buyer, GNH shall be entitled to cancel any pending orders or suspend any further deliveries without any liability to the Buyer, and if the Products have been delivered but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
- Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to that other party at its registered office or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
- No waiver by GNH of any breach by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If any provision of these Terms and Conditions is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
Governing Law and Jurisdiction
- These Terms and Conditions shall be governed by the laws of India. Subject to clause (b) below, the courts at Mumbai shall have exclusive jurisdiction.
- Any dispute arising out of or in connection with these Terms and Conditions, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration (“MCIA Rules”), which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Mumbai, India. The Tribunal (as defined in the MCIA Rules) shall consist of a sole arbitrator jointly appointed by the Parties. The language of the arbitration shall be English. The law governing this arbitration agreement shall be the Arbitration & Conciliation Act, 1996, as amended, modified, or replaced from time to time.