India Terms of Purchase

1. PRICE OF GOODS. Unless otherwise stated, the prices for all goods and services purchased from Seller by Buyer (collectively, “Goods”) do not include any indirect taxes including value added tax, sales tax, taxes with respect to use, consumption, goods and services, excise and other similar taxes by whatever name called, applicable to the Goods or the materials used in the manufacture thereof. Any such taxes and charges shall be shown separately on Seller’s invoice, and Seller shall deposit such taxes with the relevant governmental authorities as prescribed under applicable law. If prices in effect on the date of the purchase order are reduced prior to date of shipment or billing, the Goods shall be billed at such lower price. If price is not stated in the purchase order, the Goods shall be billed at the price last quoted or at the prevailing market price, whichever is lower. No increase in price shall be permitted except as agreed to by Buyer and Seller. 

2. PAYMENT TERMS. Unless otherwise agreed to, all amounts due to Seller will be paid within 60 days after Buyer’s acceptance of the Goods. Under no circumstances shall Buyer, without its prior written consent, pay any late fees, interest, attorneys’ fees, carrying or other charges with respect to any amounts invoiced to Buyer by Seller. 

3. DELIVERY TERMS. Title and risk of loss for all Goods shall transfer to Buyer upon Buyer’s acceptance of the Goods at the destination point. Seller will package all Goods in accordance with the highest industry standards and comply with SOLAS container weight verification requirements. Seller shall give Buyer prompt notice of all shipments. If Seller fails or refuses to proceed with an order, or if Seller fails to make delivery of all items within the time specified by Buyer, Buyer shall have the right to cancel all or any part of the order. Time is of the essence of this purchase order. Seller thus agrees that if the Goods are not delivered at the specified time and in accordance with Buyer’s instructions, and Buyer pays or incurs any liquidated damage, lost profits, penalty or other charge for late delivery or performance on account of Seller’s late delivery, Seller shall immediately indemnify, defend and hold harmless Buyer therefor. 

4. INSPECTION. Verification activities and testing of the Goods by Buyer may at Buyer’s option, be at Seller’s plant and/or at the point of destination. No inspection or acceptance of, or payment for, Goods shall constitute a waiver of any warranties hereunder or of any action against Seller for breach of such warranties. 

5. HOLD ON DELIVERY. Buyer may direct Seller, from time to time, to hold and store all or any part of the Goods and to await further delivery instructions from Buyer. In the event Seller holds and stores all or a substantial part of any completed order for longer than 180 days, Buyer will pay Seller a storage fee at a fair market rate for the time the Goods are stored after the initial 180 days. 

6. QUANTITY. Delivery of any unauthorized quantity of Goods is subject to Buyer’s rejection, and such Goods shall be held at Seller’s risk. Buyer may return such Goods at Seller’s risk, and all transportation charges to and from the original destination shall be paid by Seller. 

7. QUALITY. Seller expressly warrants that (a) the Goods shall strictly conform to the specifications, samples or other descriptions provided by Seller or Buyer and shall be of good quality, material and workmanship, and free from defects; (b) the Goods shall be fit and sufficient for their ordinary purposes and for any specific purpose made known to Seller by Buyer; (c) Seller shall perform all services for Buyer in a timely and professional manner, in accordance with the highest industry standards; (d) the Goods shall be manufactured, produced and provided in accordance with all laws, rules, regulations and other legal requirements applicable to Buyer, Seller or the Goods, including without limitation, product safety and labeling laws, labor standards laws, health and safety laws, and anticorruption laws; (e) the Goods shall not infringe on any patent, trademark, copyright or other intellectual property right of any third party; and (f) Seller shall convey good marketable title to the Goods, free and clear of all liens, claims and encumbrances. Seller shall have sole responsibility for the production, quality and structural integrity of the Goods, notwithstanding any plans, drawings, specifications or instructions provided by Buyer. Seller agrees to comply with all product requirements and other obligations of Buyer pursuant to any contracts between Buyer and Buyer’s customer, which contracts shall be made available to Seller upon request and are incorporated herein by this reference. 

8. INTELLECTUAL PROPERTY. Seller acknowledges and agrees that Buyer shall be or become the sole owner of and shall have the sole rights with respect to any and all intellectual property rights that are included in or result from the development, manufacture or supply of the Goods or are created pursuant to the purchase order. To the extent required by law, Seller agrees by acceptance of the purchase order to assign to Buyer, with full title guarantee, all legal and beneficial rights and title in and to all such intellectual property rights, free from all encumbrances. 

9. BREACH OF WARRANTY. If any Goods furnished hereunder shall fail to satisfy the requirements of the above warranties, or shall prove to be defective in any respect at any time within two years after acceptance or such longer period as the parties may agree, Buyer may, at its option and in addition to any other remedies available to Buyer at law, in equity, by contract or otherwise, upon notice to Seller, (a) require Seller to immediately correct or replace the same at Seller’s expense, (b) correct or replace or arrange to correct or replace the same, for which Seller shall reimburse Buyer immediately upon demand; or (c) cancel all or any portion of the purchase order. If Buyer elects to cancel, Buyer shall hold any Goods in its possession affected by the cancellation at Seller’s risk, to be disposed of in accordance with applicable law, and Seller shall immediately refund any payments made on account of the cancelled Goods. 

10. CANCELLATION. Buyer may cancel all or any part of the purchase order for any reason or no reason with 10 days’ prior notice before complete delivery is made. Buyer may cancel all or any part of the purchase order without notice of any kind in the event Seller becomes insolvent (generally unable to pay its debts as they become due) or the subject of a bankruptcy, conservatorship, receivership or similar proceeding, or makes a general assignment for the benefit of its creditor. 

11. EXCUSE OF PERFORMANCE. The occurrence or existence of the following events and circumstances shall not excuse Seller from the performance of any of its obligations hereunder: (a) any adverse change in the cost or availability of raw materials, supplies or work in process; (b) fires, floods, explosions, accidents or breakdowns; (c) riots, strikes, slowdowns or other concentrated acts of workmen, whether direct or indirect; and (d) any other cause similar to any of the foregoing. Under no circumstances shall Buyer pay or be liable to Seller for a price in excess of the price determined in accordance with Section 1 due to any increase in Seller’s cost of performance. 

12. REMEDIES. If Seller fails or neglects to perform, keep or observe any term, provision, warranty or condition contained in this purchase order, Buyer shall, in addition to any other available rights and remedies, be entitled to reimbursement from Seller for Buyer’s attorneys’ fees and other costs of enforcement and Buyer shall have all the rights of an aggrieved buyer under applicable law, all of which rights and remedies shall be cumulative, and non-exclusive, to the extent permitted by law. Buyer may, upon written notice to Seller, set off and deduct against any part of the price due under any and all purchase orders or agreements now or hereafter in effect between the parties all or any part of (a) any obligations owing to Buyer by Seller under any purchase order or agreement, and/or (b) any damage sustained by Buyer resulting from any breach of any purchase order or agreement by Seller. 

13. INDEMNIFICATION. To the fullest extent permitted by applicable law, Seller hereby agrees to indemnify, defend and hold harmless Buyer and its directors, officers, employees, affiliates, agents, successors and assigns from and against any and all direct, indirect and consequential damages, losses (including lost profits), liabilities, claims, suits and expenses of any kind or nature whatsoever (including reasonable attorneys' fees and court costs) arising out of or relating to: (a) the negligence or willful misconduct by Seller or its employees, contractors, agents or representatives; (b) any breach of this purchase order or the representations or warranties contained herein by Seller; or (c) any infringement or alleged infringement of any trademark, copyright, patent or other intellectual property right on account of the manufacture, sale or use of any Goods, except where compliance by Seller with specifications prescribed by Buyer constitutes the sole basis of infringement or alleged infringement. 

14. INSURANCE. Seller agrees to maintain in effect at all times when Seller is providing Goods to Buyer insurance policies from a third party acceptable to the Buyer, of the type and in the amounts as are normal and customary in its industry including: (a) insurance cover statutorily mandated under applicable law; (b) employer’s liability insurance; (c) commercial general liability including bodily injury, property damage, contractors protective product’s/completed operations, contractual liability; (d) professional liability and errors and omissions insurance. All such insurance policies shall be occurrence based, shall be underwritten by an insurer acceptable to Buyer, and may not be canceled or materially altered without at least 30 days’ prior written notice to Buyer. Buyer shall be named as an “Additional Insured” to all such insurance policies to the extent permissible under applicable law, for the purpose of protecting Buyer from any expense and/or liability arising out of, alleged to arise out of, related to, or connected with the Goods. All such insurance coverages shall be primary and non-contributory to any insurance coverage maintained by Buyer. Seller shall waive subrogation against Buyer and shall cause its insurer(s) to waive subrogation against Buyer. Seller shall, upon Buyer’s request, furnish to Buyer certificates and required endorsements evidencing the insurance coverage required under this Section. 

15. PRICE PROTECTION. If Seller reduces its prices or offers more favorable terms to any customer for any Goods or any goods or services substantially similar to any Goods, in similar or lesser quantities, Seller shall reduce the price to Buyer of such Goods for all purchases during the period in which Seller offers such reduced price to its other customer; and Seller shall immediately refund to Buyer the difference in price for all Goods purchased by Buyer at the higher price during such period. Should Buyer furnish written evidence of a good faith offer received from a third party for a lower delivered price on any Goods or any goods or services substantially similar to any Goods, in similar or lesser quantities, Seller will, at its option, either (a) supply the Goods at the lower price or (b) permit Buyer to purchase such goods or services from the third party and deduct the quantity of such goods or services from the total quantity of Goods under this purchase order. 

16. CONFIDENTIALITY. Each of the parties agrees to keep the terms of this purchase order and all confidential information and trade secrets of the other party confidential and to not disclose such information or use it in competition with or to the detriment of the other party without the prior written consent of the other party. Seller agrees to keep all information from or about Buyer’s customers confidential and not to directly or indirectly contact or communicate with any of Buyer’s customers without Buyer’s prior written consent. 

17. MISCELLANEOUS. This purchase order constitutes the complete and exclusive statement of the agreement and understanding of the parties with respect to the sale of goods and all related matters. Except as provided in Section 15, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of this purchase order shall be binding unless hereafter made in writing, with explicit reference to these terms and conditions and signed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of a proposal, invoice or other document containing terms or conditions at variance with or in addition to those set forth herein, all of which are hereby objected to and rejected by Buyer. No waiver by either Seller or Buyer with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by the party to be bound. This purchase order and all claims between Buyer and Seller shall be governed by the laws of India, without regard to its conflicts of law principles. Any such claims shall be irrevocably submitted to the exclusive jurisdiction of the courts at Bangalore and each of the parties waives any objection it may now or hereafter have to venue or to convenience of forum. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this purchase order. If any provision of this contract is held to be invalid, illegal or unenforceable, such provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or any remaining provisions of this contract. The Section headings contained herein are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof. Seller shall not (by operation of law or otherwise) assign its rights or duties or subcontract its performance hereunder without the prior written consent of Buyer. Any attempted assignment without such consent shall be void. 

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