Offer, Confirmation or Agreement
General Terms and Conditions of Go Technology applicable in Business Relations with Merchants and Companies
- These general terms and conditions (the "Terms and Conditions") apply and form an integral part of:
- All quotations and offers (hereinafter both referred to as "Offer") by Go Technology(hereinafter "Go Tech") to the Buyer;
- All acceptances, acknowledgements or confirmation by Go Tech (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation order of Buyer resulting from any pricing- or other framework agreement between Buyer and Go Tech, unless explicitly agreed otherwise in writing between Go Tech and Buyer;
- Any agreement resulting from such Offer or Confirmation; and
- Any agreement incorporating these Terms and Conditions by reference (both types of agreements referred to under (c) and (d) shall hereinafter be referred to as an "Agreement"), regarding the sale by Go Tech and purchase by Buyer of goods ("Products"), unless Go Tech explicitly agrees in writing to exclusion hereof.
- Any terms and conditions set forth on any document or documents issued by Buyer (including "Pull Documents" as defined below) either before or after issuance of any document by Go Tech setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Go Tech, and any such document shall be wholly inapplicable to any sale made by Go Tech and shall not be binding in any way on Go Tech. No Offer, Confirmation or Agreement constitutes an acceptance by Go Tech of any other terms and conditions and Go Tech does not intend to enter into an Agreement other than under these Terms and Conditions.
- Any Offer is expressly made conditional on Buyer’s assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer’s written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer’s acceptance of delivery of the Products or payment of purchase price for the first instalment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.
- In the event that any Offer or Confirmation is sent in response to Buyer’s blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any "pull" by Buyer or delivery by Go Tech, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) ("Pull Documents") and whether Go Tech provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.
- Go Tech’s Offers are open for acceptance within the period stated by Go Tech in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Go Tech at any time prior to the receipt by Go Tech of Buyer’s acceptance related thereto.
- If Go Tech receives an order from Buyer for the sale by Go Tech and purchase by Buyer of Products and such order is not a response to an Offer by Go Tech, or if Go Tech receives an order or acceptance by Buyer which deviates from Go Tech’s Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.
- An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Go Tech shall first constitute an Agreement between Go Tech and Buyer upon explicit Confirmation by Go Tech itself.
- The Buyer is bound by the order for delivery placed with Go Tech as Supplier for three weeks from the date of its receipt by Go Tech. To be legally valid, orders for delivery must be confirmed by Go Tech in writing. An invoice sent to the Buyer in respect of the relevant order is also deemed to be written confirmation.
- Unless otherwise specified in any Offer, Confirmation or Agreement, delivery takes place Ex-Works Go Tech’s warehouse in Delhi, India or other facility designated by Go Tech. The risk passes to the Buyer when the Products are handed over. Handover to a freight forwarder is equivalent to handover to the Buyer. Delivery dates communicated or acknowledged by Go Tech are approximate only, and Go Tech shall not be liable for, nor shall Go Tech be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Go Tech agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.
- In the event Buyer contests delivery, Buyer must request a proof of delivery from Go Tech within ninety (90) days of the date of Go Tech’s invoice, otherwise delivery shall be deemed completed.
- Buyer will give Go Tech written notice of failure to deliver and thirty (30) days within which to cure. If Go Tech does not cure within thirty (30) days, Buyer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
- If Buyer fails to take delivery, then Go Tech may deliver the Products in consignment at Buyer’s costs and expenses.
- No transport packagings or any other packagings according to the stipulations of the Packaging Ordinance shall be taken back. The Buyer is obliged to dispose of packagings at his own expense.
Availability of Supplies and Raw Materials Proviso
Timely delivery is conditional on Go Tech’s receiving correct and timely delivery from its own suppliers in the event of matching transactions. Go Tech shall inform the Buyer without delay in the event that the contractual Products or their relevant input products are unavailable and shall – in the event of withdrawal from the contract – refund to the Buyer any payment that the latter may already have made without delay (refund of advance payment).
- Prices in any Offer, Confirmation or Agreement are in INR, based on delivery Ex-Works Go Tech’s warehouse or other facility designated by Go Tech, unless agreed otherwise in writing between Buyer and Go Tech and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Go Tech will add taxes, duties and similar levies to the sales price where Go Tech is required by law to pay or collect them and will be paid by Buyer together with the price.
- Changes in prices are admissible if more than two weeks have elapsed between submission of an Offer, Confirmation or Agreement and the agreed date of delivery. In the event that there is an increase in wages and salaries, in the prices of raw materials, cost of materials or market cost prices in the period until the delivery date, Go Tech shall be entitled to reasonably raise the price in accordance with the cost increase. The Buyer shall only be entitled to withdraw if the price increase exceeds the increase in the general cost of living between the date of the order and delivery to a not insubstantial extent.
- Unless otherwise agreed by the parties the purchase price (including any and all taxes, duties or levies) shall become due for payment immediately after conclusion of the Agreement (in advance). The Buyer shall be in default 30 days after the due date for payment of the selling price without any further declarations from Go Tech if he has not paid the selling price within this period. The buyer owes Go Tech interest, set at the official Indian interest rate for trade transactions, without any further notice of default being required, for all of his overdue amounts, starting from the last day an amount should have been paid. In the event of any defects in the Products delivered, the Buyer shall not be entitled to the right of retention unless the Products delivered are obviously defective. In such a case, Buyer shall only be entitled to withhold payment if and provided that the sum withheld is in reasonable proportion to the defects and estimated expenses for subsequent performance – especially for elimination of the defects. The Buyer shall not be entitled to assert claims and rights on grounds of any defects unless he has made all due payments and the amount due is in reasonable proportion to the value of the - defective - Products.
- Buyer shall not offset, withhold or reduce any payment(s) due by it to Go Tech. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.
- In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Go Tech shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Go Tech may suspend, delay or cancel any credit, delivery or any other performance by Go Tech. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law or in equity.
Rescheduling and cancellation
No order, Agreement or any part thereof may be rescheduled or cancelled without Go Tech’s prior written consent.
- Go Tech shall not be liable for any failure or delay in performance if:
- such failure or delay results from the fact that Go Tech’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or
- such failure or delay does not result from its fault; or
- such failure or delay is caused due to following reasons
- In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Go Tech being responsible or liable to Buyer for any damage resulting therefrom.
- Any circumstances or occurrences beyond Go Tech’s reasonable control - whether or not foreseeable at the time of the Offer, Confirmation or Agreement - as a result of which Go Tech cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the such events extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Go Tech to extend for a period of three (3) consecutive months), Go Tech shall be entitled to cancel all or any part of the Agreement without any liability of Go Tech towards Buyer. In the event Go Tech’s production is curtailed, for any reason, Go Tech shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Go Tech’s Offer, Confirmation or Agreement, as the case may be.
Limited warranty and disclaimer
- Go Tech warrants that under normal use the Products shall, at the time of delivery to Buyer and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed-upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Go Tech’s specifications for such Product, or such other specifications as Go Tech has agreed to in writing, as applicable. Go Tech’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Go Tech’s option, either to the replacement or repair of a defective or nonconforming Product or to an appropriate credit for the purchase price thereof. Go Tech will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Go Tech’s property as soon as they have been replaced or credited for.
- Buyer may ship Products returned under warranty claims to Go Tech’s designated facility only so long as the returns are in conformance with Go Tech’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Go Tech. Where warranty adjustment is made, Go Tech will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
- Notwithstanding the foregoing, Go Tech shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, neglect, improper installation, or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.
- The express warranty granted above shall extend directly to Buyer and not to Buyer’s customers, agents or representatives. Except for warranty of title, the express warranty granted above is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by Go Tech.
- Liability is completely excluded for damages to legal assets of the Buyer caused by the delivery item, e.g. damage to other property. This shall not apply in the event of intent or gross negligence, breach of essential contractual obligations or in the event of liability on grounds of harm to life, physical injury or harm to health.
- The provisions of the two preceding paragraphs extend to damages in addition to performance and damages in lieu of performance, whatever the legal basis thereof, including but not limited to damages based on defects, breach of duties under the contract or acts of tort. These provisions shall also apply to claims for compensation for wasted expenditure.
Limitation of liability
- Except for Buyer’s liability under paragraph 3 of this Article, no party shall be liable to the other for any lost profits or lost savings, indirect, incidental, punitive, special or consequential damages whether or not such damages are based on tort, warranty, contract or any other legal theory - even if such party has been advised, or is aware, of the possibility of such damages. In no event shall Go Tech be liable for any damage, costs or expenses associated with warranty or intellectual property infringement claims whether for the replacement or repair of products, including labor, installation or other costs incurred by Buyer and, in particular, any costs related to the removal or replacement of any Products soldered or otherwise permanently affixed to any printed circuit board, excess procurement costs, or rework charges.
- Go Tech’s aggregate and cumulative liability towards Buyer under any agreements regarding sale by Go Tech and purchase by Buyer between Go Tech and Buyer and resulting from any event(s) occurring during a calendar year and for any series of events triggered by the same cause started during a calendar year, shall not exceed the lesser of (a) the amount actually received by Go Tech in the twelve (12) months immediately preceding the event, or series of events, as the case may be, giving rise to any liability for the Products causing any liability and (b) an amount of INR 1 lakh, but in case of liability for delay or non-delivery of Products, also never more than the purchase price of the delayed or non delivered Products concerned.
- Go Tech’s Products are not designed, authorized or warranted to be suitable for use in medical, military, air craft, space or life support equipment nor in application where failure or malfunction of a Go Tech’s Product can reasonably be expected to result in a personal injury, death or severe property or environmental damage. Inclusion and /or use of Go Tech’s Products in such equipment or applications, without prior authorization in writing of Go Tech, is not permitted and at Buyer’s own risk. Buyer agrees to fully indemnify Go Tech for any damages resulting from such inclusion or use.
- Any Buyer’s claim for damages must be brought by Buyer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed in conflict with the preceding sentence are null and void.
- The Buyer shall examine the Products without delay after delivery. The Buyer shall inform Go Tech without delay in writing of any defects which he has discovered when examining the Products. Otherwise the Products shall be deemed accepted in good order and without defects.
- If contractual Products are not delivered or handed over to the Buyer but to a third party on the Buyer’s instructions, that third party shall be authorized by Buyer and obligated towards Go Tech to honor and observe the aforementioned duties and obligations of Buyer. The behavior of the third party shall be deemed to be that of the Buyer and shall consequently be attributed to the latter.
- The limitations and exclusions set forth above in this Article 10 shall only apply to the extent permitted by applicable mandatory law.
- The limitation period for any claims and rights on grounds of defects of the Products delivered shall be one year, whatever the legal basis thereof.
- The limitation periods stipulated in the foregoing Paragraph 1 shall also apply to all claims for damages against Go Tech in connection with the defect - irrespective of the legal basis for such a claim. If and to the extent that there are any claims for damages of any kind against Go Tech that are not connected to a defect, the limitation periods as stipulated in Paragraph 1 shall also apply to such claims.
- The limitation periods pursuant to the foregoing Paragraphs 1 and 2 shall apply subject to the following proviso:
- The limitation periods shall not apply in cases of intent.
- The limitation periods shall also not apply if Go Tech has fraudulently concealed defects or if and to the extent that Go Tech has given a warranty as to the condition and quality of the Products. In the event of fraudulent concealment on the part of Go Tech, the statutory limitation periods that would apply in the absence of malicious intent shall also apply in lieu of the periods of the foregoing Paragraph 1.
- For all claims, the limitation period begins when the Customer collects the Products or the Products are delivered to the Customer.
- Unless expressly stipulated otherwise, the statutory provisions governing the commencement, suspension of expiration, interruption and recommencement of limitation periods shall remain unaffected.
Return of Goods Complained of
Products complained of may only be returned to Go Tech with the latter’s approval or acknowledgement of a warranty claim.
Retention of Title
- All Products delivered remain the property of Go Tech ("retained-title goods") until the satisfaction of all receivables of Go Tech due from the Buyer, regardless of the legal basis, also with regard to the claims to the outstanding balance of receivables even if payments for specifically designated receivables have been made. Title is transferred only after payment in full of the selling price. In the event of a breach of duty by the Buyer, in particular default in payment, Go Tech is entitled, even without setting a deadline, to require the surrender of the Products delivered and/or to withdraw from the contract. The Buyer is obliged to surrender the Products delivered. Unless expressly declared as such, the demand by Go Tech that the Buyer surrender the Products does not constitute withdrawal from the contract.
- If Buyer combines, processes or mixes the Products delivered under retention of title by Go Tech with other goods not owned by Go Tech, the latter acquires a share of title to the combined, processed or mixed goods in the proportion of the invoice value of the retained-title goods to the total invoice amount for the other third-party goods. The Buyer keeps these goods safe for Go Tech free of charge.
- The Buyer shall only be entitled to sell the retained-title goods in the ordinary course of business and in accordance with his standard terms and conditions and provided that he is not in default. The Buyer shall be entitled and authorized to resell the retained-title goods only subject to the proviso that the account receivable arising from the resale pass to Go Tech. The Buyer is not entitled to dispose of the retained-title goods in any other way. The receivables of the Buyer from the resale of the retained-title goods are already now assigned to Go Tech. In the event that the Buyer sells the retained-title goods together with other goods, which are not owned by Go Tech, the assignment of the accounts receivable from the resale shall be limited to the invoice value of the retained-title goods.
- The Buyer shall be entitled to collect accounts receivable arising from the resale of the retained-title goods. The Buyer shall not be entitled to assign these accounts receivable to third parties. This does not affect Go Tech’s right to collect the receivables itself. Go Tech undertakes, however, not to collect the accounts receivable as long as the Buyer duly meets his payment obligations and is not in default. Is this the case, however, Go Tech may require that the Buyer notify all receivables assigned and their debtors, provide all details required for their collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
- In the event that the value of the collateral in Go Tech’s possession exceeds the claims of the latter against the Buyer by more than 10%, Go Tech shall be obligated, at the request of the Buyer, to release the collateral pro tan to at Go Tech’s discretion.
- The Buyer shall notify Go Tech without delay of any attachment or any other impairment by third parties. In the event that the retention of title or assignment provisions are not effective under the law governing a region in which the Products are located at an given time, the security provisions which correspond to retention of title and assignment under the law in that region shall be deemed to be agreed. In the event that this requires the cooperation of the Buyer, the latter shall take all necessary steps to obtain and preserve such rights.
Assignment and setoff
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of Go Tech. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer and Go Tech may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Go Tech is allowed to assign any rights or obligations under the Agreement to its Affiliates or to any third party in connection with a merger, a change of control or an accounts receivable financing program implemented by Go Tech.
Without prejudice to any rights or remedies Go Tech may have under the Terms and Conditions and/or the Agreement or at law, Go Tech may, by written notice to Buyer, terminate with immediate effect the Agreement, or any part thereof, without any liability whatsoever, if:
- Buyer fails to make payment for any Products to Go Tech when due;
- Buyer fails to accept conforming Products supplied hereunder;
- Any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or
- Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.
Upon occurrence of any of the events referred to under (a) through (d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration, which shall include without limitation Articles 7, 8, 9, 10 and 11, shall survive.
Product and production changes
Go Tech reserves the right to make at any time Product and/or production changes. In such event Go Tech represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.
Discontinuation of products
Go Tech reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Go Tech sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued ("Discontinued Product"), Go Tech shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Go Tech’s product discontinuation process and general information related thereto as published on Go Tech’s website.
The invalidity, infeasibility or incompleteness of one or more provisions in these General Terms and Conditions or in a contract concluded on the basis of these General Terms and Conditions shall in no way affect the validity of these General Terms and Conditions or the relevant contract. The invalid provision shall be substituted by the statutory provision.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement or from any related document or by law.
All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, by returned receipt confirmed e-mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreements.
Modification and changes
Go Tech reserves the right to make any amendments or changes to these Terms and Conditions at any time. Such amendments, modifications and changes shall have effect (1) to all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) to any existing Agreement thirty (30) days from notification of such amendments or modifications by Go Tech to Buyer, unless Buyer has notified Go Tech within such 30 days period that it objects thereto.
Court of Jurisdiction, Applicable Law
Court of jurisdiction for all disputes arising from contracts concluded on the basis of these General Terms and Conditions shall be the competent court at Go Tech’s domicile. The law of India shall apply to the exclusion of international legal provisions (especially to the exclusion of the UN Convention on Contracts for the International Sale of Goods) – even if the Buyer has his registered office in a foreign country.