Heraeus Technologies India Private Limited - General Terms of Sale and Delivery 02/2021
1.
Definitions
1.1 In these terms and conditions:"Buyer" means the person who accepts a quotation of Heraeus for thesale of the Goods or whose order for the Goods is accepted by Heraeus;"Seller" means Heraeus Technologies India Pvt Ltd, having its registeredoffice in India or any of its subsidiaries or subsidiary undertakings as
defined by Section 2(87) Companies Act 2013;"Terms" means the standard terms and conditions of sale set out in thisdocument and (unless the context otherwise requires) includes any
special terms and conditions agreed in writing between the Buyer andHeraeus;"Contract" means the Contract for the purchase and sale of the Goods inaccordance with these Conditions;“Force Majeure Event” has the meaning given in Clause 10;"Goods" means the Goods (including any instalment of the Goods or any
parts for them) which Heraeus is to supply in accordance with these
Conditions;"Order" the Buyer’s order for the Goods as set out in the Buyer’spurchase order form or in the Buyer’s written acceptance of Heraeus’s
quotation;"Writing" includes facsimile and emails and comparable means ofcommunication.
1.2 Any reference in these Terms to any provision of a statute shall be
construed as a reference to that provision as amended, re-enacted or
extended at the relevant time a reference to a statute or statutory
provision includes any subordinate legislation made under that statute or
statutory provision, as amended or re-enacted.
1.3 A person includes a natural person, corporate or unincorporated
body (whether or not having separate legal personality).
1.4 The headings in these Terms are for convenience only and shall notaffect their interpretation.
2.
Offer and Conclusion of Contract
2.1 Heraeus’s offers are always subject to confirmation, unlessexpressly otherwise stated. Cost estimates are non-binding. Unlessotherwise agreed, first offers or cost estimates are provided free ofcharge. Heraeus reserves the right to charge a reasonable fee for further
offers or cost estimates as well as draft works when no supply contract
comes into existence.
2.2 The order shall be placed in writing by the Buyer and the contract
shall come into existence only upon written confirmation of Heraeus. Anychanges, amendments or side agreements also require written
confirmation of Heraeus.
3.
Orders and Specifications
3.1 The Buyer shall be responsible to Heraeus for ensuring theaccuracy of the terms of any Order (including any applicable specification)
submitted by the Buyer, and for giving Heraeus any necessary
information relating to the Goods within a sufficient time to enable
Heraeus to perform the Contract in accordance with its terms.
3.2 The quantity, quality and description of and any specification for theGoods shall be those set out in Heraeus's purchase acknowledgement.
3.3 If the Goods are to be manufactured or any process is to be applied
to the Goods by Heraeus in accordance with a specification submitted by
the Buyer, or utilizing tooling, software or other Goods or equipment
supplied by the Buyer, the Buyer shall indemnify Heraeus against all loss,
damages, costs and expenses awarded against or incurred by Heraeus inconnection with or paid or agreed to be paid by Heraeus in settlement of
any claim for infringement of any patent, copyright, design, trade mark orother industrial or intellectual property rights of any other person which
results from Heraeus's use of the Buyer's specification or use of suchtooling, software or other Goods or equipment.
3.4 Heraeus reserves the right to make any changes in the specificationof the Goods which are required to conform to any applicable safety orother statutory requirements or, where the Goods are to be supplied to
Heraeus's specification, which do not materially affect their quality or
performance.
3.5 Save as set out in Clause 4 below no order which has been
accepted by Heraeus may be cancelled by the Buyer except with the prioragreement in writing of Heraeus and on terms that the Buyer shallindemnify Heraeus in full against all loss (including loss of profit), costs(including the cost of all labour and materials used), damages, charges
and expenses incurred by Heraeus as a result of cancellation.
4.
Price
4.1 The price quoted is based on these terms and conditions for sale ofGoods / rendering of Services as enumerated in the Quotation.
4.2 Quotations are binding and non-refundable unless otherwise
expressly agreed in writing. All prices quoted are valid for 30 days from
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Heraeus’s date of quotation, or until earlier acceptance by the Buyer, after
which time they may be altered by Heraeus without giving notice to the
Buyer.
4.3 Heraeus reserves the right to revise the price consequent upon any
modifications in these terms and conditions of supply of Goods andrendering of Services. Prices prevailing at the time of delivery will beapplicable. Heraeus has the right to modify/withdraw any part of its offer
after submitting it, unless it has been specifically agreed to the contrary by
Heraeus. The Price is ex-works, unpacked and exclusive of packing &forwarding charges, freight, sales tax, excise duty, octroi duty and/or otherlevies or charges, if any, unless specifically stated otherwise in the
Quotation. All such freight, taxes, duties, levies and charges, asapplicable, shall be billed at rates in force at the time of delivery and shallbe paid by the Buyer before delivery of the Goods is made.
4.4 The price is exclusive of any applicable prevailing Goods andServices Tax, which the Buyer shall be additionally liable to pay to
Heraeus. Unless otherwise specified in the quotation, quotations forcomponents containing precious metal material are valid on the date ofquotation only (end of business day).
5.
Payment
5.1 Unless otherwise confirmed by Heraeus in writing, the terms of
payment shall be net cash by advance Telegraphic Transfer to thedesignated account or by Irrevocable Letter of Credit payable at sightissued by any First Class Bank.
5.2 Payment shall be deemed to have been effected once the sums due
without deduction are made available to Heraeus in the accountdesignated by Heraeus. Agents and distributors have no authority toreceive payment.
5.3 Payment shall be made to Heraeus for the delivered products inaccordance with the conditions laid down by Heraeus’s quotation or at thetime of the acceptance of order. Invoicing shall be made with delivery of
products ordered. The time of payment of the price shall be the essenceof the order. Receipts for payment shall be issued only on request.
5.4 If the Buyer contends that any Invoice is incorrect, the Buyer shallnotify Heraeus’s accounting department, in writing, within 14 days after
receipt of such Invoice and specify the reason for such contention. If theBuyer does not notify Heraeus, the Buyer waives the right to further
dispute such Invoice and the Buyer agrees to the accuracy of such
Invoice.
5.5 Failure to pay an Invoice in the stipulated period of time shall permit
Heraeus, without prejudice to any other rights it may have, (i) to suspend
any delivery, whatever the conditions of the relevant order, until full
payment,(ii) to cancel any discount which may have been granted to the
Buyer on the said Invoice, (iii) to refuse to make further deliveries, (iv) todeclare due and payable immediately all unpaid amounts for Goods orservices previously provided to the Buyer and/or in process. In addition,
Heraeus may assess the Buyer at the rate of 1.5 % per month service
charge on any past due balances for the full duration of the payment
delay.
5.6 The Buyer shall submit, in writing, any request for change to any
order accepted by Heraeus. Changes in the services to be performed
hereunder may be made only by the authority of the Buyer's written
instructions and written acceptance of Heraeus. Any changes in scope,drawings, materials, or design of the parts, units, tools, fixtures, or any
other elements, which effect costs, will require re-pricing. If work had
been started, the Buyer shall reimburse Heraeus for work alreadyperformed if the units already produced are not acceptable to the Buyer.
Heraeus similarly reserves the right to re- price if changes involve an
increase or decrease in the quantity due at the time of the required
performance for the order. Once the Buyer approves samples, the Buyer
must pay for services performed or Goods produced thereafter, orchanges, even if approved samples differ from the Buyer's drawings or
specifications.
5.7 The Buyer shall not be entitled to make any deductions, set-offs orcounterclaims in sums due to Heraeus, unless confirmed by Heraeus inwriting.
5.8 Heraeus shall be entitled to cancel the Contract and/or suspend any
further deliveries under any current Contract until any and all outstanding
sums have been paid in full.
5.9 Title in the Goods shall pass from Heraeus to the Buyer only when
payment of all sums due has been made in full.
6.
Delivery
6.1 All dates quoted for delivery of the Goods shall be approximate only,and Heraeus shall not be liable for any losses or damages suffered by the
Buyer due to any delay in delivery or non-delivery of the Goods
howsoever caused.
6.2 If the Buyer fails to take timely delivery of the Goods – or if, where
the Buyer is to give delivery instructions, the Buyer fails to give such
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instructions – Heraeus may at its discretion either extend the time ofdelivery or shipment of the Goods, storing the Goods at the Buyer’s risk
and cost until actual delivery or cancel the Contract or any part thereof, ineither case without prejudice to any other right or remedy available to
Heraeus.
6.3 Partial shipment or partial delivery and/or transhipment shall bepermitted. Each partial shipment or delivery shall be regarded as
fulfilment of a separate and independent Contract.
6.4 Risk of damage to or loss of the Goods shall pass to the Buyer at
the time of delivery, or if the Buyer wrongfully fails to take delivery of theGoods, at the time when Heraeus has tendered elivery of the Goods.
7.
Right of Resale
Irrespective of the fact whether the Goods have been appropriated to theContract or not, Heraeus hereby expressly reserves its right of reselling
the Goods in case the Buyer makes default in payment on the respective
due dates and/or thereafter to take delivery of the Goods.
8.
Examination and Notice
8.1 Immediately upon receipt of the Goods the Buyer shall carry out athorough examination of the Goods in order to ascertain whether theGoods are conforming.
8.2 The Buyer shall not be entitled to the right to rely on a nonconformity in the Goods if the Buyer fails to notify Heraeus thereof in
writing, specifying the nature of the nonconformity within 30 days ofreceipt of products.
9.
Warranties and Liability
9.1 The price of Goods is based, in part, on the limits on Heraeus's
liability in these Conditions. The Buyer's attention is drawn in particular tothe conditions 9.3 to 9.8.3 (inclusive). In setting these limits Heraeus has
had regard to its insurance cover, copies of which are available on
request. The Buyer should make sure it has in place adequate insurance
cover.
9.2 Subject to the conditions set out below Heraeus warrants that ondelivery and for a period of 12 months from the date of delivery (“theWarranty Period”), the Goods will:9.2.1 correspond in all material respects with their specification; and9.2.2 be free from material defects in design, material and workmanship.
9.3 Subject to Clause 9.4 below, if:9.3.1 the Buyer gives notice in Writing to Heraeus, during the Warranty
Period, on delivery, or if the defect or failure was not apparent on
reasonable inspection of the Goods, within five business days after the
Buyer becomes aware of the defect or failure;
9.3.2 Heraeus is given a reasonable opportunity of examining such
Goods; and9.3.3 the Buyer (if asked to do so by Heraeus) returns such Goods to
Heraeus’s place of business at Heraeus’s cost and Heraeus shall, at its
option, repair or replace the defective Goods or refund the price of thedefective Goods (or a proportionate part of the price).
9.4 Heraeus shall not be liable for any Goods’ failure to comply with thewarranty set out in Clause 9.2 in any for the following events:
9.4.1 the defect arises as a result of any drawing, design or specification
supplied by the Buyer;
9.4.2 the defect arises as a result of fair wear and tear, wilful damage,negligence, abnormal working conditions;9.4.3 the Buyer makes any further use of the Goods after giving notice inaccordance with Clause 9.3;
9.4.4 the defect arises because the Buyer has failed to follow Heraeus's
instructions as to the storage, commissioning, installation, use andmaintenance of the Goods or (if there are none) good and reasonable
trade practice regarding the same, including where the Goods have beenused in circumstances where their failure could directly endanger life;
9.4.5 the defect arises as a result of any parts, materials or equipment not
manufactured by Heraeus (to the extent that the benefit of any warranties
made or provided by the manufacturer of the Goods (or the relevant
parts) can be assigned to the Buyer, Heraeus shall assign them to the
Buyer;
9.4.6 the Buyer or a third party alters or repairs the Goods without
Heraeus's approval in Writing.
9.5 Except as expressly provided in these Conditions, all warranties,
conditions or other terms implied by laws as applicable in India, including
the terms implied by the Sale of Goods Act 1930 (as amended) areexcluded to the fullest extent permitted by law.
9.6 These Conditions shall apply to any repaired or replacement Goods
supplied by Heraeus.
9.7 Notwithstanding anything else in the Contract, nothing shall limit or
exclude Heraeus’s liability for:9.7.1 death or personal injury caused by Heraeus's negligence or the
negligence of Heraeus’s employees, agents or subcontractors;
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9.7.2 fraud or fraudulent misrepresentation;
9.7.3 breach of the terms implied by the Sale of Goods Act 1930 (asamended);9.7.4 any matter in respect of which it would be unlawful for Heraeus to
exclude liability.
9.8 Subject to Clause 9.7:
9.8.1 Heraeus shall under no circumstances be liable to the Buyer,whether in contract, tort (including negligence), breach of statutory duty,
or otherwise, for any loss of profit, or any indirect, special orconsequential loss or damage, costs, expenses or other claims forconsequential compensation whatsoever, arising out of or in connection
with this Contract, the supply of the Goods or their use or resale by the
Buyer;
9.8.2 Heraeus's entire aggregate liability to the Buyer in respect of allother losses arising under or in connection with the Contract whether for
tort (including negligence), breach of contract, breach of statutory duty orotherwise shall in no circumstances exceed hundred percent of the priceof the relevant Goods paid by the Buyer under the relevant Order.
9.8.3 Except as provided in this Clause 9, Heraeus shall have no liability
to the Buyer in respect of the Goods’ failure to comply with the warranty
set out at Clause 9.2.
10. Force majeure10.1 Neither party shall be liable to the other party or be deemed to be inbreach of these Conditions for any failure or delay in performing its
obligations under the Contract to the extent that such failure or delay iscaused by a Force Majeure Event. A Force Majeure Event means any
event beyond the party’s reasonable control, which by its nature could nothave been foreseen, or, if it could have been foreseen, was unavoidable,
including (without limitation) strikes, lock-outs or other industrial disputes(whether involving its own workforce or third party’s), failure of energy
sources or transport network, acts of God, war, terrorism, riot, civilcommotion, interference by civil or military authorities, national orinternational calamity, armed conflict, malicious damage, breakdown ofplant or machinery, nuclear, chemical or biological contamination, sonicboom, explosions, collapse of building structures, fires, floods, storms,
earthquakes, loss at sea, epidemics or similar events, natural disasters or
extreme adverse weather conditions, or default of Heraeus or subcontractors.
10.2 In the event of that the affected party is prevented from carrying out
its obligations under this Contract due to a Force Majeure Event, theaffected party shall give notice of suspension as soon as is reasonably
possible to the other party stating the date and the extent of thesuspension and its cause. Heraeus shall resume the performance of its
obligations as soon as reasonably possible after the removal of the Force
Majeure Event and shall so notify the other party. In the event that thecause continues for more than one month either party may terminate thisContract by giving the other party notice in Writing.
11. Product Liability
11.1 The Buyer agrees to hold harmless and indemnify Heraeus, itsaffiliates and representatives against and from all costs, losses, liabilities,
damages and expenses arising out of or resulting from the death of or
injury to any person or from any damage to or loss of property due to theacts and/or omissions of the Buyer.
11.2 Heraeus shall never be liable for any operating loss, loss of orders,loss of income, loss of profits, loss of public subsidies, loss of goodwill orfor any special, indirect or consequential losses or damages whatsoever,howsoever caused.
11.3 Recall:In the event of a recall of the Goods instigated by Heraeus or a competentauthority, the Buyer shall in consultation with Heraeus take all necessary
actions that are appropriate in the circumstances. These may include,
without limitation, to stop delivery of the Goods and to recall the Goods
from warehouses, distributors and retailers. The Buyer shall not interferewith the recall proceedings, which shall be controlled by Heraeus only,and shall not make public any actual or planned recall of the Goods,
except as provided by applicable mandatory law or as instructed by
Heraeus.
11.4 Heraeus shall not assume any liability in respect of the manner inwhich the product supplied by Heraeus reaches to the end user after thedelivery of Goods. Heraeus shall at no stage be held liable for any change
in quality of the Goods supplied by Heraeus on account of any process, or
mixture or alteration on part of the Buyer in the original product supplied
by Heraeus.
12. Assignment
12.1 The sale contract may not be assigned by the Buyer, whether
voluntarily or by operation of law, to a third party without the prior writtenconsent of Heraeus.
12.2 The sale contract may be assigned by Heraeus to a third party.

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13. Inspection
13.1 The Buyer shall be responsible for arranging for testing andinspection of the Goods at Heraeus's premises before delivery. Heraeus
shall have no liability for any claim in respect of any defect in the Goods
which would be apparent on inspection and which is made after or in
respect of any damage during transit or any damage after delivery ofGoods.
13.2 Any delivery under this contract is subject to the proviso that
performance does not conflict with any national regulations, for example
embargoes or other sanctions. The Buyer undertakes to provide all
information and documents required for transfer. Delays due toexaminations or permission procedures shall set aside any time limits anddelivery periods. If necessary, permissions are not granted, or if thedelivery and service is not capable of being permitted, the contract shallbe deemed as not concluded with regard to the parts of it that areconcerned.
14. Termination
14.1 Heraeus reserves the right at any time to terminate the sale contract
in whole or in part, without any liability to the Buyer if (i) the Buyer isinsolvent, files or has filed against it an application for bankruptcy or
winding up, has a receiver or trustee appointed for it or its assets, ormakes a general assignment for the benefit of creditors, or is subject toother similar proceeding, (ii) the Buyer fails to timely pay the purchaseprice for any outstanding orders, or (iii) Heraeus reasonably apprehends
that any of the events mentioned in (i) and/or (ii) above is about toaccount in relation to the Buyer and notifies the Buyer accordingly.
14.2 Heraeus shall also be entitled to terminate the contract without
notice if termination on the part of Heraeus is required for compliance withnational or international legal regulations. In the event of such termination,
the assertion of any claim for damages or the assertion of other rights by
the Buyer based on the termination shall be excluded.
14.3 If the Buyer terminates or cancels this agreement for any cause
other than breach by Heraeus, then, at Heraeus’s options, and in addition
to all other remedies available at law or in equity: (i) the Buyer shallaccept delivery of and pay the contract price for all Goods which areeither finished or ready for shipping; and (ii) the Buyer shall reimburse
Heraeus for (1) all actual costs incurred by Heraeus in connection with theuncompleted order as of receipt of notice of cancellation; and (2) all othercosts, including but not limited to, general, selling and administrative
expenses, cancellation charges incurred by Heraeus (if any), and areasonable profit on the terminated portion of this sales contract.

19.3 The Buyer shall hold in confidence and not disclose to any third
party any confidential information disclosed by Heraeus. The Buyer shallnot use such information for the Buyer's own benefit or the benefit of any
third party.
19.4 Nothing in the relationship between Heraeus and the Buyer shallcreate an agency, partnership or joint venture between the parties and inspecific the Buyer shall not be entitled to make any representation or
warranty on behalf of Heraeus.
20. Governing Law and Jurisdiction
20.1 The validity, performance and construction of any Contract with
Heraeus shall be governed by the laws of India. Any disputes arising outof or in connection with any Contract or offer, quotation or orderconfirmation issued by Heraeus or in connection with the delivery of theGoods to the Buyer, including but not limited to disputes relating to theconstruction of these Terms, shall be settled in accordance with laws ofIndia.
20.2 Any dispute shall be settled before the courts of law in India andlegal proceedings shall be instituted at the courts of India.
20.3 Notwithstanding the above, Heraeus shall at all times at its
discretion be entitled to initiate legal proceedings against the Buyer in the
country in which the registered office of the Buyer is located.

15. Notices
Any notice or other communications required to be served pursuant tothese terms and conditions shall be in writing and served (i) by personaldelivery, (ii) by postage prepaid registered mail or (iii) by facsimile (withpostage prepaid mail confirmation) on Heraeus at its registered addressor place of business or such other address as Heraeus may from time totime notify the Buyer. Notice so sent will be deemed effective when
delivered by hand or upon receipt of the confirmation (if notice was sent
by way of facsimile).
16. Set-Off
The Buyer may not withhold payment of any Invoice or other amount due
to Heraeus by reason of any right of set-off or counterclaim which
Heraeus may have or allege to have or for any reason whatsoever.
17. Waiver
Waiver by Heraeus of any breach of any of the Terms shall not be
construed as a waiver of any other breach, and the failure of Heraeus toexercise any right arising from any default of the Buyer hereunder shallnot be deemed to be a waiver of such right, which may be exercised atany subsequent time.
18. Intellectual property rights
All intellectual property rights or other proprietary rights in and to theGoods or related to the Goods, including but not limited to their formula,design, packaging and know-how, and any modifications or developments
thereto, as well as the trademarks and trade names under which theGoods are marketed shall remain the sole and exclusive property of
Heraeus and the Buyer acquires no rights, title or license therein or
thereto. If the Buyer challenges, harms or prejudices the validity or
enforceability of such proprietary rights, Heraeus shall without liability beentitled to immediately terminate any cooperation between the parties
with immediate effect and to cancel any Contract.
19. Miscellaneous
19.1 If any provision contained in these Terms should be held to be voidor unenforceable, the validity of the other provisions shall not be affected
thereby.
19.2 No waiver by Heraeus of any breach by the Buyer, or failure by
Heraeus to insist on the Buyer’s performance of obligations shall beconsidered a waiver of any subsequent breach of the same or any otherprovision.
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