TSW Packaging Solutions Pvt Ltd. whether acting on its own or through any of its business divisions, is herein referred to as “TSW Packaging Solutions,” and the customer purchasing products (“Products”) or services (“Services”) from TSW packaging solutions is referred to as “Purchaser”. These terms and conditions of sale (“Terms”), any TSW packaging solutions quotation, acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“TSW Packaging Solutions Documents” and together with these Terms, the (“Agreement”), constitute the complete terms governing the sale of Products and Services. TSW Packaging Solutions HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN WEBSITE OF THE PURCHASER. SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE CONSIDERED VOID AND OF NO EFFECT. No site usage agreement or any other click through agreement on a website shall have any binding obligation or effect whether or not TSW Packaging Solutions clicks on an “ok,” “I accept,” or any other similar acknowledgment.
Commencement of any work by TSW Packaging Solutions or Purchaser's acceptance of delivery of the Products or Services will manifest Purchaser's acknowledgement and acceptance to the Agreement. Additional or different terms and conditions applicable to a particular sale may be specified in the body of a TSW Packaging Solutions Document or agreed to in writing by either or both parties. In the event of a conflict, the following order of precedence will be applicable: (a) terms agreed to in writing and executed by an authorized officer of TSW Packaging Solutions; (b) TSW Document terms; (c) these Terms.
Quotations are only valid in writing and for 30 days from the date of the quotation. All quotations are subject to change or withdrawal without prior notice to the Purchaser. Quotations are made subject to approval of Purchaser’s credit. TSW Packaging Solutions has right to refuse orders and has no obligation to supply Products or Services unless TSW Packaging Solutions issues an order acknowledgement or upon the shipment of Products or commencement of Services.
Prices are in Indian Rupee and are subject to change without notice. All orders are accepted subject to the price of TSW Packaging Solutions in effect at time of shipment. Prices do not include any sales, use, value-added or other taxes, import duties, license fees or similar charges (“Fees”) related to the sale, importation or use of Products or Services, and Purchaser is responsible for those Fees. If TSW Packaging Solutions is subsequently required to pay any Fees, Purchaser shall fully defend and indemnify TSW Packaging Solutions therefor. Terms of payment are 30 days net from the date of invoice of TSW Packaging Solutions. Overdue invoices will incur interest at the rate of 1.5% per month, or at the maximum rate allowable by the governing law. Purchaser’s inspection rights herein will not affect the terms of payment. Under no circumstances will the Purchaser have a right of set-off. If the Purchaser fails to make any payment as required, Purchaser agrees to indemnify TSW Packaging Solutions for all associated costs incurred by TSW Packaging Solutions, including all the reasonable attorney fees, any legal and court costs.
All shipments are subject to approval by TSW Packaging Solutions’ credit department. TSW Packaging Solution may invoice Purchaser and recover for each shipment as a separate transaction. If, in TSW Packaging Solutions sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then TSW Packaging Solutions may, without prejudice to any of its other remedies: (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance; and/or (b) terminate any or all of Purchaser’s purchase orders.
TSW Packaging Solutions may cancel any purchase order or release thereunder, or terminate any agreement relating to the purchase of TSW Packaging Solutions Products or Services upon reasonable prior written notice to Purchaser. Once TSW Packaging Solutions has accepted a purchase order or begun taking actions with respect to a purchase order, Purchaser cannot cancel or modify that purchase order except with a written consent from TSW Packaging Solutions. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred and committed for the order or in connection with the cancellation or modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits.
Purchaser may inspect Products for a period of 15 business days after delivery (“Inspection Period”). Purchaser must notify TSW Packaging Solutions in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period and afford TSW Packaging Solutions a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide TSW Packaging Solutions such written notice within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not return any Product without a prior written authorization from TSW Packaging Solutions. Any return authorized by TSW Packaging Solutions must be made in accordance with TSW Packaging Solutions return policies. Purchaser will be responsible for all costs associated to the returns of Products and will bear the risk of loss, unless TSW Packaging Solutions agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Any variation in quantities shipped over or under those ordered (not to exceed 10%) will constitute compliance with Purchaser’s order, and the stated price per item will continue to apply.
TSW Packaging Solutions anticipates the use of common carriers for shipment of Products. The carrier, and not TSW Packaging Solutions, will bill for consignment rates and other shipping charges. Payments for such charges shall be paid by Purchaser directly to the carrier. All Products will be shipped FCA Signode’s facility (Incoterms 2010). Shipping dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. TSW Packaging Solutions may ship items in a single or multiple shipments. Title to the Products shall pass to Purchaser upon delivery to the carrier. Purchaser assumes all risk and liability for loss and use or misuse by third parties who acquire or use the Products illicitly after delivery to the carrier. Purchaser must notify TSW Packaging Solutions and the delivering carrier within 15 business days from date of receipt of Products, of any damage or shortage, and afford TSW Packaging Solutions a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account, and claims for such loss must be made solely against the carrier.
TSW Packaging Solutions warrants that it will convey the Products free and clear of all liens, security interests and encumbrances created by, through or under TSW Packaging Solutions. TSW Packaging Solutions further warrants that for a period of 6 months from the date of delivery to the common carrier (the “Warranty Period”), under normal use and given proper installation and maintenance as determined by TSW Packaging Solutions, the Products: (a) will conform to TSW Packaging Solutions’ specifications for the Products; and (b) will be free from substantial defects in material and workmanship.
TSW Packaging Solutions warrants that (a) it will perform Services in a timely, competent and professional manner and in accordance with industry standards; and (b) the Services shall conform to any applicable specifications or statement of work.
TSW PACKAGING SOLUTIONS WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST TSW PACKAGING SOLUTIONS, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON TSW PACKAGING SOLUTIONS NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL TSW PACKAGING SOLUTIONS’ LIABILITY IN CONNECTION WITH THE AGREEMENT OR SALE OF TSW PACKAGING SOLUTIONS PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of TSW Packaging Solutions Products, TSW Packaging Solutions is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are based either on the tests or experience that TSW Packaging Solutions believes to be reliable, however they are not guaranteed.
All material, equipment, facilities and special tooling (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment and manufacturing aids and replacements thereof) used in the manufacture of the Products will remain the property of TSW Packaging Solutions. Any material, tooling or equipment furnished to TSW Packaging Solutions by Purchaser will remain the property of Purchaser with title to and right of possession remaining in Purchaser.
If Products are sold on a consignment basis, title in such Products will not pass to Purchaser until the earlier of: (a) the time the Product is removed from inventory for use; or (b) the date that is 90 days from the Product’s shipment date. TSW Packaging Solutions will have a purchase money security interest in consigned Products and may file a financing statement in accordance with the Uniform Commercial Code. Purchaser agrees to store consigned Products in a segregated area and will install and/or maintain any signs or other devices to clearly identify the Products as TSW Packaging Solutions Products. Purchaser assumes the risk of loss of all consigned Products. Purchaser shall insure consigned Products at Purchaser’s expense in amounts at least equal to the replacement value.
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Purchaser by TSW Packaging Solutions and all rights therein (collectively, “Intellectual Property”) will remain the property of TSW Packaging Solutions and will be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to TSW Packaging Solutions upon request from TSW Packaging Solutions. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use TSW Packaging Solutions Products or receive the Services purchased from TSW Packaging Solutions.
Purchaser shall not use, directly or indirectly, in whole or in part, TSW Packaging Solutions name, or any other trademark or trade name that is now or may hereafter be owned by TSW Packaging Solutions (collectively the “Trademarks”), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by TSW Packaging Solutions in writing. Purchaser hereby acknowledges TSW Packaging Solutions’ ownership of the Trademarks and the goodwill associated therewith. Purchaser shall not infringe upon, harm or contest the validity of any Trademarks. Purchaser shall be entitled to use the Trademarks only in connection with the promotion or sale of the Authorized Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by TSW Packaging Solutions. Purchaser shall not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use such Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not at any time during or after termination of the Agreement use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to TSW Packaging Solutions with respect to any efforts of TSW Packaging Solutions to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of TSW Packaging Solutions for any reason, Purchaser shall immediately discontinue any formerly permitted use of TSW Packaging Solutions name or Trademarks.
All information furnished or made available by TSW Packaging Solutions to Purchaser in connection with the subject matter hereof shall be held in confidence by Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to others, such information without TSW Packaging Solutions’ prior written consent. The obligations in this section will not apply to any information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein; (b) Purchaser can show by written records was in Purchaser’s possession prior to disclosure by TSW Packaging Solutions; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to TSW Packaging Solutions with respect to such information.
Unless agreed to in writing by an officer of TSW Packaging Solutions, neither Buyer nor any Buyer representative, may examine or audit TSW Packaging Solutions’ cost accounts, books or records of any kind or any matter, or any other data that TSW Packaging Solutions, in its sole discretion, considers confidential or proprietary.
Except as set forth below, TSW Packaging Solutions agrees to defend and indemnify Purchaser against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from the sale of TSW Packaging Solutions’ proprietary Product to Purchaser as such pertains to the subject matter of the Agreement (each, a “Claim”); provided, however, (a) Purchaser supplies TSW Packaging Solutions written notice of such Claim immediately after the Purchaser has notice of such Claim, (b) Purchaser cooperates with TSW Packaging Solutions in the defense and settlement of such Claim; and (c) Purchaser allows TSW Packaging Solutions the right to defend and settle such Claim at TSW Packaging Solutions expense If a suit or claim results in any injunction or order that would prevent TSW Packaging Solutions from supplying any part or Product falling under the Agreement, or if the result of such a suit or claim would, in the reasonable opinion of TSW Packaging Solutions, otherwise cause TSW Packaging Solutions to be unable to supply such parts or Products, TSW Packaging Solutions may do one or more of the following: (i) secure an appropriate license to permit TSW Packaging Solutions to continue supplying those parts or Products; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if TSW Packaging Solutions cannot reasonably accomplish the actions specified in subsections (i) – (iii), then in TSW Packaging Solutions sole discretion, TSW Packaging Solutions may discontinue selling the part or Product without any further liability to Purchaser. Notwithstanding the foregoing, TSW Packaging Solutions shall have no liability or duty to defend and indemnify Purchaser against any Claim relating to: (1) the use of any part or Product, (2) the combination of any part or Product with any other part or product not supplied by TSW Packaging Solutions, or (3) any part or Product or process that is designed or specified by Purchaser.
If the Products include or consist of software developed, owned or licensed by TSW Packaging Solutions (“Software”), the use of the Software is subject to the software license agreement provided by TSW Packaging Solutions or accompanying or contained in the Product (the “SLA”). In the event of a conflict between the SLA and these Terms, the SLA will take precedence.
TSW Packaging Solutions sales and service employees do not have the training or authority to make legal representations or enter into any agreements or execute any Purchaser documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on TSW Packaging Solutions or such TSW Packaging Solutions employees.
The following terms and conditions apply to any on-site Services provided by TSW Packaging Solutions:
Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to Purchaser’s obligations hereunder and Purchaser’s use of the Products and Services, including import/export laws, labor laws and anti-corruption laws.
Nothing in the Agreement or the course of dealing of the parties may be construed to constitute the parties hereto as partners, joint venturers or as agents for one another or as authorizing either party to obligate the other in any manner.
TSW Packaging Solutions will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of TSW Packaging Solutions’ employees or the employees of others), raw material shortages and material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable TSW Packaging Solutions to perform.
No assignment of any rights or interest or delegation of any obligation of Purchaser under the Agreement or Purchaser’s purchase order may be made without a prior written consent of TSW Packaging Solutions. Any attempted assignment will be void. TSW Packaging Solutions may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
In the event of any default by Purchaser, TSW Packaging Solutions may decline to ship Products or provide Services. If TSW Packaging Solutions elects to continue shipping or otherwise fails to insist upon strict compliance with the Agreement, TSW Packaging Solutions’ actions do not constitute a waiver of Purchaser’s default or any other or future default, or affect TSW Packaging Solutions’ legal remedies.
If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed or has its assets assigned, the other party may cancel any unfulfilled obligations hereunder.
Any dispute arising out of or related to the Agreement will be governed by and construed according to the laws of the state of Maharashtra and litigated exclusively in the court located in Maharashtra. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a court of competent jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If either party commences litigation or mutually agreed upon alternative dispute resolution concerning any provision of the Agreement, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their attorney’s fees in such litigation or mutually agreed upon alternative dispute resolution, provided that if each party prevails in part, such fees will be allocated in the manner as the court or arbitrator determines to be equitable in view of the relative merits and amounts of the parties’ claims.
Any provisions in the Agreement that, by their nature, extend beyond the termination or expiration of any sale of Products or Services will remain in effect until fulfilled.
If any provision herein is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.
The Agreement constitutes the entire agreement between TSW Packaging Solutions and Purchaser with respect to the Products and Services covered by the Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof will be of any effect unless in writing and signed by the party bound thereby.