Terms and Conditions
Terms and Conditions
We (including ‘us’ and ‘our’ as the context requires), The Moon Exports,Import-Export Code: 2917500816 and registered office address at The Moon Exports, Kot West, Sambhal -244302, Utter Pradesh, India. Please read these Terms & Conditions (as defined below) as they apply to all applicable transactions with us and to any use of our website at https://www.themoonexports.com/. By placing an Order with us, you agree to be bound by these Conditions.
If you have any questions relating to these Conditions please contact us on firstname.lastname@example.org or by phone at +91 (8)9090 701 31.
1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
means a day other than a Sunday or bank or public holiday when banks generally are open for non-automated business in India;
means these terms and conditions of sale;
means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
means the agreement between us and you for the sale and purchase of Goods incorporating these terms, conditions and the Order;
means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving our or our suppliers’ workforce, but excluding your inability to pay or circumstances
resulting in your inability to pay;
means horn crafts or any other similar items as specifically set out in the Order and to be supplied by us to you;
means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
means any address for delivery of the Goods as set out in the Order;
Order means the order for the Goods from us placed by you in whatever written form;
Price has the meaning given in clause 3.1;
Specification means the description or specification of the Goods and their packaging set out or referred to in the Order;
GST means Goods and Services Tax. An indirect tax (or consumption tax) levied in India on the supply of goods and services, or any other similar sale or fiscal tax applying to the sale of the Goods.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 words in the singular include the plural and vice versa;
1.2.5 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.6 a reference to legislation includes all subordinate legislation made from time to time under that legislation.
2.1 On acceptance of an Order placed by you, where required we will issue an initial invoice to you, being for a nonrefundable deposit amount.
2.2 Where we require a deposit in accordance with clause 2.1, we are unable to commence working on the Order until we have received full and cleared payment of the deposit from you.
3.1 The price for the Goods shall be as set out in the Order
3.2 The Price is exclusive of:
3.2.1 packaging, delivery, export costs and insurance which shall be charged in addition at our standard rates or at the amount actually incurred and added onto the final instalment due to us, and
3.2.2 GST (or equivalent sales tax) if applicable.
3.3 The following services are subject to additional costs, which shall be added to the Price if the you wish to include them in the Order:
3.3.1 logo engraving;
3.3.2 special packaging;
3.3.3 other similar services
3.4 Goods being delivered outside the India shall be GST exempted.
3.5 We may increase the Prices at any time by giving you not less than 15 Business Days’ notice in writing provided that the increase does not exceed 10% of the Prices in effect immediately prior to the increase.
3.6 Notwithstanding clause 3.5, we may increase the Prices with immediate effect by written notice to you where there is an increase in the direct cost to us of supplying the Goods which exceeds 10% and which is due to any factor beyond our control.
4.1 We will invoice you for the Price at the times agreed between us or as set out in the Order.
4.2 You shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 30 of the date of each invoice; and
4.2.2 to the bank account nominated by us or as otherwise instructed by us.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 We may, without limiting our other rights, charge interest on such sums at 8.9% a year above the base rate of the Reseve Bank of India from time to time in force, and
4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5.1 The Goods shall be delivered to the Location specified in the Order.
5.2 The Goods shall be deemed delivered:
5.2.1 if delivered by us at the Location; or
5.2.2 if delivered by a carrier, on delivery of the Goods by us to the carrier; or
5.2.3 if collected by you, when we make the Goods available for collection at a location agreed in writing with you in advance.
5.3 Any delay in delivery shall not entitle you to cancel or modify any terms of the Order.
5.4 Time of delivery is not of the essence. We shall use our reasonable endeavours to meet delivery dates but such dates are approximate only. We shall keep you informed of any changes in any delivery dates.
5.5 We shall not be liable for any delay in or failure of delivery caused by:
5.5.1 your failure to: (i) make the Location available or (ii) provide us with adequate instructions for delivery ;
5.5.2 your failure to collect the Goods from our premises; or
5.5.3 Force Majeure.
5.6 If you fail to accept delivery of the Goods, we shall store and insure the Goods pending delivery, and you shall bear the reasonable storage and insurance charges.
Risk in the Goods shall pass to you on Delivery.
7.1 Title to the Goods shall pass to you once we have received payment of the final instalment in full and cleared funds for the Goods.
7.2 Until title to the Goods has passed to you, you shall:
7.2.1 hold the Goods as bailee for us;
7.2.2 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
7.2.3 insure the Goods from the date of Delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to the Price (iv) noting our interest on the policy;
7.2.4 not remove or alter any mark on or packaging of the Goods; and
7.2.5 on reasonable notice permit us to inspect the Goods during your normal business hours and provide us with such information concerning the Goods as we may request from time to time.
7.3 If, at any time before title to the Goods has passed to you, you inform us, or we reasonably believe, that you have or are likely to become subject to any of the events specified in clauses 15.1.1 to 15.1.5, we may:
7.3.1 require that you re-deliver the Goods to us at your expense; and
7.3.2 if you fail to do so promptly, enter any premises where the Goods are stored and repossess them.
8 Warranty (if applicable)
8.1 We warrant that the Goods shall, for a specific period from Delivery (the Warranty Period):
8.1.1 conform in all material respects to the Order and Specification;
8.1.2 be free from material defects in design, material and craftsmanship; and
8.2 We shall, at our option, repair, replace, the Goods if they do not comply with clause 8.1, provided that you:
8.2.1 serve a written notice on us:
- during the Warranty Period in the case of defects discoverable by a physical inspection; or
- in the case of latent defects, within one month from the date on which you became aware (or should reasonably have become aware) of the defect;
8.2.2 provide us with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;
8.2.3 give us a reasonable opportunity to examine the defective Goods; and
8.2.4 return the defective Goods to us at your expense.
8.3 We shall not be liable for any failure of the Goods to comply with clause 8.1:
- where such failure arises by reason of wear and tear, wilful damage, cosmetic damage, negligence or any other damage which could be expected to arise in the normal course of use of the Goods;
- to the extent caused by your failure to comply with our instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
- to the extent caused by our following any specification or requirement made by you in relation to the Goods;
- where you modify any Goods without our prior consent or, having received such consent, not in accordance with our instructions; or
- where the you use any of the Goods after notifying us that they do not comply with clause 8.1.
8.4 Except as set out in this clause 8:
- we give no warranties and make norepresentations in relation to the Goods; and
- we shall have no liability for failure to comply with the warranty in clause 8.1, and all warranties and conditions, whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
9.1 Each party shall comply with applicable bribery laws including ensuring that it has in place adequate procedures to prevent bribery and ensure all its personnel and subcontractors comply with applicable bribery laws.
9.2 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of this clause 9.
10 Indemnity and insurance
You shall indemnify us from and against any losses, damages, liability, costs (including legal fees) and expenses which we may suffer or incur directly or indirectly from your breach of any of your obligations under the Contract.
11 Limitation of liability
11.1 The extent of your and our liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2 Subject to clauses 11.5 and 11.6, our total liability shall not exceed the Price.
11.3 Subject to clauses 11.5 and 11.6, we shall not be liable for consequential, indirect or special losses.
11.4 Subject to clauses 11.5 and 11.6, we shall not be liable for any of the following (whether direct or indirect):
11.4.1 loss of profit;
11.4.2 loss of data;
11.4.3 loss of use;
11.4.4 loss of production;
11.4.5 loss of contract;
11.4.6 loss of opportunity;
11.4.7 loss of savings, discount or rebate (whetheractual or anticipated);
11.4.8 harm to reputation or loss of goodwill.
11.5 The limitations of liability set out in clauses 11.1 to 11.4 shall not apply in respect of any indemnities given by either you or us under the Contract.
11.6 Notwithstanding any other provision of the Contract, yours and our liability shall not be limited in any way in respect of the following:
11.6.1 death or personal injury caused by negligence;
11.6.2 fraud or fraudulent misrepresentation;
11.6.3 any other losses which cannot be excluded or limited by applicable law;
11.6.4 any losses caused by wilful misconduct.
12 Intellectual property
12.1 We agree to indemnity you from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by you as a result of any action, demand or claim that use or possession of the Goods infringes the Intellectual Property Rights of any third party (IPR Claim), provided that we shall have no such liability if you:
12.1.1 do not notify us in writing setting out full details of any IPR Claim of which you have notice as soon as is reasonably possible;
12.1.2 make any admission of liability or agree any settlement or compromise of the relevant IPR Claim without our prior written consent;
12.1.3 do not let us (at our request and expense) have the conduct of or settle all negotiations and litigation arising from the IPR Claim at our sole discretion;
12.1.4 do not take all reasonable steps to minimise the losses that may be incurred by you or by any third party as a result of the IPR Claim;
12.1.5 do not, at our request, provide us with all reasonable assistance in relation to the IPR Claim (at your expense) including the provision of prompt access to any of your relevant premises, officers, employees, contractors or agents.
12.2 If any IPR Claim is made or is reasonably likely to be made, we may, at our option:
12.2.1 procure for you the right to continue using and possessing the relevant Goods; or
12.2.2 modify or replace the infringing part of the Goods so as to avoid the infringement or alleged infringement, provided the Goods remain in material conformance to their Specification.
12.3 our obligations under clause 12.1 shall not apply to Goods modified or used by you other than in accordance with the Contract or our instructions. You shall indemnify us against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by us in connection with any claim arising from such modification or use.
13 Confidentiality and announcements
13.1 You shall keep confidential all our Confidential Information and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
13.1.1 any information which was in the public domain at the date of the Contract;
13.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
13.1.3 any information which is independently developed by you without using information supplied by us; or
13.1.4 Any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
14 Force Majeure
Neither you nor we shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from a Force Majeure event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
15.1 We may terminate the Contract at any time by giving notice in writing to you if:
15.1.1 you commit a material breach of the Contract and such breach is not remediable;
15.1.2 you commit a material breach of the Contract that is remediable which is not remedied within 14 days of receiving written notice of such breach;
15.1.3 you have failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after we have given notification that the payment is overdue, unless otherwise agreed with you;
15.1.4 any consent, license or authorization held by you is revoked or modified such that you are no longer able to comply with your obligations under the Contract or receive any benefit to
which it is entitled; or
15.1.5 you are unable to pay your debts, become insolvent, have a freezing order made against you, have a receiver appointed, have a resolution passed for your winding up or become the subject of a company voluntary arrangement under applicable insolvency laws.
15.2 If you become aware that any event has occurred, or circumstances exist, which may entitle us to terminate the Contract under this clause 15, you shall immediately notify us in writing.
15.3 Termination or expiry of the Contract shall not affect any of our accrued rights and liabilities at any time up to the date of termination.
16.1 Any notice or communication given by a party under these Conditions shall be sent to the relevant party at the address set out in the Contract.
16.2 Notices may be given, and are deemed received:
16.2.1 by India Post; and
16.2.2 by email: on receipt of a read receipt email from the correct address.
17 Entire agreement
17.1 You agree that the Contract (as set out in these Conditions) constitutes the entire agreement between us and supersedes all previous agreements, understandings and arrangements between us, whether in writing or oral in respect of its subject matter.
17.2 Any subsequent variation to the Contract must be mutually agreed between us and duly signed by them.
18 Equitable relief
You recognize that any breach or threatened breach of the Contract may cause us irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to us, you acknowledge and agree that we are entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
You may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without prior written consent from The Moon Exports, such consent not to be unreasonably withheld or delayed.
20.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
20.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, we shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
21 Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
22 Third party rights
A person who is not a party to the Contract shall not have any rights under the Contracts.
23 Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of India.
You irrevocably agree that the courts of India shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
The Moon Exports, 2020