1. General, scope
These General Terms and Conditions of Sales shall be applicable to all sales made
by seller and therefore the placing of all and any purchase orders shall be deemed to
imply the irrevocable acceptance by Buyer of these General Terms and Conditions of
Sales.
Any additional terms proposed by the Purchaser are expressly rejected
and will not be binding upon the company unless specifically agreed in writing
in advance by authorized representatives of the company.
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Our General Terms and Conditions of Sale and Delivery (“Terms and
Conditions of Sale and Delivery”) apply to all contracts, which mainly involve
the delivery of movable items (“goods”) to buyers whose relevant business
address is in India, on the have subject. Additional obligations assumed do
not affect the validity of these terms and conditions of sale and delivery
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Our sales and delivery conditions apply exclusively; We do not recognize
any terms and conditions of the buyer that conflict with or deviate from our
terms of sale and delivery or from the statutory provisions, unless we have
expressly agreed to their validity in writing. Our silence on the buyer's
conditions does not constitute acknowledgment or consent. Our terms and
conditions of sale and delivery also apply if we accept the buyer's service
without reservation or provide our services without reservation, while being
aware of the buyer's terms and conditions that conflict with or deviate from
our terms of sale and delivery. Our terms and conditions of sale and delivery
apply instead of any terms and conditions of the buyer even if.
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References to the validity of legal regulations are only of clarifying
importance. Even without such a clarification, the statutory provisions apply
unless they are directly modified or expressly excluded in these terms and
conditions of sale and delivery.
2. Offer, conclusion of contract and content of the contract
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Our offers are subject to change and non-binding. The conclusion of the
contract always requires our written order confirmation.
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The ordering of the goods by the buyer is a binding contract offer. Unless
otherwise stated in the order, we can accept this contract offer within
fourteen (14) days of receipt.
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The buyer is obliged to inform us in writing before the conclusion of a
contract if (a) the goods to be delivered should not only be suitable for
normal use or the buyer assumes a certain suitability for use, (b) the goods
under is used under unusual conditions or is exposed to special stresses,
(c) the goods are used under conditions that entail a particular health or
safety risk, (d) public statements by the manufacturer or other third parties
(e.g. advertising statements) are decisive for the purchaser.
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Our information on the goods (E.g., weights, dimensions, utility values,
resilience, tolerances and technical data) and our representations of the
same (e.g., drawings and illustrations) are only approximately relevant,
unless usability for the contractually intended purpose requires an exact
match. They do not represent any quality or durability guarantees for the
goods to be delivered by us. Any guarantees that we are to assume at the
time the contract is concluded require express written confirmation as a
"guarantee".
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Customary deviations and deviations that occur due to legal regulations or
represent technical improvements, as well as the replacement of
components with equivalent parts are permissible, provided they do not
impair the usability for the contractually intended purpose.
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Unless expressly stated otherwise in our order confirmation, acceptance
of the goods is not agreed and no declaration of acceptance by the buyer
is required. No other legal effects are associated with any agreed
acceptance declaration, in particular it has no effect on the transfer of risk,
the timeliness of the delivery or the due date of the purchase price payment
claim.
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All agreements made between seller and the buyer for the purpose of
executing this contract at the time the contract is concluded are set out in
writing in the contract and these terms and conditions of sale and delivery.
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We reserve all property rights and copyrights to the samples, illustrations,
drawings, calculations and other documents that we have made known or
provided to the buyer. This also applies to such written documents that are
marked as "confidential". Before passing them on to third parties, the buyer
requires our express written consent.
3. Delivery Schedule
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Unless another delivery modality has been agreed, delivery will be Exworks Germany/Ex-work China/Ex-work Bangalore.
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The transfer of risk takes place upon delivery. If the delivery is delayed
because we make use of our right of retention as a result of a total or partial
default in payment by the buyer, or for another reason for which the buyer
is responsible, the risk passes at the latest from the date of receipt of the
notification of shipping and/or Willingness to perform towards the buyer
transfers to the buyer.
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The start of the delivery time or delivery period specified by us
presupposes that all technical questions have been clarified. Compliance
with our delivery obligation also presupposes the timely and proper
fulfilment of all obligations on the part of the buyer. The exception of the
unfulfilled contract remains reserved.
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Agreed delivery times do not justify a fixed transaction.
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We are entitled to make partial deliveries and partial services within the
agreed delivery periods or by the agreed delivery date, insofar as this is
reasonable for the buyer.
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If the buyer still wants changes to the goods after the conclusion of the
contract, this will lead to an extension of the delivery period - provided we
agree to these changes, which we are not obliged to do. Depending on the
order situation, the extension period can be longer than would be
necessary to simply implement the change requests.
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If we are unable to meet binding delivery periods or delivery dates for
reasons for which we are not responsible (non-availability of the service),
we are entitled to postpone the service for the duration of the hindrance
and we will inform the buyer of this immediately and at the same time
communicate the probable new delivery period or the new delivery date. If
the service is also not available within the new delivery period or on the
new delivery date for reasons for which we are not responsible, we are
entitled to withdraw from the contract in whole or in part; we shall
reimburse the Purchaser payments already made against such Purchase
Order, in accordance with the legal provisions. As a case of non-availability
of the service in this sense, the factual constellation counts in
particular, that we are not supplied on time by our supplier for reasons for
which we are not responsible, despite proper congruent coverage (i.e.,
despite a contractual agreement with our supplier with which the buyer's
claim to performance can be fulfilled in accordance with the contract in
terms of quantity, quality and period of performance). Events of force
majeure of a not inconsiderable duration (i.e., lasting more than 14
calendar days) also count as unavailability of the service in this
sense. Strikes, lockouts, official interventions, energy and raw material
shortages through no fault of one's own, transport bottlenecks or obstacles
through no fault of one's own, operational hindrances through no fault of
one's own (e.g., due to fire, water or machine damage) and all other
hindrances are equivalent to force majeure. which, from an objective point
of view, were not culpably brought about by us.
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If the buyer is in default of acceptance or if he culpably violates other
obligations to cooperate, we are entitled to demand compensation for the
damage incurred, including any additional expenses. Further claims
remain reserved.
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The buyer is only entitled to withdraw from the contract due to late delivery
and/or non-delivery if we are in default with the fulfilment of the main
obligations incumbent on us or have materially violated obligations based
on the contract in another way and the default or we are responsible for
the breach of duty. In order to bring about a delay, without waiving other
legal regulations, a written request to us to carry out our service within a
reasonable period of time is always required, even if the time of
performance is determined by the calendar. For the rest, the statutory
provisions apply to the occurrence of default
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Insofar as we bear the risk of transport in deviation from Section 3.1 of
these Terms and Conditions of Sale and Delivery, the buyer is obliged to
notify the carrier of any externally visible loss or externally visible damage
to the freight at the latest upon delivery by the carrier and to mark the loss
or damage sufficiently clearly. If the loss or damage is not externally
recognizable, the loss or damage must be reported to the carrier at the
latest within seven (7) days after delivery and the loss or damage must be
marked sufficiently clearly. The notification must be made in text form. Any
loss/damage reported after 7 days will not considered.
4. Prices, Terms of Payment and Default of Payment
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Unless otherwise stated in our order confirmation, our prices apply Exworks Germany/Ex-work China/Ex-work Bangalore Warehouse Prices for
the Goods/Services quoted by us are Ex Works /Ex ALTENDORF
Warehouse and do not include any taxes, packing, duties, freight
Insurances etc. for transportation from our warehouse or a predetermined
place of dispatch by us to the Purchaser’s warehouse/factory. The prices
may increase if the Government of India increases customs duty or any
other applicable taxes, after the quotes are made and before the Goods
are delivered to the Purchaser and the Purchaser shall be liable to bear
such additional customs duty or such applicable taxes. The prices offered
herein are applicable only to the Conditions herein and we are entitled to
revise the prices of the Goods at its discretion for any further orders. We
will inform the Purchaser the expected time for the delivery of the Goods.
The Purchaser shall pick up the Goods from our warehouse or at
predetermined delivery place within 60 (Sixty) days of the intimation of
deliver date committed by us to the Purchaser. If the Purchaser fails to pick
up the Goods from our warehouse or any such place instructed or predetermined, then the Purchaser would be liable to pay Rs. 3000 (Rupees
Twelve Hundred Only) per machine per week as the warehouse charges
over and above any charges or costs stipulated herein. All payments for
supply of Goods/Services shall be made 100% in advance. The statutory
regulations apply to default in payment. Interest is to be paid on the
purchase price during the delay at the applicable statutory default interest
rate of 18 % per annum. We reserve the right to assert further damage
caused by delay.
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The buyer is obliged to pay the full purchase price without deduction of
discount on the date specified in our quotation or proforma invoice or, if no
such date is specified, upon issue of the invoice to the account specified
by us, free of costs and expenses. The receipt of payment on our account
is decisive for the timeliness of the payment. The services incumbent on
us are settled with the agreed price. The statutory tax is shown separately
and is to be paid additionally by the buyer.
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The buyer is only entitled to set-off and retention rights if his counterclaims
have been legally established, are undisputed or recognized by us or are
based on the same contractual relationship.
5. Warranty Terms
Warranty shall be applicable only for mechanical and electrical parts of the
Machine(s) provided such parts have been used in accordance with the
Technical Documentation. The affected parts for which Warranty is
claimed by the Client shall be supplied free of cost by the Company. The
Warranty does not cover: a) wear and tear parts such as bearings, heaters
etc.; b) damage or defect caused by Client’s negligence or default; c) the
Machine(s) are repaired or disassembled to any extent or changed by any
person other than a technician expressly authorized by the Company; d)
safety devices are altered, modified or disabled by Client; e) for any failure
attributable to software, tooling, accessories or ancillary equipment not
sold by the Company. IN the event of any defect in the Machine(s) during
the Warranty Period, the Company may at its sole discretion either cure
the defect or replace the affected part of the Machine(s). Labor, replaced
parts (if any) and travel expenses during the Warranty period shall be
provided free of charge, courtesy of the Company. The replacement parts
will be supplied Ex-Works Germany/China or Ex-Works Bangalore
Warehouse. However, in the event no defects are detected in the
Machine(s) by the representatives of the Company, or if the defect is
proven to have been caused as a result of any neglect or default on the
part of the Client, then the Client shall reimburse all costs incurred by the
Company for conducting such inspection, including travel and
accommodation costs of its representatives.
6. Liability for damages and expenses
The warranty, obligations and liability of the Company and the rights and
remedies of the Client set forth in this offer letter are exclusive and are in
lieu of other remedies of the Client. The Client hereby waives and releases
all other warranties, obligations, representations or liabilities, express or
implied, arising by law, in contract, civil liability or in tort, or otherwise,
including but not limited to a) any implied warranty of merchantability or of
fitness for a particular purpose, and b) any other obligation or liability on
the part of the Company to anyone of any nature whatsoever by reason of
the design, manufacture, sale, repair, lease or use of the Machine(s) or
related components and services delivered or rendered hereunder or
otherwise. The Company shall not be liable to the Client or any third party
for any loss, damage, injury, claim, demand or expense whatsoever,
arising on account of the use of any machinery, component or equipment,
including without limitation, software, tooling, accessories or ancillary
equipment that is not sold by the Company, in consonance with, as
ancillary to or in parallel with the Machine(s). The Client acknowledges that
any such use of machinery not sold by the Company shall be at the Client’s
own risk and cost. The Company shall not be liable to pay any damages
or incur any costs or charges, for: a) any delays in the delivery of or failure
to deliver, the Machine(s) as per the Delivery Schedule; or b) any delays
in installation of or failure to install the Machine(s) as per the agreed time
schedule, if any. Without prejudice to the above, the aggregate liability of
the Company under this offer letter shall not exceed 5% (Five percent) of
the Machine Price.
7. Retention of title
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We reserve title to the goods sold until all of our current and future
claims arising from the contract (secured claims) have been paid in
full. If the buyer has not paid in advance, we reserve title to the goods
sold for all current and future claims (secured claims) from the
current business relationship.
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The goods subject to retention of title may not be pledged to third
parties or assigned as security before the secured claims have been
paid in full. The buyer must inform us immediately in writing if an
application is made to open insolvency proceedings or if third parties
access the goods belonging to us.
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If the buyer acts in breach of contract, in particular if the purchase
price due is not paid, we are entitled to withdraw from the contract in
accordance with the statutory provisions and then to demand the
return of the goods on the basis of the retention of title.
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If the buyer further processes the goods subject to retention of title
in the ordinary course of business, the retention of title extends to the
products created by processing, mixing or combining our goods at
their full value, whereby we are considered the manufacturer. If thirdparty property rights remain in the case of processing, mixing or
connection with goods, we acquire co-ownership in proportion to the
invoice value of the processed, mixed or connected
goods. Otherwise, the same applies to the resulting product as to the
goods delivered under retention of title.
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If the buyer resells the goods subject to retention of title in the
ordinary course of business, the buyer hereby assigns to us as
security the resulting claim against the purchaser - in the case of coownership of the seller in the reserved goods pro rata according to
the co-ownership share. The same applies to other claims that take
the place of the reserved goods or otherwise arise with regard to the
reserved goods, such as insurance claims or claims from tortious
acts in the event of loss or destruction. We accept the
assignment. We revocably authorize the buyer to collect the claims
assigned to us in his own name. We are entitled to revoke this direct
debit authorization if the buyer is in default of payment,
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As long as the Purchaser has not paid the consideration amount the
Purchaser shall only have the right to use such Goods and the result
of the Services performed for the agreed purposes. In the event of
the Purchaser being desirous of using the Goods already supplied to
him or the result of the Services performed for any other purpose,
the Purchaser shall have to obtain the prior written approval of
SELLER in this regard.
8. Software
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Insofar as software is included in the scope of delivery, the buyer is
granted a non-exclusive right to use the software supplied, including
its documentation. It is made available for use on the goods intended
for this purpose. Use of the software on more than one system is
prohibited.
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The buyer may only reproduce, revise, translate or convert the
software from the object code to the source code to the extent
permitted by law The buyer undertakes not to remove manufacturer
information, in particular copyright notices, or to change them without
our prior express consent
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All other rights to the software and the documentation including the
copies remain with us or with the software supplier. Sublicensing is
not permitted.
9. Termination & Consequences of Termination:
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Except unless otherwise specified elsewhere in this offer letter,
the Client shall not be entitled to terminate the agreement
under this offer letter for any reason whatsoever after
conveying its acceptance by countersigning the offer letter and
the annexure thereto or by making the advance payment,
without the consent of the Company.
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In the event of termination of the agreement under this offer
letter by the Client as per the agreement under this offer letter,
without prejudice to any rights and remedies of the Company
under law or equity: a) the entire Advance Amount paid by the
Client shall stand forfeited in favour of the Company after
adjusting such amounts as may be mutually agreed upon by
the Company and the Client. b) The Refundable Deposit will
be refunded to the Client without any interest.
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In the event of termination of the agreement under this offer
letter by the Company as a result of any breach by the Client
then without prejudice to the other rights and remedies of the
Company under law or equity: a) the entire Advance Amount
and Refundable Deposit paid by the Client shall stand forfeited
in favour of the Company; and/or b) The Company shall be
entitled to, at its sole discretion, arrange for the shipment of the
Machine(s) to the Client and charge all the delivery and related
costs to the Client. It is hereby clarified that non – acceptance
of the Machine(s) shall not absolve the Client of its obligation
to pay the Price hereunder. Without prejudice to the above, the
Company shall also be entitled to at its sole discretion stop
providing any and all of its services to the Client in relation to
the Machine(s), in the event of any breach of the agreement
under this offer letter by the Client including if any part of the
Price remains unpaid beyond the period specified hereunder.
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In the event of termination of the agreement under this offer
letter by the Company without cause then the entire Advance
Amount and the Refundable Deposit paid by the Client will be
refunded to the Client without any interest.
10.Intellectual Property Rights:
All intellectual property rights belonging to a party prior to the
execution of this offer letter shall remain vested in that party.
None of the intellectual property rights in either party’s
trademarks and/or brands shall be used by the other party for
any purpose, without such other party’s prior written consent. It
is clarified that all intellectual property rights in the Technical
Documentation and the Machine(s) is and shall continue to be,
owned solely and exclusively by the Company.
The Client hereby further confirms that it shall not do any of the
following:
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Copy, display, transfer, adapt, modify or distribute
(electronically or otherwise), except for the purpose of using
The Machine(s), any of the Technical Documentation or the
Machine(s) in any manner whatsoever; or
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Reverse assemble, reverse compile, reverse engineer the
Machine(s), or otherwise translate the Technical
Documentation, as applicable, unless expressly permitted by
applicable law without the possibility of contractual waiver.
11.Force Majeure:
Events of force majeure and, in general, all circumstances
which might prevent, reduce or delay manufacture or dispatch
shall entitle Seller, as appropriate, to terminate, reduce or
suspend performance and Buyer is not entitled to claim
damages during the period of force majeure. The terms "force
majeure' and "circumstances” are deemed to refer to any
cause, event or circumstance beyond Seller’s reasonable
control, in particular but not limited to war, mobilization, strike
or lock-out, riot, labour dispute, machinery breakdown or
factory stoppage, explosion, fire, natural disaster, flooding,
restriction or blockage in transport means, difficulties in
sourcing for raw materials or power, and any kind of
intervention by the public authorities. If such events of force
majeure and circumstances continue for a period of ten days
or more, Seller is entitled to terminate the contract immediately
upon notice. Force majeure does not give any protection to
Buyer from making payment for any Product supplied by Seller
to Buyer.
12.Waiver:
No waiver, alteration or modification of the foregoing terms and
conditions shall be valid unless made in writing and signed on
behalf of the Company by an officer of the Company duly
authorized to do so. No waiver by the Company with respect
to any other breach or default or any right or remedy or any
variation of the foregoing terms and conditions shall be
deemed to constitute a continuing waiver of any other breach
or default or any other right or remedy or any other variation of
the foregoing Terms and Conditions.
13. Indemnity:
The Client hereby indemnifies, protects and holds harmless
the Company, its agents, servants, successors and assigns
from and against all losses, damages, injuries, claims,
demands and expenses, including legal expenses, of
whatever nature, arising out of the use, condition or operation
of any of the Machine(s), regardless of where, how and by
whom the Machine(s) are operated; including for any accident
that may occur with Machine(s) with safety devices that were
accidentally, negligently or wilfully disabled/modified or which
the Client refused to restore to their original safety conditions.
14. Confidentiality:
Both the Client and the Company hereby agree and confirm
that each party (“Receiving Party”) shall maintain the
Confidential Information received from the other (“Disclosing
Party”) in strictest confidence. The Receiving Party shall
safeguard the Confidential Information of the Disclosing Party
using the same degree of care as it uses to safeguard its own
confidential information of a like kind, but in no case less than
a reasonable degree of care. The Receiving Party will ensure
(a) access to the Disclosing Party’s Confidential Information is
limited to those of its employees, officers, subcontractors and
agents who need to know such Confidential Information for the
performance of its obligations under this Contract, and (b) use
of the Disclosing Party’s Confidential Information for any
purpose other than to fulfil its obligations under this Contract is
strictly prohibited. The term “Confidential Information for the
purpose of this clause shall mean and include all information
supplied in confidence by the Disclosing Party to the Receiving
Party, which may be disclosed to the Receiving Party or
otherwise acquired by the Receiving Party in its performance
under this offer letter. Confidential Information includes (i) all
information which a reasonable person would consider
confidential under the context of disclosure or due to the nature
of the information itself, and may include technical and nontechnical information, Intellectual Property Rights, know-how,
designs, techniques, plans or any other information relating to
any research project, work in process, future development,
marketing or business plans or financial or personnel matters
relating to either Party or its present or future products, sales,
suppliers, customers, employees, investors or affiliates, (ii) for
the Company includes the Technical Documentation, and (iii)
any information which may be communicated: (a) in a written
or other tangible form which is clearly marked with a
“confidential” or “proprietary” legend or other comparable
legend; and (b) orally or visually which is identified as
confidential at the time of disclosure and confirmed in writing
within a reasonable time.
15. Severability:
Should one of the provisions contained in these Conditions or
a provision made in connection with other agreements become
ineffective, the validity of the remaining provisions or of
individual agreements shall remain unaffected. In this case,
either of the contracting Parties may request agreement on a
valid provision which resembles as closely as possible the
economic and legal purpose of the ineffective provision.
16. Applicable Law & Arbitration:
This agreement shall be governed in all respects by laws of
India and in the event of dispute, if any, this agreement is
subject to the exclusive jurisdiction of the courts in Bangalore,
Karnataka.
All disputes arising out of or in respect of this Agreement shall
be referred to Arbitration of either a Sole Arbitrator or three
Arbitrators, one to be appointed by each party and the third to
be appointed by the two appointed Arbitrators, as both the
parties might agree to. Arbitration place is at Bangalore