Conditions Of Sale
General – Scope of Validity
Our terms and conditions of sale shall apply exclusively; any contradictory or divergent terms of the customer are rejected unless we expressly agree to them in writing. Our terms and conditions of sale shall apply even if we carry out delivery to the customer without any reservation despite being aware of the existence of contradictory or divergent terms and conditions of the customer.
All agreements made between us and the customer in connection with the execution of this agreement is contained herein in writing. Any oral agreement made by our representatives or other auxiliary person requires our written confirmation - it shall only be valid if confirmed by us in writing.
Our terms and conditions of sale shall apply to all present and future transactions and commercial relationships with the customer.
Conclusion of the Contract
Our offers are subject to confirmation. The contract enters into force upon issue of our written confirmation of the order and – if no order confirmation was sent – by delivery and receipt or our invoice.
If the customer’s order is characterized as an offer, we may accept it within 2 weeks of receipt.
The contract will be subject to the correct and timely delivery by our suppliers. We will inform the customer without delay in the event of non-availability and will promptly refund any payment received.
Prices – Payment Terms
Unless otherwise stipulated in the confirmation of order our prices are ex works and warehouse. If the price at the time of delivery has increased by a change in the price of the labour costs, by the market price or by an increase in the amount of remuneration demanded by a third party involved in the performance, the higher price shall apply. If it is 20% or more above that of the agreed price, the customer has the right to withdraw from the contract. This right must be asserted without delay after notification of the increased price.
Our prices include our standard packaging. Unless otherwise agreed the customer shall bear all other additional costs in particular additional packaging, freight charges and transport insurance.
The weight established by us for the calculation of the price is decisive.
Statutory VAT is not included in our prices. It will be included in the invoice as a separate item and will be calculated on the day of invoicing.
Unless otherwise stated in the order confirmation the customer shall make the net payment of the purchase price (without deduction) within 10 days of receipt of the invoice. If payment is not made within this time period the customer is in default of payment. We reserve the right to prove higher default damages and to claim these.
If the customer enters into delay / default with his due payment obligations – also from earlier contracts – either wholly or in a significant part, we shall be entitled to make all existing demands due immediately.
The customer shall only be entitled to offset his claims if they are legally established, undisputed or recognized by us. The customer is also entitled to exercise a right of lien insofar as his claims are based on the same contractual relationship.
Delivery – Transfer of Risk – Delivery Period
Unless otherwise agreed, delivery shall take place ex works or warehouse. In shipment purchases we are entitled to send the goods to be delivered, to a place that is different to the place of performance. If the customer is covered by transport insurance, he is obliged to transfer title to all insurance compensation claims to us insofar as they relate to the risk of loss and price risk; we herewith accept this assignment.
The commencement of the delivery period set by us is subject to the clarification of all technical questions. For the compliance with the agreed delivery time, the timely dispatch from the factory / warehouse suffices.
Our obligation to deliver is subject to the customer’s timely and proper fulfillment of all his obligations. We reserve the right to consider failure to perform and impairment of performance as events of default.
If the customer enters into delay in accepting delivery or fails to comply with other obligations to cooperate, we shall be entitled to demand compensation for losses caused by the delay, including any additional costs. Further claims shall remain unaffected.
If the conditions set out in paragraph 4 are fulfilled, the risk of accidental loss, destruction or deterioration of the delivery shall pass to the customer when the customer enters into default of acceptance or payment.
All acts of force majeure, for which we are not responsible, shall release us from performance of our contractual obligations for the duration of any such occurrences. We will immediately inform the customer if such circumstances occur. At the same time we shall inform the customer of the expected duration of such an event. If the duration of such an event is longer than three months, we shall be entitled to withdraw from the contract. We will promptly refund any corresponding payment received by us.
We shall be liable according to the law if the delay in delivery is caused by our or one of our agent’s willful or grossly negligent breach of the contract; the negligence / fault of our representatives or vicarious agents shall be assigned to us. If the delay in delivery is not due to a breach of the contract by our willful negligence, our liability is limited to claims for damage that could normally have been anticipated and typically occur, if none of the exception cases laid down in paragraph 8 sentence 3 of these conditions exist.
Our liability as a result of delayed delivery to pay compensation in addition to the performance is limited to 5 % of the worth of the delivery and for compensation in place of the performance, is limited to 30 %. Any further claims of the customer are excluded even if the time limit set by us for the performance has lapsed. Liability for culpable injury to life, body or health remains unaffected.
The customer is only entitled to withdraw from the contract in line with the legal provisions if we are responsible for the breach of duty; if the goods are defective the statutory provisions shall remain applicable. The customer must notify us within a reasonable period of time of our request as to whether he in-tends to withdraw from the contract as a consequence of the breach or if he stills requires delivery.
We guarantee that our products will be of acceptable quality. Unless otherwise agreed, we will deliver according to our stand specifications. Our product-specific and application details are based on our knowledge at the point in time when the contract was concluded. The customer shall check the suitability of the product delivered by us for the particular purpose; we accept no liability for the targeted use and further processing or existing industrial property rights.
Claims based on defects do not exist where there is only a minor deviation from the agreed condition or a minor impairment of the usability.
Claims of the customer based on defects require that the customer has duly fulfilled his duty to examine the goods and to notify about the defect. The burden for proving all the pre-requisites of a claim lies with the customer. This includes the burden of proving the defect it-self, the time of the defect and that the customer has made the notification in time.
In the event that the purchased product is defective, we shall be entitled to choose whether to remedy it by removal of the defect or by replacing the defective product with a new product, free from defects. If we choose to remove the defect, we shall bear all ensuing costs, in particular transport costs, labour costs and costs of materials, so long as these are not increased by the purchased product being at a place other than the place of delivery and this does not correspond to its designated use.
If our attempt to remedy the product proves to be ineffective, the customer shall then be entitled to either terminate the contract or demand a reduction of the purchase price. The customer shall have no right to terminate the contract in the case of minor breaches and in particular for negligible defects.
We shall be liable in accordance with the legal provisions insofar as the customer makes a claim for compensation, which is based on our intent or gross negligence, including that of our vicarious agents. Insofar as we have not intentionally infringed the contract, the liability for damage is restricted to the fore-seeable, typically occurring damage.
In accordance with the legal provisions we shall be liable if we culpably violate a significant contractual obligation; in such a case, liability will however be limited to the foreseeable, typically occurring damage.
Liability due to culpable injury of life, body or health shall remain unaffected; this shall also apply to the statutory liability in accordance with the Product Liability Law.
Unless otherwise agreed, all liability shall be excluded.
The period of limitation for claims from defects is 12 months. This commences with the delivery of the product.
The period of limitation in the event of delivery recourse is limited to five years and commences with the date of the delivery of the defective goods.
Any further liability for damages regardless of the legal nature of the claim – shall be excluded. This shall apply in particular to claims for compensation resulting from damage occurring during contractual negotiations due to other breaches of obligations, or due to tortuous claims for compensation.
The limitation as per paragraph 1 shall also apply if the customer demands compensation for useless expenditure instead of claiming compensation in place of performance.
Insofar as our liability for damages is excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, workers, members of staff, representatives and vicarious agents.
Reservation of Title
We reserve title to the subject matter of the contract until all payments resulting from the business relationship with the customer have been received. If a current account relationship exits between the customer and us, our reservation of title shall relate to the relevant balance of the account agreed upon. This shall also apply in the event that no balance has been agreed upon but a “casual” balance has been upon – for example because the customer has become insolvent or is in liquidation.
In the event of conduct on the part of the customer which is contrary to the terms of the contract, in particular if the customer should default in payment, we shall be entitled to take back the purchased items without previously having withdrawn from the contract. The customer authorizes us, in the event that these conditions are met, to enter his place of business during normal working hours and to take the goods into our possession. After taking back the purchased items we shall be entitled to sell them or otherwise utilize them – the proceeds of the goods shall be set-off against the customer’s account, minus reasonable costs incurred.
The customer is obliged to treat the purchased item with care; in particular it is obliged to insure it to replacement value at its own expense against fire, flood and theft.
In the event of any seizure of property or other intervention by a third party the customer must inform us in writing without delay so that we can institute legal proceedings. Should the third party not be in a position to reimburse us with the legal and extra-judicial costs of the legal action, the customer shall be liable for the costs accruing to us.
The customer is entitled to resell the purchased goods in the course of regular business transactions; he shall however transfer to us all claims accruing from the resale of the goods against their buyer or third parties up to the sum of the final invoiced amount (including VAT) or our claim against the customer, irrespective of whether the goods were processed prior to the resale or not. The customer shall retain the right of recovery of the debt even after he has assigned the claim to us. Our entitlement to recover the debt ourselves shall remain unaffected. We shall however undertake not to recover the debt ourselves provided that the customer fulfils his payment obligations out of the proceeds of the resale, that he does not fall into default with his payments, and in particular that no application is made for the commencement of insolvency proceedings or suspended payment. If this should be the case, we shall then be entitled to demand that the customer makes known to the assigned claims together with the names of their debtors and that he provides us with all information necessary to en-able us to recover the debt. The customer shall also surrender to us all appropriate and relevant documents and shall inform the third party debtor of the assignment of the claim.
The processing or remodeling of the purchased goods by the customer shall always be carried out on our behalf. If the purchased goods are processed (and thereby mixed) with other items not belonging to us, then we shall become joint owners of the new article in proportion to the value of the purchased goods (final invoice amount including VAT) to the other processed goods forming part of the new article at the time of processing. The item produced by processing is otherwise subject to the same conditions as for the purchased item.
If the purchased item is combined inseparably with other items not belonging to us, then we acquire co-ownership to the new product in proportion to the value of the purchased goods (final invoice amount including VAT) to the other combined items at the point in time of combination. If processing and mixing results in the goods of the customer being considered the main product, it is agreed that the customer shall assign pro-rata to us joint ownership in the goods. The customer shall thus hold the resulting title to sole ownership or joint ownership on our behalf.
The customer shall also assign to us any claims securing our claims if the purchased goods are combined with a piece of real estate belonging to a third party.
At the customer’s request, we shall be obliged to release the securities we are entitled to insofar as the value which can be realized from our securities exceeds the claims secured by more than 10%. The selection of the securities to be released shall be our responsibility.
If the reservation of title or the assignment is not effective under the law applicable in the territory in which the goods are located, it is agreed that collateral shall be provided which is equivalent to the reservation of title or the assignment of the goods in this territory. If the co-operation of the Buyer is required to establish such a right, the Buyer shall be obliged upon our request to undertake at its own expense all measures which are required to establish and maintain such rights.
Lump sum fee for unauthorized return
Should we agree, without be legally bound so to do, to the return of a delivery, we shall be entitled to a lump sum fee amounting to 15 % of the net invoice amount plus VAT. The exclusive place of jurisdiction shall be our headquarters in Vadodara, Gujarat. If the customer is a businessman; we are also entitled to file legal proceedings against the customer at the court having jurisdiction of Vadodara, Gujarat.
If the customer is a businessman and it is not otherwise stated in our confirmation of order, the place of performance shall be our place of business.
The laws of the India shall apply; the application of the CISG is excluded.
In the event of a dispute as to the interpretation of this General Terms and Conditions of Sale, the Indian version of the General Terms and Conditions of Sale shall prevail. On customer’s request we will hand them out immediately.
We collect, store, modify and transfer personal data in an automatic procedure. Pursuant to the applicable you are entitled to be notified by us of the data subject, to be provided with information to the data subject, to have incorrect data corrected, erased or blocked and to compensation in case of inadmissible or incorrect collection, modification or use of personal data as well as to access to the procedure overview. These rights cannot be contractually restricted or excluded.