1.1 These General Terms and Conditions (GT&C) are intended for use in commercial transactions between businesses.
1.2 These GT&C shall apply for all, including future, contracts with the customer. Other terms and conditions shall not become part of the contract, even if BScE does not expressly object to them. Subsidiary agreements made before or at the time of conclusion of contract may only be invoked if they are immediately confirmed in writing. The waiver of the requirement for written form shall only be possible in writing. The language of the contract shall be English.
1.3 BScE offers are subject to change and non-binding. BScE reserves the right to make technical improvements to products offered by BScE.
1.4 BScE may store and process data in the BScE IT system necessary for the purpose of processing the contract.
1.5 A set-off by the customer shall not be permitted.
1.6 Delivery shall be undertaken generally in packaging units (PU) according to the currently valid price list. For deliveries within five (5) working days or for order values up to INR 50,000, BScE reserves the right to waive an order confirmation. Subject to product available Ex Stocks in BScE Warehouse.
1.7 The place of jurisdiction shall be the court responsible for the BScE head office in Mumbai. BScE shall, furthermore, as plaintiff have the right to appoint one or more Arbitrators. In that case the proceedings shall be carried out as per the rules and regulations of the “Arbitration and Conciliation Act 1996”. The Arbitrator(s) shall, in this case, make the final judgment in accordance with the Rules of Arbitration without recourse to the ordinary courts of law.
1.8 The laws of India shall apply exclusively under the exclusion of the conflict of laws principles of Private International Law and the UN Convention on Contracts for the International Sale of Goods (CISG).
2.1 The place of performance shall be the 3PL warehouse at Bengaluru, India. The risk shall transfer to the customer when readiness for dispatch has been notified. This shall also apply to partial deliveries or where BScE has performed additional services, such as shipping; costs for transport, packaging or insurance; exportation and installation within India.
2.2 Insofar as BScE has agreed to orders on call, the customer must take delivery of the total amount within three (3) months, at the latest at the date confirmed by BScE.
2.3 In the case of a delay in the customer’s acceptance of a delivery, BScE may, without prejudicing our claim for performance, have the goods put into storage at the cost of the customer or, after providing a warning and setting a deadline for the customer, otherwise dispose of them.
3.1 Delivery times shall be EXW (Incoterms® 2010 ex works). Delivery periods shall begin on receipt of the BScE order confirmation by the customer; however only after settlement of any technical issues pending from the conclusion of the contract; and after receipt of any documents to be provided to BScE by the customer, such as drawings, permits or approvals (such as Road Permits/Way Bills/ VAT/ CST forms); and definitely not before receipt of agreed advance payments. The delivery period shall be considered to have been met if readiness for dispatch has been notified before the expiry of this period. Delivery shall be subject to BScE receiving BScE’s own supplies punctually and in good order.
3.2 Force Majeure and circumstances beyond control of BScE, such as strikes, lock-outs, operational disruption, shortages of raw materials and equipment, delayed delivery or non-delivery by BScE suppliers, shall extend the delivery periods accordingly and shall release BScE from delivery obligations if they, as a result, render delivery impossible. BScE shall also not be liable for the circumstances described above if they arise during an already existing delay. The same shall apply for any additional or amended services requested by the customer.
3.3 BScE shall be considered to be in default of delivery only if the customer has issued BScE with a reminder and has set a reasonable extension period which has elapsed.
3.4 In the case of delay damages, liability of BScE for compensation shall be limited to 10% of the value of the delayed delivery/service. The limitation shall not apply in cases of willful intent, gross negligence and/or injury to life, limb or health. The customer shall be obliged to immediately inform BScE in writing of any likely consequences of delay.
4.1 Prices shall be EXW (Incoterms® 2010 ex works), the 3Pl warehouse in Bengaluru. All additional taxes and duties namely Central Sales Tax, VAT, Octroi, Entry Tax & other levies if any wherever applicable will be charged extra. Exemption from taxes/duties can be sought by furnishing the applicable declaration & certificate, while placing the orders. Non furnishing of these documents will result in BScE charges recovering applicable higher tax / duties. In case of EOU and SEZ, customer who avails the duty exemption should complete the post shipment documentation formalities in stipulated time, otherwise the applicable duty with interest will be charged on them. Costs of packaging, transportation, freight and insurance shall be borne by the customer or as agreed between BScE and the customer. Prices shall also be exclusive of the cost of returning and recycling/disposing of old equipment.
4.2 Invoices shall be payable to the BScE Deutsche Bank account no.0673806-00-0 in INR without deductions and free of charges and expenses. Payment shall be made immediately or by the date agreed. The determinant factor shall be the receipt of payment. Cheques / DD/ Bankers Cheque shall only be accepted on account of performance and at the cost of the customer.
4.3 In the case of customers, with whom BScE is working for the first time or with whom BScE does not work regularly, after delay in payment or in the case of reasonable doubt as to the creditworthiness of the customer. BScE shall reserve the right to make individual deliveries dependent on a pre-payment or a security deposit to the value of the invoice amount.
4.4 Should the period between conclusion of contract and agreed delivery exceed four (4) months, so may BScE, at the discretion of BScE, demand a reasonable additional charge equivalent to the increase in the costs of BScE up until delivery. For deliveries on call, BScE’s current price shall apply.
4.5 In the case of an agreed return of goods that are free of defects, the customer shall be charged a checking and processing fee of 20% of the invoice amount (minimum INR 10,000). Subject to BScE agreeing and approving customers request for returning the goods with a reasonable genuine cause.
4.6 Should the customer be in arrears with payment, BScE debt claims against him shall be due immediately, and BScE shall not be obliged to make any further deliveries based on current delivery contracts.
4.7 If payment is delayed, BScE shall charge - notwithstanding further damage compensation claims - interest on arrears at the statutory rate.
4.8 BScE may offset amounts payable to the customer (e.g. from credit notes) against claims of BScE against the customer.
5.1 The goods delivered shall remain property of BScE until the complete and unlimited payment. Should BScE still have further claims against the customer, BScE shall then retain BScE property rights until payment of these has been effected.
5.2 The customer shall be required to inform us immediately of any attachments, seizures or any other third- party dispositions relating to the goods that are reserved.
5.3 Where payment is delayed BScE shall be entitled to withdraw from the contract and/or, without withdrawing from the contract, demand the return of any goods subject to retention of title still in possession of the customer and to collect the assigned receivables ourselves.
6.1 BScE warrants that the delivered goods (including any agreed installation) are free of defects in material and workmanship at time of risk transfer. The required quality, durability and use of delivered goods are based solely on the agreed written specification, product description and/or operating manuals. Any information beyond this, in particular in preliminary discussions, advertising and/or referencing industrial standards shall only become part of the contract if they are expressly referenced in writing.
6.2 Should the customer require the delivered goods for purposes other than those agreed, the customer must take responsibility himself for examining their special suitability for this - also in terms of product safety - and ensure their compliance with all relevant technical, legal or regulatory provisions before the intended use. BScE shall not be liable for any usability that was not expressly confirmed by BScE in writing. In the case of material or design requirements of the customer, BScE shall accept no liability for the suitability or permissibility of the desired materials or designs, and shall, in this respect, have no particular testing obligation. Compliance with safety-related and occupational health regulations depends on the location and operating conditions of which BScE has no prior knowledge. Action for ensuring compliance shall therefore be the responsibility of the customer or his buyer.
6.3 BScE shall not be liable for the consequences of improper handling, use, maintenance and operation of the delivered goods; the consequences of normal wear and tear, in particular of wearing parts, such as diaphragms, seals, valves, vanes, condensers, oil, pistons, seals, valves; the breakage of glass, plastic or ceramic parts; for the consequences of chemical, electrochemical or electrical influences; or non-observance of the operating instructions.
6.4 If a notice of defect is justified, BScE shall initially only be required to provide supplementary performance. Supplementary performance shall be, at discretion of BScE, either rectification of the defect or delivery of goods free of defects. Further warranty claims shall only apply in the event of rejection, impossibility or failure of the supplementary performance. The customer shall bear additional expenses, which arise from the fact that the goods were taken after delivery to a location other than the agreed place of performance.
6.5 BScE takes no responsibility for breakages or loss in transit. The customer must, immediately upon receipt of the goods, inspect them carefully, also in terms of product safety, and notify obvious defects immediately in writing; any hidden defects must be immediately notified upon discovery. The customer must notify the carrier immediately of any transport damage. Failure to observe the testing and notification obligation shall void any customer claims for defects.
6.6 Goods can be insured at the customer’s request at 2% of the invoice value. Insurance costs will be charged on the invoice itself.
6.7 EXCEPT FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, BScE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS RESULTING FROM OR RELATED TO THE BREACH OR CLAIMED BREACH OF THESE TERMS AND CONDITIONS, EVEN IF BScE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. The limitations of liability shall apply to all claims for damages irrespective of their legal grounds, with the exception of claims for damages (i) due to intent, (ii) under product liability law, (iii) for fraudulent concealment of defects, (iv) defects in relation to which a guarantee of quality had been assumed, (v) from injury of life, body or health, or (vi) for gross negligence of corporate bodies or officers of BScE.
6.8 Should the customer use the delivered goods in conjunction with environmentally harmful, toxic, radioactive or otherwise hazardous materials, he shall be obliged to clean them before returning them to BScE. If applicable, BScE may charge any necessary costs for decontamination/cleaning and disposal to the customer’s account.
The warranty period shall be one year and starts from the date of delivery of the goods to the customer. The same shall apply for claims for damages, irrespective of their legal basis. The restriction of the limitation period shall not apply to claims based on fraudulent concealment of a defect, for claims under the product liability law or for damages resulting from injury to life, limb or health and other damages based on intent or gross negligence. The limitation period in respect of replaced or repaired goods shall not commence anew.
8.1 If software is included in the scope of a delivery, the customer shall be granted a non-exclusive right to use the software and its associated documentation. It is provided for use on the designated delivery item. The use of the software on more than one system shall be prohibited.
8.2 The customer shall only be entitled to copy, transfer or translate the software or to convert it from object code to source code to the extent permitted by law. The customer undertakes to refrain from removing manufacturer information, in particular copyright notices, or from changing these without prior express consent of BScE or the prior express consent of the software supplier.
8.3 All other rights to the software and the documentation including copies thereof shall remain with BScE and/ or the software supplier. The issue of sub-licences is not permitted.
9.1 Installation costs may be invoiced on a monthly basis. Fixed installation prices shall only cover the work that has been agreed upon. In other cases the current BScE price list for installation and service costs shall apply.
9.2 The customer shall be responsible for providing the following at his own expense: lighting, motive power; if necessary, compressed air; water; electrical power for welding and heating, including the necessary connections; electrical installations to connect the products supplied by BScE; the devices required (such as lifting equipment); a lockable room that can be used for storing materials; tools and clothing during the installation.
10.1 For spare parts and maintenance, repair and calibration services, the current BScE repair and exchange price list shall apply.
10.2 Insofar as there is an obligation on BScE to maintain/supply spare parts, then this obligation shall be limited to a period of five (5) years from the date of delivery. If spare parts are no longer available on the market, for example electronic components, or if the raw material for their production is no longer available, the obligation of BScE to deliver spare parts shall lapse.
10.3 For calibration and maintenance, expendable items from BRAND/VACUUBRAND production are normally used.
10.4 Maintenance and calibration services can only be provided if the customer has declared the devices sent to be safe to work on from a health hazard perspective.
10.5 For repair/service values of up to INR 7500 BScE reserves the right not to provide a separate cost estimate.
11.1 BScE reserves ownership and all industrial property rights and copyrights to all moulds, tools or other devices, samples, pictures, and business and technical documents produced or provided by BScE. This also applies where the customer has wholly or in part taken on the costs hereof. The customer may use these only in the manner agreed with BScE. Without prior written consent of BScE, he may not himself manufacture contractual objects delivered nor have the same manufactured by third parties.
11.2 Insofar as BScE delivers goods according to the designs or other requirements specified by the customer (models, patterns etc.), the customer shall be liable to BScE by default for ensuring that, through the manufacture and delivery of these goods, the industrial property rights or other rights of third parties are not infringed. If the customer is at fault he shall reimburse BScE all damage resulting from any such infringement of rights.
11.3 Any information acquired from this business relationship and not deemed to be public knowledge must not be disclosed by the customer to third parties.