General Terms and Conditions
- Contract Formation : Quotation, Purchase Order and Order Confirmations
- Variation and Cancellation
- Minimum order values
- Risk and Title
- Liability for defects – Warranty Period
- Return Product Procedure
- Information, drawings and documentation
- Copyright, licenses, patents and intellectual property rights
- Force Majeure
- Limitation of liability
- Disputes and applicable law
- Entire Agreement
These General Terms and Conditions shall apply to every sale of Product made and or supplied by Balluff Automation India Private Limited (hereinafter referred to as “Balluff India”) pursuant to any Purchase Order sent to Balluff India by the Purchaser to the exclusions of any other contrary, different or additional terms contained, or referred to, in any order form or other document or correspondence from or by the Purchaser, except as otherwise any contrary, different or additional terms contained and written in a specific agreement signed between Balluff India and the Purchaser.
1.1. In these General Terms and Conditions, the following terms shall have the meanings as assigned herein under:
(i) “Contract” means the agreement on the supply / purchase of the Products concluded by Balluff India’s confirmation / acknowledgement in writing of Purchaser’s purchase order, which shall deem to incorporate these General Terms and Conditions.
(ii) “Order Confirmation” is acceptance of Purchaser’s Order in writing by Balluff India.
(iii) “Products” are the object(s) to be supplied by Balluff India to the Purchaser as per the Contract.
(iv) “Purchaser” is the customer ordering Products from Balluff India.
(v) “Supplier” is Balluff India
(vi) “Purchase Order” is the document setting out the Purchaser’s requirements for the Contract.
(vii) “RMA” is the Return Material Authorization
2. Contract Formation : Quotation, Purchase Order and Order Confirmations
2.1. Quotations issued by the Balluff India will usually comprise the description, technical features and prices of the Products. A quotation shall not be construed as an obligation to sell but merely an invitation and no contractual relationship shall arise from it until the Purchase Order has been accepted by the Balluff India. Any errors or omissions in the Balluff India’s quotation documents or other related documentation may be amended without incurring any liability upon Balluff India for damages in relation to such errors or omissions. The conditions specified in the mentioned quotation shall remain valid for 30 days or such other period as stated in it.
2.2. Based on the quotation issued by Balluff India, the Purchaser will issue a Purchase Order. Provided that a reply to a quotation which claims to be an acceptance but contains additions, limitations or other modifications relating, among other things to the price, payment terms, quality and quantity of the goods, place and time of dispatch constitutes a rejection of the Balluff India‘s quotation and shall be considered as a counter-request for quotation.
2.3. The Purchaser’s Purchase Order shall only become binding upon the Balluff India’s explicit acceptance of the Purchase Order in writing by way of issuing Order Confirmation to the Purchaser. Thus, the Contract comes into existence only upon receiving Order Confirmation from the Balluff India. All Order Confirmation are given exclusively on the basis of these General Terms and Conditions.
2.4. Whilst every effort has been made to draw up all information contained in general Product documentation including but not limited to illustrations, drawings, details -on measurement, technical specifications and price lists in order to ensure accuracy of information, however the Balluff India cannot be considered responsible for any errors or omission contained in the said general Product documentation as the Balluff India shall only be bound by the contents of Order Confirmation and these General Terms and Conditions.
3. Variation and Cancellation
Any variation in the Purchase Order as requested by the Purchaser, including those affecting the identity, scope and delivery of the Products as detailed in Purchase Order, may be allowed, provided it must be documented in writing may be subject to adjustments in price or delivery date arising by reason of such modification as shall be agreed by Balluff India and the Purchaser and such agreement evidenced in writing. Balluff India reserves the right to reject any Purchaser requested change, especially where such change is deemed unsafe, technically inadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with Balluff India’s or its supplier’s design or manufacturing capabilities.
All prices quoted by Balluff India are based upon Indian List Price (ILP) excluding goods and services tax (GST). Additional “Packing and Handling Charges” are mentioned on the Quotations. Where the Purchaser requests items to be supplied with certificates of conformity, Balluff India reserves the right to levy additional charge for providing such certificates. Where agreed call offs or scheduled orders are not adhered to by the Purchaser. Balluff India reserves the right to amend the price structures in accordance with the terms of the quotation without reference to the Purchaser. Any amendments requested by the Purchaser must be approved in writing by Balluff India specifying new terms of delivery, prices and terms of payment where applicable.
Standard payment term is before delivery and not later than 30 days from the date of invoice unless otherwise agreed. The payment shall be made in Indian Rupee (INR). Payment shall not be deemed to have been made before Balluff India has received the payment. If the Purchaser fails to pay by the due date, interest shall be levied on the unpaid amount from the date on which the payment was due until the date of actual receipt of payment as well as recovery costs (including legal fees). The rate of interest shall be 5% on top of the general bank interest rate as per Reserve Bank of India prevailing per annum to be charged on the unpaid amount. Balluff India reserves the right to suspend deliveries where payment is not received in accordance with above or in accordance with any alternative arrangement which had already been agreed in writing between the parties.
6.1. All Products are supplied DAP (Incoterms 2010 as amended) considering additional “Packing and Handling Charges” mentioned in the Quotations as well as the “Minimum Order Values” as given in clause 7.
6.2. Unless stated otherwise in the quotation, the price quoted includes packing in accordance with Balluff India’s standard practice. Any other specific packing and marking requirements not otherwise included in the price of the Products and requested by the Purchaser and / or deemed necessary for Balluff India will be charged for in addition to the price quoted.
6.3. The delivery period quoted commences from the date Balluff India receives the Purchase Order OR such quoted delivery period shall commence as soon as all the details are clarified, receipt of sufficient information by Balluff India to proceed with the supply and all agreed preconditions have been satisfied, such as official formalities- any approvals and releases which are to be provided by the Customer (if required), payments due at the formation of the Contract and any such other pre-conditions as agreed between the Parties are satisfied, whichever is the later date.
6.4. Any time or date stated for delivery is an estimate only and Balluff India shall not be liable for failure to deliver at the specified time or the specified date, nor shall such failure on the part of Balluff India shall be deemed to be breach of the contract or any of its terms and conditions or part thereof. The Purchaser shall not invoke delayed delivery as a ground to cancel the cancel the order, reject the Product or claim any compensation.
6.5. If shipment is delayed or does not take place due to an event of Force Majeure for a period of 14 days after the date on which the Purchaser has been notified that the Products are ready for delivery, this risk in such Products shall immediately pass to the Purchaser and Balluff India is entitled to raise an invoice to the Purchaser for the payment of the Products.
6.6. The Purchaser is obliged to take delivery of the Products at the time they are delivered to the Purchaser, or at the time they are made available to the Purchaser in accordance with the Contract. If the Purchaser refuses or fails to take the delivery of the Products or fail to provide information or instructions required for the delivery or that delivery is delayed at the request of the Purchaser, it shall nevertheless pay any part of the Contract price which becomes due at the time for delivery. Balluff India will arrange for storage of the Products at the risk and expense of the Purchaser and Balluff India shall be entitled to invoice the Purchaser for the said reasonable storage charges.
6.7. Unless the Purchaser’s failure to accept delivery is due to an event of Force Majeure, Balluff India may by notice in writing require the Purchaser to accept delivery within a final reasonable period. If, for any reason which is attributable to the Purchaser, the Purchaser fails to accept delivery within such period, Balluff India may by notice in writing terminate the Contract in whole or in part. Balluff India shall then be entitled to compensation for the loss it suffers by reason of the Purchaser‘s default.
7. Minimum order values
The following minimum order values will apply to orders supplied by Balluff India: 8000 INR
8. Risk and Title
8.1. Unless specified to the contrary, the Products will be delivered to the Purchaser DAP (Incoterms 2010).
8.2. The property and legal title to the Products remain with Balluff India until and unless they have been paid for in full by the Purchaser. Hence until the Products have been fully paid for Balluff India is and remains the legal and equitable owner of the Products.
9. Liability for defects – Warranty Period
9.1. Balluff India warrants that the Products, whether manufactured by Balluff India or its suppliers, as published in Balluff’s current catalogues and supplied by Balluff India, shall, for a period of 24 months from the date of delivery are free from faulty design, materials or workmanship (“Defect(s)”). This shall not apply to warranty claims pertaining to products subject to attrition (e.g. photoelectric sensors, mechanical sensors, micropulse transducers, magnetically coded position and rotary encoder systems, inductive couplers and accessories which are classified as accessory by Balluff (e.g. cable, connectors, angle brackets etc.): These warranty claims are subject to a limitation period of 12 months following the transfer of risk.
9.2. The warranty provided by Balluff India in section 9.1. above shall be effective, subject to the following conditions:
(a) Balluff India’s liability shall be limited to Defects, which appear within a warranty period depending on product group as defined in 9.1 from delivery (“Warranty Period”);
(b) The Purchaser shall promptly notify Balluff India in writing of any Defect, which appears including a description of such defect. If the Purchaser fails to notify the Balluff India in writing of a Defect promptly, the Balluff India shall not be liable for the Defect;
(c) Upon Balluff India being satisfied after having examined the Products, that any of such Defect has not been caused by improper use, incorrect installation, inadequate maintenance, unauthorized repairs or alterations, modifications or adjustments to the Products, or for normal wear and tear or deterioration.
(d) On receipt of the notice under this clause Balluff India shall at its own cost remedy the Defect without undue delay.
(e) Unless otherwise agreed, necessary transport of the Products or parts thereof to and from Balluff India in connection with the remedying of Defects for which Balluff India is liable shall be at the risk and expense of Balluff India during the Warranty Period.
(f) If the Purchaser requests or insists that Warranty service as provided in this clause is to be carried out on site or at the Purchaser’s premises then any costs over and above the direct costs of replacing or repairing the Products of the component parts of the Products shall be at the Purchaser’s expense.
(g) Unless otherwise agreed, the Purchaser shall bear any additional costs, which the Balluff India incurs for remedying the Defect caused by the Products being located in a place other than the place of delivery.
(h) Any repairs, alterations or other work carried out to the Products by a person other than the authorized representative of Balluff India, shall result in invalidating the Warranty as provided in clause 9.2.
9.3. Defective parts, which have been replaced, shall be made available to the Supplier and shall be its property.
9.4. To the extent permitted by law, Balluff India’s liability for any Defect shall be limited to making good, by replacement or repair of the Products or the component parts of the Products.
10. Return Product Procedure
Claims for shipment damage (evident or concealed) must be filed with the carrier by the buyer. The supplier must be notified within thirty (30) days of shipment of incorrect material. No product may be returned, whether in warranty or out of warranty, without first obtaining approval from the supplier. No credit will be given nor repairs made for products returned without such an approval. An RMA number must accompany any returned product(s). The RMA number may be obtained by calling the Suppliers Technical Support. Products must be returned, prepaid, to the Suppliers Technical Support.
11. Information, drawings and documentation
All descriptive specifications, illustration, drawings, data, dimensions and weights furnished by Balluff India or otherwise contained in its publications including price lists, catalogues, electronic media and other advertising material of Balluff India are approximate only and are intended to be by way of general description of the Products and shall not form a part of the agreement between Balluff India and the Purchaser unless specified by Balluff India in writing. Balluff does not agree to comply with any specifications and drawings referred to in Purchase Order unless such specifications and drawings have been produced to Balluff India prior to delivery of the Products and have been agreed to in writing and signed by a duly authorized representative of Balluff India. Further, where the Purchaser requests Balluff India to provide certified drawings, Balluff India, may at its discretion, provide such certified drawings at the Purchaser’s reasonable expense. Any drawings, studies or other documents submitted by Balluff India to the Purchaser shall remain the property of Balluff India and shall constitute confidential information and also shall form a part of Intellectual Property Rights (as hereinafter defined) of Balluff India or its supplier. The Purchaser must not use them for any purpose other than in accordance with these General Terms and Conditions and must not transmit, disclose or make them available to any third parties without the prior consent of Balluff India.
12. Copyright, licenses, patents and intellectual property rights
12.1. All intellectual property rights, including but not limited to copyright, patents, designs, trademarks, brand names, trade names, trade secrets, inventions, software and licenses know-how or other intellectual property (collectively known as “Intellectual Property Rights”) in, or related to, the Products supplied by Balluff India shall remain the property of Balluff India or its suppliers (as the case may be).
12.2. The Purchaser will not reverse engineer, reverse compile or reverse assemble the Products in whole or in part, and Purchaser will not develop: (a) any products incorporating any of Balluff India or its supplier’s Intellectual Property; nor (b) any improvements or applications related to the Intellectual Property. Purchaser agrees not to take any action inconsistent with Intellectual Property rights of Balluff India or its suppliers. Unless with the prior written consent of Balluff India, Purchaser will not use in any way (including in Purchaser’s letterhead or presentation cards) Balluff India’s trade or business names or trademarks, nor will Purchaser represent to third parties that it can make binding commitments for Balluff India. Purchaser will immediately notify Balluff India in writing of any potential infringement of Intellectual Property of Balluff India or its suppliers by other parties, or of any claim or possibility that the Intellectual Property infringes the rights of others, and will cooperate with Balluff India to protect Balluff India’s Intellectual Property against infringement.
13.1. Without prejudice to any other rights or remedies which the parties may have, Balluff India may terminate this Contract created in pursuant to these General Terms and Conditions without incurring any liability to the Purchaser immediately upon giving notice to the Purchaser in the event if:
(a) The Purchaser fails to any amount due for payment and remains in default not less than seven (7) days being in notified in writing to make such payment; or
(b) The Purchaser commits a material breach of any of the Terms and Conditions and (if such breach is remediable) fails to remedy the breach within 30 days of the Party being notified in writing of the breach;
(c) The Purchaser goes into liquidation, has a winding up petition presented against it, makes an arrangement with its creditors, is declared bankrupt (or other equivalent situations).
13.2. Upon termination of the Contract by Balluff India for any reason including the reasons as stated above, such termination shall not affect the liability of the Purchaser to make payment towards all it pending payments and the Purchaser shall immediately pay to Balluff India all outstanding invoices and interest in respect of the Products or services supplied by Balluff India.
14. Force Majeure
14.1. Balluff India shall be entitled to suspend the performance of its obligations under these General Terms and Conditions to the extent that such performance is impeded or made unreasonably onerous by Force Majeure, meaning any of the following circumstances: industrial disputes and any circumstance beyond the control of the including, without limitation, act of God, fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this clause 14.1.
14.2. Balluff India when claiming to be affected by Force Majeure shall notify the Purchaser in writing without delay on the intervention and on the cessation of such circumstance. Failure to give such notice, the Purchaser shall be entitled to compensation for any additional costs which it incurs and which it could have avoided had it received such notice.
14.3. If such events of Force Majeure and circumstances continue for a period of three (3) months or more, Balluff India is entitled to terminate the Contract immediately upon notice. However, existence of Force Majeure event shall not entitle the Purchaser to not to make any payment for any Product supplied by Balluff India to Purchaser.
15. Limitation of liability
15.1. Notwithstanding any other provision in these General Terms and Conditions, whether by way of indemnity or by breach of Contract, statutory duty, tort, negligence, or otherwise, and whatever the cause thereof; (a) Balluff India shall not be liable for business interruption, loss of production, loss of profit, loss of profit, loss of contracts, loss of use, loss of data, loss of goodwill or the like (whether direct or indirect), or any other form of incidental or consequent damage of whatsoever nature, and (b) the total overall liability of Balluff India including but not limited to liquidated damages, shall not exceed 100% of the Contract price.
15.2. Those damages which arise from injury to life, limb or health, the assumption of a guarantee or of a procurement risk, or the violation of material contractual obligations shall be excluded.
15.3. The limitations or exclusions of liability provided in Clause 14.1. shall however only apply to the extent permitted by applicable mandatory laws and shall not apply in case of gross negligence or wilful misconduct.
16. Disputes and applicable law
16.1. Unless otherwise agreed between the parties, Balluff India and the Purchaser agree that Contract formed pursuant to these General Terms and Conditions shall be deemed to have been made and executed at the location of Balluff India where the place of business of Balluff India – registered office / corporate office is situated and that these Terms and Conditions forming the Contract shall be governed, interpreted and construed in accordance with the laws of India.
16.2. In the event, if any dispute, controversy, claim or breach arises out of or in connection with these Terms and Conditions including any dispute as to the existence or validity thereof (the “Dispute”), unless amicably settled, be referred to final and binding arbitration under the provisions of the Arbitration and Conciliation Act 1996 as well as Arbitration and Conciliation (Amendment) Act, 2015 as amended from time to time (the “Arbitration Rules”), by a sole arbitrator appointed by Balluff India. The decision of the arbitrator tribunal as appointed herein under this section, will be final and binding upon the Parties and enforceable. Seat for arbitration proceedings shall take place in Pune and shall be conducted in English language only.
No waiver of any right under these General Terms and Conditions shall be deemed effective unless the same is set forth in writing signed by the Balluff India. No waiver of any breach of these General Terms and Conditions will be treated as a waiver of any subsequent breach of these General Terms and Conditions.
If any provision of these General Terms and Conditions or of a Contract shall be, or be found by any authority or court of competent jurisdiction to be, invalid or unenforceable in whole or in part, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these Terms and Conditions or of the Contract, all of which shall remain in full force and effect.
19. Entire Agreement
Unless superseded by a specific signed agreement between Balluff India and the Purchaser, this Contract shall include these General Terms and conditions, and shall constitute the entire agreement between the parties with regard to the subject matter therein.
Balluff India reserves the right to review and amend these General Terms and Conditions from time to time. Written notification forwarded to the Purchaser shall be sufficient notification to bind the Purchaser to any revised or amended General Terms and Conditions for all Purchase Orders placed by the Purchaser and accepted by Balluff India after the date of such notification.
Any demand, notice or communication under this Agreement shall be in writing and shall be hand delivered or by post or by facsimile or e-mail to the Party receiving such communication at the address specified herein or such other address as either Party may in future specify to other Party.