General terms & conditions

I. Scope of application

These General Terms and Conditions ("GTC") shall apply for all business relations between us, Elementar India Private Limited (CIN: U74999HR2016FTC063958) having it’s office at 204, Block-1, DLF Corporate Park, MG Road,Gurugram – 122002, Haryana, India, and our customer (the "Customer").
The GTC apply exclusively, unless expressly deviated from by our terms and conditions of business. General Terms and Conditions of the Customer that deviate from or add to these shall only apply if and to the extent that we have expressly agreed their validity in advance, at least in text form. This shall also apply if we have accepted the Customer’s order without reservations, knowing the General Terms and Conditions of the Customer.
Individual agreements shall have priority over these GTC. The agreements are to be recorded in writing as proof.
Unless directly amended or excluded in these GTC, the statutory provisions shall apply.
The GTC in their respective versions shall also apply to future contracts with the same customer, without us referring to them in each individual case.
A customer may only be an entrepreneur or a legal entity.

II. Order, conclusion of contract

We shall be bound for three (3) weeks by information on the delivery item in our offer letters. In all other respects our offer letters are subject to change and non-binding. They are not an offer in the legal sense.
The customer’s order is binding and therefore an offer in the legal sense. We can accept the customer’s order within ten (10) working days of receipt. Acceptance shall be affected by sending an order confirmation or, in the case of consumables, alternatively by sending the delivery item.
We are entitled to refuse the performance we are obliged to render and to stop production if it appears that the order volume is not insured by our credit insurance. In this case, we will immediately notify the customer and set a reasonable deadline within which advance payment or security must be provided. After unsuccessful expiry of the deadline, we are entitled to withdraw from the contract, without prejudice to other claims.

III. Delivery, default of acceptance

Unless explicitly agreed otherwise, delivery shall be from our registered office. The place of fulfilment for all obligations arising from this contractual relationship shall be our registered office. This excludes the commissioning at the premises of the Customer if we have agreed to this.
Devices shall be provided in special transport packaging at the customer's expense.
We shall be entitled to make partial deliveries if partial delivery can be used by the Customer according to the contractual intended purpose and if the delivery of the remaining parts of the deliverable is guaranteed. We are responsible for any additional shipping costs incurred as a result.
In case of delivery from our registered office, if the Customer does not collect the deliverable on the delivery date agreed as binding or immediately after receipt of the notification that the product is ready for dispatch (default of acceptance), we shall be entitled to demand compensation for damages or any additional expenses (e.g. storage costs) incurred as a result of this.
If an action of the customer is required for the performance of the contractual service (e.g. collection of the delivery item) and the customer is in default of acceptance due to the failure to perform the action, we may, until the customer has fulfilled these obligations in accordance with the contract, demand liquidated damages in the amount of 0.2% of the net invoice amount for each day of default. The amount of the liquidated damages shall be limited to 5% of the net invoice amount. Our right to prove the actual occurrence of a higher damage incurred by us and to assert this against the customer shall remain unaffected, as shall the right of the customer to prove that no damage or a reduction in value was incurred at all or that it was significantly lower than the lump sum. Further or other rights of us remain unaffected.

IV. Delivery dates, product availability

Delivery dates shall only be binding if we have confirmed them at least in text form (e.g. in the order confirmation). For the rest, the delivery time is regularly seven (7) working days from dispatch of the order confirmation. If a down payment has been agreed, the delivery period begins with the bank’s notification of receipt of payment.
A binding delivery date is met if the Customer has been notified in advance that the goods are ready for dispatch and the delivery item is ready for collection at our registered office on the deliverydate.
We will inform the Customer immediately if the product is not deliverable or not deliverable in time. In case of force majeure or other events beyond our control, the delivery period shall automatically be extended accordingly. If the product is not available for the foreseeable future, we are entitled to withdraw from the contract. In case of a withdrawal, we will refund any payments made by the Customer without delay. The same shall apply if the delivery item is unavailable because a congruent (partial) hedging transaction concluded by us has not been fulfilled by our supplier or a required import permit has not been issued. The above provision shall not affect statutory rights of the Customer due to delay in delivery.
Delay in delivery requires a reminder from the Customer, at least in text form.
Scheduled service appointments will be charged in full if cancelled by the customer with less than 72 hours notice.

V. Transfer of risk

Risk shall be transferred to the Customer when the deliverable leaves our registered office. This shall equally apply for entitled partial deliveries as well as for the acceptance of packaging / transport / shipping and / or insurance costs by us.
In the event of default of acceptance, risk shall be transferred to the Customer upon the expiry of the contractually agreed delivery date / receipt of the notification that the deliverable is ready for dispatch.
The installation of the instruments and/or their retrofits can only take place provided that all the necessary requirements have been prepared on site at the customer's premises in accordance with the installation requirements. These requirements will be sent to the customer by Elementar India Private Limited before the installation phase and the customer must return a confirmation by e-mail. Should the technicians commissioned by Elementar India Private Limited find installation conditions that do not comply with the requirements, Elementar India Private Limited reserves the right not to continue or to interrupt the installation and to charge the corresponding expenses for the work and travel of the technicians for the entire period of the planned deployment.

VI. Prices, other costs, terms of payment

Our current prices at the time the order is completed (including any applicable discounts) shall apply. The prices refer to the products offered in the catalogue.
Unless expressly agreed otherwise, prices shall not include packaging / transport / shipping and / or insurance costs. They shall not contain GST.
Payments are to be made within 30 days of the invoice date without deduction to our account. Thereafter, default occurs without reminder. During period of default, we shall be entitled to pay interest on the outstanding amount at the statutory default interest rate. We reserve the right to assert further damages caused by delay.

VII. Retention of title, software, resale

Until our claims arising from a delivery contract or an ongoing business relationship with the Customer have been met in full, we shall remain the owner of all delivery items.
Elementar retains all title and exclusive (copy-) rights of use to catalogues, product descriptions and information, assembly and operating instructions and quotation letters - in electronic form as well -even after transfer / handing over them to the Customer. The Customer will need to obtain our prior consent to pass on / forward the aforementioned materials.
If the deliverable contains a computer program the Customer shall be entitled to use thisexclusively for this deliverable. The use for a further or another object is prohibited. All other rights to the program and its documentation and any copies that may have been supplied shall remain with us or the program supplier.
A commercial resale of delivery items requires our prior consent.

VIII. Quality and Defect Rights

In case of a defect, we may, at our discretion, provide subsequent performance by remedying the defect (subsequent improvement) or by supplying a defect-free item (replacement delivery). The warranty period and the limitation period shall each be twelve (12) months from delivery or as might have been agreed otherwise.
The Customer has to give us the time and opportunity required for subsequent performance. In particular, the Customer must provide us with the objected delivery item for testing purposes. If the request to remedy the defect turns out to be unjustified, we shall be entitled to demand reimbursement of the resulting costs from the Customer.
We are entitled to make subsequent performance dependent on the customer paying the price of the delivery item. The customer is entitled to retain a reasonable part of the price in proportion to the notified defect.
If the subsequent performance failed or has been delayed beyond a reasonable time or if we can refuse it in accordance with the statutory provisions, the purchase price may be reduced and, in the case of a significant defect, alternatively, the delivery contract may be rescinded.
The Customer has to inspect the delivery items carefully immediately upon receipt. He has to report obvious differences in quantity, damage and errors within seven (7) working days of receipt, if they are hidden within seven (7) working days of discovery (exclusion period). Timely dispatch of the notification shall suffice to meet the deadline.
In general, a guarantee is not provided. We only assume a guarantee if this is explicitly stated in the order confirmation for the respective product.
Due to technical circumstances, delivery items may deviate slightly from their descriptions and/or representations in catalogues and other documents (also in electronic form), for example in colour and dimensions. Minor deviations do not constitute a material defect. We reserve the right to make quality improvements.

IX. Liability

In the event of intent and gross negligence – on whatever legal grounds – we shall be liable for damages in accordance with the statutory provisions.
In the event of ordinary negligence, we shall only be liable in the event that a material contractual obligation is breached, limited to reimbursement of the foreseeable, typically occurring damages. A material contractual obligation is an obligation which must be fulfilled for the intended purpose of the concluded contract to be achieved and which the Customer may regularly rely on to be fulfilled.
The limitation of liability as specified under clause 2 shall not apply to damages resulting from injury to life, body or health. Furthermore, it shall not apply in the event of fraudulent concealment.
If our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.

X. Export Control

The deliveries and services (performance of the contract) shall be subject to the condition that there are no obstacles to fulfilment the basis of national or international regulations, in particular export control regulations as well as embargos or other restrictions. The contracting parties undertake to provide all information and documents required for the export/transfer/import. Delays due to export inspections or approval procedures shall suspend deadlines and delivery times. If required approvals are not granted, the contract shall be deemed not to have been concluded with regard to the parts concerned; claims for damages shall be excluded in this respect and due to the aforementioned exceeding of deadlines.
The customer shall comply with the applicable provisions of Foreign Trade (Development and Regulation) Act, 1992 along with the rules and policies (Foreign trade policy 2015-20) made thereunder as may be amended from time to time when passing on the goods delivered by us (including hardware and/or software and/or technology as well as related documentation, irrespective of the manner in which they are made available) or the work and services provided by us (including technical support of any kind) to third parties.
Before passing on the goods delivered by us or the work and services provided by us to third parties, the customer shall in particular check and take appropriate measures to ensure that
- it does not violate any embargo of the India and Germany also taking into account any restrictions on domestic transactions and any prohibitions on circumvention - by such transfer to third parties, by brokering contracts for such goods, work and services or by providing other economic resources in connection with such goods, work and services;
- such goods, works and services are not intended for a prohibited or licensable armaments-related, weapons-related use, unless any required licenses have been obtained;
- the regulations of all relevant sanctions lists of India issued under Indian ‘Foreign Trade (Development and Regulation) Act, 1992’ and corresponding German laws concerning business transactions with companies, persons or organizations named therein are complied with.

To the extent necessary for the performance of export control inspections by authorities or by us, the customer shall, upon request, immediately provide us with all information regarding the final recipient, the final destination and the intended use of the goods delivered by us or the work and services performed by us as well as any export control restrictions applicable in this respect.
The customer shall fully indemnify Elementar against all claims asserted against us by authorities or other third parties due to the customer's failure to comply with the aforementioned export control obligations and undertakes to compensate us for all damages and expenses incurred in this connection.

XI. Final provisions

Unless otherwise stipulated in these GTC, declarations that have to be issued after conclusion of the contract (e.g. reminders, setting of deadlines, notifications of defects, and declarations of withdrawal) require at least the text form (e.g. e-mail) to be effective.
The Customer may only assign claims arising from the delivery contract with our prior consent and only as far as our interests are not unreasonably impaired by the assignment.
In case of a breach of contract by the Customer, in particular payment default, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and demand the return of the delivery items or demand the assignment of any claims the Customer may have against third parties. After taking back the delivery items, we shall be entitled to dispose of them. The proceeds from the sale shall be offset against the Customer’s liabilities, minus reasonable selling costs.
We shall also be entitled to refuse performance if the financial circumstances of the Customer have already deteriorated significantly prior to the conclusion of the contract and, despite careful examination; we only recognize this after the conclusion of the contract.
The Customer shall only have the right to withhold payments or set them off against counterclaims to the extent that his counterclaims are legally established, undisputed or acknowledged by us. The Customer may only exercise a right of retention if and insofar as his counterclaim is based on the same contractual relationship. Any warranty rights according to clause VIII remain unaffected hereby.
These GTC and all legal relationships between us and the Customer are subject to the Indian law.
The courts with jurisdiction over our registered office in, Gurugram, Harayana, India, alone shall have jurisdiction over all disputes directly or indirectly arising from this contractual relationship. However, we shall also be entitled to make claims for damages against the Customer in the general legal venue of the Customer.
The contractual language isEnglish.

Status: April 2022