- Unless expressly agreed in writing otherwise, these General Terms and Conditions of Business (“GTC”) of Hansgrohe Pty Ltd (“Seller”) shall apply to all contracts for the supply of goods by the seller to a customer (the Buyer). The Buyer warrants and represents that it is purchasing goods from the Seller in the course of Buyer’s business for resupply to its customers.
- The GTC together with the specific terms contained in an accepted order constitute a contract between the Seller and the Buyer. In the event of any conflict between a term of the GTC and the terms of an accepted order, the terms of the accepted order shall prevail.
II. Formation of contract
- Any quotation prepared by the Seller is not an offer and it may be withdrawn or altered without notice. Submission of an order by the Buyer constitutes an offer that may be accepted by the Seller unless the order is revoked in writing prior to acceptance. The Seller is under no obligation to accept any orders from the Buyer and the Seller may do so in its absolute discretion.
- In the event of any dispute as to the terms of an order, the documents provided by the Seller during the order process, such as images and drawings, as well as technical details and specifications, shall be decisive.
III. Scope of delivery, transportation, and passing of risk
- Delivery of the goods will be to the agreed point of shipment. The risk in the goods shall pass to the Buyer on shipment of the goods. If the shipment is delayed by the conduct of the Buyer or due to circumstances for which the Seller is not culpable, then the risk shall pass to the Buyer upon notification by the Seller of readiness for delivery.
- To the extent not otherwise stipulated, the Buyer shall take out transportation insurance at its own expense on the basis of customary terms and conditions therefore, which insurance shall cover transportation risk of the goods encompassed by the order from the place of shipment to the stipulated destination location. The expenses of transportation shall be borne by the Buyer.
- In the event that an agreement is reached on trade terms, the latest version of Incoterms shall apply.
- The Seller, acting reasonably, shall have the right to make partial deliveries and issue partial invoices prior to the expiration of the delivery deadline.
- If the shipment or the delivery of the goods is delayed at the wish of the Buyer or due to circumstances which originate in the Buyer’s sphere of risk and responsibility, then the Buyer will be liable on demand to reimburse the Seller for any loss arising from the delay in delivery. This may include without limitation any warehousing expenses that have arisen, as well as the costs of interest on the capital invested in the goods. Notwithstanding the foregoing, the Seller shall have the right, after setting a reasonable deadline to dispose of the goods and to deliver substitute goods to the Buyer within a reasonably extended deadline or to cancel the contract.
- Seller will procure that the products shipped by Seller to the Buyer comply with the laws and regulations of the country / countries designated by the Buyer. In case the Buyer - after receipt of the products - exports the products to third countries it is the obligation of the Buyer to make sure that the products comply with the applicable local laws and regulations of such countries with regard to the products. If, however, the Buyer chooses to export products to third countries, the Buyer is solely responsible for any and all liability resulting from any non-compliance of the products.
IV. Delivery deadlines and operational disruptions
- A delivery deadline shall not commence until after the Seller has received all information required to effect the delivery and until after any applicable down payment has been made. A delivery deadline is complied with if the delivery is brought to dispatch within the deadline or if notification has been made of the readiness for delivery.
- Delivery deadlines shall be extended upon the occurrence of any circumstances for which the Seller or its suppliers are not culpable (including, without limitation industrial unrest, force majeure, and other operational disruptions for which the Seller or its suppliers are not responsible or over which the Seller or its suppliers have no reasonable control) for the duration of the operational disruption. The Seller shall inform the Buyer about the prospective operational disruption and set a new delivery date. If the goods are undeliverable even by the new delivery deadline, then both parties shall have the right to cancel the contract, in whole or in part; any consideration of the Buyer’s already rendered shall be reimbursed without undue delay.
V. Prices and ancillary expenses
- Deliveries shall be effected at the prices current upon entering into the contract, in accordance with the Seller’s confirmation of the order. All prices shall be valid ex works/place of delivery. For Buyers resident in Australia, all prices shall be understood to be in Australian Dollars, insofar as not otherwise marked, as well as any statutory import value-added tax and any other taxes as provided by law (e.g., customs duties, fees) in the respectively valid amount. For Buyers resident in New Zealand and Fiji, all prices shall be understood to be in New Zealand Dollars, insofar as not otherwise marked, but excludes any statutory value-added tax and any other taxes (e.g., customs duties, fees).
- Unless otherwise stated, all prices stated by the Seller are exclusive of GST. In addition to any amounts payable by the Buyer to the Seller, the Buyer must pay to the Seller an additional amount on account of GST.
- The Seller will issue the Buyer a tax invoice in the form required by the GST Law where applicable.
- The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the price for the goods.
- The Buyer indemnifies the Seller for any loss that the Seller may incur as a result of the incorrect payment or non-payment of any GST and associated fees or penalties.
- If the Seller becomes liable for any penalties or interest as a result of a late payment of GST, where that late payment is as a direct result of a failure of the Buyer to comply with its obligations under the GTC, the Buyer must pay to the Seller an additional amount on demand equal to the amount of those penalties and interest.
- The Seller reserves the right to reasonably raise the stipulated prices for a time period of more than four (4) months if, after entering into the contract, increased costs occur, including, but not limited to, those due to collective bargaining agreements, market-based acquisition prices, or increases in the price of materials. These shall be substantiated upon demand to the person or party placing the order.
- Unless agreed otherwise, for Buyers resident in Australia, delivery terms are EXW subject to minimum order values as stated in the agreed Terms and Conditions with the Seller, below which, a delivery surcharge shall be added to the invoice which the Buyer is liable to pay the Seller. Any costs and fees for express delivery of goods requested by the Buyer, shall always be borne by the Buyer.
- For Buyers resident in New Zealand and Fiji, the Buyer is liable to pay a freight surcharge according to the mode of delivery.
VI. Payment and default
- Payments are to be rendered to the Seller without any deduction, as specified in the invoice (unless otherwise pre-agreed by the Seller in the Terms and Conditions with the Buyer), immediately after receipt of the invoice and delivery of the goods to the Buyer, unless credit terms are granted in the terms and conditions agreed with the Buyer. The Seller shall, however, at all times (for example for large project orders or credit limits being exceeded or account overdues), have the right to require pre-payment before any obligation to deliver the goods arises. The Seller, acting reasonably, may determine the method of payment. If the Seller in its discretion decides to accept payment by cheque, payment shall only be deemed to have occurred after the cheque has been redeemed. The Buyer may not deduct, and must bear, any expenses (including bank charges) that may apply in respect of a particular method of payment. The Seller may offset any payment received by the Buyer against any debt owned to the Seller by the Buyer.
- In the event of a payment default, the Buyer shall be liable for statutory default interest charged.
- The Buyer shall be entitled to rights of setoff vis-à-vis the Seller’s claims only if the counterclaim is undisputed or has been judicially determined. This provision shall not apply to the extent that the counterclaim directly concerns the Seller’s primary performance duty arising from the same contract.
- Any assignment of claims shall require the consent of the Seller.
- If, after entering into the agreement or after delivery of the goods, the Seller forms the view that the Buyer is not or is no longer creditworthy, for example if any invoices despite reminders have not been paid; or the Buyer is subject to an Insolvency Event, then the Seller shall be able to immediately assert claims even for receivables not yet mature and for such receivables for which a cheque was given. In these instances, for still-undelivered goods the Seller shall be able to demand pre-payment, the rendering of a security, or delivery based solely upon cash-on-delivery. If the Buyer does not comply with this demand within the reasonable deadline established for it, then the Seller shall have the right to cancel the contract.
VII. Retention of title
- The Seller shall retain title to the delivered goods until full payment in respect of the goods has been received by the Seller.
- To secure payment of the monies due to the Seller under the GTC, the Buyer grants a Security Interest in the purchased goods and the proceeds of sale of those goods to the Seller. Any proceeds of sale of the goods must be held on trust for the Seller and kept separate from the Buyer’s own funds until full payment of the goods has been received by the Seller.
- While any amount or obligation of the Buyer under the GTC remains unsatisfied, the Buyer:
- authorises the Seller (at the sole cost of the Buyer) to do anything which the Seller considers reasonably necessary or desirable to effect the registration of its Security Interest on the Personal Property Securities Register to ensure that it is enforceable, perfected and otherwise effective and the Buyer agrees to provide all assistance required by the Seller to facilitate this;
- for Buyers resident in Australia, must not assign or grant a security interest over any accounts or other proceeds relating to the sale of the goods and must immediately provide the Seller with a copy of any notice the Buyer receives under section 64 of the Personal Property Securities Act 2009 (Cth) (PPSA AU);
- irrevocably authorises the Seller to repossess any or all of the goods, to enter upon any premises where the Seller reasonably believes any of the goods are located and remove them and obtain any necessary consent from any other person to enable this to occur; and
- acknowledges that the Seller may immediately upon the Buyer breaching these Terms (or any other agreement between the Seller and Buyer relating to payment for any goods that are subject to a Security Interest granted to the Seller under these terms) take any action to enforce its Security Interest without demand or notice (to the extent permitted by law).
- To the extent the law permits, the Buyer agrees to waive its rights to receive from the Seller any notice required to be provided under the PPSA AU and agrees that sections 142 and 143 of the PPSA AU do not apply to these Terms and that the Seller need not comply with sections 95, 125, 130, 132(3)(d), 132(4) of the PPSA AU.
VIII. Limitation of liability
- Subject to clause VIII 5 and any other applicable legislation:
- Under no circumstances will the Seller be liable to the customer for any indirect and consequential loss, loss of revenue, profits, anticipated savings, goodwill or business opportunity, injury to the Buyer's reputation.
- Subject to clause VIII 2. the Buyer acknowledges and agrees that the Seller, its employees, contractors and/or agents will not be liable to the Buyer for any loss howsoever arising including from breach of contract, under tort, under statue or otherwise.
- Clause VIII 1 b. does not apply to any liability for death or personal injury to the extent caused by the Seller's negligence or willful misconduct.
- The Seller's liability to the Buyer for loss or damage of any kind is reduced to the extent (if any) that the Buyer causes or contributes to the loss or damage. This reduction applies whether the Seller's liability is in contract, tort (including negligence), under any statute or otherwise.
- The Seller excludes to the fullest extent possible under law, all implied terms and warranties whether statutory or otherwise.
- For Buyers resident in Australia, in circumstances where the Consumer Guarantees are applicable, to the maximum extent permitted by law the Seller limits its liability for a breach of a Consumer Guarantee to replacing the relevant goods or refunding the price of the relevant goods (at the Seller's election) in accordance with section 64A of the ACL.
- For Buyers resident in New Zealand, the Consumer Guarantees apply where the Buyer acquires the goods as a Consumer. In circumstances where the Consumer Guarantees are applicable, and the Buyer is buying for a business purpose then to the maximum extent permitted by law the Seller limits its liability for a breach of a Consumer Guarantee to replacing the relevant goods or refunding the price of the relevant goods (at the Seller's election) in accordance with section 43 of the CGA.
- Goods delivered by the Seller that are not defective shall not be taken back, unless there exists an appropriate claim of the Buyer.
- If, by way of exception in the individual case, the Seller in its absolute discretion decides to accept a return of goods that are not defective, then, to the extent permitted by law, appropriate recompense (30% of the purchase price paid by the Buyer for the Goods) shall be levied for this purpose within the framework of a corresponding agreement. Further recompense shall be applicable as determined by the Seller, if the returned Goods are received not in original condition but with damage or missing parts. The risk of transportation and the costs of transportation shall be borne by the Buyer.
XI. Rescission of the purchase contract
- In the event of rescission of the contract (e.g., due to cancellation of one of the contracting parties), the Buyer shall be obligated, irrespective of the remaining process as contemplated under the following paragraphs, to surrender the goods to the Seller in advance. The Seller shall have the right to have the deliverable picked up from the Buyer’s premises.
- Furthermore, the Seller shall be able to demand reasonable compensatory payment from the Buyer for any deterioration or destruction of the goods, or anything occurring or having occurred that renders surrender of the goods impossible for another reason, which is caused by any wrongful act or omission of the Buyer. In addition, the Seller shall be able to demand compensatory payment for the use or the usage of the goods if the value of the goods has declined between the completion of its installation and its completed, immediate repossession by the Seller. This decline in value shall be computed from the difference of the total price in accordance with the order and the current fair value as it is determined by the sales proceeds or, if a sale is not possible, through the estimate of a sworn expert.
No assignment of rights and/or transfer of the obligations of the Buyer arising from this contract shall be permissible without the written consent of the Seller.
XIII. Export control provisions
- The goods may be subject to the export control provisions of the Federal Republic of Germany, of the European Union, of the United States of America, or of other countries.
- In the event the goods are subject to export control provisions as referred to in clause XIII 1, the Buyer shall be responsible for compliance (including all costs of compliance) with the provisions of any applicable law relating to the export of the goods.
XIV. Place of jurisdiction and applicable law
- The law of Victoria, Australia shall apply to these GTC and the contractual relationship between the parties, to the exclusion of uniform international law, including, but not limited to, United Nations Sales of Goods law. The law of Victoria, Australia shall also apply to extra-contractual debt relationships standing in close connection with the contract.
- The exclusive place of jurisdiction for any and all disputes, claims and controversies arising from or relating to this contract shall be Victoria Australia.
- Any provision of the GTC which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the GTC enforceable.
- A provision of the GTC must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
- The meaning of any general language used in the GTC is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation.
- For the purposes of the GTC:
- ACL means schedule 2 of the Competition and Consumer Act 2010 (Cth).
- CGA means the Consumer Guarantees Act 1993 (NZ).
- Consumer has the meaning given in the ACL or the CGA as applicable
- Consumer Guarantees means the statutory guarantees in Division 1 of Part 3-2 of the ACL, or as set out in the CGA, as applicable
- GST means a tax, levy, duty, charge or deduction, together with any related additional tax, interest, penalty, fine or other charge, imposed by or under the relevant GST Law.
- GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) for sales in Australia Goods and Services Tax Act 1985 for sales in New Zealand.
- Insolvency Event includes the winding up, dissolution or cessation of business, the appointment of an administrator, liquidator, receiver or an official manager, an assignment for the benefit of creditors, scheme or arrangement with creditors, insolvency and bankruptcy of a person or any similar procedure.
- PPSA means the Personal Property Securities Act 1999 (NZ).
- PPSA AU means the Personal Property Securities Act 2009 (Cth)
- Security Interest has the meaning attributed to that term in the PPSA or the PPSA AU as applicable.
[Hansgrohe Pty Ltd, Level 10 , 530 Collins Street, Melbourne VIC 3000, Australia]