These General Terms and Conditions of Business (“GTC”) of Hansgrohe Pte. Ltd. (“Seller”) shall apply, to the extent that nothing else is provided for, to all sale and purchase contracts and contracts for work and materials as well as to other orders (“Order(s)”) between the Seller and customers (“Buyers”) who is not a “consumer” as defined under Section 2(1) the Consumer Protection (Fair Trading) Act (Cap 52A) of Singapore (“CPFTA”). Any divergent or contradictory general terms and conditions of business of the Buyer shall not be recognized or incorporated herein, even if they are not expressly contradictory.
The GTC shall also apply in equal measure to any future business relationships with the same Buyer, even if they are not expressly stipulated. Insofar as nothing else is stipulated, the GTC shall apply in the version valid as of the date of the Buyer’s order or in any event, in the version most recently communicated to the Buyer using word documents.
In the event of any contradiction with any Statute or Incoterms, that cannot be reasonably reconciled, the terms of this GTC shall prevail.
The sub-headings here and below are for reference only and do not govern or restrict the interpretation of the terms and conditions.
II. Conclusion of contract
The Seller’s offers are deemed to be non-binding, insofar as they are not expressly designated as binding in the text of the offers. The Buyer’s Order communicated to the Seller in writing and accepted by the Seller shall be considered to conclude a binding contract. The Buyer’s offer shall, in the absence of any deviating provision, remain valid for at least eight (8) days. The contract shall be formed only when the Seller confirms the order to the Buyer in writing (including the word documents).
The Seller shall assume a guarantee to deliver vis-à-vis the end-consumers only where the Seller issues specifically a separate guarantee declaration to that effect.
The documents transferred by the Seller within the scope of contract initiation, such as images, photographs and drawings, as well as technical details and specifications made by the Seller, shall be decisive of the product description. Any technical, engineering, or other changes to be made to the Order within eight (8) days of its issue, shall be permissible, if and to the extent acceptable for the Buyer.
Separately negotiated individual agreements, including any special commercial clauses, shall take precedence over these GTC. A written contract or written confirmation by the Seller shall be decisive of the contents of any such agreements.
III. Scope of delivery, transportation, and passing of risk
Delivery by the Seller is stipulated to be “ex works” or at another point of shipment known to the Buyer, where the place of performance for the delivery and any supplementary performance is located. The “ex works” applied for delivery in Singapore only. Goods which were produced in Germany and China will be shipped under FCA Germany port and Shanghai port respectively for Hong Kong, Taiwan, South Korea, Malaysia, Indonesia, Philippines, Thailand, Myanmar, and Cambodia. The risk shall pass to the Buyer no later than on the 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 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, which insurance shall cover transportation risk of the goods encompassed by the order from the place of shipment to the stipulated destination and specific location. The expenses of transportation shall be borne by the Buyer.
In the event that commercial clauses are stipulated, in case of doubt the Incoterms (2021) as currently amended shall apply.
The Seller shall have the right to make partial deliveries and partial invoices in a reasonable scope prior to the expiration of the delivery deadline.
If the shipment or the delivery of the deliverable is delayed at the request of the Buyer or due to circumstances which originate in the Buyer’s sphere of risk and responsibility, then the Buyer shall reimburse the Seller for any warehousing expenses that have arisen, as well as the costs of interest on the capital invested in the deliverable. In the event of warehousing by the Seller, the claim shall amount to at least 0.5% of the still-outstanding invoice amount for each month outstanding, beginning one (1) month after notification of the readiness for delivery. The Seller may also verify that no loss or damage or that substantially lesser damage has arisen. However, the Seller shall have the right, after setting a reasonable deadline for delivery and at its expiry, to dispose of the deliverable and to deliver a substitute to the Buyer within a reasonable extended deadline or to cancel the contract.
The Seller will procure that the products shipped 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 the Buyer shall ensure that the products comply with the applicable local laws and regulations of such countries and the Buyer shall be solely responsible for any and all liability resulting from any non-compliance of the products.
IV. Delivery deadlines and operational disruptions
Delivery deadlines shall commence by no earlier than after the taking into receipt of all documents requisite for determining the contents of the Order, insofar as the Buyer shall procure such in accordance with the agreement and, as the case may be, after receipt of any down-payment. 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 such circumstances for which the Seller or its suppliers are not culpable and which are of considerable influence upon the fabrication or delivery of the goods, including but not limited to force majeure events such as and defined herein to include industrial unrests, labour strikes, riots, wars, outbreak of hostilities, acts of sabotage and/or terrorism, earthquakes, storms, inclement weather, fires, outbreak of diseases, epidemics or pandemics affecting or disrupting flights or shipment, as well as other operational disruptions for which the Seller or its suppliers are not responsible, for the duration of the operational disruption. The Seller shall as far as it is able, 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 the Buyer has already rendered shall be reimbursed without undue delay. Any claims for compensatory damages in lieu of performance shall be governed under clause X, subject always to the law on force majeure and frustration of contract due to impossibility of performance.
The prerequisites of any delivery default shall be determined, irrespective of the provisions above, in accordance with statutory provisions under the Sales of Goods Act (Cap. 393). In every case, the Buyer shall give written warning notice to the Seller for possible remedial actions to be taken within a reasonable time before any deemed delivery default.
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. All prices shall be understood to be in the currency stated in the confirmation orders / invoices, insofar as not otherwise marked, and to include other ancillary expenses (e.g., installation and instruction costs), as well as the statutory value-added tax or GST and any other taxes as provided by law (e.g., customs duties, fees) in the respectively valid amount.
The Seller reserves the right to raise the fixed stipulated prices reasonably 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 bargain 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.
VI. Payment and default
Payments are to be rendered without any deduction, as specified in the invoice, immediately after receipt of the invoice and delivery of the goods to the Seller. The Seller shall, however, at all times have the right to carry out the respective delivery, in whole or in part, against pre-payment only. A corresponding reservation shall be declared by no later than at order confirmation. The Seller expressly reserves the right to accept cheques / telegraphic transfers which shall only be accepted as payment after they have been encashed / realized. All payments are to be rendered free of expenses. In the case of cheques, the Buyer, without any express agreement, shall bear any discount, collection, and other bank charges. Payments shall be initially set-off against costs, then interests, and then the principal of each older main receivable successively.
In the event of default, default interest shall be charged at 9% per annum from the due dates of each invoice.
The Buyer shall be entitled to rights of set-off and retention vis-à-vis the Seller’s claims only if the counterclaim is undisputed by the Seller 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 written consent of the Seller.
If, after entering into the agreement or after delivery of the goods, it becomes discernible that the Buyer is not or is no longer creditworthy, e.g. Buyer is unable to pay any of its debts as and when they become due; or any legal proceedings are commenced or adjudged against the Buyer for unpaid sums; or any distress or execution proceedings are initiated or levied against any property of the Buyer; or any mature invoices despite request or demand or reminder
s have not been paid; or any other asset deterioration occurs, then the Seller shall be entitled 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 given, then the Seller shall have the right to cancel or rescind the contract. All the rights of the Seller at law (including statutory rights under the Sales of Goods Act) shall remain unaffected.
VII. Retention of title
The Buyer acknowledges that the Seller shall retain title to the delivered goods until full settlement of all receivables arising from the business relation with the Buyer on the date of entering into the contract, including all receivables arising on this date from follow-up orders, repeat orders, or orders for spare parts. To the extent that the value of all security interests to which the Seller is entitled exceeds the value of all secured claims by more than 10%, the Seller shall, at the request of the Buyer, release a commensurate share of the security interest.
In the event of any conduct of the Buyer in contravention of the contract, including, but not limited to, default in payment, the Seller shall have the right to take back the goods that are subject to retention of title. In the Seller’s reclaiming or attaching the goods subject to retention of title, there shall not be any cancellation of the contract, unless the Seller expressly confirms such in writing. The Seller shall be authorized to re-sell the goods to another party; the proceeds from the re-sale are to be set off against the Buyer’s obligations including the contract price, less any expenses that have arisen. The Buyer shall be obligated to treat the goods subject to retention of title with due care and to store and demarcate them separately from other goods. The Buyer shall further be obligated to sufficiently insure these goods at its own expense and at replacement value against any damages due to damage from fire, water, explosion, storm, burglary, and theft. Any security-interest claims arising in the event of damage are to be assigned to the Seller. Insofar that any maintenance and inspection work are necessary, the Buyer shall carry these out at its own expense and in a timely manner.
The Buyer shall not be allowed either to pledge or to assign for security or otherwise encumber the goods subject to retention of title. In the event of pledges or any other infringements of third parties, the Buyer shall notify the Seller in writing without undue delay and to provide the Seller with all information and documents which are necessary to safeguard the Seller’s rights. Officials charged with forced execution or third parties are to be advised of the Seller’s title or retention of title. Insofar as a third party is not in a position to reimburse the Seller for the in- and out-of-court costs of an objection to the execution, the Buyer shall be liable for any shortfall arising to the Seller, subject to the assertion of further claims by the Seller for damage or modification to, or destruction of, the item itself.
The Buyer shall be allowed to resell and/or to process the goods subject to retention of title in the ordinary course of business, as long as the Seller does not assert against the Buyer any rights arising from the ownership proviso. In the event of resale or processing of the goods,
- the Buyer thereby without any further notice required assigns to the Seller all receivables in the amount of the final invoice amount, including value-added tax or GST, which receivables accrue to the Buyer from the resale against its customers or third parties, and independently of whether the item has been resold with or without processing; and the Seller thereby without any notice required accepts the assignment.
- In the event there is a current or running account relationship between the Buyer and its customer, the receivable assigned in advance by the Buyer to the Seller shall also apply to the acknowledged balance as well as, in the event of the customer’s bankruptcy, to the current balance of transactions executed.
- The Buyer shall also be allowed to collect on the receivables after the assignment;
- The Seller’s authorization to collect the receivable itself shall remain unaffected by the Buyer’s right to collect on the receivable subject to the following provision at (e);
- The Seller shall not collect the receivable as long as the Buyer complies with its payment obligations arising from the earned proceeds, is not in any default of payment obligation, and there is no application to initiate any bankruptcy proceedings against the Buyer.
The Buyer shall be obligated upon demand by the Seller to provide a precise list of receivables to which the Seller is entitled, with the names and addresses of the customers, the amount of the individual receivables, the invoice dates, etc.; to issue the Seller all of the information necessary to enforce the assigned receivable; to permit review of this information; and (iv) to disclose the assignment to the customers.
The Buyer hereby declares its understanding that the persons charged by the Seller with retrieval or picking up the goods subject to retention of title, may enter or drive into the building or the premises, in or at which the goods subject to retention of title are located, in order to repossess the goods subject to retention of title.
The processing or remodeling by the Buyer of the item delivered shall always be performed for the Seller. If the item is processed with other objects not belonging to the Seller, then the Seller shall acquire joint title in the new item in proportion to the value of the item delivered to the other processed items as of the time of the processing. Apart from that, the same shall apply to the item arising from processing as to the item delivered subject to retention. If the processing, commingling, or mixing is effected in such a manner that the Buyer’s item is to be regarded as the primary item, then it shall be deemed as stipulated that the Buyer is transferring pro rata joint ownership to the Seller. The Buyer shall safeguard the sole title or joint title for the Seller so arising.
VIII. Claims for defects – limitation period
The statutory provisions at law shall apply to the rights of the Buyer in the event of any material defects and defects of title, insofar as nothing else is expressed in the contract without prejudice to the special statutory provisions governing the final delivery of the goods to a consumer (supplier recourse as provided under Section 52 of the Sales of Goods Act whereby a court order for specific performance is made against the Buyer); however, the provisions under clause X shall apply to any claim for compensatory damages even in the event of such supplier recourse.
Any claims of the Buyer for defects shall presuppose that the Buyer has properly complied with the obligations to inspect and to give notice of defects within the notice period under the warranty period and in any event any claim or action should be commenced within 60 months from the date of purchase.
If a deliverable is defective, then the Buyer shall have the following rights:
- The Seller shall be obligated to supplementary performance by, at its own discretion, remedying the defect by way of repair, or delivering a defect-free item.
- If the repair fails, then the Buyer shall have the right to cancel the contract or to a reduction in the purchase price. Any cancellation shall be precluded if the breach of duty by the Seller is negligible. Any claims of the Buyer for compensatory damages or reimbursement of futile expenditures in the event of any defect
s, shall be governed by the provisions under clause X.
- Any supplementary performance shall include neither the dismantling of the defective goods nor the installation of a new or repaired good, unless the Seller was originally already obligated to carry out the installation.
- The expenditures necessary for the purpose of testing and supplementary performance, including, but not limited to, labor and materials costs (not dismantling and installation costs or costs of transporting the goods to the site of supplementary performance), shall be borne by the Seller, if there is a real defect. Otherwise, the Seller shall be entitled to recover reimbursement from the Buyer any expenses (including, but not limited to, costs of testing and transportation) having arisen from the unjustified demand for defect remediation, unless the lack of any defect was not cognizable by the Buyer.
- The Buyer shall provide the Seller, after coordinated agreement with the Seller, the requisite time and opportunity for the performance of all repairs and replacement deliveries which appear necessary to the Seller. Otherwise, the Seller shall be released from any liability for any consequences arising therefrom. If the Buyer, for operational reasons, desires that a technician be dispatched on an urgent basis, or that work be carried out outside normal work hours, both of which incur additional expense for the Seller, then the Buyer shall bear any additional expenses thereby incurred (e.g., overtime surcharges, longer access routes).
- Warranty shall be provided for spare parts and for repairs in the same scope as for the original deliverable, but, however, limited in time through to the end of the warranty period for the original deliverable.
In principle, goods delivered by the Seller shall not be returned, unless there exists an appropriate claim of the Buyer (e.g., due to cancellation on account of failed subsequent performance).
If, by way of exception in the individual case, the Seller declares that it is ready to accept a return, then an appropriate recompense (as a rule, 25% of the net value of the goods) shall be levied for this purpose by the Seller to the Buyer. The risk of transportation and the costs of transportation shall be borne solely by the Buyer.
X. Liability for compensatory damages
The Seller shall be liable for compensatory damages in accordance with law; only to the extent that nothing else is provided below. In the event of breaches of duty the Seller shall be liable for any willful intent and gross negligence. In the event of simple negligence, the Seller shall be liable only:
- for damages arising from injury to life, limb, or health, and
- for damages arising from any material breach of a material contractual duty (a duty whose accomplishment enables the proper fulfillment of the contract and whose fulfillment a contractual party regularly relies or may rely on); in this case, the liability shall be limited to the compensation of any foreseeable and actual damage subject always to the limitations in clause 40.
Notwithstanding any other provision to the contrary in this GTC and any Order, and to the fullest extent permissible under the applicable law:
- the maximum cumulative liability of the Seller to the Buyer under this GTC for all Orders for all or any proven loss or damage whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the sum in the amount paid by the Buyer to the Seller, or according to contract value, whichever is lower; and
- the liability of the Seller, whether in contract, tort (including negligence or breach of statutory duty) or any other cause of action, for any loss of profit, business, contracts, revenues, anticipated savings, any special, incidental, indirect or consequential loss or damage, and any loss of use, loss of reputation, goodwill, loss of custom or customer relationships or however described on whatever basis in law and equity (collectively known as “indirect loss or damages”), is hereby expressly excluded.
The aforementioned limitations of liability shall also apply to the benefit of the Seller’s employees, co-workers, sales representatives, and support staff.
The liability exclusions or limitations shall not apply to the extent that the Seller has maliciously concealed a defect or has assumed a guarantee for a quality of the item.
XI. Rescission of the purchase contract
In the event of rescission of the purchase 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 clauses, to surrender the deliverable to the Seller in advance. The Seller shall have the right to have the deliverable retrieved or picked up from the Buyer’s premises.
Further to clause 40, the Seller shall be entitled to demand and recover reasonable compensatory payment from the Buyer for any deterioration or destruction of the deliverable, or anything occurring or having occurred that renders surrender of the deliverable impossible for another reason, which occurrence lies within the sphere of the Buyer’s risk or responsibility. In addition, the Seller shall be able to demand compensatory payment for the use or the usage of the deliverable if the value of the deliverable 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 is determined by the sales proceeds or, if a sale is not possible, through the estimate of a sworn expert to be appointed by the Seller.
No assignment of rights and/or transfer of the duties of the Buyer arising from this contract shall be permissible without the written consent of the Seller.
XIII. Export control provisions
The deliverables may be subject to export control provisions of the Federal Republic of Germany, the European Union, the United States of America, or other countries.
In the event of a subsequent export of the deliverable to a foreign country, the Buyer shall be responsible for compliance with the provisions of law of that country.
XIV. Severability and waiver
If any provision of the GTC is found by a court of competent jurisdiction to be illegal, void, invalid or unenforceable, such provision shall be modified to reflect its original intent and purpose, so that it may be interpreted or construed to the extent as may be permitted by law to render the same valid and enforceable and/or such part only of the provision may be deemed deleted and severed but no more than is strictly necessary, and all the other Terms shall remain in full force and effect.
Any delay or failure on Seller’s part to exercise or enforce any part of the GTC, or indulgence given, shall not constitute a waiver of such right or provision.
XV. Entire Terms
These GTC constitute the entire agreement between the parties and supersede any other prior terms or agreements, written or oral.
XVI. Contracts (Rights of Third Parties) Act
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act (Chap. 53B) to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the said Act.
XVII. Place of jurisdiction and choice of applicable law
Parties agree that the law of the Republic of Singapore shall apply to these GTC and the contractual relationship between the parties, to the exclusion of uniform international law (save for the Incoterms), such as but not limited to the United Nations Sales of Goods law. This choice of law shall also apply to extra-contractual debt relationships standing in close connection with the contract.
Parties irrevocably agree that they shall refer and bring any action or application to the Courts of the Republic of Singapore and agree that the Courts of Singapore shall be the sole and exclusive place of jurisdiction for any and all disputes, claims and controversies arising from or relating to this contract including the existence, validity, obligations, and termination of the contract, to the exclusion of any other jurisdiction or Courts elsewhere.
Hansgrohe Pte. Ltd., 69 Mohamed Sultan Road, Singapore 239015, Singapore