GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
- These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Hansgrohe, Inc. (“Seller”) to the buyer named in the Sales Confirmation (as defined below) (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- The quotation or confirmation of sale (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral with respect to the subject matter hereof. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms, all of which are hereby rejected. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
- Unless otherwise agreed in writing, Buyer will be deemed to have waived any objection to these Terms if Seller has not received written Notice of such objection within ten (10) days of the date of Buyer’s In any event, Buyer will be deemed to have agreed to these Terms if Buyer accepts any portion of the Goods. Buyer acknowledges that the prices quoted by Buyer are predicated on the enforceability of these Terms, that the price of the Goods would be substantially higher if these Terms did not apply, and that Buyer accepts these Terms in exchange for such lower prices.
- Forecasts. From time-to-time, Buyer may, but shall not be required to, provide Seller with Any Forecasts are for information purposes only and do not create any binding obligations on behalf of either Party. Neither Seller's nor Buyer's failure to comply with any Forecast is a breach of this Agreement. For the purposes of this Agreement, “Forecast” means, with respect to any time period, a good faith forecast of Buyer’s demand for each calendar month during the period, broken down by individual Goods, which approximates, as nearly as possible, based on information available at the time to Buyer, the Purchase Orders subsequently to be placed by Buyer for each such calendar month.
- Delivery of Goods.
- Unless otherwise agreed to in writing between the parties, the Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in
- Notwithstanding Section 2(a) hereof, if under this Agreement Buyer submits blanket purchase orders for Goods to Seller, Buyer shall issue any releases under such purchase order, with each such release including a definite quantity of Goods, no later than 3 months before Buyer’s preferred date of If Buyer issues any such release less than 3 months before Buyer’s preferred date of delivery, Seller will use reasonable efforts to meet such preferred date of delivery and quantity of Goods but Seller shall not be liable for any delays or delivering less than the quantity specified in such release.
- Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods O.B. Alpharetta, Georgia, at which time title and all risk of loss will pass to Buyer.
- Unless Seller otherwise agrees in writing, shipments will be by a carrier and by the route selected by Seller. The carrier will act as Buyer’s agent and delivery by Seller to such carrier will constitute delivery to Buyer. Buyer will pay all freight charges and assume the risks of transportation, including delay, damage and loss, unless Seller otherwise agrees in writing. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the
- Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been
- Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity
- Except as provided under Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to
- Security Interest. As collateral security for the payment of the purchase price of the Goods and performance in full of all the obligations of the Buyer under this Agreement, the Buyer hereby pledges and grants to the Seller, a lien on and security interest in and to all of the right, title, and interest of the Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase-money security interest under Article 9 of the Georgia Uniform Commercial Code and Buyer grants to Seller power of attorney to file and cause all documents and actions to file and perfect any security interest, including but not limited to any UCC-1 filing.
- Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or
- Inspection and Rejection of Nonconforming Goods.
- Buyer shall inspect the Goods within 7 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
- If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 1490 Bluegrass Lakes Parkway, Alpharetta, GA 30004. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods F.O.B Alpharetta, Georgia.
- Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Notwithstanding the foregoing, if Seller, at its sole discretion, authorizes Buyer to return some or all of the conforming Goods Seller may charge to Buyer a restocking fee of 25% of the net value of any returned Goods, with a minimum fee of $20 (“Restocking Fee”), and Seller may deduct such Restocking Fee from any credit or refund of the Price, if any. All Goods must be returned in their original product box. Shower panels and shower columns will incur a $40 per item rebox charge. All other damaged or otherwise unusable boxes will incur a $10 per Good rebox charge.
- Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
- All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- Payment Terms.
- Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s Buyer shall make all payments hereunder in US dollars by wire transfer, check or as otherwise specified in Seller’s invoice sent to Buyer.
- Buyer shall pay interest on all late payments at the higher of the rate of 1.5% per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice
- Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or
- Limited Warranty.
- Seller extends express, written warranties on the Goods in accordance with the terms, conditions and limitations of the applicable warranty (“Warranty”) set forth on Seller’s Web Site (hansgrohe-usa.com or such other address as may be identified on the Product Documents) and/or the applicable product packages, labels and instruction sheets (“Product Documents”). Fulfillment of
the Warranty obligations to the purchasers of Seller’s products (or their permissible transferees) is Seller’s warranty obligation for the Goods.
(a) EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S WARRANTY(AS DEFINED IN SECTION 10(A)), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR
- The Seller shall not be liable for a breach of its obligations under this Agreement or based on any other theory of liability unless: (i) Buyer gives written notice of the defective Goods, reasonably described, to Seller within 7 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
- The Seller shall not be liable for a breach of its obligations under this Agreement or based on any other theory of liability if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
- Buyer agrees that all claims arising under this Agreement will only be valid for one (1) year from the date of purchase. Subject to Section 10(d) and Section 10(e) above, with respect to any claims made by Buyer during such one (1) year period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) issue a credit for such Goods in accordance with this Agreement and the Warranty, provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(a) THE REMEDIES SET FORTH IN SECTION 10(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE SELLER’S OBLIGATIONS UNDER THIS AGREEMENT.
- Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IN SECTION 11(b) IS
BUYER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT THE REMEDY IN SECTION 10(f) FAILS OF ITS ESSENTIAL PURPOSE.
(b) SELLER’S MAXIMUM AGGREGATE LIABILITY, IF ANY, FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE THEN-CURRENT WHOLESALE PRICE OF THE GOODS SOLD HEREUNDER.
- Compliance with Law. In the event that Buyer ships the Goods to, or sells the Goods in, a state or country other than the state specified in the purchase order, it is the obligation of the Buyer to make sure that the Goods comply with the applicable laws and regulations of such states or countries with regard to the Goods. In the event that Buyer ships the Goods to a distribution center, it is the obligation of the Buyer to make sure that the Goods comply with the applicable laws and regulations of each state or country in which the Goods are sold.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In addition, Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or
- Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
- Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, as to Seller and its facilities and products and the facilities, materials and products of its suppliers, acts of God, flood, fire, earthquake, explosion, orders, directions or actions of any public authority, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, labor shortages, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, components or services, telecommunication breakdown or power outage, shortage or failure (all such circumstances collectively, “Force Majeure Events”). Seller may terminate this Agreement with immediate effect in case of any Force Majeure Event, which continues for 5 days or During any such delay or failure to perform by Seller, Seller’s obligations under these Terms shall be suspended and Seller will not have any obligation to provide Buyer with the products or goods from other sources or to pay or reimburse Buyer for any additional costs to Buyer of obtaining substitute products or goods. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of products or goods among its customers in any manner that it deems fair and reasonable in its sole discretion.
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this agreement.
- Arbitration. The Parties agree that any dispute, claim, or controversy arising out of, connected with, or related to this Agreement (“Dispute”), or the dealings between the Parties occurring at any time (including before the inception of or after termination of this Agreement), including without limitation any Dispute arising out of, connected with, or related to (i) the creation, existence, scope, validity, effect, interpretation, performance or non-performance, or termination of, or the legal relationships established by, this Agreement, or the consequences of its supposed nullity; (ii) any non-contractual rights or obligations arising out of, connected with, or related to this Agreement; and (iii) the relationship between the Parties created by this Agreement and any dealings between the Parties related to the subject matter of the transactions contemplated by this Agreement; all regardless of whether such Dispute may be characterized as sounding in contract, tort, breach of duty, fraud (including fraudulent inducement to enter into or fraud in the inception of this Agreement), or any other common law or statutory law or equitable principle or doctrine and regardless of the relief sought (even if such relief includes rescission of this Agreement) shall be finally and conclusively resolved by binding arbitration. Such arbitration will be conducted by one arbitrator in the English language in the city of Atlanta, Georgia, under the administration of the American Arbitration Association (“AAA”) in accordance with the laws of the State of Georgia and the AAA’s Commercial Arbitration Rules and Mediation Procedures (collectively, the “Rules”). The Parties to the arbitration shall facilitate the arbitration by: (i) conducting arbitration hearings to the greatest extent possible on successive days; and (ii) observing strictly the periods established by the Rules or by the arbitrator for the submission of evidence or briefs. Any award rendered by the arbitrator shall be final and binding upon each Party to the arbitration and judgment on the award may be entered in any court of competent jurisdiction. The arbitration award may be enforced by any court of competent jurisdiction through injunctive or other equitable relief, as well as all relief and process available at law. The arbitrator may issue interim awards, interlocutory, provisional or partial relief, including temporary restraining orders, preliminary injunctions, orders to compel discovery, orders of attachment, protective orders, any of which may be enforced as an arbitration award by any court of competent jurisdiction. Any arbitration award for money shall be made and shall be payable in U.S. dollars. The arbitrator may award interest from the date of any breach of this Agreement and shall fix the rate of interest on any amount awarded from the date of the award to the date the award is paid in full.
- Submission to Jurisdiction for Enforcement. For purposes of an action to confirm or enforce any award entered in the arbitration, the Parties hereby submit to personal jurisdiction in the Fulton County Superior Court, State of Georgia, or the United States District Court for the Northern District of In addition, for purposes of an action to enforce any award entered in the arbitration, Buyer hereby submits to personal jurisdiction in any court anywhere in the world having jurisdiction over property that is the subject of this Agreement or Buyer’s affairs, other property, or assets (including money and deposit accounts) in respect of or against which such award may be enforced, regardless of whether such affairs, property, or assets have any relation to the subject matter of this Agreement and even if Buyer’s contacts with the forum for enforcement are fleeting, incidental, or unintentional.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Law, Confidential Information, Governing Law, Arbitration, Submission to Jurisdiction for Enforcement and survival.