General Terms and Conditions of Business as of 1 August 2016
The following terms and conditions of use apply to Hansgrohe South Africa's (Pty) Ltd general business conduct.
1. These General Terms and Conditions of Business (“GTC”) of Hansgrohe South Africa (Pty) Ltd. (“Seller”) shall apply, to the extent that nothing else is provided, to all purchase contracts and contracts for work and materials as well as to other orders (“Order(s)”) between the Seller and customers (“Buyers”) who are not consumers as contemplated under the Consumer Protection Act, 2008 (“CPA”). Any divergent general terms and conditions of business of the Buyer’s shall not be recognized, even if they are not expressly contradicted.
2. The GTC shall also apply in equal measure to any future business relationships with the same Buyer, even if they have not been again 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 the text-form (Textform).
II. Conclusion of contract
1. The offers from the Seller are non-binding, insofar as they are not expressly designated as binding in the text of the offer. The Buyer’s order shall be considered a binding contractual offer, which, in the absence of any deviating provision, shall 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 text-form (Textform)).
2. In principle, the Seller shall assume a guarantee only vis-à-vis end consumers in accordance with a separate guarantee declaration designated as such.
3. The documents transferred by the Seller within the scope of contract initiation, such as images and drawings, as well as technical details and specifications made by the Seller, shall be decisive. Any technical, engineering, or other changes to the order shall be permissible, if and to the extent acceptable for the Buyer.
4. Individual agreements, including commerce clauses (Handelsklauseln), shall take precedence over these GTC. A written contract or the written confirmation by the Seller shall be decisive for the content of such agreements.
III. Scope of delivery, transportation, and passing of risk
1. In principle, 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 risk shall pass to the Buyer by no later than with 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.
2. 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 accordance with Sect. V.5.
3. In the event that commerce clauses are stipulated, in case of doubt the Incoterms shall apply as currently amended.
4. The Seller shall have the right to partial deliveries and partial invoices in a reasonable scope prior to the expiration of the delivery deadline.
5. If the shipment or the delivery of the deliverable 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 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. It shall remain possible to verify that no damage or that substantially lesser damage has arisen. However, the Seller shall have the right, after setting a reasonable deadline and after fruitless expiration thereof, to dispose of the deliverable and to deliver a substitute to the Buyer within a reasonably extended deadline or to cancel the contract.
IV. Delivery deadlines and operational disruptions
1. 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 taking down payment into receipt. 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.
2. 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 not-inconsiderable influence upon the fabrication or the delivery of the goods (e.g., industrial unrest, force majeure, and other operational disruptions for which the Seller or its suppliers are not responsible), 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. Any claims for compensatory damages in lieu of performance as contemplated under Sect. X as well as to the Seller’s rights, including, but not limited to, those in the event of a preclusion of the duty to perform (e.g., due to impossibility) shall remain unaffected.
3. The prerequisites of any delivery default shall be determined, irrespective of the provisions above, in terms of South African legislation. However, in every case, a written warning notice of the Buyer shall be necessary in derogation thereof.
V. Prices and ancillary expenses
1. 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 Rand, 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 and any other taxes as provided by law (e.g., customs duties, fees) in the respectively valid amount.
2. The Seller reserves the right to reasonably raise the fixed 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.
3. In the event of an order value below R500.00, the Seller shall invoice a R100.00 minimum-quantity surcharge. Accepted quantities that are smaller than the specified packaging units shall be processed with a 10% surcharge on the net value of the goods.
4. If the delivery is effected to outside third parties, then a surcharge of 10% of the net value of the goods shall be invoiced.
5. For orders with a net goods value of R750.00 or more, the delivery shall be effected freight paid; in the event of a net goods value below R750.00, the freight costs shall be charged in the invoice. Any express costs and fees for delivery of goods via mail shall always be borne by the person or party placing the order.
VI. Payment and default
1. 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 checks. Checks shall only be accepted as payment after they have been redeemed. All payments are to be rendered free of expenses. In the case of checks, the Buyer, even without any express agreement, shall also have to bear any discount, collection, and any other bank charges. Payments shall be initially set off against costs, then interest, and then each older main receivable.
2. In the event of default, default interest shall be charged in the statutory amount, but at least 10.5% annually; it shall remain possible to substantiate lesser damage up to the amount of the statutory interest rate
3. The Buyer shall be entitled to rights of setoff and retention 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.
4. Any assignment of claims shall require the consent of the Seller.
5. 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., if forced execution measures have been initiated against it; any mature invoices despite reminders have not been paid; or any other asset deterioration occurs, then the Seller shall be able to immediately assert claims even for receivables not yet mature and for such receivables for which a check 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
1. The Seller shall retain title to the delivered goods until 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 desire of the Buyer, release a commensurate share of the security interest.
2. 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 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 the exploitation; the proceeds from the exploitation are to be set off against the Buyer’s obligations, less any exploitation expenses that have arisen. The Buyer shall be obligated to treat the goods subject to retention of title with due care and to store them separately from other goods. Furthermore, the Buyer shall be obligated to sufficiently insure these goods at its own expense and at replacement value against any damages due to damage from fire, water, 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.
3. The Buyer shall not be allowed either to pledge or to assign for security 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. Insofar as a third party is not in a position to reimburse the Seller for the in- and out-of-court costs of a third-party complaint in objection, the Buyer shall be liable for any shortage arising to the Seller, subject to the assertion of further claims for damage to, modification to, or destruction of the item itself.
4. 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. The Buyer already now assigns to the Seller all receivables in the amount of the final invoice amount, including value-added tax, which receivables accrue to the Buyer from the resale against its customers or third parties, and, moreover, independently of whether the item has been resold without or after processing. The Seller accepts the assignment. In the event of a current-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 then-present “causal” balance. 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 this. The Seller shall not itself collect the receivable as long as the Buyer complies with its payment obligations arising from the earned proceeds; the Buyer is not in payment default; and there is no application to initiate bankruptcy proceedings.
5. 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.
6. The Buyer hereby declares its understanding that the persons charged by the Seller with 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.
7. 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 thusly arisen sole title or joint title for the Seller.
VIII. Claims for defects – limitation period
1. The provisions of the Consumer Protection Act, as applicable, shall apply to the rights of the Buyer in the event of any material defects and defects of title, insofar as nothing else is subsequently set forth. However, the provisions in Sect. X shall apply to any claim for compensatory damages even in the event of supplier recourse.
2. Any claims of the Buyer for defects shall presuppose that the Buyer has properly inspected and given due notice of defects to the Seller.
3. If a deliverable is defective, then the Buyer shall have the following rights:
a. The Seller shall be obligated to supplementary performance and shall render such by, at its own discretion, remedying the defect by way of repair, or delivering a defect-free item.
b. If the repair fails, then the Buyer shall have the right to cancel the contract or to reduce the purchase price. Any cancellation shall be precluded if the breach of duty by the Seller is merely negligible. Any claims of the Buyer’s for compensatory damages or reimbursement of futile expenditures shall also exist in the event of defects, only in accordance with the provisions under Sect. X.
c. 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.
d. 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 actually any defect present. Otherwise, the Seller shall be able to demand from the Buyer that any expenses (including, but not limited to, costs of testing and transportation) having arisen from the unjustified demand for defect remediation be reimbursed, unless the lack of any defect was not cognizable for the Buyer.
e. 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 a rush 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).
f. 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 the end of the warranty period for the original deliverable.
1. In principle, goods delivered by the Seller shall not be taken back, unless there exists an appropriate claim of the Buyer (e.g., due to cancellation on account of failed subsequent performance).
2. If, by way of exception in the individual case, the Seller declares that it is ready to accept a return, then appropriate recompense (as a rule, 25% of the net worth of the goods) shall be levied for this purpose within the framework of a corresponding agreement. The risk of transportation and the costs of transportation shall be borne by the Buyer.
X. Liability for compensatory damages
1. The Seller shall be liable for compensatory damages in accordance with the common law, to the extent that nothing else is provided below. In the event of breaches of duty – regardless of legal grounds – the Seller shall be liable for any willful intent and gross negligence. In the event of negligence, the Seller shall be liable only:
a. for damages arising from any considerable breach of a material contractual duty (duty whose accomplishment enables proper fulfillment of the contract in the first place and whose fulfillment a contractual party regularly relies or may rely on); in this case, the liability shall, however, be limited to the compensation of any foreseeable, typically occurring damage.
2. The aforementioned limitations of liability shall also apply to the benefit of the Seller’s employees, co-workers, sales representatives, and support staff.
3. 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
1. In the event of rescission of the purchasing 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 deliverable to the Seller in advance. The Seller shall have the right to have the deliverable picked up from the Buyer’s premises.
2. Furthermore, the Seller shall be able to demand 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 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 duties of the Buyer arising from this contract shall be permissible without the written consent of the Seller.
XIII. Export control provisions
1. The deliverables 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.
2. 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.
XIV. Place of jurisdiction and applicable law
1. The law of the Republic of South Africa shall apply to these GTC and the contractual relationship between the parties. The choice of law shall also apply to extra-contractual debt relationships standing in close connection with the contract. Apart from that, the scope and range of the choice of law shall be determined under the provisions of law.
2. The Parties hereby consent and submit to the non-exclusive jurisdiction of the Gauteng Local Division of the High Court of South Africa, Johannesburg, in any dispute arising from or in connection with this Agreement.
Hansgrohe South Africa (Pty) Ltd., 30 Archimedes Road, Kramerville, Johannesburg, 2090, South Africa