As at 01/2020
General Terms and Conditions
- These General Terms and Conditions (GTC) of Hansgrohe SE (Hansgrohe) shall apply to all purchase contracts and contracts for work and materials as well as other orders (contracts) between Hansgrohe and customers who are not consumers according to Section 13 of the German Civil Code (BGB) (Purchaser) unless otherwise specified.Deviating general terms and conditions of the Purchaser are not accepted, even if they are not expressly rejected.
- The General Terms and Conditions shall also apply to future business relations with the same Purchaser, even if they are not expressly agreed again. Unless otherwise agreed, the General Terms and Conditions shall apply in the version valid at the time of the Purchaser's order or, in any case, in the version last communicated to the Purchaser in text form.
Conclusion of Contract
- Hansgrohe's offers are subject to change without notice unless they are expressly described as binding in the offer text. The order by the Purchaser shall be considered a binding offer of contract, which shall remain valid for at least 8 days unless otherwise specified. The contract is only concluded when Hansgrohe confirms the order to the Purchaser in writing (including text form).
- Hansgrohe only provides a guarantee to end consumers in accordance with a separate guarantee declaration designated as such.
- The documents handed over by Hansgrohe prior to conclusion of contract, such as illustrations and drawings, as well as the technical information and specifications provided by Hansgrohe, are definitive. Technical, design or other changes compared to the order or contract are permitted if and to the extent that they are reasonable for the Purchaser.
- Individual agreements including commercial terms take precedence over the GTC. A written contract or written confirmation from Hansgrohe is definitive for the content of such agreements.
Scope and Place of Delivery, Transport and Transfer of Risk
- Delivery is agreed "ex works" or another Hansgrohe place of dispatch known to the Purchaser, which is also the place of performance for the delivery and any subsequent performance. The risk transfers to the Purchaser at the latest when the goods are dispatched. If the shipment is delayed due to the Purchaser's conduct or due to a circumstance for which Hansgrohe is not responsible, the risk transfers to the Purchaser on notice of readiness for shipment.
- Unless otherwise agreed, the Purchaser shall take out transport insurance at its own expense and cost on the basis of standard transport insurance conditions, which covers the risk of transporting the goods covered by the order from the place of dispatch to the agreed destination. The transport costs shall be borne by the Purchaser in accordance with clause V.5.
- In the event that commercial terms are agreed, the Incoterms as amended shall apply in case of doubt.
- Hansgrohe is entitled to partial deliveries and invoices to a reasonable extent before the end of the delivery period.
- If dispatch or delivery of the goods is delayed at the request of the Purchaser or due to circumstances arising from the Purchaser's area of risk and responsibility, the Purchaser must reimburse Hansgrohe for the costs incurred by storage and for the costs of interest on the capital required for the goods. In case of storage by Hansgrohe, the claim shall be at least 0.5% of the outstanding invoice amount for each month still outstanding, starting one month after notice of readiness for shipment. Proof may still be provided that no loss or a significantly lower loss has been incurred. However, Hansgrohe shall be entitled to dispose of the goods elsewhere after setting an appropriate period and the period has expired without success and to supply the Purchaser with a substitute with an appropriately extended delivery period or to withdraw from the contract.
- The products delivered by Hansgrohe to the Purchaser comply with the laws and regulations of the country of delivery specified by the Purchaser. If the Purchaser intends to export the products to third countries after receipt and does not indicate this when placing the order, the Purchaser must ensure that the products comply with the applicable laws and regulations of such countries. In this case, the Purchaser shall assume the liability that may result from non-compliance with the regulations that apply to the products.
Delivery Period and Interruptions to Operations
- Delivery periods shall start at the earliest on receipt of all the documents required to determine the content of the order, insofar as the Purchaser is required to procure such documents as agreed and, if applicable, on receipt of the advance payment. A delivery deadline shall be deemed to have been met if the shipment has been dispatched within the period or notice has been given that it is ready for dispatch.
- Delivery periods shall be extended by the duration of an interruption to operations if circumstances occur which are not the responsibility of Hansgrohe or its suppliers and which have a substantial impact on production or delivery of the goods (e.g. labour disputes, force majeure and other interruptions to operations which are not the fault of Hansgrohe). Hansgrohe must inform the Purchaser of the expected duration of the interruption to operations and must specify a new delivery date. If the goods cannot be delivered within the new delivery period, both parties shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Purchaser shall be refunded immediately. Claims to compensation in lieu of performance under clause X as well as the legal rights of Hansgrohe, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility), remain unaffected.
- Notwithstanding the above provisions, the conditions for default of delivery shall be determined according to the statutory provisions. In deviation from the statutory provisions, however, a written reminder from the Purchaser shall be required in all cases.
Prices and Additional Costs
- Deliveries are made at the prices current at the time the contract is concluded according to Hansgrohe's order confirmation. All prices are ex works/place of dispatch. Unless otherwise indicated, all prices are quoted in euro (EUR) and with other additional costs (e.g. installation and instruction costs), the statutory value added tax and other statutory charges (e.g. customs duties, fees) at the applicable rate.
- Hansgrohe reserves the right to increase fixed prices agreed for a period of more than 4 months to a reasonable extent if cost increases occur after conclusion of the contract, in particular due to wage settlements, market cost prices or increases in the price of materials. Evidence of such will be provided to the Purchaser on request.
- Hansgrohe charges a minimum quantity surcharge of EUR 10 for order values below EUR 50. Purchase quantities which are smaller than the specified packing units are subject to a 10% surcharge on the net value of the goods.
- If delivery is made to third parties, a surcharge of 10% of the net value of the goods will be charged.
- Orders with a net value of EUR 750 or more are shipped carriage paid; for orders with a net value of less than EUR 750, the costs of carriage will be charged to the invoice. Express costs and fees for postal deliveries are always at the expense of the Purchaser.
Payment and Default
- Payments must be made to Hansgrohe without any deductions as stated on the invoice immediately after receipt of the invoice and delivery of the goods. However, Hansgrohe is entitled at any time to make the applicable delivery in whole or in part against advance payment only. A corresponding reservation shall be declared at the latest on confirmation of the order. Hansgrohe expressly reserves the right to accept cheques. Cheques are only accepted as an instruction for payment and are only valid as payment after cashed. All payments shall be made without deducting charges. For cheques, the Purchaser must bear the discount, collection and other bank charges, even if not expressly agreed. Payments shall first be set off against costs, then against interest and then against the oldest outstanding principal claim.
- In the event of default, interest on arrears shall be charged at the statutory rate, but at a rate of at least 9% per annum; proof of lower loss shall be possible up to the amount of the statutory interest rate.
- The Purchaser shall only be entitled to offset and retention against the claims of Hansgrohe if the counterclaim is undisputed or is legally established. This does not apply if the counterclaim directly affects Hansgrohe's primary performance obligation from the same contract.
- The assignment of claims requires Hansgrohe's consent.
- If it becomes apparent after the conclusion of the contract or after delivery of the goods that the Purchaser is not or is no longer creditworthy, e.g. enforcement measures are initiated against the Purchaser, due invoices are not paid despite reminders or the Purchaser's financial situation deteriorates in any other way, Hansgrohe may also immediately assert claims that are not yet due and such claims for which a cheque has been given. In such cases, Hansgrohe may demand advance payment or security for goods not yet delivered or cash on delivery only. If the Purchaser does not comply with this request within a reasonable period of time set for compliance, Hansgrohe shall be entitled to withdraw from the contract. The legal rights of Hansgrohe (in particular according to Section 321 of the German Civil Code (BGB)) remain unaffected.
Retention of Title
- Hansgrohe reserves title in the delivered goods until all claims arising from the business relationship with the Purchaser at the time of the conclusion of the contract are settled, including all claims arising at such time from follow-up orders, repeat orders or spare parts orders. If the value of all security interests to which Hansgrohe is entitled exceeds the amount of all secured claims by more than 10%, Hansgrohe shall release a corresponding portion of the security interests at the Purchaser's request.
- If the Purchaser acts contrary to the contract, in particular in case of default of payment, Hansgrohe shall be entitled to take back the goods subject to retention of title. Taking back or seizure of the goods subject to retention of title by Hansgrohe does not constitute withdrawal from the contract, unless Hansgrohe expressly confirms this in writing. Hansgrohe is entitled to dispose of the goods. The proceeds of disposal shall be offset against the Purchaser's liabilities, minus any incurred costs of disposal. The Purchaser must treat the reserved goods with care and store them separately from other goods. The Purchaser must also insure them sufficiently at its own expense against damage due to fire, water, storm, burglary and theft at replacement value. Security claims arising in the event of damage must be assigned to Hansgrohe. If maintenance and inspection work is necessary, the Purchaser must carry this out in good time at its own expense.
- The Purchaser must not pledge the goods subject to retention of title or assign them as security. In the event of seizure or other interventions by third parties, the Purchaser must immediately inform Hansgrohe in writing and provide Hansgrohe with all the information and documents that are necessary to protect Hansgrohe's rights. Enforcement officers or third parties must be informed of Hansgrohe's title. Insofar as a third party is not able to reimburse Hansgrohe for the court and out-of-court costs of a third-party action against execution, the Purchaser shall be liable for the loss incurred by Hansgrohe, subject to the assertion of further claims for damage, change or destruction of the goods themselves.
- The Purchaser may resell and/or process the goods subject to retention of title in the ordinary course of business as long as Hansgrohe does not assert any rights from retention of title against the Purchaser. The Purchaser hereby assigns to Hansgrohe all claims to the amount of the final invoice including VAT that arise from resale to its customers or third parties, regardless of whether the goods have been resold without or after processing. Hansgrohe accepts the assignment. If a customer has a current account with the Purchaser, the claim assigned to Hansgrohe by the Purchaser in advance also applies to the recognised balance and, in the case of the customer's insolvency, to the remaining settled balance. The Purchaser may collect the claims even after assignment. Hansgrohe's power to collect the claim itself remains unaffected. Hansgrohe shall not collect the claim itself as long as the Purchaser meets its payment obligations from the collected proceeds, is not in default of payment and no application for the opening of insolvency proceedings has been filed.
- The Purchaser must provide Hansgrohe with an exact list of the claims to which Hansgrohe is entitled with the names and addresses of the customers, the amount of the individual claims, invoice data, etc., on Hansgrohe's request, and must provide Hansgrohe with all information necessary to assert the assigned claim, to allow this information to be verified and to disclose the assignment to the customers.
- The Purchaser hereby agrees that the persons appointed by Hansgrohe to collect the goods subject to retention of title may enter or drive onto the property or building on or in which the goods subject to retention of title are located for this purpose in order to take possession of the goods subject to retention of title.
- Processing or alteration of the delivered goods by the Purchaser is always carried out on behalf of Hansgrohe. If the goods are processed with other items that do not belong to Hansgrohe, Hansgrohe shall acquire co-ownership in the new goods at the ratio of the value of the delivered goods to the other processed items at the time of processing. Otherwise, the same conditions shall apply to the goods from processing as to the goods delivered under reservation of title. If processing, mixing or blending takes place in such a way that the Purchaser's goods are to be considered the main item, it is hereby agreed that the Purchaser shall transfer proportional co-ownership to Hansgrohe. The Purchaser shall hold the sole ownership or co-ownership thereby created on behalf of Hansgrohe.
Claims for Defects and Limitation Period
- The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title, unless otherwise provided for below. The special statutory provisions shall remain unaffected in case of final delivery of the goods to a consumer (supplier's recourse according to Section 478 and 479 of the German Civil Code (BGB)); however, the provisions in clause X shall also apply to the claim for compensation in the case of supplier's recourse.
- Claims for defects by the Purchaser require the Purchaser to have properly fulfilled its statutory obligations to examine and give notice of defects.
- If a delivered item is defective, the Purchaser shall have the following rights:
a. Hansgrohe must provide subsequent performance and shall do so at its own discretion either by eliminating the defect by way of repair or by delivering a defect-free item.
b. If eliminating defects fails, the Purchaser is entitled to withdraw from the contract or to reduce the purchase price. Withdrawal is excluded if the breach of duty by Hansgrohe is only insignificant. Claims by the Purchaser for damages or compensation for futile expenditure shall only arise in accordance with the provisions of clause X, including in the event of defects.
c. Subsequent performance does not include removing defective goods or installing new or repaired goods, unless Hansgrohe was already originally under an obligation to install them.
d. The costs incurred for the purpose of inspection and subsequent performance, in particular, labour and material costs (not: removal and installation costs or costs for transporting the goods to the place of subsequent performance), shall be borne by Hansgrohe if there is in fact a defect. Otherwise, Hansgrohe can demand reimbursement from the Purchaser of the costs incurred from the unjustified demand to remedy defects (in particular, testing and transport costs), unless the lack of defect was not apparent to the Purchaser.
e. The Purchaser must give Hansgrohe the necessary time and opportunity to carry out all improvements and replacement deliveries that Hansgrohe considers necessary, after consultation with Hansgrohe. Otherwise, Hansgrohe is released from liability for the consequences that arise as a result. If the Purchaser requests that a technician is sent urgently or that the work is carried out outside of normal working hours for operational reasons, which is associated with additional costs for Hansgrohe, the Purchaser must bear the additional costs incurred (e.g. overtime premiums and longer travel distances).
f. Replacement parts and repairs shall have a warranty to the same extent as for the original delivered goods, but for a limited period of time until the end of the warranty period for the original delivered goods.
- The Purchaser remains solely responsible for damage resulting from natural wear and tear, unsuitable or improper use, incorrect assembly or commissioning by the Purchaser or third parties, incorrect or negligent handling, excessive load, unsuitable operating materials or chemical, electrochemical and electrical influences, provided that these are not the fault of Hansgrohe.
- Notwithstanding Section 438(1)(3) of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title (warranty period) is one year from delivery. After expiry of the warranty period, claims for defects are excluded. Special statutory regulations on limitation (in particular Section 438(1)(1 and 2), Section 438(3) and Section 444 and 479 of the German Civil Code (BGB)) remain unaffected. Claims for compensation in accordance with clause X shall become statute-barred exclusively in accordance with the statutory provisions.
- Goods delivered by Hansgrohe are generally not taken back unless the Purchaser has a corresponding claim (e.g. due to withdrawal because of failed subsequent performance).
- If Hansgrohe declares that it is prepared to take back the goods in an exceptional case, appropriate compensation (usually 25% of the net value of the goods) shall be charged under a corresponding agreement. The transport risk and transport costs shall be borne by the Purchaser.
Liability for Compensation
- Hansgrohe shall be liable for compensation in accordance with the statutory regulations, unless otherwise specified below. In case of breaches of obligation, regardless of the legal basis, Hansgrohe shall be liable for intent and gross negligence. For simple negligence, Hansgrohe shall only be liable:
a. for loss arising from injury to life, body or health, and
b. for loss resulting from more than insignificant breach of an essential contractual obligation (obligation whose fulfilment makes the proper execution of the contract possible and on fulfilment of which the other party typically relies and is entitled to rely); in this case, however, the liability shall be limited to compensation for the typically foreseeable loss.
- The above limitations of liability also apply in favour of the employees, workers, representatives and agents of Hansgrohe. For claims under the German Product Liability Act, the statutory provisions shall apply exclusively.
- The exclusions or limitations of liability shall not apply where Hansgrohe maliciously conceals a defect or has assumed a guarantee for the condition of the goods.
Cancellation of the Purchase Contract
- If the purchase contract is cancelled (e.g. because of withdrawal of one of the parties), the Purchaser must return the delivered goods to Hansgrohe in advance, notwithstanding the other steps under the following paragraphs. Hansgrohe shall be entitled to have the delivered goods collected from the Purchaser's premises.
- Hansgrohe may also demand appropriate compensation from the Purchaser for the deterioration, loss or any impossibility to return the delivered goods which has occurred or occurs for another reason which is within the Purchaser's area of risk or responsibility.
Furthermore, Hansgrohe may demand compensation for the use or wear of the delivered goods if the value of the delivered goods has decreased between the completion of its installation and its complete, direct repossession by Hansgrohe. This reduction in value is calculated as the difference between the total price according to the order and the current market value, as determined by sales proceeds or, if a sale is not possible, by the estimate of a sworn expert.
The assignment of rights and/or the transfer of the Purchaser's obligations under the contract are not permitted without the written consent of Hansgrohe. Section 354a of the German Commercial Code (HGB) remains unaffected.
Export Control Regulations
- The delivered goods may be subject to the export control regulations of the Federal Republic of Germany, the European Union, the United States of America or other countries.
- In the event of subsequent export of the delivered goods to a foreign country, the Purchaser shall be responsible for compliance with the statutory provisions.
Place of Jurisdiction and Applicable Law
- These General Terms and Conditions and the contractual relationship between the parties shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The choice of law shall also apply to non-contractual obligations closely connected to the contract. In all other respects, the scope and extent of the choice of law shall be determined in accordance with the statutory provisions.
- For contracts with purchasers who have their registered office in a member state of the European Union, Stuttgart (Germany) has been agreed as the exclusive place of jurisdiction. For contracts with purchasers based outside the European Union, all disputes which cannot be settled amicably shall be settled finally in accordance with the Arbitration Rules of the German Arbitration Institute e. V., Bonn (DIS), excluding recourse to the ordinary courts. The place of arbitration is Stuttgart, Germany. The procedural law at the place of arbitration shall apply, unless the Arbitration Rules contain provisions to the contrary. The arbitration proceedings shall be conducted in German. The arbitral tribunal may also decide on the validity of this arbitration agreement.