- These General Terms and Conditions of Business (“GTC”) of Hansgrohe India Private Limited (“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 (together the “Order(s)”) between the Seller and customers (“Buyers”) who are not consumers. Any terms and conditions of business of the Buyer will have no effect, even if they are not expressly contradicted.
- The GTC, as may be amended from time to time, will 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.
II. Conclusion of contract
- 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 and come into existence only when the Seller confirms the order to the Buyer in writing (including the text-form). A quotation for the goods supplied by the Seller shall not constitute an offer.
- The Seller shall assume a guarantee only vis-à-vis end consumers in accordance with a separate guarantee declaration designated as such.
- 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 agreed mutually by the Seller and the Buyer.
- Individual agreements between the Seller and the Buyer, including commerce clauses, 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.
- The conditions under this GTC apply to the Orders to the exclusion of any other terms, conditions, warranties on the Seller that the Buyer may seek to impose or incorporate or which are implied by statute, trade, custom, practice or course of dealing. Notwithstanding the generality of the foregoing, the terms implied under Section 12 to 17 of the Sale of Goods Act, 1930 are, to the fullest extent permitted by law, excluded from the GTC and terms of the Orders.
III. Scope of delivery, transportation, and passing of risk
- In principle, delivery by the Seller is stipulated to be “DAP” 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 once the Seller or its representative delivers the shipment of goods to the Buyer. If the shipment is delayed by the conduct of the Buyer or due to any other reason which is not directly, entirely and solely attributable to the Seller, then the risk shall pass to the Buyer upon notification of readiness for delivery. Parties agree that while risk will pass as per the terms of this Sect. III, title will pass only as per Sect. VII. To the extent not otherwise stipulated, the Buyer agrees to take any risk of deterioration in the goods incident to the course of transit. 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.
- In the event that commerce clauses are stipulated, in case of doubt the Incoterms shall apply as currently amended.
- The Seller shall have the right to partial deliveries and partial invoices in a reasonable scope prior to the expiration of the delivery deadline. Any delay in delivery or defect in 1 part delivery shall not entitle the Buyer to cancel any other delivery from the Seller.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the goods or due to any other event which is not solely, directly and entirely attributable to the Seller.
- If the Buyer fails to take or accept delivery of the goods within 3 business days of the Seller notifying the Buyer that the goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the GTC:
- delivery of the goods shall be deemed to have been completed at 9.00 am on the third business day after the day on which the Seller notified the Buyer that the goods were ready; and
- the Seller shall store the goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
- For the purposes of this Sect. III, the term ‘Force Majeure Event’ means any event or circumstance beyond a party’s reasonable control.
- If the shipment or the delivery of the product (“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 of the Seller against the Buyer 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.
- The Seller will ensure that the products shipped by the Seller to the Buyer comply with the applicable laws and regulations of the country / countries designated by the Buyer. In case the Buyer - after receipt of the products - exports the products to third countries it is the obligation of the Buyer to make sure that the products comply with the applicable local laws and regulations of such countries with regard to the products and the Seller disclaims any responsibility or liability arising from the same. If, however, the Buyer chooses to export products to third countries, the Buyer is solely responsible for any and all liability resulting from any non-compliance of the products or any other issue arising in connection with the products.
- Except as otherwise stated in this GTC, the Seller makes no warranties of any kind or nature, whether express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose or use, or warranties of any products, or the appropriateness of the Buyer’s or any third-party specifications. in addition, the Seller expressly disclaims any warranty or liability with respect to design or latent defects, security of data, or compliance with laws, regulations, or other official government releases applicable to the Buyer, which shall be the sole responsibility of the Buyer.
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 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.
- 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, pandemic, epidemic, government action 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 by the Seller. Any claims for compensatory damages in lieu of performance as contemplated under Sect. X as well as to the Seller’s statutorily based 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. In the event of such termination, the Buyer agrees to pay the Seller for any partial delivery and/or any other expenses as may be agreed between the parties.
- The prerequisites of any delivery default shall be determined, irrespective of the provisions above, in accordance with statutory regulations. 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 Indian Rupees, insofar as not otherwise marked, and to exclude other ancillary expenses (e.g. installation and instruction costs, freight costs for express deliveries), as well as the statutory value-added tax and any other applicable taxes as provided by law in the respectively valid amount.
- 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.
- In the event of an order value below the Rupee equivalent of €50.00, the Seller shall invoice the Rupee equivalent of €10.00 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.
- If the delivery is effected to outside third parties, then a surcharge of 10% of the net value of the goods shall be invoiced.
- For orders with a net goods value of €750.00 or more, the delivery shall be effected freight paid; in the event of a net goods value below €750.00, 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
- Payments are to be rendered without any deduction, as specified in the invoice, immediately after receipt of the invoice or delivery of the goods to the Buyer (as may be agreed between the parties) and in any event, no later than ten (10) days thereafter. 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. Cheques shall only be accepted as payment after they have been realized. All payments are to be rendered free of expenses. In the case of cheques, 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. Timely payment is of the essence. In addition to other remedies available to the Seller, in case of non-payment of fees by the Buyer, the Seller shall be relieved of its obligations, and shall have the right to withhold the delivery of products (under this agreement or any other agreement with the Buyer) with or without any notice to the Buyer, until receipt of payment from the Buyer. A continued breach of this obligation to pay the fees beyond a period of forty-five (45) days from the date of receipt of invoice shall constitute a material breach, for which, the Seller shall have the right to terminate its engagement with the Buyer.
- In the event of default, default interest shall be charged in the statutory amount, but at least 9% per annum; it shall remain possible to substantiate lesser damage up to the amount of the statutory interest rate. The Buyer shall pay the interest together with the overdue amount.
- 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 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 prior written consent of the Seller.
- To the extent that the goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer shall defend, indemnify and hold harmless the Seller, its partners, subsidiaries, affiliates, associates, successors, assigns and licensors or any of their respective officers, agents, vendors, licensors, representatives, advertisers, against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) claims, actions, losses, expenses, damages and costs (including attorneys' fees) claimed by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the specification or arising out of the Buyer’s use of the products or resulting from any (i) breach or violation of the GTC by the Buyer, or due to Buyer’s activities related to the products or due to any breach of applicable laws (ii) any claims made by any third party due to, or arising out of, or in connection with, Buyer’s use of the products provided by the Seller. This sub-section 5 shall survive termination of the relevant Order.
- If, after entering into the agreement or after delivery of the goods: (i) 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; (ii) if any of the terms in Sect. XI are triggered, 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, without limiting any other right or remedy under applicable law, for still-undelivered goods the Seller shall be able to demand pre-payment, have a lien on the goods for the price, have a right of resale of the goods as prescribed under law, have a right of withholding delivery, have the right to stop transit of goods if the Seller has parted with possession the rendering of a security, or delivery based solely upon cash-on-delivery. In these instances, without limiting any other right or remedy under applicable law, for delivered goods where title has not passed, to require the Buyer to deliver up all goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, to enter into the premises of the Buyer or of any third party where the goods are stored in order to recover them. If the Buyer does not comply with this demand within the reasonable deadline established for it, then, without limitation to its other rights and remedies, the Seller shall also have the right to cancel, rescind or terminate the contract in accordance with Sect. XI.
VII. Retention of title
- 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.
- 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.
- 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.
- 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.
- 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 to disclose the assignment to the customers.
- 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.
- 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.
- To the extent that any pre-existing material of the Seller is integrated into any product, the Seller hereby grants to the Buyer, a perpetual, non-exclusive, limited license to use such pre-existing material to the extent it is integrated/incorporated into and used along with such products. The Seller retains all right, title and interest to such pre-existing material and may use the same according to its discretion.
VIII. Claims for defects – limitation period
- The statutory provisions of law shall apply to the rights of the Buyer in the event of any material defects and defects of title which are solely, entirely and directly attributable to any gross negligence or willful misconduct on the part of the Seller, insofar as nothing else is subsequently set forth. Such shall be without prejudice to the special statutory regulations governing final delivery of the goods to a consumer (Buyer recourse as contemplated in Chapter VI of the Sale of Goods Act, 1930); however, the provisions in Sect. X shall apply to any claim for compensatory damages even in the event of Supplier recourse.
- Any claims of the Buyer for defects shall presuppose that the Buyer has properly complied with the statutory duties to inspect and to give notice of defects.
- If a Deliverable is defective, then the Buyer must notify the Seller of such defect within ten (10) days of identifying such defect. The Buyer shall have the following rights and may exercise it within ten (10) days of providing the aforesaid notice:
- The Seller will at its discretion, provide supplementary performance and will render such 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 the Seller may reduce the purchase price. Any cancellation shall be precluded if the breach of duty by the Seller is merely negligible.
- 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 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.
- 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).
- 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.
- Notwithstanding anything contained in sub-section 3 above, the Seller shall not be liable for any defect in the goods in any of the following events:
- the Buyer makes any further use of such goods after giving notice of defect to the Seller;
- the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
- the Buyer alters or repairs such goods without the written consent of the Seller;
- the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
- the goods differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
- The Buyer uses the goods for any illegal purpose.
- 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).
- 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
- The Buyer agrees and understands that, to the fullest extent permissible by law, the Seller and their successors and assigns, or any of their affiliates, or their respective officers, directors, employees, agents, licensors, representatives, operational product listers, advertisers, or vendors, shall not be liable for any loss or damage to the users of the products, of any kind, direct or indirect, in connection with or arising from use of the products or for the accuracy, reliability or content of any information, products provided by the Seller, but not limited to, compensatory, consequential, incidental, indirect, special or punitive damages. Notwithstanding anything contained in the GTC or otherwise and subject to the Warranty Policy, the maximum liability of the Seller for direct damages under the GTC shall not exceed the value of the product giving rise to a loss or damage or Indian Rupees 100.000, whichever is lower.
- The aforementioned limitations of liability shall also apply to the benefit of the Seller’s employees, co-workers, sales representatives, and support staff.
- The foregoing limitation of liability and exclusions of damages shall apply notwithstanding the failure of essential purpose of any limited remedy herein.
- The parties agree that the Buyer has no other remedies apart from that recorded in this GTC.
XI. Rescission of the purchase contract
- Without limiting its other rights or remedies, the Seller may rescind this Contract with immediate effect by giving written notice to the Buyer if:
- the Buyer commits a material breach of any term of the GTC or Order and (if such a breach is remediable) fails to remedy that breach within ten (10) days of that party being notified in writing to do so;
- the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Order has been placed in jeopardy.
- In the event of rescission of the purchasing contract (e.g., due to repudiation by 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.
- 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 prior written consent of the Seller.
XIII. Force Majeure
Apart from the payment obligation of the Buyer, neither party shall be in breach of the Order nor liable for delay in performing, or failure to perform, any of its obligations under this Order if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for three(3) months, the party not affected may rescind the Order by giving one (1) month written notice to the affected party.
For the purposes of this Sect. XIII, the term ‘Force Majeure Event’ means any event or circumstance beyond a party’s reasonable control including but not limited to epidemics, pandemics, government actions, lockdowns, earthquakes, volcanic eruptions, storms, floods, typhoons, tsunamis, cyclones, or any and all such events which cannot be forecasted by men of ordinary prudence.
- If any one or more of the provisions contained in the GTC shall for any reason be held to be invalid, illegal or unenforceable in any respect under laws of any jurisdiction, then such invalidity, illegality, or unenforceability shall not affect:
- any other provision of this GTS, and this GTC shall be construed under the laws of such jurisdiction as if such invalid, illegal or unenforceable provision had never been set forth herein, and shall be carried out as nearly as possible according to its original terms and intent; and
- the validity, legality and enforceability of such provisions under the laws of any other jurisdiction.
- The parties shall endeavour to replace any such invalid, illegal or unenforceable provision with a valid, legal and enforceable provision which as far as possible, reflects the original intent of the parties.
No variation of the Orders shall be effective unless in writing and signed by or on behalf of the Seller and Buyer.
XVI. Remedies and Waivers
- No waiver of any right under this GTC shall be effective unless in writing. Unless expressly stated otherwise a waiver shall be effective only in the circumstances for which it is given.
- No delay or omission by any party in exercising any right or remedy provided by law or under this GTC shall constitute a waiver of such right or remedy.
- The single or partial exercise of a right or remedy under this GTC shall not preclude any other nor restrict any further exercise of any such right or remedy.
- Without prejudice to any other rights or remedies that the parties may have, the parties acknowledge and agree that damages would not be an adequate remedy for any breach by the Buyer and that the remedies of injunction, specific performance and other equitable remedies are appropriate for any threatened or actual breach of the GTC.
XVII. Third Party Rights
This GTC is made for the benefit of the Buyer and Seller and their permitted assigns and, save as provided for in this GTC a person who is not a party to the Orders shall have no right to enforce any terms of the GTC.
- Any notice or other communication given to a party under or in connection with the Orders shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the specified address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one business day after transmission.
- The provisions of this Sect. XIX shall not apply to the service of any proceedings or other documents in any legal action.
The Orders may be executed in counterparts and shall be effective when each party has executed a counterpart. Each counterpart shall constitute an original of the Order. The delivery of signed counterparts by facsimile transmission or electronic mail in “portable document format” (.pdf) shall be as effective as signing and delivering the counterpart in person.
- Each party undertakes that it shall not at any time during this agreement, and for a period of 2 years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by sub-section 2 below.
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this GTC. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Sect. XII; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this GTC.
XXI. Export control provisions
- The Deliverables may be subject to the export control provisions of India].
- 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.
XXII. Place of jurisdiction and applicable law
- The law of India shall apply to the GTC, the Orders and the contractual relationship between the parties, to the exclusion of uniform international law, including, but not limited to, United Nations Sales of Goods law. The 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.
- The exclusive place of jurisdiction for any and all disputes, claims and controversies arising from or relating to the Orders shall be before the courts of Pune, India.
Hansgrohe India Private Limited
Office No. 5, 7th Floor
Fountainhead Tower 2, Viman Nagar
Pune 411014 (Maharashtra)