XXX HONG KONG LIMITED

TERMS AND CONDITIONS OF SALE

1. Interpretation

1.1 In these Conditions:

"Buyer" means the person, company or other entity who has agreed to buy the Goods from the Seller;

"Conditions" means these terms and conditions, which terms and conditions shall govern the sale of the Goods pursuant to the Contract, and includes any additional terms and conditions which may from time to time be agreed in writing by the Seller;

"Contract" means the contract for the purchase and sale of the Goods, subject to and in accordance with these Conditions, and in accordance with the Order;

"Delivery Date" means the date specified in the Order as the date upon which the Goods shall be delivered;

"Goods" means the goods (including any instalment of the goods) described in the Order which the Buyer has agreed to buy from the Seller;

"Hong Kong" means the Hong Kong Special Administrative Region of the People’s Republic of China;

“Invoice” means any and all invoices issued by the Seller to the Buyer in respect of the Goods;

“Order” means any particular order for the Goods, submitted by the Buyer to the Seller, and accepted by the Seller in writing;

“Price” means the price to be paid by the Buyer to the Seller for the Goods as determined in accordance with Clause 4 of these Conditions; and

"Seller" means Grohe Hong Kong Limited, a company incorporated with limited liability under the laws of Hong Kong and having its registered office at XXX, Hong Kong.

2. Basis of the Sale

2.1 No contract for the purchase and sale of the Goods shall arise unless and until there is an Order for the Goods.

2.2 The Seller shall sell, and the Buyer shall purchase, the Goods in accordance with the Order, subject to and in accordance with these Conditions, which shall govern the Contract to the exclusion of all and any terms and conditions other than theseConditions (including any other terms and conditions subject to which the Order is made or purported to be made by the Buyer). .

2.3 No change, variation or amendment to these Conditions shall be binding unless agreed in writing between the Buyer and the Seller.

3. Orders and Specifications

3.1 An order for Goods submitted by the Buyer shall be deemed not to have been accepted by the Seller (and accordingly shall not be deemed to be an Order) unless, and until, acceptance of that particular order has been confirmed in writing by the Seller.

3.2 The quantity, quality, description, and specification of the Goods shall be those set out in the Order.

3.4 No Order may be cancelled, revoked, varied or amended by the Buyer under any circumstances whatsoever except with the prior agreement in writing of the Seller.

4. Price of the Goods

4.1 The Price shall be the price set out in the Order or, if no price is set out in the Order, the price listed in the Seller’s published price list current at the date of acceptance of the Order.

4.2 Except as otherwise stated under the terms of any quotation, or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex-works basis, and shall exclude the cost of carriage, insurance, freight, and all charges, taxes, customs, duties and imposts in respect of the Goods. 

5. Terms of Payment

5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the Price prior to, on, or at any time after, delivery of the Goods.

5.2 The Buyer shall pay the Price in full on or before the time for payment of the Price stipulated in the Invoice (the “Payment Due Date”) and the Seller shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and/or that property in the Goods has not passed to the Buyer.

5.3 The Price shall be payable in the manner and on the terms stated in the Invoice. The time of payment of the Price shall be of the essence of the Contract.

5.4 If the Buyer fails to make payment in full of the Price on or before the Payment Due Date, then, without prejudice to any other rights or remedies available to the Sellerthe Seller shall be entitled to, forthwith:-

5.4.1 terminate the Contract and/or any other contracts entered into between the Seller and the Buyer, including, but not limited to, any other agreements for the sale and purchase of any goods, and/or suspend any further deliveries (whether under the Contract or under any other contract between the Seller and the Buyer) to the Buyer; and/or

5.4.2 appropriate any payment made by the Buyer to such of the Goods (or any goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit, notwithstanding that property in the Goods has not passed to the Buyer; and/or

5.4.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of one per cent (1%) per annum above the best lending rate quoted by The Hong Kong and Shanghai Banking Corporation Limited from time to time, until payment in full is made; and/or

5.4.4 take such other action and do such other thing as the Seller may deem appropriate or necessary in order to recover from the Buyer all amounts outstanding in respect of the Price, notwithstanding that property in the Goods has not passed to the Buyer.

6. Delivery

6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods from the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection (or, if some other place for delivery is agreed by the Seller, then, by the Seller delivering the Goods to that place). The Goods will be available for collection by the Buyer from the Seller’s premises (or for despatch therefrom in the event that some other place for delivery is agreed by the Seller) on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever the Seller notifies the Buyer that the Goods are ready for collection, or whenever the Goods are tendered for delivery by the Seller, as the case may be.

6.2 The Seller shall not be liable, in any way whatsoever, for any delay (howsoever caused) in delivery of the Goods after the Delivery Date, and further, the Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer. Punctual delivery of the Goods on the Delivery Date shall not be of the essence of the Contract, unless previously agreed by the Seller in writing. The Buyer is bound to accept delivery of the Goods, or any portion thereof, notwithstanding that the Goods are not delivered on the Delivery Date.

6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract, and :-

6.3.1 the Seller may issue a separate Invoice to the Buyer in respect of each such instalment; and

6.3.2 failure by the Seller to deliver any one, or more, of the said instalments in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as repudiated; and

6.4 If the Seller fails to deliver any of the Goods for any reason, the Seller's liability (if any) to any person resulting therefrom (which liability, if any, shall not be deemed to be admitted by virtue of this Clause 6.4) shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods over the price of the Goods not so delivered. Notwithstanding the foregoing provisions of this Clause 6.4, if the Seller fails to deliver any of the Goods as a result of any cause beyond the Seller’s reasonable control, or of any fault of the Buyer, then the Seller shall not be liable, in any way whatsoever, to the Buyer or to any other person.

6.5 If the Buyer fails to take delivery of the Goods, or fails to give the Seller adequate delivery instructions, on or before the Delivery Date then (without prejudice to any other rights or remedies available to the Seller) the Seller may:-

6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage, including, but not limited to, warehousing charges and insurance for the Goods; or

6.5.2 sell the Goods and (after deducting all reasonable storage, selling and other related expenses) account to the Buyer for the excess (if any) over the Price, or charge the Buyer for any shortfall (if any) of the price at which the Goods are so sold below the Price.

7. Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

7.2 Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer until the Seller has received in cleared funds, payment in full of the Price and of the price of all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 [Until such time as the property in the Goods passes to the Buyer:-

7.3.1 the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer, and of any third party, and properly stored, protected and insured and identified as the Seller's property; and

7.3.2 the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including (but not limited to) insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and of any third party and, in the case of tangible proceeds, properly stored, protected and insured; and

7.3.3 the Seller shall (provided the Goods have not been resold) be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith upon receipt of such request by the Seller, to enter upon any premises of the Buyer, or any third party where the Goods are stored, and repossess the Goods; and

7.3.4 the Buyer shall not pledge, or in any way charge by way of security, for any indebtedness of the Buyer, or of any other person, any of the Goods, but if the Buyer does so , all moneys owing by the Buyer to the Seller shall (without prejudice to any other rights or remedies of the Seller forthwith become due and payable.]

8. Warranties and Liability

8.1 Subject to the provisions of this Clause 8 and to the other provisions of these Conditions, the Seller warrants that, as at the time of delivery, the Goods will correspond with their specifications set out in the Order, provided that the Seller shall not be liable, in any way whatsoever, to the Buyer or to any other person:-

8.1.1 in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions, misuse or alteration or repair of the Goods without the Seller's prior approval in writing; or

8.1.2 under any warranty, condition or guarantee in respect of the Goods if the Price has not been paid in full by the Payment Due Date; or

8.1.3 by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods, or their use or resale, by the Buyer, except as specifically provided in these Conditions.

8.2 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods, or their failure to correspond with a specification in the Order, or any shortage in quantity of the Goods ordered, shall be notified to the Seller within three (3) days from the date on which the Goods are delivered by the Seller, failing which :-

8.2.1 the Goods shall be deemed to be delivered to the Buyer in the quantity agreed between the Seller and the Buyer and stated in the Order; and

8.2.2 the Goods shall be deemed to be free of any defect in quality or condition and to correspond to and conform with all specifications set out in the Order; and

8.2.3 the Buyer shall be deemed to have waived all rights and remedies, which it may have in respect of the Goods, and shall not be entitled to reject or make any claim of any nature whatsoever in respect of the Goods; and

8.2.4 the Seller shall not be liable in any way whatsoever to the Buyer or to any other person, in respect of the quality and condition of the Goods or their correspondence or conformity with any specification set out in the Order; and

8.2.5 the Buyer shall be bound to pay the Price in accordance with the Contract.

8.3 Where the Buyer notifies the Seller in accordance with Clause 8.2 of any claim in respect of any of the Goods on the basis of any defect in the quality or condition of the Goods or their failure to meet any specification set out in the Order, the Seller shall be entitled, in its sole and absolute discretion, to either :-

8.3.1 replace the Goods free of charge to the Buyer; or

8.3.2 refund to the Buyer such amount as has already been paid by the Buyer to the Seller in respect of the Goods;

and the Seller’s obligations provided in sub-clauses 8.3.1 and 8.3.2 shall be the extent of the Seller’s liability, and the Seller shall not be liable in any other way whatsoever to the Buyer or to any other person in respect of the Goods.

8.4 The Seller shall not be liable to the Buyer, or to any other person, or be deemed to be in breach of the Contract, in any way whatsoever, by reason of any delay in performing or any failure to perform any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. 

8.5 Any and all conditions and warranties, whether express or implied by statute, common law, trade usage, or otherwise, including warranties of merchantability or of fitness for a particular purpose, and any and all additional damages, compensation or indemnification, other than such conditions, warranties and liability for damages, compensation and indemnity as are expressly provided for in these Conditions, are, insofar as permitted by law, hereby expressly excluded.

9. Insolvency of Buyer

9.1 Upon the occurrence of any one or more of the following events :-

9.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or

9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

9.1.4 the Buyer becomes unable to pay its debts as they full due; or

9.1.5 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly;

then, without prejudice to any other rights or remedies available to the Seller:-

9.1.6 the Seller shall be entitled to terminate the Contract and/or suspend any further deliveries under the Contract without any liability to the Buyer; and/or

9.1.7 if the Goods, or any portion thereof, have been delivered but not paid for, the Price or the corresponding portion thereof shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary; and/or

9.1.8 the Seller shall be entitled to the immediate return of all goods (including, but not limited to, the Goods) delivered to the Buyer by the Seller and the Buyer hereby irrevocably authorises the Seller to recover the said goods and, for that purpose, to enter any premises of the Buyer or to which the Buyer has access.

10. General

10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

11. Law and Jurisdiction

The Contract and these Conditions shall be construed and take effect in all respects in accordance with the laws of Hong Kong and the Seller and the Buyer hereby agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong but it shall always be open to the Seller to enforce the Contract and these Conditions in any competent jurisdiction it may consider appropriate.