GENERAL TERMS OF DELIVERY AND SALES

1. Our terms and conditions of sales and delivery exclusively apply. We do not recognise contradictory or differing terms or conditions of the person or company placing an order (in the following referred to as “customer”) unless we have expressly agreed to their validity in writing. Our sales conditions also apply if and when we, with the knowledge that the customer’s conditions contradict or differ with our sales conditions, deliver the order to the customer without reservation.

2. Everything agreed to between us and the customer that applies to the execution of this contract shall be set down in writing.

1. If the customer’s order qualifies as a contractual offer according to Section 145 of the German Civil Code (BGB), we can accept it within 4 weeks. Our bids are always without obligation.

2. Documents that belong to the bid such as drawings, specification sheets, pictures, plans, calculations and other documents are only approximate, unless they are otherwise expressly stated as being binding. These documents remain our property and remain protected by copyright; it is forbidden to make them available to a third party. Before they are passed on to a third party, our express written permission must be obtained.

3. Descriptions of our products are only a depiction of the features and qualities and are in no way a guarantee for the quality of the goods. Our catalogues are constantly revised. The pictures and drawings are not binding.

4. We reserve the right to make technical changes in our products that increase or maintain their value at any time and without prior announcement.
5. Any quotation obtained from us is subject to charge, should it not become an order.

1. Tools, devices, equipment and machinery, and the like that are required for the carrying out of the customer’s order, whether made or procured, will also remain our property, even if paid for in part or completely by the customer.

2. The extent of the services does not cover, unless otherwise specified, the installation and putting into operation of the items delivered on-site.

1. Unless otherwise specified in the confirmation of order, our prices are “ex factory”, excluding packaging, which will appear as a separate item in the invoice.

2. The value-added tax, which is required by law, is not included in our prices; it is included as a separate item in the invoice at the rate required by law on the day the invoice is made out.

3. The deduction for cash discount requires a special written agreement.

4. Unless otherwise specified in our confirmation of order, the selling price is net (without discount) and due within 30 days of the invoice date. The customer enters default, if he does not pay the due amount, at the latest, thirty days after receipt of the invoice or equivalent request for payment. In the case that payment is overdue we retain the right to issue a demand for payment that has an earlier due date. Notwithstanding sentences 1 and 2, the customer enters default if it has been agreed that the purchase price is to be paid by a determined or determinable date, and the customer has not paid as of this date.

5. If the customer defaults on payment, we have the right to claim 9% default interest above the respective base rate per annum. We shall also be authorised to exercise our right to the payment of damages that exceed the aforementioned 9% should they in fact do so.

6. Call orders are to be called up and taken in the agreed amounts and according to the agreed time frame. If call orders do not include any agreement regarding duration product lot amounts or acceptance dates, we shall be entitled to demand a binding agreement on these points no later than 3 months after the order has been confirmed. If the customer does not comply with this requisition within three weeks, we shall be entitled to set a final deadline of two weeks. Should this deadline expire without result, we shall be authorised to back out of the contract or reject any obligation to deliver and to demand compensation for damages.

7. The customer is only entitled to right of set-off if his counterclaim is conclusively determined, uncontested or recognised by us. Also he is authorised to exercise his right of retention in as far as his counterclaim is based on the same contractual relationship.

1. The beginning of the delivery time determined by us, presupposes that all of the technical questions have been cleared up. Unless otherwise agreed to, the delivery times determined by us are not binding.

2. Should we fail to provide the goods by the agreed to date for reasons that we are responsible for, we will be liable for damages that are the immediate result of the delayed delivery, and they shall be limited in the case of normal negligence to the amount of the foreseeable damage.

3. If the customer gives us a reasonable period of grace after we have defaulted in delivery and if the period of grace expires without result, he shall then be entitled to cancel the contract. If an appropriate period of grace expires without result, the customer is obligated within a deadline of two weeks following the expiration of the period of grace to state whether or not he chooses to cancel the order or still insists on it being completed.

4. If we are liable for the compensation of damages instead of performance, the claim for compensation shall not exceed the foreseeable damages.

5. In cases of ordinary negligence we shall never be liable for resultant damage from delayed performance or performances that were never provided, or especially lost profit on the part of the customer or other costs originating from lost production.

6. Our adherence to our delivery obligations presupposes the customer’s punctual and proper fulfilment of his obligations.

7. Should the customer default in his obligation to take the goods or breach any duties to cooperate, we shall be entitled to claim compensation for any damages occurring therefrom, including any additional expenditure. In this case, the risk of accidental loss or risk of accidental deterioration of the object of sale shall be transferred to the customer at the moment in which he falls into arrears.

1. Unless otherwise specified in the order confirmation the delivery shall be “ex factory”. The risk is passed on to the customer at the point in time when the goods leave the plant, or when partial deliveries are provided or the supplier provides additional performances, i.e. pays for the shipping costs or provides the delivery and installation. If there is a taking of the delivery of goods, this shall be definitive for the passing of the risk. The taking of the delivery of goods must take place without delay on the agreed to delivery date, or following the announcement of the supplier that the goods are ready to be dispatched. The customer is not permitted to refuse acceptance of the goods on account of a defect that is not substantial.

2. If the shipping is delayed, if it doesn’t take place or if the delivery is not accepted as a result of circumstances that are beyond the control of the supplier, the risk shall be passed on to the customer on the same day as the day of the announcement that the goods are ready for shipping or pick-up.

3. Partial deliveries are permissible as long as they are acceptable to the customer.

4. Provided it is in agreement with the customer, we will insure the delivery with cargo insurance, the costs of which shall be paid by the customer.

5. We are not obligated to accept the return or exchange of goods that are free of defects. In the event that we agree to the return or exchange of goods, only those products in original packaging will be accepted. Custom-built, damaged or altered goods will never be accepted in return or exchange. We will charge for missing parts such as lamps, fastening or mounting devices, etc. Items free of defects that are returned will be credited at 70% of their net value in consideration of the inspection and processing costs.

1. The warranty rights of the customer presuppose customer compliance with the duty to examine and requirement to give notice of defects according to Section 377 of the German Commercial Code (HGB).

2. If we are responsible for the defect in the purchased goods, we shall have the right to choose whether we provide compensation by means of repair or supply of defect-free goods.

3. If we are not prepared to remedy the fault or provide replacement, or are not in the position to do so, especially if this is delayed beyond the appropriate deadlines for reasons that we are responsible for; or should the attempt at correction of the fault or replacement fail for whatever reason, then the customer is entitled to choose either to cancel the contract or demand an appropriate reduction in the purchase price. If a fair deadline expires without result, the customer is obligated, within a period of two weeks, to declare whether he chooses to cancel the order or insists on the completing of the order.

4. Unless otherwise specified in the following, further claims on the part of the customer – regardless of reason or reasons – are excluded. Thus we do not accept liability for damages that do not occur in the article of sale; in particular, we do not accept liability for lost profit or any other property damage on the part of the customer. However, in the event that a liability for such damages is in effect, the claims for compensation of damages shall not exceed the extent of the foreseeable damage.

5. Aforementioned exoneration from liability does not apply if the cause of damage stems from wrongful intent or gross negligence. Moreover it does not apply if we assume the guarantee for a specific quality or condition of the goods and this quality or condition is missing.

6. If we have violated a contractual obligation through negligence, our liability is to be limited to the foreseeable damage. If claims due to damages are asserted that are covered by our employer’s liability insurance or product liability insurance, our obligation to render compensation shall be limited to the indemnification provided by the insurance.

7. The period of guarantee is one year and is calculated from the moment the goods are delivered, unless the goods are building materials that fall under Section 438, Clause 1 No. 2 b in the German Civil Code (BGB). This fixed period is a period of limitation and is valid for claims for compensation of consequential damages, under presumption that the claims are not asserted in tort.

1. All goods that we deliver shall remain our property until such a time as all outstanding accounts from the customer have been settled. We reserve the right to exercise our legal right and take the object of sale back for every action that is contrary to the contract, in particular, default of payment. We are authorised to utilize the objects of sale after we have taken them back; the proceeds are to be credited to the customers account – minus fair realisation costs.

2. The customer is obligated to inform us immediately in writing of any levies of execution or other encroachments of a third party, so that we can submit a claim in accordance with Section 771, Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the legal and extrajudicial costs of such a suit, the customer shall be liable for the loss that occurs.

3. The customer is authorised to sell the object of sale to a third party in the orderly course of business; however, as of now he already cedes his claim to us to receive payment resulting from the resale to a third party for the total invoice amount (including VAT), regardless of whether or not the object of sale has been resold after work has been done on it or with it. Although the customer has ceded his claim to receive payment to us he still remains empowered to collect the debt from the third party. Our authorisation to collect the debt ourselves remains unaffected by this. However, we obligate ourselves not to collect the debt if the customer fulfils his obligation to pay from the sale, if he is not delinquent in payment, and especially if no request for a bankruptcy procedure has been filed, or if no cessation of payments is at hand. However, if any of the above is in fact the case, we have the right to demand that the customer make the ceded debts and their debtors known to us and provide us with all the necessary details and documents.

4. Any work or modifications carried out on the objects of sale by the customer is always done for us. If the object of sale is part of an article containing other items that are not from us, we shall acquire the right of co-ownership of the new object. The proportion of our right of co-ownership shall be equal to the ratio of the value of the object of sale to the other items making up the new article at the time of manufacturing. The object resulting from this manufacturing that contains our article or original object of sale is otherwise subject to the same reservations as the object of sale.

5. We obligate ourselves to release the securities we are obligated to at the request of the customer to the extent that the value of our securities exceeds more than 20% of the debts that are to be secured; it is incumbent upon us to choose which securities we release.

Pursuant to the EC Waste Electrical and Electronic Equipment (WEEE) Directive, and the respective national applications of this directive, the supplier informs the party purchasing the products that it, the purchaser, carries the responsibility to dispose of the product properly and obligates itself to properly dispose of the products in compliance to the terms stipulated in the valid, applicable electronic device ordinance. If the purchasing party sells the product to a third party, this responsibility passes on to the new purchaser.

1. If the customer is a merchant, Villingen-Schwenningen shall be the place of jurisdiction. We are, however, also authorised to sue the customer in his domicile court.

2. Unless otherwise specified in the order confirmation, the place of performance shall be Villingen-Schwenningen, Germany.

3. Only the laws of the Federal Republic of Germany apply to this contract.

4. The German text of these General Terms and Conditions shall be solely binding; any translation shall be deemed to have been made for convenience only.

(Stand: September 2007)

Hess AG
Form + Licht
Lantwattenstr. 22
D-78050 Villingen-Schwenningen
Tel. 07721/920-0
Fax 07721/920-250
E-Mail: info@hess.eu
wwww.hess.eu