General Terms and Conditions
1. Scope of applicability:
The General Terms and Conditions set down below apply to all contracts concluded with Karl Hess GmbH & Co. KG, also those in the future. Deviating conditions of the purchaser are expressly objected to.
Karl Hess GmbH & Co. KG has a performance obligation only once an order is confirmed in writing.
Karl Hess GmbH & Co. KG retains title and copyright to samples, cost estimates, drawings and similar information of a tangible and intangible nature, also where these are provided in electronic form. They may not be made accessible to third parties or used beyond the scope of the relevant contract.
Insofar as our contractual partner marks documents as confidential these shall only be used for the implementation of the underlying contractual relationship.
2. Prices, terms of payment:
Statutory value-added tax shall be added to all prices. Except where otherwise agreed, deliveries shall be made to us and by us “franco domicile”, which includes freight expenses and customary packing. If deliveries are made “ex works” or “ex warehouse”, the consignee shall pay all the costs incurred for dispatch and transport.
Unless otherwise agreed, payments are made within 30 days net. If payment is made within 14 days of correct delivery, the consignee is entitled to deduct 2% discount.
Offsetting rights and rights of retention apply within the limits of statutory regulations. The assignment of claims requires prior written consent, except for an assignment for an extended reservation of title. This is without prejudice to Section 354 a of the German Commercial Code [HGB].
3. Delivery time:
Delivery times are binding if they are expressly designated as binding. The delivery time shall be extended by a reasonable period if all the commercial and technical issues have not et
been clarified between the contracting parties upon conclusion of contract. In other respects, statutory provisions apply.
4. Passing of the risk, delivery and dispatch documents:
The risk passes upon acceptance if this has been agreed, otherwise upon handing over the goods to the forwarding agent, except where otherwise agreed.
5. Retention of title:
Karl Hess GmbH & Co. KG retains title to the delivery item until the receipt of all payments based on the purchase contract and until the settlement of all the claims existing at the time of delivery or arising later based on the business relationship between Karl Hess GmbH & Co. KG and the purchaser.
The purchaser is obliged to insure the delivery item at his own expense against theft, breakage, fire, water and other damage. Karl Hess GmbH & Co. KG is entitled to take out the insurance named above at the purchaser’s expense unless the purchaser furnishes proof that he has already taken out the insurance himself.
During the applicability of the retention of title, the purchaser is prohibited to pledge the goods or assign them as security. Only resellers may resell goods in the ordinary course of usiness and only on the condition that the countervalue of the delivery item is paid to the purchaser. The purchaser must agree with the buyer that the buyer only becomes the owner after making this payment.
The purchaser is permitted to process the delivery item or mix or combine it with other items. The processing, mixing or combination (hereinafter jointly referred to as “processing” and when referring to the delivery item, as “processed”) is carried out on behalf of Karl Hess GmbH & Co. KG. The item created from processing is referred to as “new goods”. The purchaser shall safeguard the new goods for Karl Hess GmbH & Co. KG with the care of a conscientious businessman.
When processing the goods with other items not belonging to Karl Hess GmbH & Co. KG, Karl Hess GmbH & Co. KG is entitled to the co-ownership of the new goods amounting to the share resulting from the ratio of the value of the processed delivery item to the value of the remaining processed goods at the time of processing. If the purchaser acquires the sole ownership of the new goods, there is consensus between the purchaser and Karl Hess GmbH & Co. KG that the purchaser grants Karl Hess GmbH & Co. KG co-ownership of the new goods at the ratio of the value of the processed delivery item to the value of the remaining processed goods at the time of processing.
In the event of the sale of the delivery item or the new goods the purchaser hereby assigns his claim from the resale vis-à-vis the buyer with all ancillary rights to Karl Hess GmbH & Co. KG as security without this requiring any further special declarations. The assignment applies including any outstanding balance claims. However, it only applies at the amount, which equals the price invoiced by Karl Hess GmbH & Co. KG for the delivery item. The portion of the claim assigned by Karl Hess GmbH & Co. KG shall be settled with priority.
If the purchaser combines the delivery item or the new goods with real estate or moveable property, he shall also assign his claim to which he is entitled as remuneration for the combination including all ancillary rights to Karl Hess GmbH & Co. KG as security at the ratio of the value of the delivery item or the new goods to the remaining combined goods at the time of the combination without this requiring further special declarations. Until further notice, the purchaser is authorised to collect the claims assigned in this No. 5 (retention of title). The purchaser shall immediately forward all payments made towards the assigned claims to Karl Hess GmbH & Co. KG up to the amount of the secured claim. If there is
a valid reason, particularly a delay in payment, stoppage of payments, opening of insolvency proceedings, protest of a bill or justified indications of over indebtedness or the imminent
insolvency of the purchaser, Karl Hess GmbH & Co. KG is entitled to revoke the purchaser’s collection authorisation. Furthermore, Karl Hess GmbH & Co. KG may disclose the assignment for security, sell the assigned claims and demand that the purchaser discloses the assignment for security to the customer after threatening to do so in advance and observing a reasonable period.
If prima facie evidence of a legitimate interest is furnished, the purchaser must provide to Karl Hess GmbH & Co. KG the information required to assert its rights vis-à-vis the customer and hand over the necessary documents.
The purchaser shall immediately notify Karl Hess GmbH & Co. KG of any attachments, seizure or other disposals or intervention by third parties. Insofar as the realised value of all security rights to which Karl Hess GmbH & Co. KG is entitled exceeds the amount of all secured claims by more than 10%, Karl Hess GmbH & Co. KG shall release the corresponding portion of the security rights upon request by the purchaser; Karl Hess GmbH & Co. KG is entitled to select between various security rights on releasing the security.
In the event of any breaches of duty by the purchaser, particularly in case of a delay in payment, Karl Hess GmbH & Co. KG is entitled to demand the surrender of the delivery item
and/or the new goods and/or to withdraw from the contract even without setting a time limit; the purchaser is obliged to surrender the goods. The demand for surrender does not represent a declaration of withdrawal on the part of Karl Hess GmbH & Co. KG, unless this is expressly stated.
6. Liability for defects:
Karl Hess GmbH & Co. KG grants a warranty for material defects and defects in title as follows to the extent admissible:
All those parts which prove to be defective as a result of a circumstance existing before the risk passed shall be subsequently improved or replaced with flawless goods at the option of Karl Hess GmbH & Co. KG free of charge. Karl Hess GmbH & Co. KG must be notified of the discovery of such defects without delay in writing. Replaced parts become the property of Karl Hess GmbH & Co. KG.
To carry out all the subsequent improvements and deliver replacements appearing necessary to Karl Hess GmbH & Co. KG the purchaser shall give Karl Hess GmbH & Co. KG the time and opportunity required to do so after arranging this with Karl Hess GmbH & Co. KG. Otherwise Karl Hess GmbH & Co. KG shall be exempted from any liability for the consequences arising from this. Only in urgent cases where operational safety is endangered or to ward off an excessive amount of damage, in the event of which Karl Hess GmbH & Co. KG shall be immediately notified, is the purchaser entitled to rectify the defect himself or have it rectified by third parties and demand the reimbursement of the necessary expenses from Karl Hess GmbH & Co. KG.
Of the direct costs incurred as a result of the subsequent improvement or the replacement delivery, Karl Hess GmbH & Co. KG shall pay the costs of the replacement part including the dispatch thereof, provided that the complaint turns out to be justified. It also pays the costs of removal and installation as well as the costs of any fitters and auxiliary personnel that may be necessary including travelling expenses, provided that this does not cause any excessive burden on Karl Hess GmbH & Co. KG.
The purchaser has a right to withdraw from the contract within the scope of statutory provisions if Karl Hess GmbH & Co. KG – taking account of statutory exceptions – allows a period to pass by in vain which was set for it to subsequently rectify or replace an item as a result of a material defect. If the defect is only of a minor nature, the purchaser shall only be entitled to a reduction of the purchase price. Otherwise the reduction of the purchase price is excluded. Further claims are defined in No. 7 b) of these Terms and Conditions.
No warranty is provided is the following cases in particular: Unsuitable or improper use, incorrect installation or commissioning by the purchaser or third parties, natural wear, incorrect or negligent treatment, improper maintenance, unsuitable operating resources, chemical, electrochemical or electrical influences – unless Karl Hess GmbH & Co. KG is responsible for these.
If the purchaser or a third party carries out subsequent improvement improperly, Karl Hess GmbH & Co. KG shall not be liable for the consequences arising from this. The same applies to modifications to the delivery item carried out without obtaining the prior approval of Karl Hess GmbH & Co. KG.
Defects of title:
If the use of the delivery item results in an infringement of industrial property rights or copyrights in Germany, Karl Hess GmbH & Co. KG shall at its expense basically obtain the right for the purchaser to continue using the delivery item or modify the delivery item in a manner that is reasonably acceptable to the purchaser so that the infringement of the industrial property right no longer exists.
If this is not possible on commercially reasonable conditions or within a reasonable period, the purchaser is entitled to withdraw from the contract. Karl Hess GmbH & Co. KG is also entitled to withdraw from the contract on the conditions stated.
In addition, Karl Hess GmbH & Co. KG shall indemnify the purchaser from uncontested legally valid claims of the property rights holders.
The obligations named in No. 6 g) of Karl Hess GmbH & Co. KG are definitive subject to No. 7 b) in the event of an infringement of property rights or copyrights.
They apply only if
- the purchaser immediately notifies Karl Hess GmbH & Co. KG of any infringements of property rights or copyrights that have been asserted,
- the purchaser supports Karl Hess GmbH & Co. KG to a reasonable extent in warding off the claims asserted or enables Karl Hess GmbH & Co. KG to carry out modification
measures according to No. 6 g),
- Karl Hess GmbH & Co. KG is reserved all the defence measures including out-of-court settlements,
- the defect of title is not based on an instruction given by the purchaser and
- the infringement of the right was not caused by the purchaser modifying the delivery item without authorisation or using it in a manner contrary to contract.
If the delivery item cannot be used by the purchaser as per contract for which Karl Hess GmbH & Co. KG is at fault as a result of the omitted or defective execution of proposals and advice made or given before or after conclusion of contract or due to any breach of other contractual ancillary obligations – particularly regarding instructions for the operation and maintenance of the delivery item - the provisions of No. 6 and 7 b) apply to the exclusion of any further claims of the purchaser accordingly.
For damage not caused to the delivery item itself, Karl Hess GmbH & Co. KG shall be liable – regardless of the legal ground - only
- in the event of intent,
- in the event of gross negligence on the part of Karl Hess GmbH & Co. KG including its vicarious agents,
- in the event of death, physical injury and an impairment of health for which it is responsible,
- in the event of defects which it fraudulently concealed or the absence of which it guaranteed,
- in the event of defects in the delivery item to the extent that it is liable under the Product Liability Act for personal injury or property damage caused by items used for private purposes. In the event of any breach of essential contractual obligations for which Karl Hess GmbH & Co. KG is at fault, it shall be liable also in the event of gross negligence on the part of non-executive employees and in the event of simple negligence, in the latter case confined to damage, which is reasonably foreseeable and
typical for the contract.
Further claims are excluded.
All the claims of the purchaser – regardless of the legal ground – become time-barred in 12 months. The statutory periods apply to claims for damages based on No. 7 b).
In the absence of any specific agreement, installation costs are charged separately. If deliveries are agreed including installation and training, the installation and training shall be
carried out during customary hours of business.
Upon request by the purchaser, installation may also be carried out outside customary hours of business, particularly at weekends or on public holidays. In this case, weekend surcharges, overtime surcharges etc. shall be charged.
10. Choice of law, place of jurisdiction:
The laws of the Federal Republic of Germany apply to legal relations between Karl Hess GmbH & Co. KG and the purchaser.
The UN sales convention (CISG) and any other international agreements do not apply.
In the event of any legal disputes, the place of jurisdiction is Siegen, Germany.
Karl Hess GmbH & Co. KG is entitled to bring legal action at the headquarters of the purchaser.
11. Further provisions:
These Terms and Conditions supersede any other agreements, which the contracting parties previously entered into in writing or verbally and which become invalid upon signing these Terms and Conditions.
These Terms and Conditions may not be made accessible to any third party without the written approval of the other contracting party.
Both contracting parties shall pay their own costs of implementing this agreement.