General terms of delivery and sales
I. General – Scope
1. Our terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the ordering party which deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale also apply if we carry out delivery to the ordering Party unconditionally with knowledge of conflicting terms and conditions of the ordering party which deviate from our terms and conditions of sale.
2. All agreements between us and the ordering party for the purpose of execution of this contract shall be made in writing.
II. Offer – Offer documents – Catalogues
1. If the order of the customer is to be qualified as an offer according to § 145 of the German Civil Code (BGB), we can accept it within 4 weeks. Our offers are always without obligation.
2. Unless they are expressly designated as binding, the documents pertaining to the offer, such as drawings, data sheets, illustrations, plans, lighting designs, lighting design files, price calculations and other documents, are only approximations. We reserve property rights and copyrights in regard to these documents; they may not be made accessible to third parties. Prior to transferring these documents to third parties, the ordering party must obtain our express written consent.
3. Descriptions of our products are merely specifications of properties and do not in any way guarantee the properties of the goods. Our catalogues and website are constantly being revised. Illustrations and drawings contained therein are not binding.
4. Technical changes to our products which enhance or preserve value are allowed at any time without prior notice.
5. A cost estimate requested from us is subject to a fee if no order is issued.
6. Lighting designs are to provide an initial overview of the illumination effect. Deviations between the visual representation and the visual impression of an installation are possible. All liability for matching the visual representation with reality is therefore excluded. Warranty and compensation claims for the luminaires or failures of the lighting design program used are excluded. Hess GmbH Licht + Form accepts no liability for any damage caused to the operator/user or third parties.
7. If technical support is requested and confirmed by the supplier, it is to be paid for by the ordering party at an hourly rate of 80 euros/hour, with at least 400 euros to be slated for a ½ day. Journeys to and from the requested location and any accommodation expenses are to be inquired about separately.
III. Tools – Devices etc.
1. Tools, devices and similar equipment which are manufactured or acquired for production according to documents of the ordering party also remain our property when they are paid for by the ordering party in whole or in part.
2. Unless otherwise agreed, the scope of service does not include installation and commissioning of the delivery at the premises of the ordering party.
IV. Prices – Terms and conditions of payment – Default
1. Unless the order confirmation states otherwise, our prices are “free carrier” (FCA) including packaging.
2. The statutory value-added tax (VAT) is not included in our prices; it will be shown separately on the invoice at the statutory amount on the date of invoicing.
3. Deduction of early payment discount requires special written agreement.
4. Unless otherwise stated in our order confirmation, the purchase price is net (without deduction) and due for payment within 30 days of the invoice date. The ordering party is in default upon failure to settle payment demands within thirty days after receipt of an invoice or equivalent request. We reserve the right to precipitate the default at an earlier point in time by issuing a reminder arriving after the payment has become due. Notwithstanding sentences 1 and 2, the ordering party shall be in default, if it is agreed that the purchase price is to be paid at a defined or definable point in time according to the calendar and the ordering party has not made payment up to this point.
5. If the ordering party goes into default of payment, we are entitled to charge default interest at the rate of 9% above the basic rate of interest annually. If we are able to demonstrate greater damage caused by default, we are entitled to pursue this claim. For the first reminder letter, there will be a processing fee of 25 euros, and 40 euros will be due as a processing fee starting with the second reminder letter.
6. Call-off orders are only effective if they are confirmed in writing and the classification was fixed up to a maximum of three partial deliveries when the order was placed. The call-offs must be submitted and accepted in a timely manner in writing in the agreed partial quantities no later than 12 weeks before delivery. For call-off orders without agreement on terms, production batch quantities and call-off dates, we can demand a binding determination in this regard no later than 2 months after order confirmation. Acceptance must be granted within 6 months after completion of the call-off order. If the ordering party does not comply with this demand within 3 weeks, we are entitled to set a 2-week grace period and to withdraw from the contract or reject delivery and claim damages after fruitless expiration of this grace period.
7. The ordering party is entitled to offsetting rights only if the ordering party’s counter-claims have been legally determined, are undisputed or are recognised by us. The ordering party is entitled to exercise a right of retention if the ordering party’s counter-claim is based on the same contractual relationship.
V. Delivery time
1. The beginning of the delivery period specified by us requires clarification of all technical questions. Unless otherwise agreed, a delivery period named by us is not binding.
2. If we default on delivery for reasons for which we are responsible, then the liability for compensation for damage caused as a direct result of the delayed delivery is limited to the amount of foreseeable damage in case of ordinary negligence.
3. If the ordering party sets a reasonable grace period after we have already defaulted on delivery, the ordering party is entitled to withdraw from the contract after fruitless expiration of this grace period. If a reasonable grace period fruitlessly expires, the ordering party is obliged to declare within a period of 2 weeks whether the ordering party is withdrawing from the contract or will continue to insist on fulfillment.
4. Insofar as we are additionally liable for damages instead of performance, such claims are limited to the amount of the foreseeable damage.
5. In case of ordinary negligence, we are not liable for damage caused by delayed or failed performance, and particularly not for loss of profit on the part of the ordering party or other production downtime costs.
6. Compliance with our delivery obligation requires timely and proper performance of the obligations of the ordering party.
7. If the ordering party is in default of acceptance or violates other obligations to cooperate, we are entitled to assert claims for damage incurred, including any additional expenses. In this case the risk of accidental loss or accidental deterioration of the purchased goods is transferred to the ordering party at the point in time at which the ordering party goes into default of acceptance.
VI. Transfer of risk – Return shipments
1. Unless the order confirmation states otherwise, our delivery is agreed to be “free carrier” (FCA) Incoterms® 2010. The risk is transferred to the ordering party when the delivery object leaves the factory, also in the case that partial deliveries are made or the supplier has taken over other services, such as shipping costs or delivery and installation. If acceptance has to take place, acceptance is decisive for the transfer of risk. Acceptance must take place without delay on the acceptance date, alternatively after notification of the supplier regarding readiness for acceptance. The ordering party may not refuse acceptance due to an insignificant defect.
2. If shipment or acceptance is delayed or incomplete due to circumstances not attributable to the supplier, the risk is transferred to the ordering party on the date of notification of readiness for dispatch or acceptance.
3. Partial deliveries are allowed if reasonable for the ordering party.
4. If the ordering party desires it, delivery will be covered by transport insurance; costs incurred in this regard shall be borne by the ordering party.
5. We are not obliged to take back or exchange goods that are free of defects. If we agree to take back or exchange goods, only products packaged in the original packaging will be taken back. Custom-made products or damaged/altered goods will not be taken back or exchanged under any circumstances. Invoices will be issued for missing parts, such as light sources, fixing material, etc. Due to the resulting inspection and processing costs, material that is returned in faultless condition will be credited with no more than 50% of the net value of the goods.
VII. Warranty for defects – Warranty period
1. The warranty rights of the ordering party require that the ordering party properly fulfils its inspection and complaint obligations in accordance with § 377 of the German Commercial Code (HGB).
2. If there is a defect in the purchased goods for which we are responsible, we are entitled, at our discretion, to remedy the defect or deliver goods free of defects. This does not apply in the case of consumer goods within the meaning of §§ 474 ff. BGB.
3. If we are unwilling to remedy the defect or not able to replace the goods, in particular if there is a delay beyond a reasonable period for reasons for which we are responsible, or if the removal of defects or replacement otherwise fails, then the ordering party, at its discretion, may withdraw from the contract or demand an appropriate reduction in the purchase price.
4. The warranty period is two years from delivery of the goods, unless building materials as per § 438 para. 1 no. 2 b) BGB were delivered. This period is a limitation period and also applies to contractual claims or claims based on the contract for compensation for consequential damages, assuming such claims are not excluded by the provisions that follow. This does not apply in the case of consumer goods within the meaning of §§ 474 ff. BGB.
5. For City Elements, illuminating bollards and all outdoor lighting with LEDs (not LED lamps and retrofits) which are delivered to customers in the EU and Switzerland, a warranty period of 24 months from delivery and a guarantee period of 60 months applies. The framework conditions of the guarantee must be observed here.
6. In regard to further claims by the ordering party – for any legal reasons whatsoever – item VIIa applies.
7. The provisions of §§ 478, 479 BGB remain unaffected in any case.
1. Insofar nothing else arises hereinafter, our liability is excluded for damage claims for defects, consequential damage and other breaches of duty for any legal reasons whatsoever.
2. The above-mentioned release from liability shall not apply to injury to life, limb or health intentionally caused or due to negligence and not to other damages intentionally caused or due to gross negligence. It also does not apply if we have assumed a guarantee.
3. The release from liability under paragraph 1 also does not apply if we negligently breach a contractual obligation in cases other than those referred to in paragraph 2, the fulfilment of which is required for proper performance of the contract and on which the ordering party therefore relies and may rely (so-called “cardinal obligations”). In these cases, our liability shall be limited to the ordinarily foreseeable, typical damage.
4. The release from liability according to paragraph 1 and the liability limitation according to paragraph 3 also do not apply if the damage is covered by our comprehensive general liability and/or product liability insurance. However, in these cases our obligation to pay damages is limited to the compensatory allowance received from these insurance policies.
5. Claims under the German Product Liability Act remain unaffected in any case.
VIII. Retention of title
1. We retain title to the purchased goods until all payments from the business relationship with the ordering Party have been received. For each case of breach of contract by the ordering party, especially in case of default of payment, we are entitled to exercise our legal rights and repossess the purchased goods. After repossessing the purchased goods, we are entitled to liquidate them, the proceeds of which will be counted against the ordering party’s liabilities – less reasonable cost of liquidation.
2. In case of seizures or other third-party interventions, the ordering party must immediately notify us in writing so that we can initiate proceedings as per § 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the judicial and extrajudicial costs of such proceedings, the ordering party is liable for the loss incurred.
3. The ordering party is entitled to resell the purchased goods in the ordinary course of business, but the ordering party assigns to us all claims in the amount of the final invoice amount (including VAT) accruing to the ordering party from the resale to its customers or third parties, regardless of whether the purchased goods have been resold without processing or after processing. The ordering party remains entitled to collect these receivables even after the assignment. Our authority to collect the receivable ourselves remains unaffected by this. However, we undertake not to collect the receivable as long as the ordering party meets its payment obligations from the collected proceeds, is not in default of payment and in particular does not submit an application to open insolvency proceedings or suspend payments. If this is the case, we can demand that the ordering party notify us of the assigned receivables and their debtors, provide all information necessary for collection and hand over the associated documents.
4. The ordering party will always take care of processing or transformation of the purchased goods for us. If the purchased goods are processed with other items not belonging to us, we acquire joint ownership in the new item in proportion to the value of the purchase goods to the other processed items at the time of processing. For the goods created by processing, the same otherwise applies as for the purchased goods delivered under retention of title.
5. We undertake to release the securities we are entitled to at the request of the ordering party insofar as the value of our securities exceeds the secured receivables by more than 20%; the right to select the securities to be released resides with us.
IX. Disposal of old luminaires
Within the scope of the EC Directive “Waste Electrical and Electronic Equipment (WEEE)” and the corresponding national implementing directive, the supplier makes use of the possibility of bilateral agreement as follows:
The ordering party is obliged to ensure the disposal of the delivered products supplied under the provisions of the applicable electrical regulation. Upon further sale, the ordering party transfers this obligation to its contractual partner.
X. Competent court of jurisdiction – Place of Performance
1. Insofar the ordering party is a merchant, the competent court of jurisdiction is Villingen-Schwenningen, Germany. However, we are entitled to initiate proceedings at the court of the residence of the ordering party.
2. Unless otherwise stated in the order confirmation, the place of performance is Villingen-Schwenningen, Germany.
3. The laws of the Federal Republic of Germany shall apply exclusively to this contract.
(As of: May 15th, 2017)