Scope of Application
(1) Our T&Cs shall apply exclusively and without additional express remarks to future deliveries and services for the customer. We do not recognise the customer's contrary or deviating T&Cs, unless we expressly agreed to their validity in writing. This shall also apply if we unconditionally supply the customer despite being aware of contrary or deviating T&Cs.
(2) Our T&Cs shall only apply to enterprises, bodies corporate organised under public law and public-law special funds in terms of sec. 310 para. 1 BGB [German Civil Code].
Offers and Contract Conclusion
(1) Our offers shall be non-binding, unless they are expressly identified as “binding”. The customer shall be bound by their offers for four weeks. Contracts are concluded by our acceptance or confirmation of orders in writing or delivery of the goods.
(2) The customer agrees that we may obtain information on their credit standing and economic situation. In the event of negative information, we reserve the right to deliver goods only against advance payment. If third-party funding is intended, we may additionally request evidence of the funding prior to delivery.
(3) Images, descriptions, measurements, quantities, calculations, plans, lighting design files, drawings and similar documents and information shall only be binding if this was previously agreed upon with the customer in writing. We reserve property rights and copyrights in these documents and they may not be disclosed to third parties without our express written approval. The quality of services which we must render shall only depend on written contractual documents. The right to modifications in design and material is reserved, unless these are fundamental changes limiting the contractual purpose of the supplies to the customer.
(4) If the customer intends to change the contractual scope of services which we must render, he must make this request in writing. Any costs relating to additional efforts (drafting of a modification proposal, downtimes etc.) must be borne by the customer if we satisfy their request for modifications.
(5) A cost estimate requested from us is subject to a fee if no order is issued.
Product, Quantity and Measurement Indications; Duty to Cooperate
(1) Descriptions of our products are only indications of quality and do not represent guarantees. Our catalogues and our website are constantly updated; illustrations and drawings contained therein are non-binding. Lighting designs only provide initial overviews of illumination effects. Differences between visual representations and visual impressions of installations are possible.
(2) By way of contract conclusion, the customer confirms that quantities and measurements in their orders are based on information checked by them. If deviations from the customer's information arise at a later time, related additional costs must be borne by the customer.
(3) The customer shall indicate a specialist contact person who is available to provide us with required information and who can make immediate decisions which are required for execution of the order or who can bring about such a decision without delay. This contact person is authorised to make binding representations on the customer's behalf.
(4) The customer shall ensure that proper execution of the order is possible and, particularly, that he himself or his vicarious agents cooperate with us in a timely fashion and to the required extent on a free-of-charge basis.
(5) Should order execution require modifications of, or supplements to the customer's software programs, they shall provide a competent employee for these modifications.
(6) Any customer-specific documents required for execution and other internal information must be provided by the customer without the need for solicitation.
(7) The customer shall be liable for delays or errors in the execution of the order, if these are caused by performance data, incorrect or incomplete data provided by himself or other reasons within his control.
Prices, Payment Conditions
(1) Unless agreed otherwise, our prices shall be “ex works” prices, including packaging.
(2) Statutory VAT is not included in our prices; the amount applicable upon invoicing will be stated separately.
(3) Deduction of early payment discount requires special written agreement.
(4) If the customer requests technical support, they must pay EUR 80.00 per hour plus VAT; costs for half-days amount to at least EUR 400.00 plus VAT. Enquiries about journeys to and from the site and accommodation costs are to be requested separately.
(5) Unless agreed otherwise, our invoices shall be due for payment (without deductions) within 30 days from the invoice date and after that, the customer shall be automatically in arrears, without the need for warnings. While the customer is in arrears, our claims shall bear interest of 9% above the base lending rate.
(6) Hess GmbH Licht + Form is entitled to invoice its customers for services via email.
Supply Times, Deadlines, Partial Deliveries
(1) Binding delivery times and deadlines shall require our written confirmation, which may also be delivered by fax or e-mail. These periods shall commence upon the customer receiving a confirmation and, in the case of purchase contracts, refer to the time of dispatch from the factory and, in the case of contracts for work and labour, the time of completion. For indicated periods to begin, technical issues must have been clarified, the customer must have fulfilled their duties punctually and documents/approvals to be obtained by the customer must have been submitted. Design modifications requested by the customer after conclusion of the contract shall accordingly extend supply times and deadlines; we reserve the right to the defence of unfulfilled contracts.
(2) Unforeseeable events beyond our control (particularly strikes, force majeure and late delivery by our own suppliers) shall extend contractual delivery times and deadlines by the time of disruption, plus reasonable start-up periods. The customer must be immediately informed about this; should disruptions persist for more than three months, the customer may withdraw from contracts after a reasonable grace period if they are still unfulfilled. We shall also have this right, whereby there is no need for grace periods in this case.
(3) Should we be discharged from our performance duty in terms of the above or should supply periods/contractual discharge dates be extended, the customer shall have no claims for damages.
(4) Unless contractually agreed otherwise, we may also perform partial deliveries, as well as deliveries before the agreed delivery time.
(5) In the absence of other agreements, the customer must process call-off orders which have been arranged with him, within twelve months at the latest. If he fails to do so, we are entitled to charge him with any price increases, which occurred in the meantime.
(6) Should the customer be in default of acceptance or violate other duties to cooperate, we may claim compensation for damage incurred in this regard, including additional expenses; further claims and rights shall be reserved. The risk of accidental goods loss or deterioration shall be transferred to the customer once they are in default of acceptance or performance.
(7) We shall be liable in terms of the law to the extent that the underlying contract is a firm deal in terms of sec. 286 para. 2 no. 4 BGB or sec. 376 HGB [German Commercial Code]. We shall also be liable in terms of the law, if as a result of a default in delivery for which we are responsible, the customer is entitled to assert the claim that his interest in continuing the fulfilment of the contract no longer exists.
(8) In the same way, we are liable in terms of the law, if default in delivery is based on culpable or grossly negligent violation of the contract by us and culpability of our representatives or vicarious agents shall be deemed our culpability. Should default in delivery be based on grossly negligent violations of the contract for which we are responsible, our liability to pay damages shall be limited to foreseeable, typical damage.
(9) We shall be liable in terms of the law, if default in delivery for which we are responsible, is based on culpable violations of important contractual duties, whereby liability for damages shall be limited to foreseeable, typical damage in these cases. Important contractual duties are those duties which arise from the type of contract and in relation to which non-fulfilment poses a threat to contract purpose achievement.
(10) Apart from that, we must pay, in the case of default in delay, lump-sum delay damages of 0.5% of the supply value for each completed week of delay, but not more than 5% of the delivery value.
Transfer of Risk, Return Shipments
(1) Unless agreed otherwise, deliveries shall be made “ex works”. Risks – including the risk of confiscation – shall be transferred to the customer with carriage-free supplies upon goods hand-over to the transport person; this shall also apply if we, as an exception, commission or perform the transport ourselves. Should dispatch be delayed for reasons within the customer's control, risks shall be transferred once the customer is notified of readiness for supply.
(2) For lack of contrary arrangements, we shall determine the method of packaging and transport. If the customer applies for this in writing, we shall purchase transport insurance for the deliveries at the customer's expense.
(3) With work performances, risks shall be transferred to the customer upon acceptance by them.
(4) We shall not be obliged to take back or replace goods which are free from defects. If we agree to take back or replace goods as a gesture of goodwill, we only take back products with their original packaging. Custom-made products or damaged/altered parts will not be accepted or replaced. Invoices will be issued for missing parts, such as light bulbs, fixing material, etc. Due to inspection and processing costs, goods which are returned in faultless condition will be credited with not more than 50% of the goods' net value.
Retention of Title
(1) Goods shall remain our property until all of our claims under the business relationship with the customer are fulfilled. If the customer violates the contract, particularly if they are in arrears, we are entitled to take back the goods, which must be deemed a withdrawal from the contract.
(2) In the case of seizures or other third-party interventions, the customer must immediately notify us in writing so that we can initiate proceedings as per sec. 771 ZPO (German Code of Civil Procedure).
(3) The customer may resell goods only in the ordinary course of business and as long as he is not in arrears with us; however, he shall assign to us all claims to the amount of the final invoice amount (including VAT) accruing to them from reselling to their customers or third parties, regardless of whether goods were resold without or after processing. The customer shall remain 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 do this so long as the customer meets his payment duties from collected proceeds, is not in arrears, applied for no insolvency proceedings or no payment suspension applies. If this is the case, we may request the customer to provide us with assigned receivables, the debtors’ names, information required for collection and related documents and to inform debtors (third parties) about the assignment.
(4) The customer shall always process or modify goods on our behalf. If goods are processed together with other items not in our possession, we shall acquire joint ownership of the new item in the ratio of the value of our goods (final invoice amount plus VAT) to other processed items at the time of processing. For goods created through processing, the provisions on goods delivered under retention of title shall apply.
(5) If goods are inseparably mixed with other items not in our possession, we shall acquire joint ownership of the new item in the ratio of the value of our goods to the other processed items at the time of processing. Should mixing occur in a way that the customer's goods must be deemed the principal item, it shall be agreed that the customer assigns to us pro-rata co-ownership and they shall retain established sole or co-ownership for us.
(6) To secure our claims against them, the customer shall also assign to us those claims which they have against third parties due to goods subject to retention of title being related to landed properties.
(7) We undertake to release the securities to which we are entitled upon the customer's request insofar as the realisable value of our securities exceeds the value of claims to be secured by more than 10%; we may select the securities to be released.
Liability for Defects, Damages
(1) The customer's claims for damages requires that he duly fulfilled his inspection and defect notification duties in terms of sec. 377 HGB; these provisions shall also apply to contracts for work and labour.
(2) We grant no guarantee for used goods, except for liability for malice and in terms of para. (6) below. With new goods having material defects, the customer may initially claim for subsequent performance only, whereby we may select the type of subsequent performance. Should subsequent performance fail, the customer may, at his choice, reduce the price or withdraw from the contract.
(3) If we fulfil guarantee duties by subsequently delivering goods free from defects, we shall not bear disassembly, assembly and possible repair costs, unless we culpably caused such defect.
(4) We are entitled to deny subsequent performance if this causes unreasonable costs for us. Instead of subsequent performance, the customer may also request price reductions or reversal of the contract.
(5) We shall be liable in terms of the law if the customer asserts claims for damages due to intention or gross negligence committed by us, our representatives or vicarious agents. Unless intentional contract violations apply, liability for damages shall be limited to foreseeable, typical damage.
(6) We shall be liable in terms of the law if we, our representatives or vicarious agents culpably violate important contractual duties, whereby liability for damages shall be limited to foreseeable, typical damage in this case, too. Important contractual duties shall describe duties which arise from the type of contract and in which non-fulfilment poses a threat to achievement of the contract purpose.
(7) Liability due to culpable violations of life, limb or health shall not be affected; this shall also apply to compulsory liability in terms of the Produkthaftungsgesetz [German Product Liability Act].
(8) Unless provided otherwise above, liability shall be excluded.
(9) Claims for damages shall become time-barred after twelve months from the time of risk transfer. Statutory limitation periods for delivery recourse in terms of sec. 445a, 445b, 478 BGB and of sec. 438 para. 1 no. 2, 634a para. 1 no. 2 BGB shall not be affected; this shall also apply to the cases under para. (5) to (7) above.
(10) Liability for damages in cases other than those under the above paragraphs shall be excluded – irrespective of the legal nature of asserted claims; this shall particularly apply for claims for compensation of material damage in terms of sec. 823 BGB due to culpability upon contract conclusion, other violations of duties or tort claims. This restriction shall also apply if the customer, instead of claims for damages, requests compensation of wasted expenses. To the extent that liability for damages towards us is excluded or restricted, this shall also apply to personal liability of our employees, representatives and vicarious agents.
(11) The above shall not include damage caused by delay which is separately regulated under sec. 5 para. (7) to (10).
Software Programs, Liability for Data Losses
(1) To the extent that we are liable for damages in terms of sec. 8, our liability for data losses shall be limited to typical restoration works which would have occurred if regular and complete back-up copies for any data, structures and programs had been prepared.
(2) If the scope of our services includes third-party software products usage, the customer shall accept, right from the beginning, the usage/licensing conditions of the holders of the rights in such software programs; upon the customer's request, we shall provide him with such conditions. Functionality disruptions caused by or attributable to the customer's operating system environment and configuration shall not be our responsibility. Our liability shall be excluded if software programs are incompatible with the customer's hardware and software components, unless we provided consultancy services based on a written agreement.
(1) If we agreed upon call-off orders with the customer, call-offs must be submitted in writing and accepted, including partial supplies, on time and not later than 14 weeks prior to delivery.
(2) We are only obliged to deliver in the case of call-offs, if we issue a relevant order confirmation. Should we be unable to deliver call-off quantities within the period requested by the customer, we shall inform him not later than one week after receipt of the call-off request.
(3) If we concluded a call-off contract with the customer not providing for terms, production lot sizes or acceptance dates, we may, two months from contract conclusion at the latest, request binding determination by the customer in this regard. Unless otherwise agreed with the customer in writing, total quantities must be called off within six months of the call-off contract being concluded. If the customer fails to fulfil this request, we may set a two-week grace period and withdraw from call-off contracts or reject supplies and claim damages after the unsuccessful grace period expires; our right to request call-off contract fulfilment shall not be affected by this.
Assignment, Offsetting, Retention
(1) Without our approval, the customer may not assign or transfer to third parties any rights or claims towards us under this business relationship; this shall also apply to rights and claims towards us established by virtue of the law.
(2) The customer shall be entitled to offsets only if his counter-claims were determined by a court, are undisputed or were recognised by us.
(3) Only if his counter-claim is based on the same contract may the customer exercise a right of retention.
Transfer to Third Parties
(1) We may, also without the customer's prior approval, transfer the order or parts thereof to third parties.
(2) In this case, we shall be liable for third parties as if they were our vicarious agents.
Disposal of Electric Appliances and Packaging
(1) The customer must dispose of electric products (old lights etc.) in compliance with the German Act on Electric and Electronic Devices.
(2) Upon possible re-sale, the customer shall impose that duty on their contractual partner.
(3) The customer must also dispose of packaging and transport securing devices.
Place of Fulfilment, Venue, Applicable Law
(1) The place of fulfilment and jurisdiction for disputes with entrepreneurs, bodies corporate organised under public law and public-law special funds shall be at our registered office; additionally, we may sue the customer and his registered office.
(2) The law of the Federal Republic of Germany shall apply; CISG application shall be excluded.
(3) Should any of the above provisions be or become invalid, this shall not affect validity of the remaining provisions.
(As of: February 02nd, 2018)