1. preamble

All deliveries and services are subject to these terms and conditions as well as any separate contractual agreements. Deviating terms and conditions of purchase of the buyer shall not become part of the contract even if the order is accepted.

In the absence of a special agreement, a contract is concluded with the written order confirmation from Karl Hess GmbH & CO. KG comes into effect.

Karl Hess GmbH & CO. KG reserves the right of ownership and copyright to samples, cost estimates, drawings and similar information of a physical and non-physical nature - including in electronic form; they may not be made accessible to third parties.

Karl Hess GmbH & CO. KG undertakes to make information and documents designated as confidential by the buyer accessible to third parties only with the buyer's consent.

2 Purchase price and payment

Unless otherwise agreed, prices are ex works, including loading at the factory, but excluding packaging and unloading. Value added tax at the respective statutory rate shall be added to the prices.

The purchaser shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been recognised by declaratory judgement.

3. delivery time

The delivery time is determined by the agreements between the contracting parties. Compliance with this by Karl Hess GmbH & CO. KG presupposes that all commercial and technical questions between the contracting parties have been clarified and that the buyer has fulfilled all obligations incumbent on him, such as the provision of the necessary official certificates or authorisations, a sample inspection or the payment of a deposit. If this is not the case, the delivery time shall be extended accordingly.

This does not apply if Karl Hess GmbH & CO. KG is responsible for the delay. Compliance with the delivery period is subject to correct and timely delivery by our own suppliers. Karl Hess GmbH & CO. KG as soon as possible.

The delivery deadline is deemed to have been met if the object of sale has left the factory of Karl Hess GmbH & CO. KG's factory or readiness for dispatch has been notified.

If acceptance is to take place, the acceptance date is decisive - except in the case of justified refusal of acceptance - or alternatively the notification of readiness for acceptance.

If dispatch or acceptance of the object of sale is delayed for reasons for which the Buyer is responsible, the Buyer shall be charged the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch or acceptance. If non-compliance with the delivery time is due to force majeure, labour disputes or other events beyond the control of Karl Hess GmbH & CO. KG, the delivery time shall be extended accordingly. Karl Hess GmbH & CO. KG shall inform the buyer of the beginning and end of such circumstances as soon as possible.

The buyer can withdraw from the contract without setting a deadline if Karl Hess GmbH & CO. KG is finally unable to provide the entire service before the transfer of risk. The buyer may also withdraw from the contract if the fulfilment of part of an order becomes impossible and the buyer has a justified interest in rejecting the partial delivery. If this is not the case, the buyer must pay the purchase price for the partial delivery. The same applies if Karl Hess GmbH & CO. KG. In all other respects, clause 7 b) of these terms and conditions shall apply.

If the impossibility or inability occurs during the delay in acceptance or if the buyer is solely or predominantly responsible for these circumstances, he remains obliged to provide consideration.

If the buyer gives Karl Hess GmbH & CO. KG - taking into account the statutory exceptions - a reasonable deadline for performance after the due date and the deadline is not met, the buyer is entitled to withdraw from the contract within the framework of the statutory provisions. Further claims arising from delayed delivery shall be determined exclusively in accordance with Section 7.b) of these terms and conditions.

4 Transfer of risk, acceptance

The risk shall pass to the buyer when the object of sale has left the factory of Karl Hess GmbH & CO. KG, even if partial deliveries are made or Karl Hess GmbH & CO. KG has assumed other services, e.g. shipping costs or delivery and installation.

If acceptance is required, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after Karl Hess GmbH & CO. KG of readiness for acceptance. The buyer may not refuse acceptance in the event of a minor defect.

If dispatch or acceptance is delayed or does not take place as a result of circumstances that are not attributable to Karl Hess GmbH & CO. KG, the risk shall pass to the buyer from the day of notification of readiness for dispatch or acceptance.

Partial deliveries are permissible insofar as these are reasonable for the buyer.

5 Retention of title

Karl Hess GmbH & CO. KG retains title to the object of sale until receipt of all payments from the purchase contract and until fulfilment of all claims existing at the time of delivery or arising later from the business relationship between Karl Hess & GmbH & Co KG and the buyer.

The buyer is obliged to insure the object of sale at his own expense against theft, breakage, fire, water and other damage. Karl Hess GmbH & CO. KG is entitled to take out the aforementioned insurance policies at the buyer's expense, unless the buyer has already demonstrably taken out the insurance policies himself.

For the duration of the retention of title, the buyer is prohibited from pledging the goods or assigning them as security. Resale is only permitted to resellers in the ordinary course of business and only on condition that payment of the equivalent value of the object of sale is made to the buyer. The purchaser must also agree with the buyer that the buyer only acquires ownership upon this payment.

The buyer is permitted to process the object of sale or to mix or combine it with other objects. The processing, mixing or combining (hereinafter collectively referred to as "processing" and, with regard to the object of sale, "processed") is carried out for Karl Hess GmbH & CO. KG; the item resulting from the processing is referred to as "new goods". The buyer shall store the new goods for Karl Hess GmbH & CO. KG with the care of a prudent businessman.

In the event of processing with other items not belonging to Karl Hess GmbH & CO. KG, Karl Hess GmbH & CO. KG is entitled to co-ownership of the new goods in the amount of the share resulting from the ratio of the value of the processed object of sale to the value of the other processed goods at the time of processing. If the buyer acquires sole ownership of the new goods, the buyer and Karl Hess GmbH & CO. KG agree that the buyer shall grant Karl Hess GmbH & CO. KG co-ownership of the new goods in the ratio of the value of the processed object of sale to the other processed goods at the time of processing.

In the event of the sale of the object of sale or the new goods, the buyer hereby assigns his claim from the resale against the customer with all ancillary rights to Karl Hess GmbH & CO. KG without the need for any further special declarations. The assignment applies including any balance claims.

However, it shall only apply to the amount that corresponds to the price invoiced by Karl Hess GmbH & CO. KG's invoice for the object of sale. The portion of the claim assigned to Karl Hess GmbH & CO. KG is to be satisfied with priority.

If the buyer combines the object of sale or the new goods with real estate or movable property, he also assigns his claim, which he is entitled to as remuneration for the combination, with all ancillary rights as security in the amount of the ratio of the value of the object of sale or the new goods to the other combined goods at the time of the combination to Karl Hess GmbH & CO. KG.

Until revoked, the buyer is authorised to collect the claims assigned in this clause 5 (retention of title). The buyer shall immediately forward payments made on the assigned claims up to the amount of the secured claim to Karl Hess GmbH & CO. KG immediately. In the event of an important reason, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the buyer, Karl Hess GmbH & CO. KG is entitled to revoke the buyer's authorisation to collect. In addition, Karl Hess GmbH & CO. KG may, after prior warning and subject to a reasonable period of notice, disclose the assignment by way of security, realise the assigned claims and demand that the buyer discloses the assignment by way of security to the customer.

If a justified interest is substantiated, the buyer must provide Karl Hess GmbH & CO. KG the information required to assert its rights against the customer and hand over the necessary documents.

In the event of seizure, confiscation or other dispositions or interventions by third parties, the buyer must inform Karl Hess GmbH & CO. KG immediately.

Insofar as the realisable value of all security rights to which Karl Hess GmbH & CO. KG exceeds the amount of all secured claims by more than 10 %, Karl Hess GmbH & CO. KG shall release a corresponding part of the security rights at the buyer's request; Karl Hess GmbH & CO. KG shall be entitled to choose between different security interests for the release.

In the event of breaches of duty by the buyer, in particular default of payment, Karl Hess GmbH & CO. KG is entitled, even without setting a deadline, to demand the return of the object of sale or the new goods and/or to withdraw from the contract;
The buyer is obliged to surrender the goods. The demand for surrender does not constitute a declaration of cancellation by Karl Hess GmbH & CO. KG, unless this is expressly declared.

6. claims for defects

For material defects and defects of title in the delivery, Karl Hess GmbH & CO. KG warrants the goods as follows, to the exclusion of further claims - subject to clause 7:

Material defects

a) All those parts shall be repaired free of charge at the discretion of Karl Hess GmbH & CO. KG to repair or replace free of defects all parts that prove to be defective as a result of a circumstance occurring before the transfer of risk. The discovery of such defects must be reported to Karl Hess GmbH & CO. KG in writing without delay. Replaced parts become the property of Karl Hess GmbH & CO. KG.

b) Karl Hess GmbH & CO. KG, the buyer shall, after consultation with Karl Hess GmbH & CO. KG; otherwise Karl Hess GmbH & CO. KG shall be released from liability for the resulting consequences. Only in urgent cases where operational safety is jeopardised or to prevent disproportionately large damage, in which case Karl Hess GmbH & CO. KG must be informed immediately, the buyer has the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from Karl Hess GmbH & CO. KG for reimbursement of the necessary expenses.

c) Karl Hess GmbH & CO. KG shall bear the direct costs arising from the rectification of defects or replacement delivery. KG shall bear the costs of the replacement part, including despatch, insofar as the complaint proves to be justified. It shall also bear the costs of removal and installation as well as the costs of any necessary provision of the necessary fitters and assistants, including travelling expenses, provided that this does not result in a disproportionate burden for Karl Hess GmbH & CO. KG.

d) The buyer has the right to withdraw from the contract within the framework of the statutory provisions if Karl Hess GmbH & CO. KG - taking into account the statutory exceptions - allows a reasonable deadline set for it to rectify or replace the goods due to a material defect to expire fruitlessly. If there is only an insignificant defect, the buyer is only entitled to a reduction in the purchase price. The right to reduce the purchase price is otherwise excluded. Further claims shall be determined in accordance with Section 7 b) of these terms and conditions.

e) No warranty is assumed in the following cases in particular: Unsuitable or improper use, incorrect assembly or commissioning by the buyer or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences - unless they are the responsibility of Karl Hess GmbH & CO. KG is responsible.

f) If the buyer or a third party carries out improper repairs, Karl Hess GmbH & CO. KG for any resulting consequences. The same applies to changes made to the object of sale without the prior consent of Karl Hess GmbH & CO. KG's prior consent.

Defects of title

g) If the use of the object of sale leads to the infringement of industrial property rights or copyrights in Germany, Karl Hess GmbH & CO. KG shall, at its own expense, procure the right for the buyer to continue using the object of sale or modify the object of sale in a way that is reasonable for the buyer so that the infringement of industrial property rights no longer exists.

If this is not possible under economically reasonable conditions or within a reasonable period of time, the buyer is entitled to withdraw from the contract. Under the aforementioned conditions, Karl Hess GmbH & CO. KG is also entitled to withdraw from the contract.

In addition, Karl Hess GmbH & CO. KG shall indemnify the buyer against undisputed, legally established claims of the owners of the property rights concerned.

h) The obligations of Karl Hess GmbH & CO. KG mentioned in clause 6 g) are conclusive, subject to clause 7 b), in the event of an infringement of industrial property rights or copyright.

h) The obligations of Hess GmbH & CO. KG mentioned in clause 6 g) shall be conclusive, subject to clause 7 b), in the event of an infringement of industrial property rights or copyright. They shall only exist if

• the purchaser informs Hess GmbH & CO. KG immediately of any asserted infringements of industrial property rights or copyrights,
• the buyer assists Karl Hess GmbH & CO. KG to a reasonable extent in the defence of the asserted claims or if the buyer assists Karl Hess GmbH & CO. KG to carry out the modification measures in accordance with section 6 g),
• Karl Hess GmbH & CO. KG reserves the right to take all defence measures, including out-of-court settlements,
• the defect of title is not based on an instruction of the buyer and
• the infringement of rights was not caused by the fact that the buyer modified the object of sale without authorisation or used it in a manner not in accordance with the contract.

7 Liability

a) If the object of sale is damaged through the fault of Karl Hess GmbH & CO. KG as a result of omitted or faulty execution of suggestions and advice given before or after conclusion of the contract or as a result of the breach of other contractual ancillary obligations - in particular instructions for operation and maintenance of the object of sale - cannot be used by the buyer in accordance with the contract, the provisions of clauses 6 and 7 b) shall apply accordingly to the exclusion of further claims by the buyer.

b) Karl Hess GmbH & CO. KG shall only be liable - irrespective of the legal grounds

• in the event of intent,
• in the event of gross negligence on the part of the executive bodies or executive employees,
• in the event of culpable injury to life, limb or health,
• in the event of defects which it has fraudulently concealed or the absence of which it has guaranteed,
• in the event of defects in the object of sale, insofar as the Product Liability Act provides for
  personal injury or property damage to privately used objects.

In the event of culpable breach of material contractual obligations, Karl Hess GmbH & CO. KG shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical of the contract.

Further claims are excluded.

8 Limitation period

All claims of the buyer - irrespective of the legal grounds - shall become time-barred after 12 months.
The statutory limitation periods shall apply to claims for damages under clause 7 b).

9 Assembly

In the absence of a special agreement, assembly costs shall be charged separately.

If deliveries including assembly and training have been agreed, assembly and training shall take place during normal business hours.

At the Buyer's request, assembly may also be carried out outside normal business hours, in particular on weekends or public holidays. In this case, the Buyer shall be charged for the increased personnel costs incurred as a result, such as weekend surcharges, overtime surcharges, etc.

10 Choice of law, place of jurisdiction

All legal relationships between Karl Hess GmbH & CO. KG and the buyer shall be governed by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) and any other intergovernmental agreements shall not apply.

The place of jurisdiction is Siegen.

Karl Hess GmbH & CO. KG is entitled to bring an action at the buyer's head office.

11. further provisions

These terms and conditions replace all other agreements which the contracting parties have previously made in writing or verbally and which become ineffective with the signing of these terms and conditions.

These terms and conditions shall not be made available to any third party without the written consent of the other contracting party.

Each party shall be responsible for the costs of implementing this agreement.