General Terms and Conditions of Contract of HESS GROUP GmbH for Purchasing
 

Introductory Remarks

§1 General

These purchasing terms and conditions in their actual valid version are the basis for all present and future business transactions. Any deviations on the part of the suppliers which we have not acknowledged in writing shall not be binding for us, even if we have not expressly contested them.

§2 Scope and Conclusion of the Contract

Orders, agreements, amendments and modifications shall be valid only if we issue and confirm them in writing. We shall only be bound by our orders if we receive a written statement of acceptance within 14 days of the date of the order.

Should the supplier be obliged to manufacture goods, then, in addition to the order, the supplier shall be contractually obligated to the information stipulated in the drawings and sketches. Should the supplier detect that the order is ambiguous, faulty, or not suitable for its intended purpose, the supplier must inform us immediately and, where reasonable, provide us with proposals for solutions.

§3 Unlawful Advertising

The use of an written order as reference or for advertising purposes is unlawful.

§4 Handling of issued drawings, models tools, ect.

All drawings issued for the execution of an order and other written documents, models and tools shall remain our property and are to be returned free of charge after fulfillment of the order.

The aforementioned drawings and other written documents, in addition to drawings and written documents drafted according our data may neither be reused or reproduced nor disclosed to third parties. The contractor shall be liable for all damages resulting from non-compliance.

The warranty and guarantee obligations on the part of the contractor with regard to the delivery item shall remain unaffected by our agreement to drawings, calculations and other technical documents.

§5 Reserve and Wear Parts

The contractor shall ensure that the reserve and wear parts meet the same state of the art technology from the initial delivery until the end of the warranty period.

 

II. Deadlines

§6 Delivery Dates, Default Consequences

The agreed delivery dates or release order dates are binding, even if they were not agreed to as firm dates, and they must be maintained. If these dates are not fulfilled, the contractor shall be in default without the need to send a notice of such. If a delivery period is agreed upon rather than a delivery date, this period shall begin upon the date of the order.

If the contractor realizes that the agreed-upon dates cannot be met, the contractor shall notify us immediately in writing of such delays. Despite the acceptance of part of the delivered goods, we shall reserve the right to withdraw from the agreement due to a delay, after setting a deadline and refusal notice regarding the remaining delivery.

Further rights arising from a commercial transaction for delivery with a firm date or other rights shall remain unaffected.

§7 Liability for delivery delays and contractual penalties

In case of failure to comply with the agreed upon deadlines, the statutory provisions shall apply in respect of the legal consequences.

Irrespective of the legal rights arising from the delay of delivery and the relevant regulations stipulated in § 6, we are authorized ín the case of a delay of delivery to request a contractual penalty totaling 0.2 % of the order value for each day of delay but in total not more than 5%. We reserve the right to assert claims for further damages. We shall clarify the claim for the contractual party at the latest by the time of the invoice payment, which shall take place following the delayed delivery.

 

III. Remuneration

§8 Quantities including excess or short deliveries

The quantities, dimensions and weights that we have determined shall apply for the invoicing. We reserve the right to accept excess or short deliveries.

§9 Prices

The agreed-upon prices listed in the order are maximum prices and are valid until the delivery of an ordered quantity. In the event the contractor reduces the prices or increases the discounts for the goods ordered, then the reduced prices shall apply to all current orders without the need for a request to do so.

§10 Pricing

The prices include freight to the point of use including all incidental costs. Incidental costs include, for example, costs for freight and transport, insurance, customs duty, public legal disclosures etc. This pricing shall not affect the agreement regarding the place of performance. Shipment is made at the supplier´s own risk.

 

IV. Payment

§11 Invoicing

Three copies of the detailed invoices shall be submitted to us which include the order number, date of the order, article number, weight per article, drawing number, 7-digit customs number, supplier declarations, etc. Should any of the above-mentioned information be missing, we shall be authorized to reject the invoices. The payment deadlines are calculated from the receipt of the accepted invoice to the issuance of a payment order.
The value added tax is to be indicated separately on the invoice in accordance with tax law.

§12 Terms of payment

Unless otherwise agreed, after receiving the invoice, we shall issue the payment within 21 days with a 3% discount, within 45 days with a 2%, or within 90 days net, in each case using the payment method of our choice.

§13 Payment with reservation

Payment shall be made subject to reviewing the invoice and inspecting the goods by us.

§14 Offsetting

We are entitled to offset our own claims against those asserted against us by the contractor.

§15 Assignment prohibition

This shall not apply to claims which are subject to a prolonged reservation of ownership.

 

V. Warranty

§16 Scope of warranty

The supplier shall guarantee that all goods delivered and all the services provided possess the assured properties, and comply with intended use, state-of-the-art technology, all relevant legal provisions of authorities and professional associations and do not violate the rights of third parties.

§17 Warranty claim

In the event of a defective delivery or service, we shall be entitled, at our discretion, to the right of change (rescission of the agreement), reduction (reduce the remuneration), the right to faultless goods or faultless delivery or rectification through the supplier. In urgent cases, in particular with special urgency and after previous instruction from the contractor, we shall be entitled to conduct the required measures ourselves, regardless of the warranty duty. The contractor shall bear the costs and risks of such measures. In accordance with the statutory regulations, we shall be entitled to request reimbursement for any damages incurred. The contractor shall bear the costs for all of the incurred expenses associated with his warranty duty, for example, disassembly, assembly, freight, packaging, insurance, customs, and other public disclosures, inspections, and technical acceptance tests.

§18 Notification of defect

Notification of defects, for example, based on random inspections of the delivered items, shall take place within 5 working days after receipt of the goods or completion of the service. In the case of hidden defects, this shall take place 5 days following discovery. Should the contractual object comprise the delivery of machines or machine parts, a notification of defect can take place only after installation and a test run of the entire unit at our customer. Following the installation and test run, the notification of defect shall be issued within 5 days after discovery.

§19 Warranty periods and limitation

Warranty claims shall expire after 24 months after delivery to us. The warranty period shall begin again after each replacement delivery for the spare part.

For all system parts, which cannot be used as contractually intended due to rework or as a result of the installation of replaced or reworked parts, the warranty period shall be extended by the duration of this interruption.

Warranty claims due to notification of defects that were issued within the original warranty period shall expire 12 months after submitting the notification, however, at the earliest with the expiration of the initial warranty period..

 

VI. Liability

§20 General liability

Liability shall be based upon statutory regulations.

§21 Product liability

If claims are made against us due to a violation of official safety regulations or due to domestic or foreign product liability regulations resulting from a defective product that we receive from the contractor, we shall be entitled to demand damage claims from the contractor. In such cases, the contractor shall bear the incurring costs for a warning or recall campaign.If product errors from deliveries or services can be traced back to sub-suppliers or sub-contractors contracted by the supplier, such errors shall be deemed product errors of the contractor. We reserve the right to conduct only random inspections of deliveries from sub-suppliers or sub-contractors of the contractor. However, such inspections shall not relieve the contractor from his sole responsibility for the quality, reliability, and safety of his supplied parts.

§22 Liability for environmental damage

The contractor shall be liable for all damage arising from a violation of the provisions of emission protection laws, waste oil, water supply, and waste disposal law. The contractor shall indemnify us from all third-party claims that have been asserted against us due to such violations.

 

VII. Place of Jurisdiction and Court of Jurisdiction

§23 Place of Jurisdiction

The place of jurisdiction for deliveries and services shall be the place of use and for payments it shall be our company´s registered address.

§24 Court of jurisdiction/applicable law

The court of jurisdiction shall be the court responsible for our company´s registered office. We reserve the right to assert claims at the general place of jurisdiction of the contractor. In addition to the stipulations of this agreement, the sole law for governing legal relationships of domestic parties shall be that of the Federal Republic of Germany.This shall also apply to foreign business transactions.

 

VIII. Final provisions

§25 Property rights

The contractor grants us and our customers the right of unrestricted use of the scope of delivery. Any infringement action raised against us or our customers based on property rights shall be dismissed by the contractor. The contractor shall bear any costs arising from such legal disputes.

§26 Severability

If any provision of this agreement is deemed invalid, the invalidity shall not affect other provisions of the agreement. Any unenforceable or invalid provision in this agreement shall be modified by the parties as soon as possible to reflect the original intent of the provision.