General Terms and Conditions of Purchasing
Helsa GmbH & Co. KG
1. Scope of Application
1.1 These general terms and conditions of purchasing shall be the basis for any order given by us. They shall also be valid for skeleton agreements, contracts and orders / calls carried out within the scope hereof. As far as we have presented these general terms and conditions of purchasing to the supplier and he has accepted them they shall be also valid for all future operations with the supplier.
11.2 The supplier’s terms and conditions of trade shall not be applicable. This also shall be valid if we accept and pay the supplies and services of the supplier without express objection against its terms and conditions of trade. The acceptance of these shall need the prior written approval.
2. Offers, Orders, Completion of Contract
2.1 Quotations and offers of the supplier shall be free of cost and shall not oblige us to order. This also shall be valid for visits and the provision of samples for the preparation of offers.
2.2 The order shall be in writing and shall need the written confirmation of order by the supplier equal in content as far as we do not confirm a legally effective offer presented to us equal in content. Oral agreements and subcontracts shall be confirmed in writing.
2.3 The confirmation of order shall be carried out within the period of time mentioned in the order; should there be no mentioned period of time it shall be carried out within an appropriate period of time. Otherwise we shall be no more bound to the order.
2.4 Should the supplier change or supplement an order it only shall be valid if we reconfirm the order.
2.5 Should the supplier take over duties for production the transfer of the production of material parts of the order to thirds only shall be allowed if we have given our written approval.
3. Models, Tools, Drafts
3.1 The models, tools, drafts and other documents handed out by us to the supplier for the execution of orders shall remain our property and it only shall be allowed to hand them out to third parties with our express written approval. The products made by the supplier according to these patterns shall exclusively be produced respectively delivered for our demand and not for thirds. The supplier shall return them to us by request immediately and refrain from further use after the termination of the contractual relation.
3.2 The supplier shall inform us about concerns about a specification, the requested type of the execution, the condition of the provided parts or tools or documents immediately after the detection. The supplier shall not be free of responsibility for defective supplies or services through our acceptance of drafts, calculations or other technical documents made by it.
4. Reservation of Proprietary Rights
4.1 Regulations of the supplier’s proprietary rights going beyond a simple reservation of proprietary rights shall expressly be objected. They only shall be valid if they individually have been negotiated by us with the supplier.
4.2 The processing or alteration of provisions by the supplier shall be carried out for us as a manufacturer according to § 950 BGB (= Civil Code). The supplier shall store the object subsequently with due diligence, free of cost for us and separately from the property of thirds.
5. Prices, Terms of Delivery and Payment
5.1 Agreed prices as well as remuneration rates shall be binding. The terms and conditions “DDP place of performance” shall be valid for deliveries in accordance with the “Incoterms 2000” in the absence of differing agreements.
5.2 The prices shall be including packaging free receiving station for the delivery. An obligation for taking back the packaging shall comply with the packaging regulation currently valid at the time of delivery. The supplier shall observe the dispatch regulation and carry out the transport according to efficient conditions as far as the transport is at our expense.
5.3 The invoice shall be submitted verifiably and in orderly form including all documents and data (amongst other things order number) after delivery, service or acceptance as per agreement. The responsibility for delays in payment transactions arising by non-compliance with these requests shall be taken by the supplier.
5.4 Payments shall be executed with 4% discount within 10 days, 3 % within 30 days or strictly net within 60 days from date of invoice, but not before complete and flawless delivery, service or acceptance should such one be statutory or agreed.
5.5 Payments do not mean any acceptance of the delivery or service as per agreement. We shall be entitled to the rights of counterbalancing and of retention within the statutory scale. The supplier shall not be entitled to transfer its accounts receivable against us to thirds or to have collected these accounts receivable by thirds without prior written approval.
6. Dispatch, Packaging
6.1 Dispatch shall be free of cost for freight, packaging and charges to receiving center. When executing the delivery we shall be informed about the dispatch by a separate advice note.
6.2 Deliveries shall be packaged in a way avoiding transport damages. The address of the receiving center shall be indicated at our order number including the position number in the advice note as well as on all bills of lading, delivery notes and invoices.
7. Time Limits and Deadlines, Reservation of Contractual Penalty
7.1 The agreed delivery dates and deadlines shall be binding. The receipt of the delivery at the receiving center respectively in case of services the agreed start of performance or the termination of performance shall be authoritative for the adherence of the delivery date or delivery deadline. As far as a final inspection has to be executed or is statutory the time of the final inspection shall be authoritative.
7.2 The supplier shall be obliged to immediately inform us about any imminent or already occurred non-compliance with an agreed period respectively the delivery time, the reasons, and the possible duration of the delay. This shall not discharge the supplier from the responsibility for legal consequences resulting from the event of default.
7.3 In the event of default we shall be entitled to the statutory claims. We shall be especially entitled to assert the statutory claims as, e. g. the damage caused by default or damages instead of the performance against the supplier or to state the complete or partial withdrawal from the contract if an adequate additional time has expired without success or it has been possible to waive this. The claim for damages instead of the performance shall also include the additional expenses having arisen by covering purchases or by the involvement of third parties.
7.4 Should the supplier fall repeatedly behind with the execution of orders or calls from a skeleton contract or any other contract we shall be entitled to cancel the contract immediately effective after a prior warning besides the other claims we are entitled to.
7.5 Should a contractual penalty be agreed and arisen for the non-compliance with time limits and deadlines we shall be entitled to offset this against the payment of the final invoice without having to explain the reservation of the contractual penalty.
7.6 Each contractual party shall be entitled to postpone time limits and deadlines until the obstruction will have ceased to apply in cases of force majeure and obstructions caused by it. Should this last for more than three months each contractual party shall be entitled to withdraw from the agreement.
8. Partial, Additional and Short Delivery
8.1 Partial deliveries only shall be accepted by us after an express written agreement. Additional transport costs arising by this shall be at the expense of the supplier.
8.2 Additional or short deliveries shall be agreed upon expressly written in advance. As far as there should be no approval of us we shall be entitled to reject short deliveries as faulty. Additional deliveries shall be taken back by the supplier immediately after request or can be stored at his expense.
9. Passing of Risk, Examination of Defects, Liability for Defects
9.1 The passing of risk shall occur at the arrival of the delivery at the receiving center. As far as an acceptance is statutory or contractually agreed the passing of risk shall occur with the acceptance.
9.2 We will randomly examine the delivered goods concerning transport damages as well as concerning defects becoming perfectly evident for contracts subject to the commercial inspection duty and the commercial requirement to give notice of defects within a period of eight work days from the date of delivery and we will give notice about the defects detected here as well as about the hidden defects detected at a later point in time within eight work days from the date of detection.
9.3 The supplier shall carry out the supplies / services due free of material defects and deficiencies in title as well as to adhere to given guarantees. Should the supplier have left over patterns, samples and product descriptions to us having become subject of agreed specification features the supply only shall be as per contract if it completely matches these specification features. The safety regulations of trade associations as well as the material and accepted rules of technology shall be taken into consideration for services. As far as for the delivery of machines a declaration of conformity of the manufacturer is required for the transport of these into the area of the EU the supplier shall present it.
9.4 In the event of a defect we shall be entitled to claim free subsequent performance by remedy of defects, supply of flawless goods respectively new production within the scope of the legal regulations as well as to claim for damages for damages arisen through defects if the legal prerequisites are met.
9.5 Should the supplier deny carrying out an owed subsequent performance or should it be without success even though an adequate additional time has been set or if such one has not been statutory required we shall be entitled to reduction. As far as there are the legal prerequisites we shall be entitled to withdraw from the contract completely or partially or to claim for damages instead of the performance.
9.6 In urgent events we shall be entitled to remove defects in the required scope ourselves or have them removed by third parties if this is unavoidable and the supplier could not be reached for avoiding inadequately high damages and shall be entitled to claim the costs hereof from the supplier.
9.7 The term of limitation for defects shall be 36 months as far as a longer period has not been provided for by law. We shall be entitled to recourse claims against the supplier resulting from defects occuring in the purchase of consumer goods in the full statutory scope without cuts. The period shall start in each case with the delivery, performance of services or acceptance if such one has been legally provided for or if it has been agreed. The statutory term of limitation shall start with the installation for parts which have been removed within the scope of subsequent performance.
10. Rights of Use, Property Rights of Thirds
10.1 The supplier shall ensure that the supplies and performances can be used for the contractually agreed respectively of the supplier or manufacturer indicated purposes of use and that we do not violate intellectual property rights, patent rights or other commercial property rights of thirds in when appropriately using them.
10.2 The supplier shall exempt us from any claims laid to us because of violation of domestic commercial property rights if these are based on a culpable breach of duty of it or its agents of vicarious liability. Furthermore the supplier shall carry out reasonable measures for allowing us the use as per contract without negative effects on third parties. The supplier shall be obliged to immediately inform us about suits filed against it or the assertion of claims and to provide us with the documents concerning this for averting a possible claim.
11. Product Liability, Insurance
11.1 The supplier shall exempt us from claims resulting from extra-contractual product liability which can be attributed to products delivered by him. The supplier also shall be obliged to remunerate us the costs for the measures which we have to carry out for avoiding product liability damages within the appropriate and necessary scope in the event of product liability within the scope of his liability. We will not take such measures without informing the supplier unless it has not been possible to reach him short-term. Should a product recall become necessary or ordered by authorities because of a risk to life, limb and health of thirds the supplier shall remunerate us the required costs arising by this.
11.2 The supplier shall install an insurance coverage adequate for the contractual risks and as a product manufacturer or a part product manufacturer in terms of the regulation for the extra-contractual product liability the supplier shall install a product liability insurance with coverage of possible recall costs. The supplier shall prove to us the conclusion respectively the maintenance of the insurance coverage by request.
12. Secrecy
The supplier shall treat the information, especially documents (no matter if handed out to it in electronic or any other form) provided to it by us and our customers or other suppliers because of the business relations confidential and shall use them only for purposes of submitting a quotation to us or of carrying out ordered supplies and services for us.
13. Quality management
The supplier shall maintain a quality management system installed by him in accordance with acknowledged rules during the duration of the contractual co-operation and to adhere to the regulations about the execution of audits agreed with us. As a manufacturing company the supplier permanently shall carry out a quality assurance and document the result of this by means of an adequate audit and control even without the introduction of a quality management system especially during the production.
14. Place of Performance, Place of Jurisdiction, Applicable Right, Data Protection
14.1 Place of performance for the delivery shall be the receiving center, for services the place of service provision.
14.2 Place of jurisdiction shall be the court of competent jurisdiction for our place of business. We shall, however, be entitled to sue the supplier at his general place of jurisdiction.
14.3 Applicable right shall be the right of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CSIG) shall be excluded.
14.4 Data transferred to us by the supplier shall be stored under adherence of the respective current data protection regulations.
Update March 2010
