General Purchasing Terms of helsa GmbH & Co. KG 


State: January 2015

1. Scope of Application
1.1 These general purchasing terms shall be exclusively valid for all orders, purchase orders, framework agreements, and any other agreements placed and concluded with companies according to § 14 BGB (= Civil Code) or legal entities of public law. We explicitly contradict terms of our suppliers differing of or supplementing these purchasing terms, they shall not be binding for us. Our purchasing terms shall also exclusively be valid if do not contradict the inclusion of the terms of our suppliers in the individual case or if we accept the delivery without any reservation being aware of contradictory or supplementing terms of business of the supplier.

1.2 The purchasing terms shall also be valid for all future businesses with the supplier even if they will not be explicitly agreed again.

2. Offers, Orders, Conclusion of Contract
2.1 Cost forecasts and offers of the supplier shall be free of charge for us and shall not oblige us to order. This shall also be valid for visits and provision of samples for the preparation of offers..

2.2 Orders shall be executed in writing and shall require the written order confirmation with identical contents of the supplier as far as we will not confirm a legally valid offer with identical contents which has been presented to us.

2.3 The order confirmation shall be executed within the scope of the order within the indicated term of acceptance, in the absence of a deadline within two weeks. Otherwise we shall no longer be bound to the order.

2.4 Should the supplier execute alterations or supplements at an order these will only be effective if we reconfirm them.

2.5 Should the supplier take over obligations of a manufacturer so the dislocation of the production of material parts of the order to third parties shall only be allowed if we hereto have given our previous written approval.

3. Models, Tools, Drawings
3.1 We reserve property and intellectual property rights for illustrations, drawings, calculations, and any other documents delivered to the supplier; it shall not be allowed to make these accessible to third parties without our explicit written approval. The products manufactured by the supplier following these models shall be manufactured exclusively for our demand and shall not be manufactured for respectively delivered to third parties. They shall be returned to us after the execution of the order.

3.2 The supplier shall be obliged to use the tools exclusively for the manufacturing of the goods ordered by us. Furthermore the supplier shall be obliged to store the tools belonging to us in a locked room free of charge for us, and to insure them at its own expense against fire and water damages, and against damages through theft at the reinstatement value, and to to provide us evidence about the insurance coverage. At the same time the supplier shall transfer all compensation claims of this insurance to us already now; with this we accept this assignment.

3.3 The supplier shall repair and maintain the provided tools at its own expense. The supplier shall return the tools to us on our request immediately at the expiration of the contract without being entitled to a right of retention. When returning the tools they must be in a flawless technical and optical condition corresponding with the use so far. Repair costs shall be at the expense of the supplier. The supplier shall not be allowed to scrap the tools without our written approval.

3.4 The supplier shall inform us about concerns against a specification, the desired type of execution, the condition of the provided parts or tools immediately after the discovery of that. Our approval to drawings, calculations or other technical documents shall not exempt the supplier from the responsibility in case of defective delivery or performance.

4. Reservation of Title
4.1 Regulations of proprietary rights of the supplier which go beyond a simple reservation of title shall be explicitly contradicted. They shall only be valid if we will have them individually negotiated with the supplier and agreed on them in writing.

4.2 We reserve the proprietary rights for goods provided by us (e. g. parts, components, semi-finished products). Processing or reshaping through the supplier shall be executed for us. Should the goods subject to the reservation of title be processed with other objects which are not belonging to us so we will acquire the co-ownership in the new object in the relation of the value of our object (purchase price plus VAT) to the other processed objects at the time of the processing.

4.3 Should goods provided by us inseparably be mixed with other objects not belonging to us so we will acquire the co-ownership of the new objects in the relation of the value of the goods subject to the reservation of title (purchase price plus VAT) to the other mixed objects at the time of the mixture. Should the mixture be executed in the way that the object of the supplier has to be seen as the main object so it shall be valid that the supplier shall transfer the co-ownership proportionately to us; the supplier shall hold in custody for us the sole or co-ownership.

4.4 As far as the charging liens which we are entitled to according to item 4.2 and/or 4.3 exceed the purchase price of all of our not yet paid goods subject to the reservation of title by more than 10% so we shall be obliged to the release of charging liens according to our choice on request of the supplier.

5. Prices, Terms of Delivery and Payment
5.1 The prices shown in the order as well as the rates of remuneration shall be binding. In the absence of a differing agreement the terms and conditions “DDP place of performance” according to the Incoterms 2010 shall be valid for deliveries.

5.2 The prices shall be understood on delivery free receiving station including packaging. An obligation for taking back the packaging shall comply with currently valid regulation on packaging at the time of the delivery. The supplier shall follow the dispatch provisions and shall execute the transport at economic conditions as far as the transport will be executed at our expense.

5.3 The invoice shall be submitted testable and in orderly form with all accompanying documents and data as our order and article number, after the occurred delivery, performance or approval as per agreement. Delays in payment transactions which will arise through the non-compliance with these requirements shall be in the responsibility of the supplier.

5.4 The invoices shall be issued in EURO.

5.5 The payments shall be executed according to our choice by means of transfer or check respectively bill of exchange after the complete, faultless delivery, services or approval if such one is legally intended or agreed. As far as nothing else explicitly has been agreed on in writing we will pay either within 10 day with a deduction of 4% trade discount, within 30 days with 2% trade discount or within 60 days strictly net.

5.6 Payments shall not mean an acceptance of the deliveries or the services as per agreement. We shall be entitled to set-off rights and rights of retention within the statutory scope. The supplier shall not be entitled to transfer its accounts receivable to third parties or to have them collected by third parties without prior written approval.

6. Dispatch, Packaging
6.1 The dispatch shall be carried out carriage free, free of packaging costs, and free of charge to the receiving station. We shall be informed via a special notification about the dispatch when the delivery will take place.

6.2 Deliveries shall be packed in a way that transport damages will be avoided. The address of the receiving station shall have to be indicated with our order number including the position number in the consignment note as well as on bills of lading, delivery notes and invoices.

7.Deadlines and Time Limits, Reservation of Contractual Penalty
7.1 The agreed delivery dates and terms of delivery shall be binding. Authoritative for the compliance of the delivery date or the term of delivery shall be the reception of the delivery at the receiving station respectively for services the agreed start of execution or the end of the execution. As far as an acceptance will have to take place or is statutory so the time of the acceptance shall be authoritative.

7.2 Deliveries will only be possible at the agreed times.

7.3 Partial deliveries and untimely deliveries shall only be allowed if we have explicitly agreed hereto. The claim for payment, however, will only be due at the originally agreed delivery date. Additional transport costs shall be borne by the supplier.

7.4 Excess or short deliveries will have to be agreed in advance expressly in writing. As far as there will be no approval from our side we can reject short deliveries as faulty. Excess deliveries shall be taken back by the supplier on request immediately or can be stored at expense of the supplier.

7.5 A work’s test certificate in which the specifications agreed with the supplier are listed shall be included besides the delivery note in the delivery as far as nothing else has been agreed.

7.6 The supplier shall be obliged to inform us immediately about any imminent or occurred non-compliance of an agreed time limit respectively of the delivery time, the reasons of which, and the presumed duration of the default. This shall not exempt the supplier from the responsibility for legal consequences in the event of default.

7.7 We shall be entitled to legal claims in the event of default. We shall especially be entitled to assert legal claims against the supplier as the damage caused by default or compensation instead of the services, or to declare the withdrawal from the agreement totally or partially if an appropriate grace period has expired unsuccessfully or if this could be renounced. The claim for compensation instead of the services shall also include the additional expenses which have arisen through covering purchases or the involvement of third parties. Should we claim compensation so the supplier shall be entitled to proof that it has not been responsible for the breach of duty.

7.8 Should the supplier repeatedly be in default with the execution of orders or calls arising of a framework agreement or contract, so we shall be entitled to cancel the agreement at once after previous written warning besides of the other claims we are entitled to.

7.9 Should a contractual penalty be agreed for the non-compliance with deadlines and time limits and has come up, so we shall be entitled to set off this with the payment of the final invoice without having to explain the reservation of the contractual penalty.

7.10 Each contract party shall be entitled to postpone deadlines and time limits in cases of force majeure and hindrances caused by it which make the execution of the contractual duties for a time impossible until the hindrance will have ceased. Each contract party shall be entitled to withdraw from the agreement should this last longer than three months.

8. Place of Performance, Passing of Risk, Acquisition of Property
8.1 Place of performance shall be the place according to the order to which the goods shall be delivered to or at which the work performance or the services shall be provided. Place of performance for our payments shall be our registered office.

8.2 The consignment shall be delivered orderly and packed for transportation free place of delivery to the address indicated by us respectively shall be provided there on the supplier’s expense and risk. The risk of fortuitous loss or fortuitous deterioration of the delivery shall only pass to us with the reception by us or by our ordered forwarding agent at the agreed place of performance or after the final acceptance of the consignment, depending on which time will be later, even if we have accepted to take over the freight charges.

8.3 We shall acquire the property in the goods without any reservation of any rights for the supplier with the passing of risk at the place of performance or with the handing over to a forwarding agent especially ordered by us.

8.4. The passing of risk shall occur only after the final acceptance at the place of performance with the delivery of machines and systems.

9. Liability for Defects
9.1 We will check the delivered goods on the basis of the accompanying documents in respect of identity and quantity as well as in respect of transport damages which can be recognized externally and defects which can be recognized externally. Visible defects shall be reprimanded within five work days (Monday to Friday) after reception of the delivery or services, hidden damages immediately after their discovery.

9.2 The supplier shall be liable according to the legal provisions especially for defects of the consignment without limiting this liability regarding reason or amount or excluding it and the supplier shall exempt us of claims of third parties as far as nothing else has been regulated by this item.

9.3 The supplier shall bear the costs if an / receiving inspection of the delivered objects should be required because of a defective consignment which exceeds the usual volume.

9.4 Should there be a defect, so we shall be entitled to demand a subsequent performance by means of remedy of defects, delivery of a flawless object respectively a new production within the scope of the legal provisions about warranty claims, as well as we are entitled to claim for compensation for damages caused by defects if the legal prerequisites have been fulfilled.

9.5 Should the supplier reject to execute an owed subsequent performance or should it remain unsuccessful even though there has been set an appropriate grace period or if such one has not been statutory required so we shall be entitled to a reduction. It shall be allowed for us to withdraw from the contract totally or partially or to claim for compensation instead of the services as far as the legal prerequisites are given.

9.6 We can remove defects in the required volume or can have third parties removing them and demand the reimbursement of the costs by the supplier in urgent cases for avoiding excessively high damages if this is unavoidable and the supplier cannot be reached.

9.7 The liability period for defects shall be 24 months as far as there is no longer period statutory intended. It shall start with the delivery respectively with the bringing into service of the product which has been manufactured by us using the delivery items to our customers, latest, however, twelve months after the passing of risk to us. We shall fully be entitled to the rights of recourse against the supplier because of defects which arise in the sale of consumer goods. The period shall in each case begin with the delivery, the performance of the services or with the acceptance if this should be legally intended or if it has been agreed. The legal term of limitation shall begin with the finished installation for parts which have been installed within the scope of the subsequent performance.

10. Rights of Use, Patent Rights of Third Parties, Use of the Brandname
10.1 The supplier shall guarantee that the deliveries and services can be deployed for the contractually agreed purposes of use respectively for the purposes of use indicated by the supplier or the manufacturer, and that because of this no proprietary rights, patent rights or other commercial property rights of third parties will be violated.

10.2 The supplier shall exempt us of all claims which could be claimed against us if these are based on a culpable breach of duty of it or of its agents of vicarious liability. Furthermore the supplier shall undertake reasonable measures for enabling us to the contractually agreed use without a negative effect for third parties. The supplier shall be obliged to immediately inform us about lawsuits filed against it or the assertion of claims against it and to put all documents regarding this at our disposal for fending off any possible claim.

10.3 As far as goods of helsa will be returned or will not be approved and if they are marked with a brand-name of helsa or with the helsa logo it shall not be allowed to sell these goods to third parties. In case of violation a contractual penalty of the double amount of the value of the goods shall be valid.

11. Rights of Rescission and Rights of Cancellation
11.1 We shall be entitled, beyond the legal rights of rescission, to withdraw from the agreement or to cancel it as of now if the supplier has stopped the delivery to one of its customers or if a material deterioration of the financial circumstances of the supplier occurs or is imminent to occur and that because of this the performance of the delivery obligation against us is at risk, the facts of the case of insolvency or of excessive debts occur or the supplier suspends its payments.

We also shall be entitled to withdraw or to cancel if the supplier applies for the opening of the insolvency proceedings about its fortune or applies for similar proceedings for the clearing the debts.

11.3 Should the supplier have brought about a partial performance we only shall be entitled to withdraw from the total agreement if we are not interested in the partial performance.

11.4 The supplier shall be obliged to compensate us for the damages arising from the withdrawal of the agreement as far as we will withdraw from the agreement because of the above mentioned rights of rescission and rights of cancellation, unless the supplier is not liable for the development of the rights of rescission respectively rights of cancellation.

11.5 Legal rights and claims shall not be limited because of the regulations included in this item 12.

12. Product Liability, Insurance
12.1 The supplier shall be obliged to exempt us insofar from compensation claims of third parties on a first request as the reason is located in its sphere of control or sphere of organization and the supplier is liable itself in the legal relationship with third parties as far as the supplier is responsible for a product defect. The supplier shall also be obliged to reimburse us the costs for measures which we will have to execute for avoiding product defects (e. g. recalls) in an appropriate and required volume within the scope of its liability. We will inform the supplier about the contents and the volume of such measures - as far as possible and reasonable – and give it the opportunity for a statement. Should a product recall be required because of a risk to life and limb and health of third parties or should it be ordered by the authorities so the supplier shall be obliged to reimburse us the necessary costs arising by this. Possible further legal claims shall be unaffected by this.

12.2 The supplier shall arrange for an insurance coverage which is appropriate for the contractual risks and as a manufacturer of products and parts of products the supplier shall also arrange for a product liability insurance with coverage of possible recall costs for the purpose of the provision for extra-contractual product liability. The supplier shall proof on our request the conclusion respectively the maintenance of the insurance coverage.

12.3 The supplier shall be liable for damages which will be caused by it, its staff or its agents through provided services, performed work or delivered objects and shall arrange for a sufficient liability insurance. The amount of the sum insured per damaging event shall be presented to us on request.

13. Secrecy, Data Protection
13.1 The supplier shall keep strictly confidential the knowledge and experience gained by us or our customers or any other information provided from or gained by us within the scope of the business relation, especially documents (no matter if they have been delivered to it in an electronic or any other form) against third parties as long and as far as these have not become legally public known, or there is a statutory and official obligation for disclosure or if we have agreed to a passing-on of them in the individual case in writing. The supplier shall use this information only for purposes of making an offer to us or for the execution of ordered consignment or services for us. This obligation to secrecy shall also continue after the termination of the business relation for a period of three years.

13.2 All documents (e. g. drawings, illustrations, test specifications), samples, and models, etc. which we have made accessible to the supplier within the scope of the business relations shall remain our property and shall, on our request, latest, however, at the termination of the business relations (including possibly existing copies, duplications, excerpts, and replications) be returned or shall be destroyed at expense of the supplier. The supplier shall have no right of retention as far as this is concerned.

13.3 The supplier shall agree that we will store the data of the supplier and the data of the agreements concluded with it within the scope of the business relation with our system technology and that we will use them only for our own purposes within the companies affiliated with our group.

14. Quality Management
14.1 The supplier shall maintain a quality management system which has been established by it according to accepted provisions during the duration of the contractual co-operation and shall keep to the regulations about the execution of audits which have been agreed with us. As a producing company the supplier shall operate a quality assurance and document the results of it permanently by means of suitable tests and control, especially during the production, even without introducing a quality management system.

14.2 We shall be entitled to check the quality assurance of the supplier at all times after previous announcement. The supplier shall grant us an insight into the certification and audit reports as well as into the executed testing procedures including into all test reports and documents regarding the consignment.

15. Compliance
15.1 The supplier shall undertake to keep to the respective statutory provisions concerning the dealing with employees, energy, environmental protection, and industrial safety and to work on the reduction of negative effects for people and environment during its activities. The supplier shall hereto – as far as not yet done – establish and develop corresponding management systems as far as possible.

15.2 Furthermore the supplier shall follow the principles of the Global Compact Initiative of the UN. These principles essentially concern the protection of the international human rights, the right for collective negotiations, the abolition of forced and child labor, the elimination of discrimination at hiring and employment, the responsibility for the environment, and the prevention of corruption. Further information about the Global Compact Initiative of the UN is available under www.globalcompact.org.

15.3 Should a supplier behave repeatedly and / or despite an according hint against the law and will not prove that the violation of law has been remedied as far as possible and that appropriate measures for a future prevention of violation of law have been taken, so we reserve the right to withdraw from existing agreements or to cancel them as of now.

16. Force Majeure
16.1 Force majeure, breakdowns through no fault of one’s own, riots, official measures, and any other inevitable events shall exempt us for the duration of their existence of the duty of the timely acceptance. We shall be entitled during the duration of such events as well as within two weeks after their end –notwithstanding of any other rights of us – to withdraw totally or partially from the agreement as far as these event are not of an insignificant duration and that our demand will not materially be reduced because of the therefore otherwise required procurement.

16.2 The provisions shall also be valid in case labor disputes.

17. Choice of Law and Place of Jurisdiction
17.1 The Law of Federal Republic of Germany shall exclusively be valid, excluding its private international law, as far as it refers to the validity of another legal system. The application of the uniform United Nations Convention on Contracts for the International Sale of Goods (CISG) and of any other bilateral and multilateral agreements serving the standardization of the international sale shall be excluded.

17.2 The courts being in charge for our registered office shall be the ones being in charge for all disputes arising from the business relation with the supplier especially from and in context with agreements. We shall, however, be entitled to sue the supplier also at any other general or special place of jurisdiction according to our choice.

18. Final Provisions
18.1 Should a provision of these terms and conditions and of the further made agreements be or become invalid or unfeasible so the validity of the remaining terms and conditions shall be unaffected. The contractual partners shall be obliged to replace the invalid or unfeasible provision through such a provision which corresponds most possible in its economic success.

18.2 The same shall be valid in case of a gap.