General Terms and Conditions of Purchase, as of 11/2021

I. Offers and conclusion of contract
1. Orders shall only become binding on confirmation of the order by Helmers. Amendments and additions must be made in writing. All offers are subject to change unless they are stated to be firm offers. Any offers contained in brochures, adverts etc. are subject to change and non-binding, including any pricing.

2. These terms and conditions shall apply both to ongoing business relationships and to future business transactions, even where these are not specifically referred to.

3. Helmers shall only be bound by any different terms and conditions of purchase or order of the purchaser if they have been expressly accepted by Helmers in writing.
4. Statements in offers and/or order confirmations from Helmers which are based on an obvious error, including spelling and calculation errors, shall not be binding on Helmers. The obvious intention shall apply instead. This shall also apply if the error is based on information provided by the purchaser.

II. Prices & price changes
1. Prices are ex works excluding freight, customs duties, import duties and packaging, plus VAT at the statutory rate.

2. If, after submitting the offer or after the order confirmation and before the delivery, the relevant cost factors change by more than 5%, Helmers and the purchaser shall agree an adjustment of the prices and the breakdown of costs for sample parts, programs and tools.
3. If it has been agreed that the price shall depend on the weight of the part, the final price shall be calculated from the weight of the approved reference sample.

4. Helmers shall not be bound by previous prices for new orders (= follow-up orders).

III. Obligation to deliver & obligation to accept delivery
1. Delivery deadlines shall apply subject to a correct and timely delivery by our suppliers to us and after receipt of all documents required for the performance of the contract, the advance payment or the payment, the materials, programs and special tools provided by Helmers prior to start of production and on the timely provision of materials by the purchaser, to the extent the latter has been agreed. The delivery deadline shall be deemed to have been complied with on notification of readiness for dispatch.

2. If an agreed delivery period is not met due to a circumstance for which Helmers, its legal representative or vicarious agents are culpably responsible, the purchaser shall be entitled (where they have not acted with gross negligence or intent) to claim compensation for delay or to withdraw from the contract after the expiry of two reasonable extension periods, to the exclusion of any further claims, if the purchaser has given notice of rejection of performance in writing when setting the extension period(s). The compensation for delay shall be limited to a maximum of 5% of that part of the delivery that has not been made in accordance with the contract. Further claims are excluded to the extent permitted by law.

3. Reasonable partial deliveries and reasonable deviations from the order quantities of up to plus/minus 10% shall be permitted.

4. If the purchaser does not comply with its obligation to accept delivery, then – without prejudice to any other rights – Helmers shall not be bound by the provisions on “self-help” sale under the German Commercial Code (HGB) and may sell the delivery item on the open market, after prior notice to the purchaser, or in accordance with Section VIII. Payment Terms Clause 5, Sentences 3 and 4. Helmers' right to the purchase price/compensation shall remain unaffected hereby.

5. The return of delivery items by Helmers as a gesture of goodwill is on condition that they are in perfect condition, in their original packaging and that they are delivered carriage paid after a delivery date has been agreed. Helmers shall be entitled to charge reasonable costs it has incurred from the return.

6. Events of force majeure shall entitle Helmers to postpone the delivery for the duration of the obstacle and a reasonable restart period or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled. Strike, lockout or unforeseen circumstances, e.g. operational disruptions, which make it impossible for Helmers to deliver on time despite reasonable efforts, shall be deemed to be force majeure; Helmers shall be obliged to provide proof thereof. This shall also apply if the above obstacles occur in the course of delay or at a sub-supplier. The purchaser may request that Helmers declares within 2 weeks whether it intends to withdraw from the contract or to deliver within a reasonable extension period. If Helmers does not make any declaration, the purchaser may withdraw from the unfulfilled part of the contract. Helmers shall notify the purchaser without delay if an incident of force majeure as described in paragraph 1 occurs. Helmers must keep any detriment to the purchaser as low as possible, if necessary by surrendering the drawings, the samples and materials provided for the duration of the obstacle.

IV. Packaging, shipping & transfer of risk
1. Unless otherwise agreed, Helmers shall select the packaging, shipping method and shipping route as it considers best at its own discretion.

2. Risk shall transfer to the purchaser, including for carriage paid delivery, when the goods leave the delivery works. In the event of delays in dispatch for which the purchaser is responsible, the risk shall transfer on notification of readiness for dispatch.

3. At the written request of the purchaser, the goods shall be insured at its expense against storage, breakage, transport and fire damage.

V. Retention of title
1. The deliveries shall remain the property of Helmers until all claims to which Helmers is entitled against the purchaser have been fulfilled, even if the purchase price for specifically defined claims has been paid. For outstanding invoices, the retention of title in deliveries (goods subject to retention of title) shall be security for the balance of the invoices owed to Helmers. If a reciprocal liability of Helmers in relation to the payment of the purchase price is established, the retention of title shall not expire before payment of the bill of exchange by the purchaser as the drawee.

2. In the event of resale, the purchaser hereby assigns to Helmers all claims arising from the resale and other claims against its customers, including all ancillary claims, until all the claims of Helmers have been fulfilled. In the event of resale of the items on credit, the purchaser shall retain title vis-à-vis its customer. The purchaser hereby assigns to Helmers the rights and claims arising from such retention of title vis-à-vis its customer.

3. On request by Helmers, the purchaser must provide Helmers with all information and hand over all the documents necessary to assert Helmers' rights against the purchaser's customers.

4. Any processing of the goods subject to retention of the title by the purchaser shall be carried out by the purchaser on Helmers' behalf free of charge. In the event of any processing, combining, mixing or blending of the reserved goods with other products that do not belong to Helmers, Helmers shall be entitled to the resulting share in ownership of the new item in proportion to other processed goods at the time of the processing, combining, mixing or blending. If the purchaser acquires the sole ownership in a new item, then the parties agree that the purchaser shall grant to Helmers co-ownership in the new item at the invoice value of the above goods subject to retention of title and shall keep them safely on Helmers' behalf free of charge. If the items subject to retention of title thereby created are resold together with other goods and irrespective of whether or not there has been any processing, combining, mixing or blending, then the advance assignment agreed in clause 2 shall only apply to the amount of the invoice value of the goods subject to retention of title which have been resold together with the other goods.

5. If items subject to retention of title are incorporated as essential components in the purchaser's property, the purchaser hereby assigns to Helmers the claims arising from a sale of the property or the property rights, with all rights. In the event of incorporation into the property of a third party or the party to whom it relates, the purchaser shall assign to Helmers any claims for remuneration with all ancillary rights, including granting a debt-securing mortgage.

6. If the value of the securities arising from the above provisions exceed the value of the claim of Helmers by 15% more than temporarily, Helmers shall be obliged to release securities of its choice at the request of the purchaser.

7. If Helmers exercises its retention of title by taking back goods subject to retention of title in accordance with the above provisions, it shall be entitled to sell the goods on the open market or have them sold at auction in accordance with Section VIII Clause 5 sentences 3 and 4 “Terms of payment”. The goods subject to retention of title shall be taken back at the value of the proceeds obtained, but as a maximum at the agreed delivery prices. Further claims for damages, in particular for loss of profit, remain reserved.

VI. Warranty & liability for defects
1. Notice of defects must be made in writing without delay, at the latest 3 days after receipt of the delivery. For hidden defects, this period shall be extended to 3 days after they are discovered. In both cases, unless otherwise agreed, warranty claims shall expire by limitation 6 months after receipt of the goods, unless a longer, mandatory period is set by law.

2. In case of a justified notice of defect for which Helmers is responsible – whereby, if applicable, the reference samples or the samples provided by the purchaser shall apply with regard to quality and design – Helmers shall be obliged, at its choice, to rectify the defect or to deliver a replacement free of charge, whereby three attempts to rectify shall normally be allowed. If it does not comply with such obligations within a reasonable period to be set in writing, the purchaser shall be entitled, after setting a further extension period with a threat of rejection of performance, to demand a reduction in price or to declare withdrawal and to demand reimbursement of the ancillary costs (e.g. assembly/disassembly costs, transport costs, etc.). Further claims, regardless of their legal basis, are excluded. Replaced parts must be returned to Helmers, carriage unpaid, on request. Payments already made by the purchaser may only be claimed back in proportion to the performed already rendered by Helmers.
3. Insignificant defects or reasonable deviations in the dimensions and designs, in particular in the case of repeat orders, shall not be deemed cause for complaint or for asserting the rights under 2, unless absolute compliance has been agreed in advance in writing. Technical improvements and necessary technical modifications shall also be deemed to be compliant with the contract, as long as they do not constitute a deterioration in usability.
4. Unauthorised reworking and incorrect handling as well as non-compliance with the operating and maintenance instructions shall lead to the invalidation of all claims for defects. Only to prevent disproportionate damage or in the event of a delay by Helmers in rectifying the defect shall the purchaser be entitled, after the prior written agreement of Helmers, to rectify a defect itself and then to claim reimbursement of reasonable costs for such rectification. Excluded from any warranty are defects that are attributable to incorrect handling, overloading and non-intended use, whereby the burden of proof is on the purchaser (reverse burden of proof). Defects that are attributable to incorrect design drawings and sketches, descriptions, sample parts or materials provided by the purchaser are also excluded. Damage caused by chemical, mechanical or atmospheric influences are also excluded, whereby the burden of proof is on the purchaser (reverse burden of proof).

VII. General limitations of liability
In all cases in which Helmers is obliged to pay damages in deviation from the above conditions on the basis of contractual or statutory bases for claims, it shall only be liable to the extent that intent or gross negligence can be imputed to it, its legal representative, its executive employees or vicarious agents. This exclusion of liability shall only apply to the extent that it is permitted by law and under case law.

VIII. Terms of payment
1. All payments must made exclusively to Helmers and in euros.

2. Unless otherwise agreed, the purchase price for deliveries and other services shall be payable without deduction within 14 days of the invoice date. Helmers shall be entitled to demand payments on account.

3. If the agreed payment date is not met, interest of 8% above the applicable base interest rate shall be charged, unless Helmers provides evidence that higher interest on the debt applies.

4. The purchaser may only offset or assert a right of retention if its claims are undisputed or have been finally determined by a court.

5. Failure to comply with the terms of payment or circumstances that justify serious doubts about the creditworthiness of the purchaser, shall result in all of Helmers' claims becoming due for payment immediately. Helmers shall also be entitled to request payment in advance for any deliveries still outstanding. Helmers shall also be entitled to withdraw from the contract after a reasonable extension period or to demand compensation for non-performance; it shall also be entitled to prohibit the purchaser from reselling the goods and to take back unpaid goods at the purchaser's expense. Helmers may sell such goods and goods that is has completed but not yet delivered on the open market or after notice of the amount to be charged, which the purchaser may only object to within a period of 3 days of notice of the amount, until Helmers' claims have been met. If the purchaser objects to the amount stated, a sworn expert to be appointed by Helmers shall decide on the amount. The costs of the expert shall be borne by the losing party.

IX. Materials provided by the purchaser
1. If materials are provided by the purchaser, they shall be delivered promptly and in perfect condition at the purchaser's expense and risk with a reasonable quantity surcharge of at least 10%. Helmers does not accept any warranty in this regard vis-à-vis the purchaser.

2. If these requirements are not met, the delivery period shall be extended appropriately. Other than in cases of force majeure, the purchaser shall also bear the additional costs incurred for any interruptions in production.

3. If the material has a defect, the purchaser shall be obliged to compensate Helmers for any resulting damage and consequential damage.

X. Property rights, confidentiality & use of software
1. If Helmers has to deliver according to drawings, models and samples or by using parts provided by the purchaser, the purchaser shall be responsible for ensuring that the property rights of third parties are not thereby infringed. Helmers shall inform the purchaser of any rights of which it is aware. The purchaser shall indemnify Helmers against claims by third parties and shall pay compensation for the damage incurred. If Helmers is prohibited from manufacturing or delivery by a third party, who invokes a property right that it holds, Helmers shall be entitled to stop work without examining the legal situation. This shall not cancel the contractually agreed right to payment or any right to damages.

2. Drawings and samples provided to Helmers which have not led to an order shall be returned on request; otherwise Helmers shall be entitled to destroy them three months after submitting the offer.

3. Unless otherwise agreed, Helmers shall render performance unencumbered by any industrial property rights or copyrights held by third parties. If a third party asserts justified claims against the purchaser due to the infringement of property rights by the performance rendered by Helmers and used by the purchaser in accordance with the contract, Helmers shall – in accordance with the periods to be observed by the purchaser under Section VI clause 2 – obtain a right of use, modify performance so that there is no longer any infringement of property rights or replace performance. If these measures fail, the purchaser shall be entitled to the claims agreed under Section VI clause 2.

4. Helmers holds copyrights and, if applicable, industrial property rights in the models, moulds and equipment, drafts and drawings, samples, pilot series and programs designed by it or by third parties on its behalf.

5. The parties agree that the information, knowledge, templates, including diagrams, drawings, plans and design documents, received from the other partner, shall be used confidentially and only for the purposes of the contract and shall not be made accessible to any third party without the express written consent of the other party. This shall not apply to generally known information not subject to confidentiality. In the event of a breach of this obligation, the applicable party reserves the right to assert the legal claims to which it is entitled.
6. Insofar as software is included in the deliveries, the purchaser is granted a non-exclusive right to use the software supplied, including the software documentation, for the delivery. The purchaser may only duplicate, revise, translate or convert the software from the object code into the source code with the written consent of Helmers. The purchaser shall have no right to the source code. The purchaser shall not remove the details of Helmers or of any other manufacturer – in particular copyright notices – or change such information without the prior written consent of Helmers. Helmers retains all other rights in the software and the documentation, including copies. The purchaser shall not be entitled to grant sub-licences. In all other respects, the provisions set out in clauses 1-5 shall apply to use of the software and any related claims.

XI. Cost estimates
If it is agreed between the purchaser and Helmers that a cost estimate will be prepared, the work performed for such a cost estimate, such as the preparation of the necessary programs and, if applicable, the production of sample parts, shall be charged separately on the basis of the actual cost incurred. The provisions on property rights under Section X, in particular clause 4, also apply in this regard.

XII. Place of performance & place of jurisdiction
1. The place of performance is Osnabrück, Germany.

2. The place of jurisdiction – including for cheques and bills of exchange – is Osnabrück, Germany.

3.The law of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, any international regulations which subsequently come into force and any further claims which have arisen, arise or may arise under EU law are excluded to the extent permitted by law.

XIII. Severability
If any provision of these General Terms and Conditions of Business is or becomes invalid, this shall not affect the validity of all other provisions and agreements between the parties. The contracting parties shall then endeavour to find a provision that corresponds to the intention of the invalid term of business.