General terms and conditions

General Conditions HELMTECH

for the Supply of Products and Services of the Electrical and Electronics Industry (“Grüne Lieferbedingungen” – GL)*

General Provisions

Legal relations between Supplier and Purchaser in connection with supplies and/or services of the Supplier (hereinafter referred to as “Supplies”) shall be solely governed by the present GL. The Purchaser’s general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.

The Supplier herewith reserves any industrial property rights and/or copyrights and rights of use pertaining to its cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents shall not be made accessible to third parties without the Supplier’s prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser’s Documents; these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Supplies.

The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Without express agreement the Purchaser may make one back-up copy of standard software.

Partial deliveries are allowed, unless they are unreasonable to accept for the Purchaser.

The term “claim for damages” used in the present GL also includes claims for indemnification for useless expenditure.

Prices, Terms of Payment, and Set-Off

Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.

If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g. for traveling and transport as well as allowance.

Payments shall be made free Supplier’s paying office.

The Purchaser may set off only those claims which are undisputed or non-appealable.

Retention of Title

The items pertaining to the Supplies (“Retained Goods”) shall remain the Supplier’s property until each and every claim the Supplier has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier’s security interests exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.

For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.

Should Purchaser resell Retained Goods, it assigns to the Supplier, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, Purchaser shall assign to the Supplier such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by Supplier.

Purchaser may process, amalgamate or combine Retained Goods with other items. Processing is made for Supplier. Purchaser shall store the new item thus created for Supplier, exercising the due care of a diligent business person. The new items are considered as Retained Goods.
Already today, Supplier and Purchaser agree that if Retained Goods are combined or amalgamated with other items that are not the property of Supplier, Supplier shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
The provisions on the assignment of claims according to No. 3 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by Supplier for the Retained Goods that have been processed, combined or amalgamated.
Where Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to Supplier as security its claim to consideration for the combination, including all collateral rights for the pro-rata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.

Until further notice, Purchaser may collect assigned claims relating to the resale. Supplier is entitled to withdraw Purchaser’s permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for overindebtedness or pending insolvency of Purchaser. In addition, Supplier may, upon expiry of an adequate period of notice disclose the assignment, realize the claims assigned and demand that Purchaser informs its customer of the assignment.

The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, Purchaser shall, without undue delay, provide Supplier with the information and/or Documents necessary to assert the claims it has against its customers.

Where the Purchaser fails to fulfill its duties, fails to make payment due, or otherwise violates its obligations the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.

Time for Supplies; Delay

Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.

If non-observance of the times set is due to:

force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e. g. strike or lockout);
virus attacks or other attacks on the Supplier’s IT systems occurring despite protective measures were in place that complied with the principles of proper care;
hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Supplier is not responsible; or
the fact that Supplier does not receive its own supplies in due time or in due form

such times shall be extended accordingly.

If the Supplier is responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which due to the Delay could not be put to the intended use.

Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.

At the Supplier’s request, the Purchaser shall declare within a reasonable period of time whether it, due to the delayed Supplies, rescinds the contract or insists on the delivery of the Supplies.

If dispatch or delivery, due to Purchaser’s request, is delayed by more than one month after notification of the readiness for dispatch was given, the Purchaser may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

Passing of Risk

Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:

if the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the Purchaser’s request, the Supplier shall insure the delivery against the usual risks of transport at the Purchaser’s expense;
if the delivery includes assembly or erection, at the day of taking over in the Purchaser’s own works or, if so agreed, after a successful trial run.

The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser’s own works, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.

Assembly and Erection

Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:

Purchaser shall provide at its own expense and in due time:

all earth and construction work and other ancillary work outside the Supplier’s scope, including the necessary skilled and unskilled labor, construction materials and tools;
the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices as well as fuels and lubricants;
energy and water at the point of use including connections, heating and lighting;
suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities as are appropriate in the specific circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel at the site;
protective clothing and protective devices needed due to particular conditions prevailing on the specific site.

Before the erection work starts, the Purchaser shall unsolicitedly make available any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.

Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the site of assembly or erection must be level and clear.

If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.

The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in written form if assembly, erection or commissioning has been completed.

If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. The same consequences as upon acceptance arise if and when the Purchaser lets the two-week period expire or the Supplies are put to use after completion of agreed test phases, if any.

Receiving Supplies

The Purchaser shall not refuse to receive Supplies due to minor defects.

Defects as to Quality

The Supplier shall be liable for defects as to quality (“Sachmängel”, hereinafter referred to as “Defects”,) as follows:

Defective parts or defective services shall be, at the Supplier’s discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.

Claims for repair or replacement are subject to a statute of limitations of 12 months calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply:

where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code (“Bürgerliches Gesetzbuch”),
in the case of intent,
in the case of fraudulent concealment of the Defect or
non-compliance with guaranteed characteristic (“Beschaffenheitsgarantie”).

Claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse) shall likewise be subject to a statute of limitations of 12 months from the start of the statutory statute of limitations, provided the last contract in the supply chain is not a sale of consumer goods. The legal provisions regarding suspension of the statute of limitations (“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periods shall be unaffected.

Notifications of Defect by the Purchaser shall be given in written form without undue delay.

In the case of claims for Defects, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle the Supplier to demand reimbursement of its expenses by the Purchaser.

The Supplier shall be given the opportunity to repair or to replace the defective good (“Nacherfüllung”) within a reasonable period of time.

If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the remuneration; any claims for damages the Purchaser may have according to No. 10 shall be unaffected.

There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications, installation/removal, or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.

The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, to the extent that expenses are increased because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office, unless doing so complies with the normal use of the Supplies. This applies accordingly to claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse), provided the last contract in the supply chain is not a sale of consumer goods.

The Purchaser’s right of recourse against the Supplier pursuant Sec. 445a BGB (entrepreneur’s right of recourse) is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.

The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, and/or intentionally or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Any other or additional claims of the Purchaser exceeding the claims provided for in this Article VIII, based on a Defect, are excluded.

Industrial Property Rights and Copyrights; Defects in Title

Unless otherwise agreed, the Supplier shall provide the Supplies in the country of the place of delivery only, without infringing any third-party industrial property rights and copyrights (hereinafter referred to as “IPR”). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Article VIII No. 2 as follows:

The Supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the Supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions;
The Supplier’s liability to pay damages is governed by Article XII;
The above obligations of the Supplier shall apply only if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier’s discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.

Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR.

Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.

In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, 8, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.

Where other defects in title occur, Article VIII shall apply mutatis mutandis.

Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Article IX, based on a defect in title, are excluded.

Conditional Performance

The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanctions exist.

The Purchaser shall provide any information and Documents required for export, transport and import purposes.

Impossibility of Performance; Adaptation of Contract

To the extent that delivery is impossible, the Purchaser is entitled to claim damages, unless the Supplier is not responsible for the impossibility. The Purchaser’s claim for damages is, however, limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser’s right to rescind the contract shall be unaffected.

Where events within the meaning of Article IV No. 2 (a) to (c) substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extent this is not justifiable for economic reasons, the Supplier shall have the right to rescind the contract. The same applies if required export permits are not granted or cannot be used. If the Supplier intends to exercise its right to rescind the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed with the Purchaser.

Other Claims for Damages

Unless otherwise provided for in the present GL, the Purchaser has no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.

This does not apply if liability is based on:

the German Product Liability Act (“Produkthaftungsgesetz”);
intent;
gross negligence on the part of the owners, legal representatives or executives;
fraud;
failure to comply with a guarantee granted;
negligent injury to life, limb or health; or
negligent breach of a fundamental condition of contract (“wesentliche Vertragspflichten”).

However, claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.

The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.

Venue and Applicable law

If the Purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier’s place of business. However, the Supplier may also bring an action at the Purchaser’s place of business.

This contract and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).

Severability Clause

The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonably onerous for one of the parties to be obligated to continue the contract.

* The original German text shall be the governing version.

March 2019

General Terms and Conditions of Purchase of HELMTECH

Scope of applicability

These Terms and Conditions of Purchase shall apply to all our orders (supplies and services) exclusively and become an integral part of the contract once our purchase order is accepted or carried out. We do not accept such terms and conditions of the Supplier in any form as may be of contradictory or differing content unless we have explicitly approved their applicability in written form. Any reference in our orders to the Supplier’s quotation does not affect our acceptance of his terms and conditions. Our Terms and Conditions of Purchase shall also apply if we accept the delivery of the Supplier without reservation being aware of the existence of terms and conditions of the Supplier that are of contradictory or differing content.

All such agreements as shall be established between ourselves and the Supplier in conjunction with the contracts of purchase or contracts for work and services shall have been put in writing in said contracts of purchase or contracts for work and services, in the present Terms and Conditions of Purchase and in our quotations.

Verbal collateral agreements shall only become binding if confirmed in writing by us.

Provisions prevailing under law shall apply with clarification in respect of same in so far they have not been directly amended or explicitly excluded under the present Terms and Conditions of Purchase.

Conclusion of contract and quotation documentation

Our quotations (orders) are binding unless we have specifically confirmed their having subject to confirmation and non-binding character and will be submitted via fax or Electronic Data Interchange (EDI) or e-mail.

The Supplier shall be obliged and undertake to draw our attention prior to acceptance to obvious errors (e. g. clerical and calculation errors) and incompleteness of the order and/or order documentation to enable correction and/or completion to be carried out.

The Supplier shall be obliged to confirm our order in writing within a period of 14 calendar days. Acceptance furnished following expiration of deadline, additions or amendments to an order shall be taken to constitute a new quotation and shall require our written acceptance.

We shall reserve all such title and copyright as shall attach to images, drawings, calculations and any other documentation. They may not be rendered accessible to third parties without our express written approval. They shall be used exclusively for production based on orders originating from ourselves, and they shall be returned without being asked for following completion of the order. They are to be kept secret in any and all dealings involving third parties, in which regard the provisions pertaining to observance of secrecy per chapter 6, paragraphs 3 to 6 of the present General Terms and Conditions of Purchase shall likewise apply.

Delivery time and penalisation for default of delivery

Where our orders specify a delivery time, same shall be taken to be binding; otherwise delivery or performance of the services shall be affected forthwith. The Supplier shall be obliged and undertake to inform us immediately in writing where such circumstances occur or are identifiable as shall render it impossible to observe the delivery time and/or of performance of the services. The delivery time and/or of performance of the services will not be extended thereby, unless we accept such extension in writing. All additional cost arising from the need to meet the delivery date by way of expedited delivery shall be borne by the Supplier.

Where the Supplier is found to be in default, we shall be at liberty to demand payment of a contractual penalty of amount equivalent to 0.25 % of the net value of contract per completed calendar day, however, such penalty shall not exceed 5 % of the net contractual value attaching to the goods delivered late. We shall be entitled to demand payment of the contractual penalty in addition to performance on the part of the Supplier or cancellation of the contract. The contractual penalty shall be regarded as the minimum amount of compensation owed. The right to assert claim for further damage sustained shall remain thereby unaffected. Should we accept performance rendered with delay, we shall be required to assert our entitlement to payment of a contractual penalty no later than in conjunction with our final payment.

Early delivery or service performance is only permitted with our written consent. In any case, we shall not be disadvantaged from such delivery and performance, accordingly, the period of payment shall not start prior to the original agreed date, which is also significant for the transfer of risk (we shall only be liable, as the depositary). Furthermore, we reserve the right to charge the Supplier any extra cost we from the premature delivery.

Performance of service, delivery, export control, transfer of risk

Performance of service within Germany shall be on a “carriage-paid” basis to the location specified in the order. Where no place of destination has been specified and nothing to the contrary has been agreed, delivery shall be affected to our place of business at: Ludwig-Erhard-Ring 5, 31157 Sarstedt free of any charges at the expense and risk of the Supplier. A given place of destination shall be taken to have the status of place of effect (obligation of debtor to perform at creditor’s address).

Where performance of service originates abroad (outside of Germany) the trade term specified in our order shall be considered as agreed. Where no such term has been specified, DDP Sarstedt (Incoterm 2000) shall apply. Is this not possible, trade term can be switched to DDU to place of destination (Incoterm 2000). In any case, the Supplier shall bear all costs and risk for the delivery and/or performance of services till our place of business in Sarstedt.

In any case, the Supplier shall bear all costs and risk of unloading if delivery has to be carried out on sites or directly to third parties. In case of delivery to third parties we reserve the right to send HELMTECH shipping documents.

Delivery shall be accompanied by a declaration of conformity and a delivery note, which shall specify detail in respect of date (issue and despatch), contents of the delivery (article number and quantity) as well as our order reference (date and number). Where the delivery note is found not to have been enclosed or to be incomplete, we shall not be held accountable for such delays in processing and payment as shall derive there from. Independent of this advice, we shall also be furnished with advice of despatch under separate cover and containing the same details.

In addition, the supplier shall comply with all relevant provisions of the national and international foreign trade, export and customs regulations comply obtain the necessary permits. Latest before the delivery date the Supplier will also send us all information and data of foreign trade, export and customs law, which we need for the import and export and for the case of a subsequent re-exportation of goods and services.

Any type of retention of title by the Seller is invalid. We reserve our right to resell the deliveries and services at home and abroad.

The risk of loss or impairment of the goods by accident shall pass to us upon transfer of the goods at the place of performance.

The Supplier shall not be entitled to have performance owed rendered by third parties (e. g. subcontractors) unless our prior written approval has been secured.

Prices and terms of payment (early settlement discount), off-set

The price specified in the order shall be binding; unilateral price changes are not permitted. All prices are to be understood as including Value Added Tax calculated at the rate prevailing under law per agreed date of delivery in so far as same is not shown separately.

Where nothing to the contrary has been agreed in specific cases, the price shall be taken to include all services and supplementary work performed on the part of the Supplier (e. g. assembly, installation) as well as all ancillary costs (e. g. appropriate packaging, transportation charges, also including transport and third-party liability insurance).

The price agreed shall be due and owing within 30 calendar days as of complete delivery and performance of service (including any such acceptance procedure as may have been agreed) and receipt of an appropriately formulated invoice. Where we effect payment within a period of 14 calendar days, the Supplier shall undertake to grant us an early settlement discount equivalent to 3 % of the net amount of invoice. An improper invoice will be returned and shall be considered in such a case as not submitted. In this case the agreed term of payment shall be suspended and shall start again with the sending of the new invoice.

In case of a notice of defect or any other complaint we reserve our right to a complete refund of the corresponding price until identified defects are remedied.

The Supplier may only offset such claims against our own as are undisputed or legally recognized.

Our obligation to fulfil this contract is subject to the proviso that the fulfilment is not prevented by any impediments arising out of national or international foreign trade legislation or by any embargos or any other sanctions.

Retention of title and observance of secrecy

We reserve title to all such substances and materials (e. g. software, finished products, and semi-finished products) as well as to all such tools, templates, samples and other items as shall have been made available to the Supplier for production purposes. All such items shall, in so far as they are not subjected to processing procedure, be required to be committed to safekeeping by and at the expense of the Supplier and to be insured against destruction and loss to such extent as is held to be customary.

Processing, intermixture or bonding of items made available by us shall be deemed to have been carried out by the Supplier on our behalf. Where, following such processing, intermixture or bonding as shall involve the goods of third parties, title in favour of said parties shall continue to prevail, we shall acquire co-ownership of the new item thereby created in measure equivalent to the ratio existing between the value of the goods made available by ourselves and that of the third-party goods.

The Supplier shall undertake and be obliged to observe strict secrecy in respect of the conditions attaching to the order and all such information and documentation as may have been made available for the purpose of execution of same. Obligations pertaining to observance of secrecy shall remain in place following completion of a given contract. They shall not expire until the knowledge contained in the documentation made available and other items of information, as well as such as is of pertinence to production processes, has accessed the public domain.

The Supplier shall undertake and be obliged, upon being requested to do so by us, to immediately surrender to us the documentation required to deal with enquiries or to complete orders upon provision of a given service or upon premature termination of contract.

The Supplier shall not be at liberty to draw attention in advertising materials, brochures, etc. to its pursuit of business relations with our company without having sought and secured our approval in advance, nor shall it be at liberty to exhibit items manufactured on our behalf.

The Supplier shall undertake and be obliged to impose upon its sub-suppliers such obligations in respect of observance of secrecy as may be held to be consistent with those stipulations contained in the foregoing clauses.

For each case of violation of one of the in chapter 6, paragraphs 3 to 6 set out obligations of these conditions the supplier undertakes to pay a penalty of EURO 10,000.00. The supplier shall, however, be entitled to prove that the actual damages resulting from its violation of chapter 6, paragraphs 3 to 6 were lower.

Defective delivery and self-help

In so far as nothing to the contrary is stipulated hereinafter under this section of the present Terms and Conditions of Purchase, those provisions currently prevailing under law shall apply in the event of material defect and/or defects of title in respect of the goods (including misdelivery and short delivery, improper assembly and flawed assembly, operating or user instructions) and any other form of breach of obligation on the part of the Supplier.

As provided for under statutory provisions prevailing, the Supplier shall, in particular, be liable for ensuring that the goods possess the applicable DIN-, VDE and similar regulations as well as the agreed structural quality upon transfer of risk. Agreement in respect of structural quality shall be deemed to have been created by virtue of those product descriptions which constitute the subject matter of a given contract or, in a manner similar to the present Terms and Conditions of Purchase, are afforded constituent status within such contract on the basis, in particular, of their having been identified by way of designation or reference within the framework of our order. In this regard, it shall be immaterial as to whether the product description originates from us, from the Supplier or from the manufacturer. In case no agreement on the technical documentation was taken, the Supplier shall send us free of charge drawings, technical calculations, test reports, descriptions and service regulations and instructions in English and German, before delivery time and/or performance of services. Unless otherwise agreed in the order, hardware and software always constitute a single product.

The Supplier guarantees the flawless quality and completion or performance of the goods or services ordered and expressly warrant that the same will be free from defects during the warranty and/or guarantee period mentioned in chapter 11 of this condition.

Our obligation to give notice of defect shall be confined to such defects as are readily identifiable (e. g. transportation damage, misdelivery and short delivery) within the framework of goods’-receipt inspection procedure and on the basis of exterior appraisal (also of the delivery documents) as well as within the framework of random-testing quality-control procedure. For the rest, examination based on the circumstances surrounding a specific case will depend on whether the normal course of business will accommodate such examination.

In all instances, our claim (notification of defects) shall be deemed to have been immediate and timely where it is received by the Supplier within a period of 14 days as of receipt of goods. The Supplier shall, as such, dispense with submission of claim to the effect that notification of defect was not effected on time. Our obligation to give notice of defect in the case of defects detected at a later stage shall remain unaffected.

The Supplier shall upon our request forthwith replace defective goods with goods free from defects or to improve the same to the standard provided for by the contract. He has also to compensate us for all costs incurred due to repair or replace (e. g. transportation, installation and removal costs).

Costs incurred by the Supplier in conjunction with examination and rectification shall also be borne by the Supplier, except in cases of intent or gross negligence, where it is established that there was, in fact, no defect.

Should the Supplier fail to honour its obligation to effect supplementary performance in the form of rectification of the defect or supply of a defect-free product within a reasonable period as stipulated by us or supplementary performance through the Supplier has failed, we shall be at liberty to rectify the defect ourselves without prejudice to our rights in any way. In such event, we shall be entitled to demand that we be compensated for expenditure thereby incurred or that funds be advanced in adequate amount. Where supplementary performance effected by the Supplier is unacceptable for the Supplier or for us (e. g. on grounds of particular urgency, endangerment of the business premises or threat of occurrence of excessive damage), we shall not be required to fix a time limit regarding our self-help. It shall be deemed a requirement that the Supplier be informed without delay and, where possible, prior to our initiating the process of self-help.

The Supplier shall only be required to assume the costs thereby incurred by us in so far as said costs do not incorporate profit. The labour rate for self-help shall be deemed fixed and amounts to 69.00 Euros per hour.

In addition, the Supplier shall be at liberty to appoint an independent appraiser to confirm the defect.

We shall be at liberty to carry out minor adjustments or remedies to the product at our own expense in the interests of a smooth production process without being required to secure prior agreement in respect of same; your obligation to render supplementary performance shall not be thereby affected.

Acceptances or approvals of drawings submitted to us and acknowledgements of the receipt of deliveries and services, their temporary use and payments made thereof are not deemed to contain a waiver regarding our warranty claims or other rights with respect to defective deliveries and/or services.

Quality control

The Supplier shall undertake and be obliged, when manufacturing the products or performing of services ordered, to comply with state of the art and technical rules in force at the time of execution, in particular EU directives and regulations (amongst others Low-Voltage Directive 2014/35/EU, Electromagnetic Compatibility (EMC) 2014/30/EU, where applicable), VDE regulations and rules of industrial safety, environment protection and safety regulation as well as with the pertinent standards and similar bodies of rules must be complied with.

The Supplier shall undertake and be obliged to sustain all industrial authorisations as well as any other authorisations necessary to ensure the deliveries and performance of the services.

Accordingly, the Supplier shall undertake to issue a declaration of conformity with those directives applicable and to present said declaration of conformity together with the requisite evidence of quality and conduct of test procedure as well as authorisations upon our request.

Presentation of the aforementioned documentation shall be a requirement for delivery and services to be deemed to have been performed in full.

At any time we may further require a report on the deliveries and services we have ordered, in particular concerning the stage of their production as well as to examine the work during the production.

Furthermore, the Supplier shall undertake and be obliged to advise readiness for testing having thereby afforded such notice as will enable our employees to participate in quality control procedure.

Our Purchaser indicated at the Order shall be advised in writing of readiness for testing affording thereby a period of notice of 2 weeks.

As soon as we have been informed as to the precise date of completion of production, we shall decide whether testing procedure is to be conducted or whether despatch of the parts may take place directly.

Where quality-control procedure is to take place on the premises of the Supplier, the Supplier is requested to make available to our quality-control official all such test protocols and any other such test documentation as may be deemed requisite and is required to be generated up to the point-in-time of testing and is consistent with production status at said point in time.

Where the participation at test procedure on the premises of the Supplier is dispensed with, the aforementioned test documentation shall be sent to our Purchaser indicated at the Order.

All test protocols shall be required to show our order number, order item and contract number.

Personal costs incurred through the engagement of the quality-control official shall be for our account. Material costs incurred through the conduct of test procedure shall be for the account of the Supplier.

Should, however, test procedure be required to be repeated for reasons for which the Supplier may be held accountable (e. g. non-achievement of readiness for testing despite advice of readiness or for reasons of defect), we shall charge all and any additional costs thereby incurred to the Supplier. Where defective status is established, all such measures are required to be implemented in conjunction with elimination of defect as shall serve to ensure that agreed deadlines are observed. Said measures shall extend to include an increase of personnel availability as well as overtime and/or weekend work. All costs thereby incurred shall be for the account of the Supplier.

It shall be assumed that quality-control procedure has been preceded by a complete workshop and functional-efficiency test. The workshop test shall be conducted by the Supplier and shall extend to include, amongst other things, a 100 % test for completeness along with all such tests as are required under law to be conducted. It shall be required in this regard, in particular, that compliance with those performance parameters specified be verified on the basis of certified records/certificates of goods’-measurement and item-testing procedures, which shall incorporate test results and shall be handed over to us in conjunction with quality control.

Quality testing and the issue of release for despatch shall not release the Supplier from its liability. This shall remain in place and undivided as though testing procedure had not been conducted in the first place.

We reserves the right to demand proof of the Seller’s quality control system and the Seller’s documentation of the quality tests executed, and to carry out audits on the Seller’s premises at any time. In case of defects in the quality control system or errors of the documentation of quality tests we are authorised to charge the Supplier the costs of the audit.

Supplier recourse and producer liability in the event of resale by HELMTECH customers and producer liability in the commercially-based transaction of business

Where our customer engages in resale to a consumer, provision in chapter 7 of the present General Terms and Conditions of Purchase pertaining to self-help in the event of defect shall not apply.

Our right of recourse within a delivery chain as provided for under law shall remain unreservedly intact as shall all entitlements in our favour in respect of defective delivery.

Where the Supplier may be held accountable for product defect, i. e. the cause for same is to be found within said Supplier’s sphere of control and organisation, and liability in respect of dealings with third parties attaches to the Supplier itself, said Supplier shall indemnify us against the claims of third parties.

With the framework of the aforementioned obligation to indemnify, the Supplier shall undertake and be obliged to compensate us for all such expense as shall be incurred as a result of or in conjunction with the assertion against us of claims of third parties as well as such as shall be incurred as a result of product-recall action. We shall undertake, to whichever degree possible and reasonable, to inform the Supplier as to the content and extent of product-recall actions and to likewise afford the Supplier the opportunity to make representations in respect of same.

Suspension, Cancellation

We reserve the right to order the Supplier to suspend the performance of the contract at any time. If the performance of the contract is suspended for more than three months, the Supplier will have to prove to us in detail that it has incurred costs resulting from such suspension However, we shall not be liable to the Supplier for any loss of profits. The Supplier may claim compensation only for such proven costs. The Supplier may not claim compensation for any costs incurred as a result of a suspension of less than three months, or, in the case of a suspension of more than three months, for the costs incurred during the first three months.

In additional, we reserve the right to withdraw from the contract, as a whole or in part, irrespective of any fault on the part of the Supplier. In such a case, the Supplier is only entitled to charge us for the services proved to have been performed by the date of withdrawal.

Statute of limitation

Contrary to those provisions prevailing under law, our claims under clause 7 shall be time barred after the expiry of 36 months from the date of transfer of risk, unless a longer period is not agreed. In so far as it has been for deliveries with installation and assembly agreed that an acceptance test shall be conducted, the period of limitation shall commence upon completion of same.

Should exchange or improvement be demanded and/or carried out, the period for these deliveries and services shall commence anew.

Applicable law and jurisdictional venue

The present Terms and Conditions of Purchase shall be governed by German law. The provisions of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) shall not apply.

Where the Supplier holds the status of merchant within the meaning of the Uniform Commercial Code (“Handelsgesetzbuch”), a body corporate under public law or separate property under public law, our registered office in Hanover shall be taken to be the sole jurisdictional venue for all disputes deriving from the contractual relationship. This shall include instances of international dispute. We shall, however, also be entitled to institute legal action at the place of performance attaching to the obligation to supply.

Severability (escape) clause

Should individual provisions attaching to the present Agreement be or become ineffective under law, the effectiveness of the remaining Agreement shall not be thereby affected.