General Terms and Conditions of Purchase of Helmholz GmbH & Co. KG

§ 1 Scope of application, form

1. These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers (“Supplier”). The GPC shall only apply if the Supplier is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
2. The GPC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Supplier manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GPC in the version valid at the time of the Buyer's order or in any case in the version last communicated to the Supplier in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
3. These GPC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the supplier shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if the supplier refers to its GTC in the order confirmation and we do not expressly object to this.
4. Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order shall take precedence over the GPC. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
5. Legally relevant declarations and notifications by the supplier in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing. Written form within the meaning of these GPC includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
6. References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.

§ 2 Conclusion of contract

1. Offers and cost estimates of the supplier shall be legally binding for the supplier and shall be submitted to us free of charge.
2. Any agreement made between the parties shall only be legally effective if it is agreed in writing; a written agreement shall also include text form by means of remote data transmission (e.g. e-mail), electronic signature by signature programs (e.g. DocuSign) or fax. Verbal collateral agreements are not part of the contract.
3. The supplier is obliged to confirm our order in writing within a period of 3 working days. Our order shall be revocable until the supplier has confirmed the same.
4. Delayed acceptance shall be deemed a new offer and shall require our express written acceptance.
5. The supplier must notify us of obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
6. All orders and correspondence must contain our order number, order date, quantity, article number and article description.
7. In the case of deliveries of goods, the relevant quality assurance agreement, the directive on the origin of goods and the preference directive shall apply in the version valid at the time of conclusion of the respective contract (order).

§ 3 Delivery time and delay in delivery

1. The supplier shall be in default if the agreed delivery date is exceeded, without the need for a reminder. If the supplier is unable to meet the delivery date, it must notify us in writing immediately after becoming aware of this, stating the reasons and a new delivery date. Otherwise it can no longer invoke such circumstances later. The occurrence of a delay in delivery shall remain unaffected by this.
2. If the supplier fails to perform or fails to perform within the agreed delivery period or is otherwise in default, our rights - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in para. 3 remain unaffected.
3. If the supplier is in default, we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The supplier reserves the right to prove that no damage at all or only significantly less damage has been incurred.
4. Force majeure, official measures, other unforeseeable and unavoidable events (force majeure) as well as operational disruptions that occur through no fault of the supplier shall only release the supplier for the duration of their existence if the supplier has notified us of the relevant circumstance in writing within 14 days. This shall not apply if the supplier is unable to notify us due to the circumstance requiring notification. Such events for which we are not responsible shall entitle us to withdraw from the respective contract if the duration of the impediment has exceeded 120 days.

§ 4 Performance, delivery, transfer of risk, default of acceptance

1. Without our prior written consent, the supplier shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). The supplier shall bear the procurement risk for its services, unless otherwise agreed in individual cases (e.g. limitation to stock).
2. As long as the supplier has not yet completely fulfilled his obligations, we are entitled, within the scope of reasonableness, to demand changes to the order with regard to design, execution, quantity and delivery time. The effects (e.g. additional or reduced costs, delivery dates, etc.) shall be mutually agreed.
3. Partial deliveries are not permitted unless expressly agreed in advance.
4. Delivery shall be made within Germany “free domicile” to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our registered office in Großenseebach. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to be performed at the creditor's domicile).
5. A delivery bill stating the date (issue and dispatch), contents of the delivery (article number and quantity) and our order identification (date and number) must be enclosed with the delivery. If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content must be sent to us separately from the delivery bill.
6. The supplier shall pack the goods at its own expense in such a way that the packaging provides adequate protection against damage in transit and storage. The supplier shall primarily use environmentally friendly materials that can be recycled if possible. The supplier shall observe the relevant recycling regulations, in particular the obligation to return packaging in accordance with any statutory packaging regulations.
7. The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
8. The statutory provisions shall apply to the occurrence of our default of acceptance. However, the supplier must also expressly offer us its performance if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the supplier may demand compensation for its additional expenses in accordance with the statutory provisions. If the contract relates to a non-fungible item to be manufactured by the supplier (individual production), the supplier shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
9. The supplier is obliged to comply with the export control laws and regulations of the EU, the USA or other export control regulations.

§ 5 Prices and terms of payment

1. The price stated in the order is binding and represents a fixed price until fulfillment. It shall apply to the scope of performance, delivery and time specified in the order confirmations. All prices are net prices, plus statutory VAT, if applicable, which must be shown separately.
2. Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
Claims based on additional deliveries and/or services can only be asserted after prior written agreement and commissioning of the additional deliveries and/or services between the contracting parties. Otherwise, additional claims over and above the total fixed price are excluded.
3. Remuneration for performances, presentations, negotiations and/or for the preparation of offers and projects shall not be owed unless this has been agreed in writing in advance.
4. In addition to the information in accordance with § 4 (5.), the invoice must include the corresponding delivery note number and its date of issue. Invoicing must comply with the tax regulations applicable at our place of business. Improper invoicing shall give rise to a right of retention on our part.
5. The supplier is not entitled to unilaterally increase the agreed price unless this is expressly agreed in the order. This shall also apply if the delivery time for the ordered goods is extended.
6. Unless otherwise agreed, the agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.
7. We do not owe any interest on arrears. The statutory provisions shall apply to default in payment.
8. We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments as long as we are still entitled to claims against the supplier arising from incomplete or defective services.
9. The supplier shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.

§ 6 Confidentiality and retention of title

1. We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The confidentiality obligation shall only expire if and insofar as the knowledge contained in the documents provided has become generally known. Special confidentiality agreements and statutory provisions on the protection of secrets shall remain unaffected.
2. The above provision shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the supplier for production. Such items shall - as long as they are not processed - be stored separately at the supplier's expense and insured to an appropriate extent against destruction and loss.
3. Any processing, mixing or combining (further processing) of items provided by the supplier shall be carried out on our behalf. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
4. The transfer of ownership of the goods to us must take place unconditionally and without regard to the payment of the price. If, however, in individual cases we accept an offer of the supplier for transfer of ownership conditional upon payment of the purchase price, the supplier's reservation of title shall expire at the latest upon payment of the purchase price for the delivered goods. We remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the resulting claim (alternatively validity of the simple retention of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the forwarded retention of title and the retention of title extended to further processing.

§ 7 Provision, tools

1. Parts, containers, tools and the like provided by us shall remain our property. The supplier shall not be entitled to a right of retention, for whatever reason, to the parts provided.
2. Unless otherwise agreed, we shall acquire full ownership of the tools required for the manufacture of the delivery item by participating in the proven costs. The tools shall become our property upon payment. However, they shall remain with the respective supplier on a loan basis by means of corresponding tool loan agreements.

§ 8 Defective delivery

1. The statutory provisions and, exclusively in our favor, the following supplements and clarifications shall apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the supplier.
2. In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us and, in particular, that they meet the agreed specifications and are suitable for the (contractually) intended use. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or have been included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the supplier or the manufacturer. The defined specifications shall be deemed to be contractually warranted characteristics of the goods.
3. In the case of goods with digital elements or other digital content, the supplier shall owe the provision and updating of the digital content in any case to the extent that this results from a quality agreement pursuant to para. 2 or other product descriptions.
4. We are not obliged to inspect the goods or make special inquiries about any defects when the contract is concluded. Partially deviating from § 442 para. 1 sentence 2 BGB, we are therefore entitled to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
5. The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during our quality control in the random sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within 6 working days of discovery or, in the case of obvious defects, of delivery.
6. Subsequent performance shall also include the removal of the defective goods and reinstallation, provided that the goods were installed in another item or attached to another item in accordance with their nature and intended use before the defect became apparent; our statutory claim for reimbursement of corresponding expenses (removal and installation costs) shall remain unaffected. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, shall be borne by the supplier even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
7. Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the supplier does not fulfill its obligation to provide subsequent performance - at our discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery) - within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this or a corresponding advance payment from the supplier. If subsequent performance by the supplier has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the supplier of such circumstances immediately, if possible in advance. In order to maintain our ability to deliver to our customers, we may, after notifying the supplier, carry out the rectification ourselves or have it carried out by a third party. Any costs incurred as a result shall be borne by the supplier.
8. Otherwise, we shall be entitled to reduce the purchase price or withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.

§ 9 Supplier recourse

1. We shall be entitled to our statutory claims for expenses and recourse within a supply chain without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the supplier that we owe our customer in the individual case; in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our statutory right of choice is not restricted by this.
2. Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses), we shall notify the supplier and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the supplier shall be responsible for providing evidence to the contrary.
3. Our claims arising from supplier recourse shall also apply if the defective goods have been combined with another product or further processed in any other way by us, our customer or a third party, e.g. by installation, attachment or installation.

§ 10 Producer liability

1. If the supplier is responsible for product damage, he shall indemnify us against claims by third parties to the extent that the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
2. Within the scope of his obligation to indemnify, the supplier must reimburse expenses in accordance with §§ 683, 670 BGB (German Civil Code) which arise from or in connection with a claim by third parties, including recall actions carried out by us. We shall inform the supplier of the content and scope of recall measures - as far as possible and reasonable - and give him the opportunity to comment. Further statutory claims shall remain unaffected.
3. The supplier shall take out and maintain product liability insurance with sufficient cover per personal injury/property damage.

§ 11 Liability

We shall be liable in accordance with the statutory provisions for damages due to injury to life, limb or health, in the event of intent or gross negligence on the part of a legal representative or vicarious agent and for damages that fall under a guarantee or assurance provided by us. In the event of slight negligence, we shall only be liable for compensation for foreseeable damage typical of this type of contract and only insofar as we, a legal representative or vicarious agent have breached an obligation whose proper fulfillment is essential for the execution of this contract and on whose compliance the contractual partner could rely (cardinal obligation). Otherwise, liability is excluded to the extent permitted by law.

§ 12 Industrial property rights, exemption

1. The supplier guarantees that the intended use of the goods delivered by him, both by us and third parties (e.g., our customers), does not infringe any third-party intellectual property rights and that the goods delivered by him can be used worldwide without violating third-party intellectual property rights.
2. The supplier is obliged to indemnify us against all claims asserted against us by third parties due to the infringement of industrial property rights in connection with the intended use of the goods and to reimburse us for all necessary expenses related to such claims. This obligation exists regardless of any fault on the part of the supplier.
3. The supplier is not entitled to use our trademarks, logos, and/or other distinctive signs or our company name to refer to us as a reference without our prior written consent, which may be revoked at any time without justification.

§ 13 REACH / RoHS

The supplier is obliged to specify any identified substance in all deliveries of a product within the meaning of Article 33 of the REACH Regulation if it is present at a concentration of more than 0.1% by weight (w/w). 
Furthermore, the substance restrictions of Directive 2011/65/EU (RoHS) must be complied with. Any exceptions must be specified in accordance with Annex III of Directive 2011/65/EU.

§ 13a Conflict Minerals

The supplier is requested to comply with the due diligence obligations under the applicable version of the EU Conflict Minerals Regulation.

§ 14 Limitation Period

1. The reciprocal claims of the contracting parties shall become time-barred in accordance with statutory provisions unless otherwise specified below.
2. Contrary to § 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for defect claims is three years from the transfer of risk. If an acceptance has been agreed upon, the limitation period begins with acceptance. The three-year limitation period also applies accordingly to claims arising from legal defects, whereby the statutory limitation period for third-party claims for restitution remains unaffected. Claims arising from legal defects shall, in any case, not become time-barred as long as the third party can still assert the right against us - particularly due to the absence of a limitation period. If we are entitled to extra-contractual claims for damages due to a defect, the statutory limitation period (§§ 195, 199 BGB) shall apply unless the application of the sales law limitation periods results in a longer limitation period in the individual case. If negotiations are pending between the supplier and us regarding our defect notification, the limitation period for defect (liability) claims is suspended.
3. If a new delivery of the contractual item is made within the scope of subsequent performance, the limitation period shall restart if such delivery is to be regarded as an acknowledgment of the obligation to provide subsequent performance. The same applies in the case of repairs for the repaired part of the delivered item.

§ 15 Prohibition of Assignment

The supplier is not entitled to assign claims against us or to have them collected by third parties without our prior written consent. If the supplier assigns claims without our consent or has them collected by third parties, we shall remain entitled to make payments with discharging effect directly to the supplier.

§ 16 Choice of Law and Jurisdiction

1. These General Terms and Conditions of Purchase (AEB) and the contractual relationship between us and the supplier shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods (CISG).
2. If the supplier is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive—also international—place of jurisdiction for all disputes arising from the contractual relationship shall be Erlangen. The same applies if the supplier is an entrepreneur within the meaning of § 14 BGB. However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation under these AEB or a prevailing individual agreement, or at the general place of jurisdiction of the supplier. Prevailing statutory provisions, particularly regarding exclusive jurisdictions, remain unaffected.

Version: Februar 2025