The following conditions only apply to merchants if the contract is part of their trade, legal entities under public law or a special fund under public law.Counter-confirmations by the customer with reference to its business or purchasing conditions are hereby contradicted; they are not part of the contract between the customer and Helmers.
I. Offers and conclusion of contract
1. Orders only become binding once the order has been confirmed by Helmers. Changes and additions must be in writing. All offers are non-binding unless they are designated as firm offers. Offers contained in brochures, advertisements, etc. are subject to change and non-binding, including with regard to prices.
2. In permanent business relationships, these conditions also apply to future transactions in which no express reference is made to them.
3. Any other terms of purchase or order of the customer are only binding for Helmers if they are expressly accepted in writing.
4. Information in offers and/or order confirmations from Helmers that are based on an obvious mistake, namely a typing or calculation error, does not oblige Helmers to carry out work on the basis of this information. Rather, the obvious intention applies. This also applies if the error is based on information provided by the customer.
II. Prices, price changes
1. The prices apply ex works excluding freight, customs, additional import duties and packaging, and also exclude VAT at the statutory rate.
2. If relevant cost factors change by more than 5% from offer submission or order confirmation until delivery, Helmers and the customer will agree on an adjustment of the prices and the cost shares for sample parts, programs and tools.
3. If the price depends on the part weight, the final price is based on the weight of the approved sample.
4. For new orders (= follow-up orders), Helmers is not bound to previous prices.
III. Delivery and purchase obligation
1. Delivery periods are subject to correct and timely self-delivery, after receipt of all documents required for the execution of the order, down payments or payments, of the materials, programs and special tools provided by Helmers prior to the start of production and the customer providing the material in good time, insofar as the latter has been agreed. The delivery deadline shall be deemed to have been met upon notification of readiness for dispatch.
2. If an agreed delivery deadline is not met due to a circumstance for which Helmers, its legal representative or vicarious agents are culpably responsible, the purchaser is entitled, provided it has not acted with gross negligence or intent, to claim compensation for delay or to withdraw from the contract after the expiry of two reasonable grace periods, to the exclusion of any further claims, if the purchaser has pointed out the refusal of performance in writing when setting the grace period(s). The compensation for delay is limited to a maximum of 5% of that part of the delivery that was not made in accordance with the contract. Further claims are excluded as far as legally permissible.
3. Appropriate partial deliveries as well as reasonable deviations of up to plus/minus 10% of order quantities are permissible.
4. If the purchaser does not fulfill its obligation to accept the goods, Helmers shall not be bound by the regulations on public auction, irrespective of other rights, but may sell the delivery item on the open market or as described in Section VIII. Terms of Payment Clause 5, Sentences 3 and 4. Purchase prices/remuneration claims of Helmers remain unaffected.
5. The return of delivery items by Helmers as a gesture of goodwill requires perfect condition, original packaging and carriage paid delivery after timings have been arranged. Helmers is entitled to charge more reasonable costs incurred through the return of delivery items.
6. Events of force majeure entitle Helmers to postpone delivery for the duration of the hindrance and a reasonable start-up period, or to withdraw in whole or in part from the part of the contract that has not yet been fulfilled. Force majeure refers to strikes, lockouts or unforeseen circumstances, such as operational disruptions, which make it impossible for Helmers to deliver on time despite reasonable efforts; Helmers must provide proof of this. This also applies if the aforementioned hindrances occur during a delay or at a sub-supplier. The customer can ask Helmers to declare within 2 weeks whether they want to withdraw or deliver within a reasonable grace period. If Helmers does not declare its intent, the customer can withdraw from the unfulfilled part of the contract. If a case of force majeure as detailed in paragraph 1 occurs, Helmers will notify the customer immediately. It must keep the impairment of the customer to a minimum, if necessary by handing over the drawings, the provided samples and materials for the duration of the hindrance.
IV. Packaging, shipping, transfer of risk
1. Unless otherwise agreed, Helmers will choose the packaging, shipping method and shipping route to the best of its judgment.
2. Even in the case of carriage paid delivery, risk is transferred to the purchaser when it leaves the delivery plant. In the case of delays in dispatch for which the customer is responsible, the risk is transferred when the customer is notified that the goods are ready for dispatch.
3. At the written request of the customer, the goods will be insured against storage, breakage, transport and fire damage at its own expense.
V. Retention of title
1. The deliveries remain the property of Helmers until all claims by Helmers against the purchaser have been met, even if the purchase price for specially designated claims has been paid. With respect to open accounts, the retained ownership of the deliveries (goods subject to retention of title) is used as security by Helmers for the balance invoice. If, in connection with the payment of the purchase price, Helmers is found to bear reciprocal liability, the retention of title does not expire prior to the redemption of the bill of exchange by the purchaser as drawee.
2. In the event of a resale, the purchaser hereby assigns to Helmers, including all ancillary rights, until all claims by Helmers, the claims arising from the resale and other claims against its customers have been met. If the items are resold on credit, the customer must retain ownership of the goods in relation to its customer. The purchaser hereby assigns the rights and claims from this reservation of title vis-a-vis its customer to Helmers.
3. At the request of Helmers, the purchaser is obliged to provide it with all information and documents Helmers requires to assert its rights against the purchaser's customers.
4. Any treatment or processing of reserved items by the purchaser is carried out for Helmers free of charge. If reserved items are processed, combined, mixed or blended with non-Helmers goods, Helmers is entitled to the resulting co-ownership share in the new item in relation to the other processed goods at the time of processing, combining, mixing or blending. If the purchaser acquires sole ownership of a new item, the contracting parties agree that the purchaser grants Helmers co-ownership of the new item in proportion to the factor value of the aforementioned reserved items and stores them for Helmers free of charge. If the resulting reserved items are resold together with other goods, regardless of whether they are sold without or after processing, combining, mixing or blending, the advance assignment agreed in Clause 2 above only applies to the amount of the factor value of the reserved items which have been resold together with the other goods.
5. If reserved items are built into the property of the customer as essential components, the customer hereby assigns the claims arising from the sale of the property or property rights with all rights to Helmers. In the event of installation in a property belonging to a third party or to the entity concerned, the customer assigns any claims for remuneration with all ancillary rights including the granting of a security mortgage to Helmers.
6. Insofar as the securities arising from the above provisions do not only temporarily exceed the value of the claim of Helmers by 15 %, Helmers shall be obliged to release securities of its choice upon request of the purchaser.
7. If Helmers makes use of its retention of title by retrieving goods subject to retention of title in accordance with the above provisions, Helmers is 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 are retrieved at the proceeds achieved, but at most at the agreed delivery prices. Further claims for damages, in particular loss of profit, are reserved.
VI. Assurance and liability for defects
1. Notices of defects must be made in writing immediately, at the latest 3 days after receipt of the delivery. In the case of hidden defects, this period is extended to 3 days after discovery. In both cases, unless otherwise agreed, warranty claims expire 6 months after receipt of the goods and a longer period is not required by law.
2. In the case of a justified complaint for which Helmers is responsible - whereby the outturn samples or the samples provided by the customer may determine quality and execution - Helmers is obliged, at its discretion, to repair or replace free of charge, with three improvements generally being allowed. If Helmers does not meet these obligations within a reasonable period to be set in writing, the customer is entitled, after setting a further grace period with notice of refusal, to demand a reduction in price or to declare withdrawal and demand the reimbursement of additional costs (such as installation and removal costs, transport costs, etc.). Further claims - regardless of the legal reason - are excluded. Replaced parts are to be returned (freight collect) to Helmers on request. Payments already made by the customer can only be demanded back in relation to the services already provided by Helmers.
3. Insignificant defects or reasonable deviations in dimensions and designs - especially in the case of repeat orders - do not entitle the customer to raise complaints and the rights mentioned under 2, unless absolute compliance has been agreed in writing beforehand. Technical improvements and necessary technical changes are also deemed to be in accordance with the contract, provided they do not result in a deterioration in usability.
4. Unauthorized reworking and improper handling as well as non-compliance with the operating and maintenance instructions renders all claims for defects null and void. The customer is only entitled to make improvements and to demand reimbursement of reasonable costs after prior written notification to Helmers to prevent disproportionately large damage or in the event of Helmers being in default of defect rectification. Any warranty excludes defects that can be traced back to improper handling, overstressing and improper use, whereby the customer must provide evidence of exoneration. Defects that can be traced back to faulty construction drawings - sketches, explanations, sample parts or materials provided by the customer - are also excluded. Damage caused by chemical, mechanical or atmospheric influences is also excluded, whereby the customer must provide evidence of exoneration.
VII. General limitations of liability
In all cases in which Helmers, in deviation from the above conditions, is obliged to pay compensation due to contractual or legal claims, it is only liable if it, the legal representative, its executives or vicarious agents can be charged with intent or gross negligence. This exclusion of liability only applies to the extent that it is legally permissible and according to case law.
VIII. Terms of payment
1. All payments are to be made in euros exclusively to Helmers.
2. Unless otherwise agreed, the purchase price for deliveries and other services is payable without deduction within 14 days of the invoice date. Helmers is entitled to demand advance payments.
3. If the agreed payment date is exceeded, interest at 8% above the respective base rate will be charged, unless Helmers can provide evidence of higher debit interest.
4. The customer can only offset or assert a right of retention if its claims are undisputed or have been legally established.
5. Failure to comply with terms of payment or circumstances that give rise to serious doubts about the creditworthiness of the customer result in all claims by Helmers becoming due immediately. In addition, Helmers is entitled to demand advance payments for deliveries that are still outstanding. Furthermore, Helmers is entitled to withdraw from the contract after a reasonable grace period or to demand compensation for non-performance, and to forbid the customer from reselling the goods and to retrieve goods that have not yet been paid for at the customer's expense. Helmers is entitled to sell these goods and any goods that have been completed but not yet delivered by private contract or after notification of the amount to be taken into account; the customer may only raise an objection within a period of 3 days from notification of the amount, until their claims are covered. If the customer objects to the stated amount, a state-recognized expert appointed by Helmers will decide the amount. The unsuccessful party must bear the costs of the expert.
IX. Provision of materials
1. If materials are provided by the customer, they are to be delivered on time and in perfect condition at the customer's own risk and expense with an appropriate quantity surcharge of at least 10%. Helmers does not accept any liability for the customer in this regard.
2. If these requirements are not met, the delivery time will be extended accordingly. Except in cases of force majeure, the customer bears the additional costs incurred for production interruptions.
3. If there is a defect in the material, the customer is obliged to compensate Helmers for any resulting and/or consequential damage.
X. Property rights, confidentiality, use of software
1. If Helmers has to deliver according to drawings, models, samples or using parts provided by the customer, the customer is responsible for ensuring that third-party property rights are not violated as a result. Helmers will inform the customer of the rights known to it. The customer must release Helmers from claims by third parties and pay compensation for damage incurred. If Helmers is prohibited from manufacturing or delivering by a third party on the basis of a property right belonging to it, Helmers is entitled to stop the work without verifying the legal situation. As a result, no contractually agreed payment claim or claim for damages can apply.
2. Drawings and samples provided to Helmers that did not result in an order will be returned upon request; otherwise Helmers is entitled to destroy them three months after submitting the offer.
3. Unless otherwise agreed, Helmers provides services free of industrial property rights and copyrights of third parties. If a third party asserts justified claims against the purchaser due to the infringement of property rights by the services rendered by Helmers and used by the purchaser in accordance with the contract, Helmers shall obtain a right of use in accordance with the deadlines to be observed by the purchaser under VI. Clause 2 and modify the service so that there is no longer any infringement of property rights or replace it. If these measures fail, the purchaser is entitled to the claims agreed under VI Clause 2.
4. Helmers is entitled to copyrights and, if applicable, industrial property rights to the models, forms and devices, drafts and drawings, samples, pilot series and programs designed by it or by third parties on its behalf.
5. The contractual partners agree that the information, knowledge, templates, including images, drawings, plans or construction documents received from the other partner will be used confidentially and only for the purpose of the contract and will not be made accessible to any third party without the express written consent of the other party. This does not apply to generally known information without any obligation of confidentiality. In the event of a breach of this obligation, the respective contractual partner reserves the right to assert the statutory claims to which it is entitled.
6. If software is included in the deliveries, the customer is granted a non-exclusive right to use the software, including its documentation, for the delivery. The customer may only copy, revise, translate or convert software from object code to source code with the written consent of Helmers. The customer has no claim to the source code. The customer will not remove the information from Helmers or any other manufacturer - in particular copyright notices - or change them without the prior written consent of Helmers. All other rights to software and documentation, including copies, remain with Helmers. The customer is not permitted to issue sub-licenses. In all other respects, the regulations mentioned under Clauses 1-5 apply to the use of the software and related claims.
XI. Cost estimates
If the creation of a cost estimate is agreed between the customer and Helmers, the work performed for this cost estimate, such as the creation of the necessary programs and, if necessary, the production of sample parts, will be billed separately according to the work involved. The regulations on property rights mentioned under X., in particular Clause 4, also apply here.
XII. Performance and jurisdiction
1. The place of performance is Osnabrück.
2. The place of jurisdiction - also for checks and bills of exchange - is Osnabrück.
3.Only the laws of Federal Republic of Germany apply. The application of the United Nations Convention of April 11 1980 on Contracts for the International Sale of Goods, international regulations that come into force later, as well as further claims that have arisen, arise or may arise under EU law are excluded to the extent permitted by law.
XIII. Severability clause
Should any provision of these General Terms and Conditions be or become ineffective, this shall not affect the effectiveness of all other provisions and agreements between the contracting parties. The contracting parties will then endeavor to find a regulation that resembles the meaning of the ineffective terms and conditions.