General Terms of Delivery and Payment
I. General remarks and scope
1. The present General Terms of Delivery and Payment ("delivery and payment terms") apply to all business transactions entered into by Sonderschrauben Güldner GmbH & Co. KG ("Güldner") and its customers ("customer"). These delivery and payment terms apply only if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a public law entity or a special fund under public law. The latest version of these delivery and payment terms can be accessed at http://www.gueldner.com/en/terms.html.
2. These delivery and payment terms shall apply exclusively to all business transactions. Any conflicting or diverging terms and conditions of the customer are excluded, unless their application was expressly agreed to by Güldner. The present delivery and payment terms shall apply even if Güldner effects delivery to the customer without reservation while being aware of the customer's conflicting, diverging or supplementary terms.
3. Separate, individual agreements concluded with the customer shall take precedence over the provisions in these delivery and payment terms. However, these individual agreements require written form and/or Güldner's written confirmation to be effective.
4. Any legally relevant representations and notices to be made to Güldner by the customer after conclusion of a contract (incl. deadlines or grace periods, notices of defects, rescission of a contract or price reductions) must be made in writing to be effective.
5. References to statutory requirements are for clarification purposes only. Even without such references, legal regulations and statutory requirements generally apply without limitation unless they are expressly changed or excluded in these delivery and payment terms.
II. Conclusion of a contract
1. Güldner's offers are without engagement. This provision also applies if Güldner provides the customer with catalogs, technical documentation or other product information and documents, which are subject to copyrights and other proprietary rights held by Güldner.
2. The placing of an order by the customer constitutes a binding offer to conclude a contract. Unless otherwise specified in the order, Güldner may accept the customer's contract offer within 4 weeks after receipt of the order.
3. Delivery contracts only enter into force upon written acceptance or shipment of the goods at the latest. Acceptance shall be deemed given in writing if delivered by any means of telecommunication.
4. In the event Güldner uses a telecommunication or other electronic media service to conclude a contract, the customer hereby waives the right to appropriate, effective and accessible technical means for the detection and correction of typing errors, to the disclosure of the information specified in Art. 246, Sec. 3 EGBGB (German Introductory Act to the Civil Code) and to a confirmation of receipt of the order. Any electronically transmitted order shall not be deemed received until downloaded and opened by Güldner.
III. Prices - terms of payment
1. All prices are quoted ex warehouse and subject to VAT at the rate in effect at the time the invoice is issued.
2. In the event of a sales shipment (Section VI, paragraph 1), the customer shall bear all shipping costs ex warehouse and any transport insurance fees if an insurance is requested by the customer. Any customs duties, fees, taxes and other public charges are borne by the customer. To the extent permitted by the German Packaging Ordinance (VerpackV), Güldner does not take back any transport or other packaging, which becomes property of the customer. This does not include pallets.
3. Unless agreed otherwise, the agreed purchase price is due and payable within 30 days of the invoice date. Güldner grants a cash discount of 2 % of the gross invoice amount on all payments within 10 calendar days. Should a contract have a delivery value of more than EUR 5,000, Güldner may demand a down payment of 30 % of the purchase price. The down payment is payable within 20 calendar days of the invoice date.
4. Regardless of the means of payment, payment shall be deemed received on the date Güldner can dispose of the amount due.
5. The customer shall be deemed to have defaulted (within the meaning of Section 286 BGB) on the agreed payment once the payment term specified in paragraph 3 expires. In the event of default, the customer will be charged late-payment interest (default interest, Section 288 BGB) on the purchase price at the statutory rate. Güldner reserves the right to make additional claims for losses caused by default. Without prejudice to the above provisions, Güldner may claim commercial maturity interest within the meaning of Section 353 of the German Commercial Code (HGB) if the customer is a businessperson (Secs. 1 et seq. HGB).
6. The customer may only claim a set-off or exercise its right of retention to the extent that its claim is uncontested or has become res judicata. Nothing in these terms shall exclude any opposing rights the customer may have in the event of defective deliveries.
7. Should it become apparent after conclusion of the contract that Güldner's claim to the purchase price is jeopardized by the customer's inability to perform (e.g. the customer files for bankruptcy), Güldner may refuse performance and - after setting a reasonable grace period - rescind the contract in accordance with statutory requirements (Section 321 BGB). Without prejudice to the statutory requirements for the immediate rescission of a contract, Güldner may rescind a contract for the production of unmarketable items (products made to specification) with immediate effect.
8. Provided there are already outstanding claims for payment under the ongoing business relationship with the customer, Güldner may refuse further deliveries until the customer has settled all claims in full. The above provision applies mutatis mutandis to any credit lines granted by Güldner.
9. If the customer fails to pay the outstanding purchase price even though payment is overdue, this failure will be reported to the credit agencies cooperating with Güldner in accordance with Section 28a of the German Federal Data Protection Act (BDSG).
IV. Retention of title
1. Güldner will retain legal ownership of the goods sold until full payment is received for all present and future claims arising out of the sales contracts in question and the current business transaction ("secured claims" in the following).
2. Any goods subject to retention of title may not be pledged or offered as security to third parties by the customer until all secured claims have been paid in full. The customer shall notify Güldner immediately of any attempt by third parties to seize these goods.
3. Any breach of contract on the part of the customer including, without limitation, non-payment of the payable purchase price, shall entitle Güldner to rescind the contract in compliance with statutory requirements and demand the return of the goods sold on the basis of the retention of title and Güldner's rescission of the contract. If the customer fails to pay the payable purchase price, Güldner may only exercise the aforementioned rights after having set a reasonable grace period unless such a grace period can be dispensed with in accordance with statutory requirements.
4. The customer may resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions apply.
(a) Güldner retains title to the goods supplied even though they have been processed, blended or combined in such a way that they now form part of or are converted into a new product, whereby Güldner shall be considered as manufacturer. In case proprietary rights of third parties continue after such processing, blending or combination, Güldner acquires joint title to the new product in proportion to the invoice values of the processed, blended or combined goods. In all other respects, the same provisions that apply to the goods delivered subject to retention of title shall also apply to the new product.
(b) Any claims against third parties arising out of the resale of the goods or the newly created product shall be considered assigned to Güldner by the customer by way of security either in full or in proportion to the value of Güldner's joint title as specified in the provisions above. Güldner hereby accepts the above assignment. The contractual obligations of the customer contained in paragraph 2 shall also apply with respect to the assigned claims.
(c) The customer remains entitled to collect claims from resales. Güldner shall not collect such claims provided the customer continues to make the agreed payments to Güldner within the agreed terms, no petition for insolvency proceedings has been filed and the customer remains capable of meeting its contractual obligations. Should the customer fail to meet the above requirements, Güldner may demand that the customer disclose the assigned claims and the corresponding debtors as well as all information necessary to collect such claims, deliver all necessary documents and notify the debtors (third parties) concerned of the assignment.
(d) In the event the realizable value of these securities exceeds Güldner's claims by more than 10 %, Güldner shall, at the request of the customer, release securities. Güldner may choose the securities to be released at its own discretion.
V. Delivery periods, delivery dates, acts of God and delays in delivery
1. Delivery and/or performance periods and delivery and/or performance dates are agreed individually and/or specified by Güldner upon acceptance of the order.
2. All technical questions have to be resolved before commencement of the individually agreed or specified delivery or performance periods.
3. Güldner's observation of the delivery or performance periods is further subject to the customer's due and timely compliance with all contractual obligations. Güldner reserves the right to refuse performance in accordance with Section 320 BGB if the customer fails to render the agreed consideration.
4. Güldner shall give the customer prompt written notice in the event of delays to, improper performance or non-performance of deliveries or other obligations on the part of sub-suppliers or subcontractors, despite appropriate congruent hedging transactions, due to circumstances beyond Güldner's reasonable control or in the event of acts of God, i.e. obstacles to performance occurring without Güldner's fault or negligence and lasting more than 14 calendar days. In this case, Güldner may delay performance of the delivery or other obligation by a period of time equal to the duration of the obstacle to performance or rescind the contract in whole or in part on the basis of the unfulfilled part of the contract, provided the above information requirement has been met and Güldner has not assumed the procurement and/or production risk and the obstacle to performance is not temporary. Within the meaning of the above provisions, the following circumstances shall be deemed equivalent to acts of God to the extent these circumstances are beyond Güldner's reasonable control and occur without Güldner's fault or negligence: strike, lockout, government intervention, energy and raw material shortages, delivery bottlenecks, business interruptions (e.g. through fire, water and machine failure) and all other interruptions occurring without Güldner's fault or negligence.
5. In the event a binding delivery and/or performance period and/or date has been agreed and is exceeded by more than four weeks due to the circumstances described in section 4 or the continuation of the contract would pose an unreasonable hardship on the customer in the event of a non-binding performance date, the customer may rescind the contract on the basis of the unfulfilled part of the contract.
6. Commencement of default on delivery within the meaning of Secs. 286 et seq. BGB on the part of Güldner is subject to statutory requirements. Without prejudice to the above provision, a written reminder by the customer is always required before Güldner may be considered in default. In the event Güldner defaults on a delivery, the customer may claim a fixed compensation amount for the damage caused by the default. This compensation amounts to 0.5 % of the net purchase price for every full calendar week Güldner is in default, but no more than 5 % of the net purchase price of the delayed goods. Güldner reserves the right to establish that the customer did not incur any or significantly less damage than the amount covered by the compensation specified above.
7. Nothing in these delivery and payment terms is intended to limit or exclude the rights of the customer set forth in Section IX below and Güldner's legal rights including, without limitation, the exclusion of contractual obligations (e.g. due to impossibility of performance, unreasonable hardship and/or provision of a remedy).
VI. Delivery, transfer of risk, delays in acceptance
1. Delivery is effected ex warehouse, which is also the place of performance. Upon request and at the expense of the customer, the goods can be shipped to a different destination (sales shipment, Section 447 BGB). Unless agreed otherwise, Güldner may choose the method of shipping (including, without limitation, carrier, shipping route and packing).
2. Güldner may make partial deliveries, provided this does not have any negative consequences for the customer.
3. Güldner reserves the right to deliver consumables in commercially standardized quantities, i.e. short or excess deliveries, provided these deliveries remain within reasonable bounds and do not conflict with the customer's interests.
4. The risk of accidental loss of or accidental damage to the goods passes to the customer when the goods are delivered to the customer. In case of a sales shipment, the risk of accidental loss of or accidental damage to the goods as well as the risk of delay already pass to the customer upon delivery of the goods to the forwarder, carrier or other third party authorized to collect the goods. Failure to accept the goods delivery (default of acceptance, Sec. 293 BGB) shall constitute delivery of the goods.
5. In case the customer is in default of acceptance, fails to cooperate or is otherwise responsible for delaying Güldner's delivery, Güldner may claim compensation for the damage incurred, including any additional expenses (such as storage costs).
VII. Industrial property rights, provision of documents
1. The customer shall inform Güldner without delay of any property right claims of third parties pertaining to the products delivered by Güldner. Güldner may, but is not obliged to, defend these rights at its own cost and for its own benefit.
2. The customer warrants that any accompanying goods, services and documentation provided by the customer are free of third-party rights. The customer shall indemnify Güldner against any claims of third parties arising out of the infringement of third-party rights, unless the customer cannot be held responsible for this legal defect.
3. By providing documents to Güldner, the customer grants Güldner the worldwide, non-exclusive and perpetual right to use these documents for the contractually agreed purposes. In the event of product inquiries based on documents provided by the customer such as drawings and specifications (parts made to order), Güldner may provide these documents to upstream manufacturing companies to complete the inquiry process and perform the contract through sub-suppliers. Should the customer demand changes to the specifications or additional specifications when inquiring about parts made to order without making these changed or additional specifications or drawings available to Güldner, Güldner may change or amend the existing drawings or specifications accordingly.
VIII. Claims for defects of the customer
1. Unless otherwise provided below, the rights of the customer in the event of material and/or legal defects are subject to statutory requirements.
2. The legal basis for any liability for defects on the part of Güldner shall be the agreement made on the quality of the goods. Agreements on the quality of the goods include all product descriptions and specifications which have either been agreed on by Güldner and the customer on the basis of the corresponding standards (e.g. DIN, ISO) or been provided to Güldner by the customer and expressly approved by Güldner.
3. Any claim made by the customer based on any defect in the quality or condition of the goods is subject to the customer having fulfilled its legal obligations to examine the goods upon delivery and notify Güldner of any defects (sections 377, 381 HGB). Any defect discovered during examination or later shall be notified to Güldner in writing without delay. Such notice shall be deemed given without delay if delivered or mailed within two weeks. Without prejudice to the above examination and notification obligations, the customer shall inform Güldner in writing of any obvious defects (including wrong and short shipments) by mailing a corresponding notice within two weeks after delivery. In the event the customer fails to duly observe these examination and/or notification obligations, Güldner will not accept liability for any defects which have not been reported.
4. Should the goods delivered be defective, Güldner reserves the right to choose an appropriate remedy either by repairing the defect (rectification) or providing goods free of defects (replacement). However, nothing in these delivery and payment terms is intended to limit or exclude Güldner's right to refuse the provision of a remedy in accordance with statutory requirements.
5. Güldner may make the provision of the remedy owed to the customer dependent on whether the customer pays the payable purchase price. The customer may, however, withhold a reasonable proportion of the purchase price.
6. The customer shall grant Güldner a reasonable grace period and the opportunity to provide the required remedy, including, without limitation, returning the defective goods to Güldner for examination purposes. In the event of replacement, the customer shall return the defective goods to Güldner in accordance with statutory requirements. Any remedy provided by Güldner does not include the removal or the reinstallation of the defective goods unless the installation was originally carried out by Güldner.
7. In the event the goods are defective, all costs incurred during the examination of the goods and the provision of a remedy, including, without limitation, transport, travel, work and material costs (not removal or installation costs), shall be borne by Güldner. Should the claim of the customer turn out to be unjustified, Güldner may demand reimbursement of all costs incurred in connection with the customer's claim.
8. In the event Güldner fails to remedy a defect or a reasonable grace period set by the customer expires without any results or can be dispensed with in accordance with statutory requirements, the customer may rescind the contract or reduce the purchase price. The customer has no right to rescind the contract if the defect is immaterial.
9. Except as expressly provided in Section IX, any claims of the customer for damages and/or for reimbursement of futile expenses are hereby excluded.
IX. Other liability
1. Unless otherwise specified in these delivery and payment terms including the following provisions, Güldner shall be liable for all breaches of contractual or non-contractual obligations in accordance with statutory requirements.
2. Nothing in these terms shall exclude or limit Güldner's liability for claims for damages based on willfulness or gross negligence howsoever arising. In the event of ordinary negligence, Güldner shall only be liable for
(a) death or personal injury;
(b) damage resulting from material breaches of contract (failure to perform contractual duties which are essential for the due performance of the contract and whose performance the other contracting party does and may generally trust in); in this case, Güldner's liability shall be limited to the reasonably foreseeable damage typical for this type of contract.
3. Notwithstanding the provisions in paragraph 2, nothing in these terms shall exclude or in any way limit Güldner's liability for fraudulent concealment of defects or for any warranties or representations made by Güldner as to the nature or quality of the goods. The same applies to claims of the customer made on the basis of the German Product Liability Act (ProdHaftG).
4. In the event of a breach of contractual obligations not resulting from a defect, the customer may only rescind or terminate the contract if Güldner is responsible for this breach. The right of the customer to terminate the contract at any time (including, but not limited to, the rights granted in sections 651 and 649 BGB) is hereby excluded. In all other respects, the statutory provisions apply.
X. Limitation periods
The statutory limitation periods contained in the German sale of goods laws shall also apply to all contractual and non-contractual claims for damages made by the customer based on defective goods, unless the applicable legal provisions require shorter limitation periods in individual cases (sections 195, 199 BGB). Irrespective of the above provisions, nothing in this agreement is intended to limit or exclude the limitation periods for claims under the German Product Liability Act. In all other respects, any claims made by the customer for damages under Section IX are subject to the applicable statutory limitation periods.
XI. Hydrogen embrittlement
1. Güldner and the customer are aware of the numerous possible causes and problems of hydrogen-induced cracking, particularly in galvanized, high-strength and/or case-hardened items with an ultimate tensile strength of 1000 MPa or more and core or surface hardnesses of 320 HV or more, as specified in DIN EN ISO 4042. Güldner cannot guarantee the complete elimination of hydrogen embrittlement risks.
2. In the event the risk of hydrogen embrittlement in the goods delivered by Güldner needs to be reduced even further in special individual applications due to construction requirements or for safety reasons, the customer and Güldner shall conclude a separate agreement on the process structure and material procurement to limit the above-mentioned risks.
3. The DIN EN ISO 4042 standard is an integral part of all agreements concluded between Güldner and the customer.
XII. Applicable law and place of jurisdiction
1. These business transactions and all legal relationships between Güldner and the customer are subject to the laws of the Federal Republic of Germany under exclusion of all international and supranational (contractual) legal systems including, without limitation, the UN Convention on Contracts for the International Sale of Goods. The legal requirements and effects of the retention of title clause under Section IV are subject to the laws applicable at the location of the goods to the extent the laws of the Federal Republic of Germany are invalid or ineffective.
2. In the event the customer is a businessperson within the meaning of the German Commercial Code, a public law entity or a special fund under public law, the exclusive and international place of jurisdiction for all disputes arising out of or in connection with the contract shall be the court of competent jurisdiction at Güldner's head office in 97996 Niederstetten, Germany. Güldner does, however, reserve the right to bring its claims against the customer at the general place of jurisdiction of the customer.
As of: October 2014
General Terms and Conditions of Purchase
(1) The present General Terms and Conditions of Purchase ("conditions of purchase") apply to all business transactions with business partners and suppliers ("supplier") of Sonderschrauben Güldner GmbH & Co. KG ("Güldner") concerning the delivery of movable property ("goods" or "product(s)") and/or services, regardless of whether a supplier directly provides these goods and/or services or purchases them from third parties. These conditions of purchase apply only if the supplier is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a public law entity or a special fund under public law.
(2) These conditions of purchase, as in effect at any given time, shall apply as framework agreement to any future contracts for the sale and/or the delivery of movable property and/or services with the same supplier, without Güldner having to expressly refer to these conditions of purchase in each individual case; the latest version of our conditions of purchase can be accessed at http://www.gueldner.com/en/terms.html.
(3) The present conditions of purchase shall apply exclusively. Any conflicting, diverging or supplementary terms and conditions of the supplier are excluded, unless the extent of their incorporation into a contract is expressly defined and agreed to by Güldner in writing. This reservation of consent shall apply even if Güldner accepts deliveries from the supplier without reservation while being aware of the supplier's general terms and conditions.
(4) Separate, individual agreements concluded with the supplier (including any supplements, changes and amendments) shall take precedence over the provisions in these conditions of purchase. However, these individual agreements require written form and/or Güldner's written confirmation to be effective.
(5) All legally relevant representations and notices to be made to Güldner by the supplier after conclusion of a contract (incl. deadlines, reminders, rescission of a contract) must be made in writing to be effective.
(6) References to statutory requirements are for clarification purposes only. Even without such references, legal regulations and statutory requirements generally apply without limitation unless they are expressly changed or excluded in these conditions of purchase.
II. Conclusion of a contract
(1) Orders by Güldner may not be considered placed unless submitted or confirmed in writing. Any deliveries made without written order will not be accepted. Güldner's failure to respond to offers, inquiries or other declarations of the supplier may only be deemed consent if this has been expressly agreed in writing in advance. Supplier shall point out obvious mistakes (e.g. typing errors or miscalculations) and/or incomplete orders or missing order documents to Güldner without delay so they can be revised or completed. Otherwise, the contract shall not take effect.
(2) A written order confirmation by the supplier is generally not required by Güldner, unless the supplier needs to change the order in terms of quantities, prices or delivery dates. However, if expressly requested by Güldner, supplier shall confirm the order in writing within a period of one (1) week or process the order without reservation and without delay.
Any delayed or changed order acceptance shall be deemed a new offer requiring acceptance by Güldner. The same shall apply to any acceptance of an extended or limited or otherwise changed order.
(3) Supplier shall provide all offers, designs, drafts and samples free of charge. At Güldner's request, supplier shall take these back at its own expense and without delay.
III. Delivery times and delays in delivery
(1) The delivery date given by Güldner in the order is binding. In the event the supplier can reasonably foresee that the agreed delivery times cannot be met, the supplier shall notify Güldner in writing without delay of the reasons for and the length of the expected delay. Before the agreed delivery date, partial deliveries or early deliveries may only be made with the prior written consent of Güldner.
(2) Should the supplier fail to render the agreed performance or fail to do so within the agreed delivery time, or should supplier default on the delivery, Güldner's rights - especially those to rescission of the contract and damages - shall be subject to statutory requirements. However, nothing in this paragraph shall exclude or in any way limit the provisions in paragraph 3.
(3) In the event the supplier defaults on a delivery, Güldner may claim a contractual penalty in the amount of EUR 50 per delayed customer delivery and delayed article. In this respect, the supplier waives the defense of treating consecutive violations of this provision as one violation for the purpose of this provision (Einrede des Fortsetzungszusammenhangs). Güldner may claim this contractual penalty in addition to actual performance of the contract as minimum damages in accordance with statutory requirements; Güldner reserves the right to claim additional damages. In the event Güldner accepts the delayed performance, the contractual penalty will be claimed upon final payment at the latest.
(4) Güldner will continue to claim full delivery, unless the supplier fully compensates Güldner for the delivery at Güldner's request. Acceptance of the delayed delivery shall not be construed as a waiver of any damages or contractual penalty claims.
IV. Delivery, transfer of risk, delays in acceptance, packing
(1) Unless agreed otherwise in individual cases, all deliveries shall be made free of charge (DDP named place of destination acc. to INCOTERMS 2010) to the destination named in the order. Unless agreed otherwise, all deliveries shall be made to Güldner's head office in Germany, 97996 Niederstetten, Hohe Buche 13, if no place of destination has been named in the order. The place of destination is also the place of performance.
(2) In addition to these conditions of purchase, the supplier shall comply with Güldner's quality assurance guideline, as in effect at any given time; the latest version of the quality assurance guideline can be downloaded at http://www.gueldner.com/qs_richtlinien.html.
(3) The risk of accidental loss of or accidental damage to the goods or services passes to Güldner upon delivery of the goods or services at the place of performance. In case acceptance of the goods or services is agreed, the risk passes upon acceptance.
(4) Failure to accept the goods (default of acceptance, Section 293 BGB) on the part of Güldner is subject to statutory requirements. The supplier has to expressly offer performance to Güldner even if a certain time period has been agreed for an action or involvement of Güldner. If Güldner is in default of acceptance, the supplier may claim compensation for any additional costs incurred in accordance with statutory requirements.
V. Duties to inform, subcontractors
(1) The supplier shall inform Güldner in writing of any changes to manufacturing processes, changes in materials or upstream deliveries of parts for products or services, changes in manufacturing locations as well as of changes to processes or facilities for the testing of parts or any other quality assurance measures in good time. To the extent necessary, Güldner may examine whether the above changes have a negative effect on the product. Upon request, the supplier shall provide all documents required for such an examination and allow for audits to the extent required.
(2) Güldner must be notified in writing of the use of subcontractors, freelance staff, upstream suppliers and other third parties ("authorized agents") who are no actual employees of the supplier in the provision of the agreed goods or services. The supplier shall ensure in its contractual relationships with authorized agents that all goods and services are provided fully and in due form, the due and timely provision of goods and services can be monitored through appropriate documentation as well as regular audits by Güldner and that all obligations arising under the contract with Güldner also apply to the contractual relationship with the authorized agent.
(3) Authorized agents shall be considered legal representatives of the supplier within the meaning of the German Civil Code. Losses, delays, interruptions, insufficient performance or any other defects or errors in the deliveries and services of the authorized agents, regardless of the cause of these losses, shall not release the supplier from its obligations under the contract concluded with Güldner.
VI. Prices, invoices, payment terms, set-off and retention
(1) The price shown in the order is binding. All prices are exclusive of VAT even if VAT is not shown separately. This also applies to any additional services performed by supplier.
(2) Unless otherwise agreed in individual cases, the price shall include all services and additional services provided by the supplier as well as all incidental expenses (e.g. appropriate packing, customs duties, import charges, transport costs including any transport and liability insurances).
(3) The original invoice shall be sent to Güldner and must include the invoice number, order number, quantity, price and other order details (including, but not limited to, the Güldner article numbers). Invoices shall be sent separately from goods deliveries. Any deliveries from territories outside the EU's customs area must include a copy of the invoice or a pro forma invoice.
(4) Payments shall be made in accordance with the agreed payment terms. Payments by bank transfer shall be considered made in due time provided the transfer order by Güldner is received by Güldner's bank before expiry of the payment term. Güldner may not be held responsible for delays caused by the banks involved in the payment process. Payments are only made after receipt of a proper and correct invoice.
(5) Güldner will not be held liable for any commercial maturity interest within the meaning of Section 353 of the German Commercial Code (HGB). Any late payment interest (default interest, Section 288 BGB) charged may be five (5) percentage points above the base rate. Commencement of default within the meaning of Secs. 286 et seq. BGB on the part of Güldner is subject to statutory requirements. Without prejudice to the above provision, a written reminder by the supplier is always required before Güldner may be considered in default.
(6) Güldner may exercise its legal rights of set-off and retention as well as the right to refuse performance in accordance with Section 320 BGB if the customer fails to render the agreed consideration. Güldner's rights include, but are not limited to, the right to refuse payment, provided Güldner still has outstanding claims against the supplier resulting from incomplete or defective goods or services.
(7) The supplier may only claim a set-off or exercise its right of retention to the extent that its claim is uncontested or has become res judicata.
VII. Retention of title and provision of materials
(1) Title to the goods shall pass to Güldner upon delivery regardless of whether the price has already been paid. However, in the event Güldner accepts an offer of the supplier subject to full payment of the agreed price in individual cases, title to the goods shall pass upon full payment of the goods delivered. Any extended reservation of title on the part of the supplier is hereby excluded.
(2) The supplier processes, blends or combines materials provided by Güldner on behalf of Güldner. Both parties agree that Güldner acquires joint ownership of the new products created proportionate to the value of the materials provided by Güldner compared to the total value of the new products. The supplier shall store these new products for Güldner until delivery.
VIII. Confidentiality, documentation and references
(1) The supplier shall not disclose to third parties any commercial or technical information provided or made accessible by Güldner, to the extent this information is not already publicly known, and may only provide this information to persons required for the performance of deliveries to Güldner in the course of their own business operations, provided these persons are also subject to appropriate non-disclosure obligations.
(2) Güldner reserves all property rights and copyrights in and to all documents and other resources made available to the supplier for the execution of an order placed by Güldner including, without limitation, drawings, illustrations, designs, calculations, descriptions, plans, models, samples, technical specifications, data storage media, other documents, tools, parts and materials. All of the above documents and resources may only be used for the performance of the agreed contract and shall be returned (including any copies or other records made) to Güldner upon performance of the contract. Any works or products created on the basis of documents and resources provided by Güldner may not be used by the supplier nor offered or delivered to third parties.
(3) Any technical documentation, drawings, diagrams, tables, charts, photographs, layout templates and other documentation – be it on data storage mediums, printed copies or printing materials – as well as all samples, tools, materials and other operating resources provided by the supplier shall become property of Güldner upon provision by the supplier. To the extent legally permissible, Güldner shall further receive all property rights and rights of use and exploitation in all aforementioned copyrightable works. The transfer of the above rights does not require any separate remuneration by Güldner; it is fully covered by the prices given in the orders.
(4) Without Güldner's express prior written consent, the supplier may not use the business relationship between the supplier and Güldner as a reference in any form whatsoever.
IX. Defective deliveries
(1) Unless otherwise provided below, the rights of Güldner in the event of material and/or legal defects and/or other breaches of duty by the supplier are subject to statutory requirements.
(2) In accordance with statutory requirements, the supplier's liability shall include, without limitation, the assurance that the goods have the agreed quality at the passing of risk to Güldner. The product descriptions which have been incorporated into an individual contract – for instance by reference thereto in Güldner's order – and therefore constitute part of the subject matter of this contract or which have been included in the contract in the same way as these conditions of purchase shall be deemed the agreed nature and quality of the goods. For the purpose of the above provisions, it is irrelevant whether the product description has been provided by Güldner or by the supplier.
(3) Notwithstanding the provisions in Sec. 442, para. 1, sentence 2, BGB, Güldner shall be entitled to claims for defects without limitation even if Güldner did not become aware of the defect upon conclusion of the contract due to gross negligence.
(4) The legal obligation to examine goods upon delivery and notify the delivering party of any defects shall be subject to the applicable statutory provisions (Secs. 377 and 381 HGB) with the following exception: Güldner’s obligation to check goods upon delivery shall be restricted to defects that can be detected by Güldner's incoming goods inspections by means of visual checks including the delivery documents and by random checks of Güldner's quality assurance personnel (e.g. damage in transit, wrong or short deliveries). In case acceptance has been agreed, Güldner shall not be obliged to check the goods. In all other respects, these obligations shall be dependent on whether and to what extent an inspection of deliveries can be conducted with reasonable effort in the ordinary course of business in each individual case.
The above provisions are not intended to exclude or limit the obligation to notify the supplier of defects discovered at a later time. In all cases, a complaint by Güldner (notice of defects) shall be deemed made in due time and without delay if the supplier receives this notice within 10 calendar days.
(5) The supplier shall bear all inspection and rectification costs (including any removal and installation costs) even if it is discovered that the goods in question were not defective. Güldner remains fully liable for damage caused by unjustified claims for the rectification of defects. However, Güldner shall only be liable if Güldner was aware of the fact that the goods in question were not defective or was grossly negligent in failing to recognize the absence of any defects.
(6) In the event the supplier does not fulfill its obligation to provide a remedy (either by rectifying the defect or by delivering a non-defective product as chosen by Güldner) within a reasonable grace period determined by Güldner, the latter may rectify the defect itself and claim compensation for the expenses and/or an advance payment from the supplier. In case the supplier’s remedial measures were not successful or would impose an unreasonable burden on Güldner (e.g. because of special urgency, operational safety hazards or the potential of excessive damage), no grace period needs to be determined. Güldner shall notify the supplier without delay – if possible in advance.
(7) In the event the supplier provides a replacement delivery as a remedial measure, the replacement goods will again be subject to the original limitation period, unless the supplier expressly and effectively declares that the replacement delivery was made out of goodwill and/or to avoid disputes and/or to secure the continuation of the supplier relationship.
(8) In all other respects, Güldner shall be entitled to reduce the purchase price or rescind the contract in accordance with statutory requirements in case of material or legal defects. Güldner may further claim damages and the reimbursement of expenses in accordance with statutory requirements.
X. Supplier recourse
(1) Güldner may seek legal recourse within a supply chain (supplier recourse in accordance with Secs. 478, 479 BGB) in addition to any claim made by Güldner based on any defect in the quality or condition of the goods. Güldner's rights of recourse include, but are not limited to, demanding exactly the same remedy (repairs or replacement deliveries) from the supplier that Güldner has to provide to its customer in the case in question. However, the above provision is not intended to limit or exclude Güldner's right to choose an appropriate remedy (Sec. 439, para. 1, BGB).
(2) Before Güldner recognizes or settles a claim for defects made by a customer (including the reimbursement of expenses in accordance with Secs. 478, para. 3, and 439, para. 2, BGB), Güldner shall notify the supplier, provide a brief description of the matter and request a written statement from the supplier. If this statement is not provided within a reasonable period of time and no amicable solution can be found, the compensation which was actually provided by Güldner shall be deemed owed to the Güldner customer. In such a case, the supplier retains the right to provide proof to the contrary.
(3) Any claims made by Güldner under paragraph 1 shall also apply if the goods have already been processed or treated further by Güldner or a customer of Güldner, e.g. through installation, before being sold on to a consumer.
XI. Product liability and compulsory insurance
(1) The supplier shall indemnify Güldner against any product liability claims made against Güldner to the extent the damage incurred is the result of a defect of the goods delivered by the supplier. This provision shall also apply to liability claims resulting from fault or negligence on the part of the supplier. To the extent the cause of the damage falls under the responsibility of the supplier, it is the supplier's responsibility to establish that it is not liable.
(2) Under the above indemnification provision, the supplier shall bear all costs and expenses incurred by Güldner in connection with claims made by third parties including any recall campaigns conducted by Güldner. Güldner shall notify the supplier in advance of any recall measures, make sure the supplier can assist in the recall and coordinate the efficient execution of the recall with the supplier. However, this is not necessary if the notification and involvement of the supplier is impossible because of the urgency of a recall.
(3) Further, the supplier shall be liable for any damage incurred by Güldner as a result of reasonable precautions to limit any claims under non-contractual liability which fall under the responsibility of the supplier (e.g. public advertisements).
(4) The above provisions shall apply without prejudice to any further legal claims by the parties.
(5) For the duration of the contractual relationship with Güldner, the supplier shall maintain a sufficient product liability insurance policy at its own expense. Upon request, the supplier shall provide the corresponding proof of insurance to Güldner.
XII. Limitation periods
(1) Unless agreed otherwise in the provisions of this section, the parties' claims shall be subject to the statutory limitation periods.
(2) Notwithstanding the provisions in Section 438, paragraph 1, number 3, BGB, the standard limitation period for claims for defects shall be three years from the passing of risk. This three-year limitation period shall also apply mutatis mutandis to claims based on legal defects, without prejudice to the statutory limitation period governing third parties' proprietary claims for the return of property (Section 438, paragraph 1, number 1, BGB); claims based on legal defects shall not become statute-barred as long as third parties can still make claims against Güldner based on a legal defect.
(3) The limitation periods contained in the German sale of goods laws including the above extensions shall apply to all contractual claims based on defects to the extent legally permissible. Any non-contractual claims for damages based on a defect are subject to the applicable statutory limitation periods (secs. 195, 199 BGB), unless the applicable German sale of goods laws require longer limitation periods in individual cases.
XIII. Export controls and customs duties
(1) The supplier shall inform Güldner in writing of any permit requirements for its goods resulting from the applicable German, European (EU), American (USA) export, tariff and trade laws as well as from the export, tariff and trade laws of the country of origin as early as possible before delivery. The supplier shall provide the following information and data:
the export list number as specified in Annex AL of the German Foreign Trade and Payments Ordinance (AWV) or comparable list numbers of applicable export lists;
the Export Control Classification Number (ECCN) of the US Commerce Control List, provided the goods are subject to the US Export Administration Regulations (EAR);
the commodity code (HS/CN code);
the country of origin (trade agreement / non-preferential origin), explanation of the label of origin D = third country / E = EU / F = EFTA;
(long-term) suppliers' declarations for goods having preferential origin status (EU suppliers) or certificates of origin (non-EU suppliers);
all other information and data required by Güldner for the export and import as well as the further distribution and reexport of the goods.
The supplier shall inform Güldner in writing of any changes in the above information and data without delay.
(2) In the event the supplier breaches its contractual obligations under paragraph 1, the supplier shall bear all expenses and damage incurred as well as other disadvantages suffered by Güldner as a result of this violation (e.g. subsequent claims for foreign import duties, monetary fines). However, this provision shall only apply if supplier is responsible for this breach of contract.
(1) The supplier shall observe the relevant technical standards (including, but not limited to, DIN standards, VDE regulations, VDI guidelines, DVGW rules) and the applicable legal and statutory regulations on product safety (including, but not limited to, the German Product Safety Act), the internationally accepted minimum labor standards, including, without limitation, all conventions of the International Labour Organization (ILO) on employment rights, working hours, and health & safety, as well as all other applicable legal and official regulations.
(2) Environmental protection plays an important role in Güldner's concept of quality. Supplier shall observe all applicable legal regulations on environmental protection, introduce and maintain an environmental management system in accordance with Güldner's corporate ecological guidelines and constantly work on the permanent reduction of any negative effects their activities may have on people and the environment.
(3) The supplier shall neither actively or passively nor directly or indirectly participate in any form of bribery or corruption, human rights violations or the discrimination of its employees, forced labor or child labor. The supplier shall not hire any employees below the minimum age of 15 years. In countries subject to the exception for development countries as specified in ILO Convention 138, the minimum age may be reduced to 14 years.
(4) The supplier shall make sure that all authorized agents of the supplier who are in any way involved in the manufacturing of the products delivered to Güldner observe the obligations contained in the above paragraphs (1) to (3).
(5) The supplier warrants that the products to be delivered are in compliance with Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). All substances contained in the products of the supplier that are not exempted from the obligation to register must be pre-registered or registered upon expiry of the transition periods in accordance with the provisions of the REACH Regulation.
(6) Suppliers based in a non-EU member state are obliged to appoint an only representative (OR) based inside the EU in accordance with Article 8 of the REACH Regulation whose name and address has to be disclosed to Güldner. The OR is responsible for fulfilling all the registration and other REACH obligations of the supplier. Any pre-registration or registration of a substance carried out by the OR shall be communicated to Güldner stating the registration number of the substance. Supplier shall notify Güldner immediately should the OR change or discontinue its activities.
(7) The supplier warrants that the products delivered by the supplier do not contain any of the substances on the candidate list referred to in Article 59, paragraphs (1) and (10) of the REACH Regulation. The supplier shall inform Güldner immediately in writing should, for whatever reason, the delivered products contain substances on the candidate list; this also applies to additions / amendments to the candidate list. The supplier shall indicate the names of the individual substances and their respective percentage by weight as precisely as possible.
(8) In case the supplier delivers hazardous substances within the meaning of the German Hazardous Substances Ordinance (GefStoffV) or products which may release such substances during use, the supplier must provide Güldner or its service providers with the data required to produce a safety data sheet without being requested to do so.
(9) The supplier also warrants that the products delivered are in compliance with the requirements specified in Regulation (EC) No. 1272/2008 (CLP). Non-EU suppliers' responsibilities include, but are not limited to, making sure their OR submits the necessary notifications for the products delivered to the Classification & Labeling Inventory in accordance with Articles 39-42 of the CLP Regulation.
(10) In the event the products delivered to Güldner by the supplier are subject to the Construction Products Regulation (EU) No. 305/2011 (CPR), the supplier shall provide Güldner with all information required for the preparation of declarations of performance and/or the declarations of performance prepared by the supplier in a suitable and permanent format and apply the CE mark and/or have the CE mark applied on these products in accordance with statutory requirements, including, but not limited to, the CPR and Art. 30 of Regulation (EC) No. 765/2008. With the application of the CE mark, the supplier warrants the construction product's conformity with the declared performance and the compliance with all applicable legal regulations governing the application of CE marks.
(11) The supplier shall observe all provisions on conflict minerals contained in Section 1502 of the Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"). In the event conflict minerals are required for the production or the operation of the products delivered by the supplier, the origin of these conflict minerals must be disclosed. Upon request, the supplier shall provide Güldner and its associated companies with the complete documentation of the origin and use of conflict minerals as required by the Dodd-Frank Act without delay.
(12) In the event the supplier violates one of the above provisions, the supplier shall indemnify both Güldner and its associated companies as well as its customers against any costs, claims of third parties (including, without limitation, claims for direct or consequential damages) and any other disadvantages (e.g. fines) resulting from the breach of the above provisions. However, this provision shall only apply if the supplier is responsible for this breach of contract. Further, Güldner may, at any time, cancel the order in question with immediate effect and refuse acceptance of the corresponding delivery without incurring any costs. None of the above provisions are intended to limit or exclude Güldner's rights to claim damages. Canceling or refusing acceptance of the order does not constitute a waiver of claims for damages.
XV. Applicable law and place of jurisdiction
(1) These conditions of purchase and all legal relationships between Güldner and the supplier are subject to the laws of the Federal Republic of Germany under exclusion of all international and supranational (contractual) legal systems including, without limitation, the UN Convention on Contracts for the International Sale of Goods. The legal requirements and effects of the retention of title clause are subject to the laws applicable at the location of the goods to the extent the choice of German law is invalid or ineffective under the applicable national law.
(2) In the event the supplier is a businessperson within the meaning of Secs. 1 et seq., HGB, a public law entity or a special fund under public law, the exclusive and international place of jurisdiction for all disputes arising out of or in connection with the contract shall be the court of competent jurisdiction in 97996 Niederstetten, Germany. Güldner does, however, reserve the right to also bring its claims against the supplier at the place of performance agreed for deliveries.
As of: October 2014