General Terms and Conditions

I. Scope of application, general information

1. These General Terms and Conditions of Delivery and Payment (hereinafter referred to as "Terms and Conditions of Delivery and Payment") apply to all business relationships between Sonderschrauben Güldner GmbH & Co. KG (hereinafter referred to as "Güldner") with its customers (hereinafter referred to as "purchaser"). The terms of delivery and payment shall only apply if the purchaser is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. These terms and conditions of delivery and payment apply exclusively; Güldner does not recognize any terms and conditions of the customer that conflict with or deviate from these terms and conditions of delivery and payment, unless it has expressly agreed to their validity. These Terms and Conditions of Delivery and Payment shall also apply if Güldner carries out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from its Terms and Conditions of Delivery and Payment. The current version of the terms of delivery and payment is available at www.gueldner.com/en/gtc.php.
3. Individual agreements made with the Customer in individual cases shall in any case take precedence over these Terms and Conditions of Delivery and Payment. A written contract or written confirmation from Güldner is decisive for the content of such agreements.
4. Legally relevant declarations and notifications to be made by the customer to Güldner after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
5. 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 Terms and Conditions of Delivery and Payment.

 

II. Conclusion of contract

1. Güldner's offers are subject to change and non-binding. This also applies if Güldner has provided the customer with catalogs, technical documentation, other product descriptions or documents to which Güldner reserves its property rights and copyrights.
2. The order of the goods by the customer is deemed to be a binding contractual offer. Unless otherwise stated in the order, Güldner is entitled to accept this contractual offer within 4 weeks of its receipt by Güldner.
3. A delivery contract is only concluded by written order confirmation, at the latest when the goods are dispatched. Transmission by remote data transmission is sufficient for the written form.
4. If Güldner uses a tele- or media service for the purpose of concluding a contract, the customer waives the provision of appropriate, effective and accessible technical means for recognizing and correcting input errors, a notification of the information specified in Art. 246 § 3 EGBGB and a confirmation of receipt of his order. Orders transmitted electronically are only deemed to have been received when they have been retrieved and opened by Güldner.

 

III. Prices - Terms of payment

1. All Güldner prices are ex warehouse plus the statutory VAT applicable at the time of invoicing.
2. In the case of sale by delivery to a place other than the place of performance (Section VI Clause 1), the Buyer shall bear the transportation costs ex warehouse and the costs of any transportation insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the customer. Güldner shall not take back transport packaging and all other packaging in accordance with the German Packaging Ordinance; it shall become the property of the customer, with the exception of pallets.
3. Unless otherwise agreed, the agreed purchase price is due and payable within 30 calendar days of invoicing. However, for contracts with a value of goods of more than EUR 5,000, Güldner is entitled to demand a down payment of 30% of the purchase price. The down payment is due and payable within 20 calendar days of invoicing.
4. The day of receipt of payment for all means of payment is the day on which Güldner can dispose of the amount owed by the customer.
5. Upon expiry of the payment period specified in clause 3, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. Güldner reserves the right to claim further damages caused by default. Güldner's claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
6. The customer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counter-rights of the customer remain unaffected.
7. If it becomes apparent after conclusion of the contract that Güldner's claim to the purchase price is jeopardized by the customer's inability to pay (e.g. by an application for the opening of insolvency proceedings), Güldner is entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), Güldner may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
8. If Güldner has a due payment claim against the customer arising from the ongoing business relationship with the customer, Güldner may refuse to deliver goods until the customer has made the due payment. This applies accordingly if a credit limit granted to the customer by Güldner is exceeded.
9. If payment of the purchase price owed is not made despite the due date, data will be transmitted to credit agencies cooperating with Güldner under the conditions of § 28a BDSG.

 

IV. Retention of title

1. Güldner retains title to the goods sold until full payment of all present and future claims arising from the respective purchase contracts and the ongoing business relationship (hereinafter "secured claims").
2. The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The customer must inform Güldner immediately in writing if and insofar as third parties seize Güldner's goods.
3. In the event of breach of contract by the customer, in particular non-payment of the purchase price due, Güldner is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the customer does not pay the purchase price due, Güldner may only assert these rights if Güldner has previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
4. The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
   • (a) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of Güldner's goods, whereby Güldner is deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, Güldner shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
   • (b) The customer hereby assigns to Güldner as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share of Güldner in accordance with the above paragraph. Güldner accepts the assignment. The obligations of the customer stated in clause 2 shall also apply with regard to the assigned claims.
   • (c) In addition to Güldner, the customer remains authorized to collect the claim. Güldner undertakes not to collect the claim as long as the customer meets his payment obligations to Güldner, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. However, if this is the case, Güldner may demand that the customer informs Güldner of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
   • (d) If the realizable value of the securities exceeds Güldner's claims by more than 10%, Güldner shall release securities at the request of the customer. Güldner shall be responsible for selecting the securities to be released.

 

V. Delivery period, delivery date, force majeure and delay in delivery

1. Delivery or performance periods and delivery or performance dates are agreed individually or specified by Güldner upon acceptance of the order.
2. The start of the individually agreed delivery or performance period or the delivery or performance period specified by Güldner presupposes the clarification of all technical questions.
3. Compliance with Güldner's delivery or performance obligation also requires the timely and proper fulfillment of the customer's obligation. The defense of non-performance of the contract remains reserved.
4. If Güldner does not receive deliveries or services from sub-suppliers or subcontractors for reasons for which it is not responsible, or does not receive them correctly or on time despite proper congruent coverage, or if events of force majeure, i.e. obstacles to performance through no fault of its own lasting more than 14 calendar days, occur, Güldner shall inform the customer in writing in good time. In this case, Güldner is entitled to postpone the delivery or service for the duration of the hindrance or to withdraw from the contract in whole or in part due to the part not yet fulfilled, provided that Güldner has fulfilled its above obligation to inform and has not assumed the procurement risk or manufacturing risk and the obstacle to performance is not only of a temporary nature. Force majeure includes strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks through no fault of Güldner, operational hindrances through no fault of Güldner, for example due to fire, water and machine damage, and all other hindrances which, from an objective point of view, have not been culpably caused by Güldner.
5. If a delivery or performance date or a delivery or performance period has been agreed with binding force and if the agreed delivery or performance date or the agreed delivery or performance period is exceeded by more than four weeks due to events in accordance with clause 4 above, or if adherence to the contract is objectively unreasonable for the customer in the case of a non-binding performance date, the customer shall be entitled to withdraw from the contract due to the part not yet fulfilled.
6. The occurrence of a delay in delivery by Güldner shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required. If Güldner is in default of delivery, the customer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net purchase price for each completed calendar week of delay, but shall not exceed a total of 5% of the net purchase price of the goods delivered late. Güldner reserves the right to prove that the customer has suffered no damage at all or only significantly less damage than the above lump sum.
7. The rights of the customer in accordance with Section IX of these Terms and Conditions of Delivery and Payment and the statutory rights of Güldner, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

 

VI. Delivery, transfer of risk, delay in acceptance

1. Delivery shall be ex warehouse, which is also the place of performance. At the request and expense of the customer, the goods will be shipped to another destination (sales shipment). Unless otherwise agreed, Güldner is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
2. Partial deliveries are permitted, provided this does not result in any disadvantages for the customer.
3. Taking into account the interests of the individual case and within the bounds of what is reasonable, Güldner reserves the right to make excess or short deliveries of consumer goods as is customary in the trade.
4. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If the customer is in default of acceptance, this shall be deemed equivalent to handover.
5. If the customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the customer is responsible, Güldner is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).

 

VII. Property rights, provision of documents

1. The customer undertakes to inform Güldner immediately of any claims by third parties regarding the products supplied by Güldner. Güldner is entitled, but not obliged, to assume legal defense at its own expense and under its own responsibility.
2. The customer guarantees that goods and services provided as well as documents provided by the customer are free from third-party property rights. In the event of defects of title, he shall indemnify Güldner against all corresponding third-party claims, unless he is not responsible for the defect of title.
3. By providing documents, the customer grants Güldner the non-exclusive right to use them for all contractually intended purposes without time or space restrictions. In the case of requests for articles based on documents provided, such as drawings and specifications (drawing parts), Güldner is entitled to make these available to manufacturing subcontractors for the purpose of processing the request and subsequent fulfillment of the contract. Insofar as the customer provides modified or additional specifications when requesting drawing parts without providing Güldner with modified drawings or drawings supplemented by these specifications, Güldner is entitled to modify or supplement the customer's existing drawings accordingly.

 

VIII. Claims for defects by the customer

1. The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title, unless otherwise specified below.
2. The basis of Güldner's liability for defects is primarily the agreement reached on the quality of the goods. The product descriptions and specifications that have been agreed between Güldner and the customer on the basis of the relevant standards (e.g. DIN, ISO) or that have been made available to Güldner by the customer and expressly approved by Güldner are deemed to be an agreement on the quality of the goods.
3. The customer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, Güldner must be notified immediately in writing. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must notify Güldner in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline. If the customer fails to properly inspect the goods and/or report defects, Güldner shall not be liable for the unreported defect.
4. If the delivered item is defective, Güldner may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Güldner's right to refuse subsequent performance under the statutory conditions remains unaffected.
5. Güldner is entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
6. The customer must give Güldner the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to Güldner in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if Güldner was not originally obliged to install it.
7. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), shall be borne by Güldner if a defect actually exists. However, if a request by the customer to remedy a defect proves to be unjustified, Güldner may demand reimbursement of the costs incurred from the customer.
8. If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
9. Claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with Section IX and are otherwise excluded.

 

IX. Other liability

1. Unless otherwise stated in these terms of delivery and payment, including the following provisions, Güldner shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
2. Güldner shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, Güldner shall only be liable
   • a) for damages resulting from injury to life, limb or health,
   • b) for damages arising from the breach of an essential contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, Güldner's liability is limited to compensation for foreseeable, typically occurring damages.
3. The limitations of liability resulting from clause 2 shall not apply if Güldner has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same applies to claims of the customer under the Product Liability Act.
4. The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if Güldner is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

X. Limitation period

The statutory limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to claims for damages by the customer in accordance with Section IX.

 

XI. Hydrogen embrittlement

1. Güldner and the customer are aware of the various causes and problems of hydrogen-induced brittle fracture, particularly in the case of electroplated, high-strength or case-hardened articles with a tensile strength of 1000 N/mm² or more and core or surface hardnesses of 320 HV or more in accordance with DIN EN ISO 4042. Güldner cannot guarantee the complete elimination of the risk of hydrogen embrittlement.
2. If the probability of hydrogen embrittlement is to be reduced due to the specific area of application of the goods supplied by Güldner, e.g. due to the design or for safety reasons, the customer is obliged to reach an agreement with Güldner on the process implementation and material procurement in order to counter the aforementioned risks.
3. DIN EN ISO 4042 is an integral part of the contracts concluded between Güldner and the customer.

 

XII. Choice of law and place of jurisdiction

1. These business relations and all legal relations between Güldner and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title in accordance with Section IV are subject to the law at the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
2. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of Güldner in 97996 Niederstetten / Germany. However, Güldner is also entitled to bring an action at the general place of jurisdiction of the customer.

 

_{As of: December 2023}

I. Scope of application

1. These General Terms and Conditions of Purchase ("Terms and Conditions of Purchase") apply to all business relationships of Sonderschrauben Güldner GmbH & Co. KG ("Güldner") with its business partners and suppliers ("Supplier") with regard to the delivery of movable goods ("goods" or "product(s)") and/or services, irrespective of whether the Supplier provides the service itself or purchases it from suppliers. The Terms and Conditions of Purchase 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 Terms and Conditions of Purchase shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods and/or services with the same supplier, without Güldner having to refer to them again in each individual case; the current version of the Terms and Conditions of Purchase is available at www.gueldner.com/en/gtc.php.
3. These Terms and Conditions of Purchase apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the supplier shall only become part of the contract if and to the extent that Güldner has expressly agreed to their validity in writing. This requirement of consent applies in any case, for example even if Güldner accepts the supplier's deliveries without reservation in the knowledge of the supplier's general terms and conditions.
4. Individual agreements made with the supplier in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these Terms and Conditions of Purchase. However, a written contract or written confirmation from Güldner is decisive for the content of such agreements.
5. Legally relevant declarations and notifications to be made to Güldner by the supplier after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective.
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 Terms and Conditions of Purchase.

 

II. Conclusion of contract

1. An order from Güldner shall be deemed binding at the earliest upon written submission or confirmation. Deliveries for which there are no written orders will not be recognized. Silence on the part of Güldner in response to offers, requests or other declarations by the supplier shall only be deemed to constitute consent if this has been expressly agreed in writing. The supplier must notify Güldner immediately of obvious errors (e.g. typing and calculation errors) and/or incomplete orders or missing order documents for the purpose of correction or completion; otherwise the contract shall be deemed not to have been concluded.
2. If no change to the order is required on the part of the supplier with regard to quantity, price or delivery date, Güldner shall in principle waive the transmission of a written order confirmation. However, at the express request of Güldner, the supplier is obliged to confirm the order in writing within a period of one (1) week or to execute it immediately and without reservation. An amended or delayed acceptance is deemed to be a new offer and always requires acceptance by Güldner. The same applies to an acceptance with extensions, restrictions or other changes.
3. Offers, drafts, samples and specimens of the supplier are free of charge for Güldner. At Güldner's request, they must be taken back by the supplier immediately and at his own expense.

 

III. Delivery time and delay in delivery

1. The delivery time specified by Güldner in the order is binding. The supplier is obliged to inform Güldner immediately in writing, stating the reasons and the expected delay, if it is foreseeable that agreed delivery times cannot be met. Partial deliveries or deliveries may only be made before the agreed delivery time with the prior written consent of Güldner.
2. If the supplier does not provide its service or does not provide it within the agreed delivery time or if it is in default, Güldner's rights - in particular to withdrawal and compensation - shall be determined in accordance with the statutory provisions. The provisions in paragraph 3 remain unaffected.
3. If the supplier is in default, Güldner may demand a contractual penalty in the amount of Euro (EUR) 50.00 per customer arrears and per item in arrears. In this respect, the supplier waives the defense of continuation of the contract. Güldner is entitled to demand the contractual penalty in addition to the fulfillment and as a minimum amount of compensation owed by the supplier in accordance with the statutory provisions; the assertion of further damages remains unaffected. If Güldner accepts the delayed performance, Güldner will claim the contractual penalty at the latest with the final payment.
4. Güldner's delivery claim shall only be excluded if the supplier pays full compensation in lieu of delivery at Güldner's request. Acceptance of the delayed delivery does not constitute a waiver of claims for damages or the contractual penalty.

 

IV. Delivery, transfer of risk, delay in acceptance, packaging

1. Unless otherwise agreed in individual cases, deliveries shall be made "free domicile" (DDP destination according to INCOTERMS 2010) to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery must be made to Güldner's registered office in Germany, 97996 Niederstetten, Hohe Buche 13. The respective place of destination is also the place of performance (debt to be discharged at creditor's domicile).
2. In addition to these Terms and Conditions of Purchase, the supplier is obliged to observe the respective valid version of Güldner's Quality Assurance Agreement; the respective current version of the Quality Assurance Agreement is available at www.gueldner.com/en/gtc.php.
3. The risk of accidental loss and accidental deterioration of the goods shall pass to Güldner upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk.
4. The statutory provisions apply to the occurrence of default of acceptance by Güldner. However, the supplier must also expressly offer its performance to Güldner if a specific or determinable calendar time has been agreed for an action or cooperation by Güldner. If Güldner is in default of acceptance, the supplier may demand compensation for its additional expenses in accordance with the statutory provisions.

 

V. Duty to inform, subcontractors

1. The supplier must inform Güldner in good time in writing of any changes to manufacturing processes, changes to materials or supplied parts for products or services, relocations of production sites, and also prior to changes to procedures or equipment for testing parts or other quality assurance measures. Güldner is entitled to check to the extent necessary whether the changes could have a detrimental effect on the product. Upon request, the supplier must provide the necessary documents for this purpose and enable audits to the required extent.
2. Güldner must be notified in writing of the use of subcontractors, freelancers, sub-suppliers and other third parties (collectively "agents") who are not employees of the supplier in connection with the provision of services owed to Güldner. In relation to the Agent, the supplier must contractually ensure that all services are carried out completely and properly, that the proper provision of services can be comprehensively monitored by Güldner through appropriate documentation and regular audits and that the obligations arising from the contractual relationship with Güldner also apply in relation to the Agent.
3. Agents are deemed to be vicarious agents of the supplier. Failures, delays, disruptions, poor performance or other errors in the deliveries and services of the agents, regardless of the reason for these failures, shall not release the supplier from its obligation to perform under the contract concluded with Güldner.

 

VI. Prices, invoices, terms of payment, offsetting and retention

1. The price stated in the order is binding. All prices are exclusive of statutory VAT, even if this is not shown separately. This shall also apply to any ancillary services to be provided by the supplier.
2. Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the supplier as well as all ancillary costs (e.g. proper packaging, customs, import duties, transportation costs including any transport and liability insurance).
3. Invoices are to be sent to Güldner in a single copy, stating the invoice number, order number, quantity, price and other allocation features (in particular Güldner article number) in the original. The invoices are to be sent separately from the delivery of goods. For deliveries from areas outside the customs territory of the EU, a copy of the invoice or a pro forma invoice must be enclosed with the delivery of goods.
4. Payments shall be made in accordance with the individually agreed terms of payment. In the case of bank transfer, payment is deemed to have been made on time if Güldner's transfer order is received by Güldner's bank before expiry of the payment deadline; Güldner is not responsible for delays caused by the banks involved in the payment process. Payment is made subject to invoice verification.
5. Güldner shall not owe any interest on arrears. The default interest shall be five (5) percentage points above the base interest rate per annum. The statutory provisions shall apply to the occurrence of default by Güldner. In any case, however, a written reminder from the supplier is required.
6. Güldner is 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, Güldner is entitled to withhold due payments as long as Güldner is still entitled to claims from incomplete or defective services against the supplier.
7. The supplier has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.

 

VII. Retention of title and provision of materials

1. The transfer of ownership must take place unconditionally upon handover of the goods to Güldner and without regard to the payment of the price. However, if Güldner accepts in individual cases an offer of the supplier for transfer of ownership conditional on payment of the purchase price, the supplier's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. Any extended or expanded retention of title by the supplier is excluded.
2. Any processing, mixing or combination by the supplier of items provided by Güldner shall be carried out for Güldner. It is agreed that Güldner shall become co-owner of the products manufactured using the items provided in the ratio of the value of the items provided to the value of the overall product; these shall be stored by the supplier for Güldner until the time of handover.

 

VIII. Confidentiality, documents and reference

1. All business or technical information made accessible by Güldner must be kept secret from third parties as long as and insofar as it is not demonstrably public knowledge and may only be made available in the supplier's own company to those persons who must necessarily be involved in its use for the purpose of delivery to Güldner and who are also obliged to maintain confidentiality.
2. Güldner reserves the right of ownership and copyright to all documents and aids provided to the supplier for the execution of an order from Güldner, such as in particular drawings, illustrations, drafts, calculations, descriptions, plans, models, samples, technical specifications, data carriers, other documents, tools, parts and materials. Such documents and aids must be used exclusively for the contractual service and must be returned to Güldner in full (including any copies or records made) after completion of the contract. Products manufactured according to Güldner's documents and aids may neither be used by the supplier itself nor offered or supplied to third parties.
3. Technical documentation, documents, drawings, diagrams, schematics, graphics, photographs, layout templates and other documentation produced by the supplier as part of the execution of the order - whether on data carriers, in printed form or as material for print preparation or printing - as well as all samples, tools, materials and other operating resources shall become the property of Güldner upon provision. Furthermore, Güldner receives all property rights, rights of use and exploitation rights to all the aforementioned copyrightable works - insofar as legally permissible. No separate remuneration is owed by Güldner for the transfer of the aforementioned rights; it is included in full in the prices stated in the orders.
4. Without prior express written consent, the supplier is prohibited from naming Güldner or the business relationship between the supplier and Güldner as a reference in any form whatsoever.

 

IX. Defective delivery

1. The statutory provisions shall apply to Güldner's rights in the event of material defects and defects of title in the goods and in the event of other breaches of duty by the supplier, unless otherwise specified below.
2. In accordance with the statutory provisions, the supplier shall be liable in particular for ensuring that the goods have the agreed quality upon transfer of risk to Güldner. In any case, those product descriptions which - in particular by designation or reference in Güldner's order - are the subject of the respective contract or have been included in the contract in the same way as these Terms and Conditions of Purchase shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from Güldner or from the supplier.
3. Notwithstanding § 442 para. 1 sentence 2 BGB, Güldner shall be entitled to claims for defects without restriction even if the defect remained unknown at the time of conclusion of the contract due to gross negligence.
4. The statutory provisions (§§ 377, 381 German Commercial Code; "HGB") apply to the commercial obligation to inspect and give notice of defects with the following proviso: Güldner's obligation to inspect is limited to defects which are clearly recognizable during the incoming goods inspection by Güldner under external examination including the delivery documents as well as during the quality control by Güldner in the random sampling procedure (e.g. transport damage, incorrect and short delivery). 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. The obligation to give notice of defects discovered later remains unaffected. In all cases, Güldner's complaint (notification of defects) shall be deemed to be immediate and timely if it is received by the supplier 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.

 

XIV. Compliance

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 2023}

1. Introduction

The contracting parties agree that the highest quality and reliability of technical products as well as adherence to delivery dates and costs are of decisive importance for customer satisfaction and strengthening competitiveness.

It is also agreed that these requirements can only be met if the required level of quality is maintained by all participants in the value chain.

Any deviation causes disruption and expense in the subsequent process chain. Non-quality due to defects or deviations means rejects or rework, organizational effort due to returns and new deliveries as well as increased testing effort. Overall, deviations lead to a waste of financial resources and time and to increased risks when using the products. The aim is therefore to manufacture and supply fault-free, high-quality products, including the associated documentation.

 

2. Purpose

This quality guideline specifies and regulates all quality assurance measures agreed between the contractual partners for all deliveries. In addition, the Contractor undertakes to take all suitable quality assurance measures to ensure the contractually agreed quality for each delivery and to inform the Customer immediately in the event of deviations.

 

3. Scope of application

This quality guideline applies to all orders in connection with any framework agreement concluded. The requirements for the parts may be described in specifications, order texts, drawings or, if applicable, data sheets. It includes the certificates, attestations and other delivery documents to be supplied. The products must be manufactured and delivered under constant conditions.

 

4. Confidentiality

All documents received from the Contractor shall only be used for the intended purpose and shall not be passed on to third parties. The Contractor's subcontractors shall be obligated accordingly.

 

5. Specification

The Contractor shall manufacture the parts in accordance with the Customer's drawings or specifications under constant conditions. Requirements and product descriptions not explicitly listed shall be deemed to have been agreed in particular, as the state of the art and relevant known standards must always be taken into account.

 

6. Quality requirements

The individual quality requirements for the parts and the documentation result from the respective orders, in particular from the associated technical specifications and/or drawings. The Contractor shall observe the respective current quality requirements.

The products must comply with the agreed descriptions and/or agreed samples. Product and process design have a significant influence on the manufacturability of the products and the manufacturing costs. The Contractor shall therefore contribute its experience in order to achieve optimum execution quality and low manufacturing costs for the mutual benefit of the partners.

 

7. Quality and environmental management

The contractor maintains a system that ensures that all requirements are met in accordance with the contract, orders and specifications. The focus here is on secure business processes that ensure delivery capability and short throughput times.

If orders for deliveries and/or services are subcontracted by the contractor, the contractor remains responsible for quality compliance and carries out all necessary inspections and quality assurance measures on its own responsibility.

The results of the tests carried out must be documented in a test report and archived for at least 10 years.

The Contractor is obliged to monitor quality continuously and regularly and to initiate the necessary corrections immediately in the event of deviations.

The Contractor shall maintain a system for monitoring measuring and test equipment. This ensures that only calibrated measuring and test equipment is used.

There must be process descriptions or operating instructions for the occupational safety of the processes and machines. Employees must receive regular training on this.

Attention must be paid to order and cleanliness in production and assembly.

 

8. Quality audits

The suitability and effectiveness of the existing quality management system is audited by the customer's quality management if required. In this way, compliance with the specified requirements is checked.

The Contractor shall allow the Customer all reasonable access to the plant facilities and to inspect production and test documents in order to satisfy itself that the contractual requirements are being met in the execution of the order.

The participation of official representatives or customers of the Purchaser in the audit shall be made possible. The personnel and travel costs incurred by the auditor(s) of the authority or the customer shall not be borne by the Contractor.

The results of the audits shall be documented in an audit report and communicated to the Contractor. Necessary corrective measures shall be defined and implemented by the Contractor within the agreed period. The result of the effectiveness shall be communicated to the Customer.

 

9. Order verification

For each order, the Contractor shall immediately check whether the descriptions submitted by the Customer, e.g. specifications, drawings, are plausible and complete. If the Contractor recognizes that this is not the case, the Contractor shall inform the Customer immediately before the start of the order. The Customer shall then issue appropriate instructions or provide amended documents.

 

10. Requirements for testing

The quality of the parts should be ensured on the one hand by high process reliability and capability and on the other hand by regular inspections during production. In the case of functionally important features and critical processes or high safety requirements, it must be ensured that these requirements are tested and fulfilled.

The functionally important and critical features are defined by the customer or are specially marked in the technical documentation. The verification documents for tests carried out must be supplied at the request of the customer or archived by the contractor. In the event of deviations in individual characteristics, the procedure described in point 12 must be followed before delivery.

The test equipment used must be subjected to regular calibration by an accredited test laboratory. It must be ensured that characteristics are correctly and reliably recognized in relation to the tolerance. It should be noted that in addition to deviations in the measured values caused by manufacturing variations, deviations caused by the testing process must also be taken into account.

 

11. Documentation obligation and test certificates

The contractor shall keep records of the test results.

If required in the order text, an acceptance test certificate or works certificate in accordance with DIN EN 10204 must also be supplied.

 

11.1 Recording, archiving and storage

The Contractor must record and list the quality records and documents. The records must allow proper allocation to the product and be legible and identifiable. All records, including all previously valid revision statuses, must be stored in such a way that misuse, damage and loss are avoided and that they are available in the event of product liability and warranty claims.

All quality certificates listed in the respective order, such as protocols for qualification, sampling, final or acceptance tests, test reports, factory or acceptance test certificates or other product-related certificates shall be sent to the customer with each delivery. Copies of the test reports and certificates shall remain with the Contractor for the period of statutory product liability.

All other documents are to be archived securely and retrievably by the Contractor. The retention periods are to be assigned individually. The retention period for all technical documents, including copies of test reports, should not be less than 10 years. The retention of commercial documents shall be based on the current statutory provisions. In addition, other retention periods may be agreed (e.g. 30 years for aviation parts).

In the event of liability proceedings, the destruction of documents is only permitted after the proceedings have been concluded.

 

11.2 Changes to the Contractor

In the event of sale, takeover, merger or change of name, the aforementioned claims and obligations shall be assumed by the successor company without restriction. If the Contractor discontinues its deliveries, goes out of business or becomes insolvent, the documents subject to retention must be handed over to the Customer without delay.

 

12. Control of defective products

If the Contractor discovers deviations in an ordered product that cannot be corrected, the Customer must be notified immediately. The further procedure, further processing, reworking or special release, rejection or scrapping and the necessary corrective measures shall be decided after consultation with the Customer.

If ordered components are delivered without approval despite deviating properties, and if this is determined in the incoming goods department of the customer, the customer reserves the right to reject these products against immediate replacement delivery.

Rejected parts shall be documented by the Customer in a quality deviation report and the result subsequently communicated to the Contractor.

In the event of a complaint about the delivered parts, the Contractor shall receive a written request for corrective measures or process improvements with the quality deviation report and/or the returned parts in order to avoid a repetition of the deviation.

Rejected parts that arise at the Contractor during production or are returned by the Customer shall be rendered unusable by the Contractor and properly recycled.

 

13. Placing orders with subcontractors

The passing on of production orders to subcontractors requires the prior written consent of the customer. In particular, the purchaser reserves the right to reject a subcontractor. The transfer of all parts manufactured under this contract to a third party is not permitted.

The Purchaser's consent shall not release the Contractor from its responsibility to ensure that the subcontractor fulfills the requirements of the subcontract. Furthermore, the Contractor shall be obliged to inform the Customer in writing about the quality of the workmanship of the subcontractor.

 

14. Packaging and dispatch

The packaging and handling of the parts shall be agreed in detail with the customer for the parts to be delivered. The packaging must be designed in such a way that damage, contamination or corrosion of the components during handling of the parts or during transportation is avoided.

The transfer of ownership and risk of all delivered components shall take place at the time of delivery to the incoming goods department or upon collection by the Customer. The contractor is fully responsible for damage-free delivery up to this point. Transport damage caused by third-party companies, e.g. forwarding agents, must be claimed by the contracting party placing the order.

 

15. Relocation of production

The customer must be notified in writing of any planned change of production location prior to the relocation. The relocation of production for the parts manufactured under this contract is subject to approval by the customer.

 

16. Incoming inspection

As a minimum requirement, the incoming goods inspection at the customer's premises includes the identification of the parts and a visual inspection to ensure that the packaging is intact and the parts are free of obvious damage. In addition, dimensional and functional tests as well as non-destructive tests can be carried out. Inspection characteristics requiring verification are monitored by a 100% or random sample inspection.

If the inspections reveal deviations or substandard deliveries, the Customer reserves the right to completely reject or sort the delivery with a specified new delivery date. The costs for these measures shall be borne by the Contractor.

 

17. General

Acceptance of the ordered item does not mean that the customer waives any rights to which he is entitled, in particular warranty claims or claims for damages due to default. In general, the applicable standards, technical regulations and laws apply.

 

_{As of: August 2023}