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AHP Merkle GmbH
Nägelseestr. 39
79288 Gottenheim
Germany

phone: +49 7665 4208-0
fax: +49 7665 4208-88

General Conditions

General Conditions of Sale, Delivery and Payment of AHP Merkle GmbH, 79232 March-Hugstetten For Transactions With Companies, Legal Persons Under Public Law Or Special Public Assets.

§ 1 General information on the validity of the conditions

1.1 Our offers, services and goods shall be based solely on these General Terms and Conditions. These General Terms and Conditions shall therefore also apply to all future business relations, even if they are not expressly agreed again. These General Terms and Conditions shall be deemed to have been accepted at the latest on the date of receipt of the goods or services. Counterconfirmations by the purchaser, which refer to his General Terms and Conditions or Purchasing Conditions, shall hereby not be accepted.

1.2 Deviations from these General Terms and Conditions shall only be valid when we confirm them in writing.

§ 2 Offers

Free offers shall be regarded as non-binding proposals. Measurements, weights, performance specifications, diagrams and dimensioned drawings shall only be regarded as approximate, unless they have been expressly designated as binding.

§ 3 Acceptance of orders

3.1 All orders, even those which are accepted by our representatives, shall only become binding upon our company when we have confirmed them in writing.

We shall accept orders placed by fax or over the phone solely at the customer's risk. Placement of the order shall be binding upon the purchaser, but only upon us when we confirm in writing that we have accepted the order or the order is executed immediately without prior confirmation.

3.2 Our written order confirmation shall apply to the scope of supply. Incidental agreements or changes shall require our written confirmation.

3.3 If an order is also confirmed with technical data, these data shall be decisive as regards production. If the purchaser does not immediately raise an objection to our order confirmation, any subsequent complaints shall be excluded.

Changes to or cancellation of the order after the start of production shall be taken into account in return for payment of the costs by the customer.

3.4 If we are unable to effect performance, we shall reserve the right to withdraw from the contract; the purchaser shall be informed about this immediately and any consideration shall be refunded straightaway.

§ 4 Prices

4.1 Unless otherwise stated in the order confirmation, our prices shall apply "ex works".

4.2 In the event that the goods are delivered more than 6 weeks after confirmation of the order or depending on the length of permanent business relations, we shall reserve the right to raise prices in accordance with the actual cost increases, especially on account of collective bargaining agreements or material price increases, increases in public charges, etc.

On request, we shall provide the purchaser with documentary evidence of the increased costs.

4.3 Value-added tax shall be added to all prices.

§ 5 Payment conditions

5.1 Unless otherwise stipulated in the order confirmation or invoice, our invoices shall become due for payment at the time of receipt. The legal default regulations shall also apply. Payments shall always be offset against the oldest due invoice, i.e. according to § 367 of the German Civil Code, first against interest, then against costs and finally against the main claim. Any other form of settlement shall hereby already be deemed to have been excluded.

5.2 Cheques shall only be accepted for the sake of payment subject to the usual reservations of definitive credit. Payment shall only be deemed to have been made when we can dispose of the money. Other types of payment shall require prior express agreements. The purchaser shall pay discount and collection charges. We shall not be liable for the promptness of protest.

5.3 In the event of payment default and justified doubts about the purchaser's ability to pay and creditworthiness, we shall be entitled - irrespective of our other rights - to demand securities or pre-payments for outstanding deliveries and to immediately facilitate all claims from the business relations, even if we have accepted cheques or bills of exchange. Our basic right to the defence of uncertainty shall not be affected if it becomes clear after conclusion of the contract that our claim for counterperformance is endangered due to the purchaser's lack of financial capacity.

5.4 The customer shall only be entitled to exercise offsetting and retention rights if his counterclaims are final and absolute, are undisputed or have been recognised by us. The customer shall also only be entitled to exercise a right of retention if his counterclaim is based on the same contract.

5.5 In the case of goods which are supplied in the form of partial deliveries according to agreements or in the nature of things, we shall be entitled - if more than 2 partial deliveries are made - to demand a part payment for every partial delivery in its relation to the value of the overall order.

§ 6 Packaging

Packaging shall be charged at cost price and may not be taken back.

§ 7 Delivery time

7.1 Delivery times shall be approximate and shall be subject to the usual reservations. They shall only be binding if they have been agreed in writing or were expressly designated as such. Delivery times shall only be calculated from the date of receipt of the documents and details or explanations of all technical questions which are required for performance of the order.

7.2 The date on which the goods leave the plant shall be the decisive factor as regards compliance with delivery periods and dates. Delivery periods and dates shall be deemed to have been observed at the time of notification of readiness for dispatch if the goods cannot be dispatched promptly through no fault of our own.

7.3 Cases of force majeure, for example circumstances and events which cannot be prevented despite diligent company management (e.g. war, strikes, lockouts, fire, shortage of raw materials and all cases of force majeure and other events for which we are not responsible), shall defer the contractual obligation of the contracting parties for the duration of the interruptions and to the extent of their effect. If any resulting delays last longer than 6 weeks, both contracting parties shall be entitled to withdraw from the contract in relation to the affected scope of supply. No other claims shall be asserted. If an agreed delivery period is deliberately exceeded, delivery default shall only be deemed to have occurred after a reasonable period of grace has been granted. However, our duty to supply the goods shall not apply as long as the purchaser fails to meet his obligations.

7.4 If the purchaser incurs damage due to a delay for which we are responsible, he shall be entitled - to the exclusion of any other claims - to demand compensation for default. This compensation shall amount for every full week of the delay to 0.5%, but at most to 5% of the value of the part of the full consignments which cannot be used on time or according to the terms of the contract on account of the delay.

7.5 Compliance with our delivery obligation shall depend on the purchaser duly fulfilling his obligations on time. If the purchaser defaults in taking delivery or infringes other cooperation obligations, we shall be entitled to demand reimbursement of the damage that we incur, including any additional costs. In this case the risk of accidental loss or accidental deterioration of the purchase item shall pass to the purchaser at the time when he defaults in taking delivery. If the seller cannot effect acceptance on account of default, he shall be entitled, after granting a period of grace of 10 days, to either issue an arrears invoice or withdraw from the contract or demand compensation.

Our right to compensation instead of performance or to reimbursement of fruitless expenses shall not be affected.

7.6 Partial deliveries shall be permissible, unless the customer is not interested in partial fulfilment of the contract The customer shall, however, make this known to us when the order is placed. Every partial delivery shall be regarded as a separate business transaction.

7.7 Unless they contain minor defects, supplied goods shall be accepted by the customer irrespective of the rights stipulated in § 9.

§ 8 Passing of risk

8.1 Unless otherwise stipulated in the order confirmation, delivery "ex works" has been agreed. In the absence of any instructions to the contrary, we shall choose the forwarder or driver. The goods shall be dispatched for the account of the purchaser. We shall endeavour to take account of the purchaser's interests regarding the mode of dispatch and his requested dispatch routes; any resulting additional costs - even if carriage paid delivery is agreed - shall be borne by the purchaser. We shall accept no liability for the cheapest mode of dispatch. Risk shall pass at any rate to the purchaser when the goods leave our plant. If the purchaser so requests, we shall take out transport insurance for the consignment; any costs thus incurred shall be paid by the purchaser.

8.2 If dispatch is delayed due to reasons for which the purchaser is responsible, risk shall pass to the purchaser on the date of notification of readiness for dispatch.

§ 9 Warranty and general liability

9.1 We shall furnish a warranty for assured properties and freedom from defects according to the latest state of the art. Any general modifications which we make to the construction or design of a product prior to the delivery of an order shall not entitle the purchaser to make complaints.

9.2 We shall also generally endeavour to maintain the quality standards of goods supplied by us at a high level. We shall make sure that our measurements are approximate values which are customary in the industry and that normal tolerances in the selected production process are correct. Mention is made in this respect to the normal reference values according to DIN.

9.3 In the case of goods made to order, any deviations from the state of the art due to information from the purchaser and any tolerances due to manual work shall not be regarded as errors.

In particular, we shall not furnish a warranty if the purchaser requests that we deviate from the state of the art.

9.4 In the case of essential outside products, our liability shall be limited to the assignment of liability claims which accrue to us against the supplier of the outside products.

9.5 The general warranty obligation for used and new parts shall apply for a period of one year and shall commence on the date of delivery. This provision shall not apply to contracts in which Part B of VOB (German Contracting Regulations for Building Services) is generally included; a warranty period of 2 years shall apply in this case.

9.6 The purchaser shall duly comply with his inspection and claim notification obligations according to § 377 and § 378 of the German Commercial Code. Defects shall be notified in writing as soon as they are discovered.

9.7 We shall provide all information on the suitability, processing and application of our products, technical advice and other information to the best of our knowledge. However, this shall not release the purchaser from the obligation to perform his own inspections and tests.

The purchaser shall immediately examine delivered goods - also through his own sampling procedure if reasonable - when they are received for defects regarding their condition or utilisation purpose; otherwise, the goods shall be deemed to have been accepted.

9.8 Complaints shall only be taken into account if they are made within 8 days after receipt of the goods - with hidden defects after their discovery -, but at the latest one year after receipt of the goods with the enclosure of relevant documents.

9.9 Natural wear and tear or damage due to improper handling shall be excluded from the warranty. In particular, we shall not be liable for changes to the state or mode of operation of our products due to improper storage and climatic or other effects. Unless we are responsible, we shall accept no liability for unsuitable or improper use, incorrect installation or commissioning by the purchaser or third parties, natural wear and tear, incorrect or negligent treatment, unsuitable operating resources, replacement materials, defective construction work or chemical, electrochemical or electrical effects.

Any improper changes or repairs carried out by the purchaser or third parties without our prior permission shall rescind liability for the resulting consequences. The warranty shall also not include defects which are due to design errors or the choice of unsuitable materials if the purchaser stipulated the design or the material.

9.10 If the purchase item contains a defect for which we are responsible, we shall be entitled to either rectify this defect or make a replacement delivery. In the case of rectification of the defect, we shall be obliged to bear all the costs required to rectify the defect, especially transport costs, travelling expenses, labour costs and material costs, unless they have increased due to the fact that the purchase item was taken to a place other than the place of performance. In the case of rework, we shall be entitled to a maximum of 3 attempts. Goods forming the subject of complaint may only be sent back with our express permission.

9.11 The customer shall only have the right to rectify the defect himself or have this work carried out by third parties and to demand a refund of the necessary costs in urgent cases of danger to operating safety and to prevent disproportionately serious damage - in which case we shall be notified immediately - or if we are in default with the rectification of the defect.

9.12 The warranty period shall also be 1 year for the replacement item and the rework, if it is performed by us. However, the warranty shall run at least until the end of the original warranty period for the delivery item. The defect liability period for delivery items shall be extended by the duration of the business interruption caused by the rework.

9.13 If we are not prepared or not in a position to rectify the defect or make a replacement delivery, and especially if this is delayed over and beyond reasonable periods due to reasons for which we are responsible or if rectification of the defect or the replacement delivery fails in any other way, the purchaser shall be entitled to either withdraw from the contract or demand a corresponding reduction in the purchase price.

The following provision shall apply: items made to order shall be produced on request, but shall under no circumstances be taken back.

9.14 Samples shall be regarded as non-binding visual demonstration items. It shall not be permitted to make complaints about deviations from the manufacturing method. The purchaser shall also not be entitled to make complaints about minor deviations, even regarding the colour.

9.15 Unless otherwise stipulated below, any further claims by the purchaser, for whatever legal reason, shall be excluded. We shall therefore not be liable for damage which was not caused to the delivery item itself. In particular, we shall not be liable for any lost profit or other financial damage incurred by the purchaser.

If legally permissible, our obligation to pay compensation, for whatever legal reason, shall be limited to the invoice value of our quantity of goods directly involved in the damage event. We shall not be obliged to reimburse any expenses. The purchaser shall not be entitled to change his demand to compensation instead of performance.

9.16 The above liability exemption shall not apply if the damage was caused intentionally or through gross negligence. It shall also not apply if the purchaser asserts a claim for compensation according to § 437 III of the German Civil Code due to the assured state or if claims are based on § 1 and § 4 of the German Product Liability Act.

9.17 If our liability to pay compensation is excluded or limited in accordance with § 9 I of these General Terms and Conditions, this provision shall also apply to all claims in connection with default, fault at the time of conclusion of the contract, infringement of obligations and unauthorised action. If our liability is excluded and limited, this provision shall also apply to the personal liability of our white-collar employees, blue-collar employees or managerial assistants. The amount of our liability shall be limited to typical foreseeable damage to the exclusion of lost profit.

This provision shall not apply to claims according to § 1 and § 4 of the German Product Liability Act, in connection with the initial inability to perform or to subsequent impossibility of performance for which we are responsible, unless we inform the contracting party immediately about non-availability and reimburse any consideration.

§ 10 Reservation of title

10.1 We shall retain title to the purchase item up until receipt of all claims which arose at the time of conclusion of the contract, including any claims from final orders, re-orders and orders of spare parts. If we and the purchaser agree payment of the purchase price by means of bills of exchange, reservation shall extend to the payment of the bill of exchange accepted by us and shall not expire when the received cheque is credited to us.

10.2 The purchaser shall be entitled to sell or process the purchase item in the normal course of business. The reserved goods shall be processed for us as a manufacturer within the meaning of § 950 of the German Civil Code with no binding effect on our company. Processed or pre-processed goods shall be regarded as reserved goods and the purchaser shall keep them for us. If the purchaser processes, combines or mixed the reserved goods with goods belonging to third parties to create a new product or a mixed condition, we shall have joint ownership thereto, i.e. in the ratio between the invoice value of the reserved goods to the overall value of the new product or the mixed condition. If the reserved goods are mixed with other products and a product then belonging to the purchaser is regarded as a main item within the meaning of § 47 II of the German Civil Code, the purchaser shall now transfer to us his joint ownership share, i.e. in the ratio between the invoice value of our reserved goods and the overall value of the new main item.

The purchaser shall now also assign to us all claims to the sum of the final amount (including value-added tax), which accrue to him from resale to his customer or third parties, irrespective of whether the purchase item was resold without or after processing. The purchaser shall be entitled to collect this claim even after assignment. Our authorisation to collect the claim ourselves shall not be affected. However, we shall give an undertaking not to collect the claim as long as the purchaser duly complies with his payment obligations and other obligations. We may request the purchaser to inform us about the assigned claims and their debtors, provide us with all the information required for collection, send us the related documents and inform the debtors about assignment.

10.3 If the purchaser breaches the contract and, in particular, gets into arrears, we shall be entitled to take back the purchase item. However, taking back of the purchase item by us shall not mean withdrawal from the contract, unless we have expressly stated this in writing. Seizure of the purchase item by us shall entail withdrawal from the contract. After taking back the purchase item, we shall be entitled to sell it; the proceeds shall be offset against the purchaser's liability regarding reasonable selling costs.

10.4 The purchaser shall immediately inform us in writing about seizure or other interventions by third parties so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure. If the third party is unable to reimburse us for the judicial or non-judicial costs of legal action according to § 771 of the German Code of Civil Procedure, the purchaser shall be liable for the loss that we incur. The purchaser shall also assign to us the claim for safeguarding of our claim against him, which accrues to him against a third party through the combination of the purchase item with property.

10.5 If the value of the existing securities exceed the claims by more than 20% as a whole, we shall be obliged, at the request of the purchaser, to release securities of our choice. If the law of the country in which the delivery item is located does not permit reservation of title, but allows the seller to reserve other rights to the delivery item, we may exercise all rights of this kind. The purchaser shall be obliged to cooperate in these measures which we want to take to protect our right of ownership or alternatively another right to the delivery item.

§ 11 Other withdrawal rights of the purchaser

11.1 The purchaser may withdraw from the contract if we are unable to finally effect performance before the passing of risk. This provision shall also apply to our inability to perform.

11.2 The purchaser may also withdraw from the contract if, in the case of an order of identical products, it is impossible to make a partial delivery in quantitative terms and he has a justified interest in rejecting the partial delivery. If this is not the case, the purchaser may reduce the consideration accordingly.

If impossibility of performance occurs during default in acceptance or through the fault of the purchaser, he shall still be obliged to make a consideration.

11.3 If legally permissible, all other further claims by the purchaser shall be excluded. These claims shall include, in particular, cancellation of sale, termination of the contract or a reduction in the purchase price and compensation claims for all kinds of damage, i.e. including damage which did not occur to the delivery item itself.

§ 12 Exclusion of a right of substitution

The purchaser may not assign his contractual rights to third parties without our express permission.

§ 13 Resale, industrial property rights, confidentiality, duty to provide information and other matters

13.1 Industrial property rights of third parties shall be observed when the supplied goods are used. If we ourselves possess industrial property rights to the supplied goods, they shall also be observed in the case of future orders with third parties.

13.2 The supplier shall retain rights of ownership and copyright to cost estimates, drawings and other documents, which may not be made accessible to third parties.

13.3 In the case of plans designated as confidential by the purchaser, the supplier shall only be entitled to pass them on to third parties with the permission of the purchaser.

13.4 In the event of premature termination of the contract by the purchaser, we shall be compensated for any advance deliveries if we put our trust in the continuation of the contract.

13.5 In the case of an agreed lump sum for compensation, the respective contracting party shall be expressly permitted to provide evidence to the effect that damage or a reduction in value did not actually occur or was much lower than the lump sum amount.

13.6 The contracting parties shall send one another information continually and as soon as possible, especially regarding payment and decision-making processes in design and series development. Any unexpected changes shall be notified immediately.

§ 14 Liability for secondary obligations, operating instructions

14.1 If, through the fault of the supplier, the purchaser is unable to use the delivery item according to the terms of the contract as a result of the non-implementation or incorrect implementation of proposals and advice before or after conclusion of the contract, as well of other secondary contractual obligations - especially instructions relating to the operation and maintenance of the delivery item -, the provisions of § 9 of these General Terms and Conditions shall apply accordingly to the exclusion of other claims by the purchaser.

14.2 Operating instructions shall be supplied in German and English. The purchaser shall give an assurance that operating and functional personnel from his company, and from the corresponding purchaser in the event of resale, have a command of English or German as the operating language. Special information shall be required from the purchaser for any necessary translations into other languages. The costs of this translation shall be borne by the purchaser.

§ 15 Saving clause

15.1 If individual clauses of these General Terms and Conditions are invalid, the validity of the other clauses shall not be affected.

15.2 The contracting parties shall be obliged to close the loophole in the invalid part of these General Terms and Conditions.

15.3 If an explicit, contractual or general clause has not been included in these General Terms and Conditions, the loophole shall be primarily closed with observation of commercial practices and customs. Only then shall legal regulations be applied.

§ 16 Place of jurisdiction, place of performance and applicable law

16.1 The sole place of jurisdiction and place of performance for all disputes arising indirectly or directly from the contract shall be Freiburg im Breisgau.

16.2 The contracting parties have agreed that the law of the Federal Republic of Germany shall be used solely for the conclusion of this contract and for the mutual rights and obligations arising from this contract. Application of the UN Convention on the International Sale of Goods (UN CISG) dated 11 April 1980 shall be expressly excluded.

16.3 German law according to the Commercial and Civil Codes shall apply to the interpretation of the contract and decisions on all disputes with consideration of the provisions stipulated in § 15.3. of these General Terms and Conditions.