Der Wimpel

General Conditions

General Terms and Conditions of Delivery
(Position as per: July 2010)

1. General Matters regarding the Application of the Terms and Conditions.

1.1 These General Terms and Conditions of Delivery of AHP Merkle GmbH apply to all present and future business relations with entrepreneurs ("Unternehmer") (Paragraph 14 German Civil Code (BGB)), public-sector legal entities or special bodies or funds under public law (hereinafter referred to as "Customer"). 

1.2 Any contradictory or supplementary general conditions of business of the Customer shall become an integral part of the contract only if and to the extent that we have expressly consented to the application thereof.

2. Offers and Conclusion of the Contract

2.1 Unless expressly otherwise stipulated, our offers are subject to confirmation and are not binding. All orders placed by the Customer shall be deemed to be a binding offer of a contract. We can accept said offer of a contract within 4 weeks of our receipt of said offer.

2.2 The Customer may not assign its contractual rights to third parties without our prior consent.

2.3 We reserve the right to make changes to the subject matter of the goods or services to be delivered (e.g. dimensions, details of weight and performance or diagrams and dimensioned drawings) compared to the details contained in an offer or other contractual document provided that the goods or services to be delivered are not thereby significantly altered or the quality thereof improved and the Customer can reasonably be expected to accept the changes or deviations.
Sample workpieces shall be deemed to be non-binding demonstration workpieces. The Customer may not complain about deviations in the production method or minor deviations, for example in the colour.

2.4 We reserve title to and the copyright in all documents (e.g. cost estimates, drawings and plans). They may not be made available to third parties or used for advertising purposes and must be returned upon request.

3. Prices and Payment

3.1 Unless otherwise provided in the order confirmation, our prices apply "ex works" plus the statutory value added tax, assembly, commissioning and packaging, in the case of export deliveries plus customs duties and charges and other official duties.
The packaging shall be charged at cost and cannot be taken back.  It shall become the Customer's property upon handover.

3.2 Unless otherwise provided in the order confirmation or invoice, our remuneration shall become due without any deductions whatsoever upon delivery. The Customer shall automatically be in default 14 calendar days following delivery and the issue of the invoice. In the event of any arrears of payment for which we are not responsible, we shall, without prejudice to any other claims for compensation, be entitled to defer our own contractual obligations until the overdue payments have been effected.

3.3 The Customer shall not be entitled to set off claims or to withhold payments on the basis of any counterclaims that it may have unless such counterclaims are undisputed or have become final and absolute.

3.4 In the event of any failure to make payment when due or in the event of any justified reason to doubt the purchaser's ability to pay and creditworthiness we shall - without prejudice to our other rights - be authorized to demand security or payments in advance for outstanding deliveries and to immediately call in all our claims arising out of the business relationship even if we have accepted a cheque or bill of exchange.  This shall not affect our basic right to claim the defence of uncertainty (“Unsicherheitseinrede”) in the event that it becomes apparent after the contract has been concluded that our claim to consideration is jeopardized by the Customer's inability to perform.

3.5 In the event of deliveries which are made as part deliveries either in accordance with the agreement or due to the nature of the matter, we shall be entitled to demand a pro rata part payment for each part delivery in proportion to the total volume of the order.

4. Delivery and Delay

4.1 Delivery shall be effected ex works, which is also the place of performance. Upon the request and at the cost of the Customer the goods can also be sent to a different point of destination (sale by delivery to a place other than the place of performance ("Versendungskauf")). The delivery shall in any event be effected EXW Gottenheim (Incoterms 2000).

4.2 Unless expressly agreed upon in writing as being binding, any details of delivery times are not binding.

4.3 We shall not be liable for impossibility of the delivery or for delays in delivery to the extent that said impossibility was caused by force majeure (e.g. natural catastrophes, war, unrest) or other events that were not foreseeable at the time the contract was concluded (e.g. stoppages of all kinds, transport delays, strikes, lawful lock-outs, a shortage of workers, power or raw materials, difficulties in procuring necessary administrative licences, administrative measures or the non-supply, incorrect supply or untimely supply by suppliers) for which we are not responsible. We shall be entitled to rescind the contract if such events make delivery of the goods or services considerably more difficult or impossible for us and it is not foreseeable that we will be able to render our performance within a reasonable period - at the latest within 2 months.

4.4 Part deliveries shall be permitted if the Customer can use the part delivery for the contractually stipulated purpose, delivery of the remainder of the goods ordered has been ensured and the Customer does not thereby incur considerable additional work and expense.

4.5 If the Customer is under a duty to accept performance, said acceptance must be effected promptly with effect from the agreed acceptance date, alternatively within one week following our notice of readiness for acceptance. The Customer cannot refuse to declare acceptance if there is a defect which is only minor.

4.6 If the Customer is in default of acceptance or intentionally or negligently breaches other duties to cooperate, we shall be entitled to rescind the contract and/or to claim lump-sum damages in the amount of 1 % per completed week of delay, however a maximum of 5 % of the order value. The right to prove a greater or lower loss is reserved for both contract parties.

5. Warranty („Gewährleistung“)

5.1 If any of our goods or services prove to be defective, we shall be under a duty to remedy the defects by, at our option, either rectifying the defect or by making a replacement delivery. We shall bear the costs of such supplementary performance ("Nacherfüllung"), in particular the transport costs, labour costs and cost of materials. This shall not apply if the cost is increased because the subject matter of delivery is located somewhere other than the intended place of use.

5.2 We shall be entitled to make the subsequent performance owed dependent on the Customer paying the due purchase price. The Customer shall, however, be entitled to withhold such part of the purchase price as is reasonable in proportion to the defect.

5.3 If the defect is due to a faulty third-party product, we shall be entitled to assign our warranty claims against our supplier to the customer. In that case a warranty claim can be asserted against us under the above provisions only if the customer has asserted the assigned claims against the supplier in court.

5.4 Save in the case of malice ("Arglist") and save as provided in Clause 6.6, the limitation period for claims for defects shall be one year, commencing as of delivery or, if acceptance is necessary, as of acceptance.

6. Liability

6.1 We shall be liable in accordance with the statutory provisions for any breach by us for which we are responsible of material contractual obligations, i.e. contractual obligations, the performance of which characterize the contract and which are necessary for its proper implementation. We shall be liable for any other breaches of duty only if damage has been caused intentionally or grossly negligently by our statutory representatives or by a senior vicarious agent.

6.2 In the absence of intentional conduct, we shall be liable only for reasonably foreseeable damage that typically occurs.

6.3 The foregoing shall neither affect liability under the German Product Liability Act ("Produkthaftungsgesetz"), nor liability for any injury to life, body or health caused intentionally or negligently. If we have assumed a guarantee we shall be liable in accordance with the statutory provisions.

6.4 Unless otherwise provided above, claims against us for damages arising out of a breach of duty are excluded.

6.5 Insofar as our liability is excluded and limited, this shall also apply to the personal liability of our employees, workers or management assistants.

6.6 Any claims for damages under Clauses 6.1 to 6.3 above shall be time-barred within the statutory periods.

7. Information and Technical Advice

Our information and recommendations are not binding and are made excluding all liability unless we have committed ourselves expressly and in writing to give information and recommendations.  The Customer must investigate in his own series of tests whether a product is also suitable for the Customer's particular applications. The details and information we provide also do not constitute any promise as to the quality of our products.

8. Reservation of Title

8.1 We shall retain title to goods delivered by us until all of the claims arising out of the business relationship with the Customer and to which we are entitled have been satisfied in full, in particular until the Customer has settled the account balance (current account reservation).

8.2 The Customer shall be under a duty to carefully keep, maintain, repair and insure the delivered reserved goods at his own cost against fire, water damage, breaking and entering and theft.

8.3 The Customer must notify us without undue delay in writing in the event of any attachment of or other access by third parties to the reserved property.

8.4 The Customer shall be entitled to sell the reserved goods in the ordinary course of business so long as the Customer is not in default of payment. The reserved goods may not be pledged or title thereto transferred as security. The Customer hereby already assigns the accounts receivable that arise out of the re-sale or for some other legal reason (in particular but without limitation any transfer of title to the end customer, any insurance case or any tortious act) concerning the reserved goods to us in full as security. We accept said assignment.  The Supplier revocably authorizes the Customer to collect the accounts receivable assigned to the Supplier in his own name but for the Supplier's account. If the Customer acts contrary to the terms of the contract - in particular but without limitation if he is in default with payment of a claim for payment - we can require him to disclose the assignment and to provide the information and documents necessary to collect the account receivable.  

8.5 In the event of any breach of contractual duties by the Customer, especially in the event of default of payment, we shall be entitled to take back the reserved goods at the Customer's cost after having set a reasonable deadline.

8.6 If the reserved goods are bonded with other objects, the reservation of title shall continue in respect of the newly created article. We shall thereby acquire a share of the joint title, which share shall be in the proportion that the value of the reserved goods (invoice value) has to the value of the new article.  If one of the bonded articles is to be considered to be the main article, the Customer shall transfer to us the joint title in the proportion that the value of the goods supplied by us (invoice value) has to the value of the new article.

8.7 As regards our share of the joint title, the Customer shall keep the new article in safe custody free of charge. If the reserved goods are resold as an integral part of the new article, the assignment in advance agreed in Clause 8.4 shall apply only in the amount of the invoice value of the reserved goods.

9. Place of Jurisdiction, Place of Performance and Governing Law

9.1 Unless otherwise provided or another place of performance results out of the nature of the obligation, the place of performance for all of our and the Customer's obligations shall be Gottenheim (Germany).

9.2 German law shall apply; application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

9.3 It is agreed that the place of jurisdiction shall be Freiburg im Breisgau, Germany. In addition, we shall be entitled to assert our claims at the Customer's place of general jurisdiction.