CONDITIONS OF PURCHASE


General Conditions of Purchase of AHP Merkle GmbH, 79288 Gottenheim 

Status: June 2019

1. GENERAL INFORMATION ON VALIDITY OF THE CONDITIONS.

1.1 These General Conditions of Purchase of AHP Merkle GmbH (hereinafter referred to as “we”) apply to all present and future business relationships with companies (§ 14 BGB), legal persons under public law, or public law special assets (hereinafter referred to as “supplier”).

1.2 Diverging or additional general terms and conditions of the supplier shall only become part of the contract if and insofar as the supplier has expressly acknowledged them.

2. CONCLUSION OF CONTRACT

2.1 Orders we place are freely revocable up until receipt of the confirmation of the order or -in the absence of any confirmation of the order - up until delivery. 

2.2 The supplier is obliged to confirm our order immediately, and at the latest within a period of 3 working days, by an order confirmation specifying binding prices and delivery dates in text form or by making delivery. Any delayed order confirmation shall be considered a new offer and needs to be confirmed by us.

2.3 Insofar as it has not been expressly otherwise agreed, the delivery times stated by us are binding.

2.4 We are entitled to change product specifications, as far as these can be implemented within the scope of the supplier's normal production processes without any considerable additional expense. We will refund the supplier with any proven and appropriate additional costs incurred due to the change. Should such changes cause delays in delivery, which are unavoidable through reasonable efforts in the supplier's normal production and business dealings, the originally scheduled delivery date will be postponed accordingly. The supplier shall, on the basis of a careful assessment, indicate in writing the additional costs or delivery delays it anticipates in due time before the delivery date or, at the latest, within five working days after receipt of the notification according to sentence 1 (incl. email and fax).

3. PRICES; TERMS OF PAYMENT, AND OFFSETTING

3.1 The agreed prices are fixed prices and binding for the present contract. All prices are stated exclusive of value added tax, but inclusive of packaging, insurance, carriage (DDP Gottenheim, Incoterms 2010) and other incidental costs. Price increases require our written consent.

3.2 For each consignment, a separate invoice, in duplicate, shall be sent to the invoice address stated in our order immediately after shipment of the goods. The date of shipment, our order number, the item number, the delivery quantity, the delivery address, and our VAT ID No. must be indicated in the invoice separately. The value added tax must be shown separately on the invoice. Invoices which do not contain our order data or have not been drawn up correctly, shall be regarded as not having been issued. 

3.3 In so far as not expressly agreed to the contrary, payments shall be made

(i) within 14 days after receipt of an orderly invoice and delivery with the deduction of a 3% cash discount,

(ii) within 60 days after receipt of an orderly invoice and delivery, net payment.

3.4 Payment will be made under reserve of invoice verification. It shall not be deemed to be any acknowledgement of proper performance. 

3.5 In the event of deliveries involving installation, assembly, or other services, the date of acceptance shall be regarded as the date of delivery. 

3.6 The seller shall only be entitled to a right to set-off or a right of retention if counterclaims have been established as final and absolute or if they are uncontested.

4. Delivery, delivery time

4.1 Delivery and dispatch notes and must always state our order numbers and item numbers in full. In the event of non-observance, we are entitled to refuse acceptance of delivery and charge any additional costs thus incurred to the supplier. This also applies to deliveries made to third parties designated by us as the recipient. For delivery on pallets, it must be ensured that only flawless, exchangeable europallets (DB standard) are used. Should we determine that pallets have been damaged at the time acceptance or, if not recognizable then, while processing the delivered goods, we shall be entitled to the rights stipulated in Clause 7... Deliveries on one-way and special pallets require our express written consent. 

4.2 Insofar as it has not been expressly otherwise agreed, the delivery times and dates stated by us are binding. The supplier is obliged to inform us immediately as soon as circumstances become recognizable that warrant any fears of a delay in delivery. 

4.3 Whether agreed delivery deadlines and dates have been complied with shall depend on the date the subject matter of the contract is received at the receiving point stated by us; in the case of deliveries involving installation, assembly or other services, it shall depend on the date of their acceptance. 

4.4 In the event of delays in delivery caused by the supplier, after request in writing and at our own discretion, as well as without prejudice to further legal claims, we are entitled to claim a contractual penalty amounting to 0.2% of the order value per working day, however, at most 5% of the order value, in each case relating to the goods delivered late. We reserve the right to apply an even higher rate of interest to demonstrably higher damage caused by delay. The supplier shall be entitled to prove that only minor damage has resulted. 

4.5 The supplier shall have to indemnify all additional costs caused by delayed delivery. Acceptance of delayed deliveries and services not be construed as a waiver of our claims for damages. Early delivery may only be made upon receipt of our written consent and shall not affect the agreed payment deadline. We shall not be obliged to accept delivery prior to the agreed delivery date. We can avail ourselves of general price reductions for products ordered by the supplier which occur up to the planned delivery date.

5. Acceptance, passing of risk, place of performance

5.1 Dispatch and passing of risk shall take place as per Clause  3.1. If we are obligated by special agreement to assume the shipping costs, the supplier shall select the shipping option which is least expensive for us. We are not obliged to accept part or excess deliveries that have not been agreed beforehand. 

5.2 If we cannot accept a delivery due to circumstances for which we are not responsible (in particular due to force majeure etc.), the risk shall not pass until the grounds for hindrance have been removed and the performance object is available to us at the agreed place of destination. We are obligated to notify the supplier immediately if such grounds for hindrance have occurred or can be expected to occur. 

5.3 The place of performance for all obligations arising from this contractual relationship is the seat of our company.

6. ASSIGNMENTS OF CLAIMS

Claims against us cannot be assigned effectively unless with our written agreement. Section 354a of the German Commercial Code HGB shall remain unaffected.

7. WARRANTY, CLAIMS FOR DEFECTS, NOTICE OF DEFECTS

7.1 The goods must have the warranted characteristics and comply with the specifications set out in the order, the latest state of the art, the relevant legal regulations, standards, and directives, the safety and accident prevention regulations, and the usual technical standards. The supplier undertakes in particular to comply with the provisions of the Product Safety Act and all ISO, EN, DIN and VDE regulations, insofar as these are applicable to the production of the performance object at the respective place of manufacture. Furthermore, the supplier undertakes to comply with all applicable rules concerning marketing of the products in the European Union (in particular 2011/65/EU - RoHS and 1907/2006/EC - REACH) as required for EU suppliers. 

7.2 Acceptance or approval of submitted samples does not constitute a waiver of warranty rights.

7.3 If the performance object does not have the agreed quality or is defective for other reasons, our claims for defects shall be in accordance with the statutory provisions unless otherwise agreed below. 

7.4 Should the supplier fail to honor his obligation to supplementary performance within a reasonable period of time, we are entitled to rectify the defect ourselves and demand that the supplier reimburse the expenses necessary or demand a commensurate advance payment. Should the supplementary performance by the supplier fail or be unacceptable to us (e.g. due to special urgency, risk to operational safety, or the threatening occurrence of disproportionate damage), a deadline shall not be required; we will notify the supplier of such circumstances immediately, if possible in advance.

7.5 The general limitation period for defect claims is 3 years and shall begin when the goods are delivered to us or when performance is accepted by us, insofar as acceptance is required. Longer statutory periods of limitation shall remain unaffected. 

7.6 Our duty to inspect as part of the incoming goods inspection is limited to defects which are evidently revealed by an external examination, including examination of the delivery papers, and by our quality control by way of random sample tests (e.g. transport damage, incorrect or short deliveries). Irrespective of our inspection obligation, any possible defects shall in any case be deemed as immediately and duly reprimanded (notice of defects) if we provide notification of them within 5 working days after they have been identified (and in compliance with the duty to inspect as per Sentence 1).

8. PRODUCT LIABILITY, INDEMNIFICATION

8.1 Irrespective of the contractual warranty claims, the supplier shall indemnify us from and against all claims by third parties, which are attributable to defects in the subject matter of the contract for which the supplier is answerable. This applies in particular to claims because of a culpable breach of third-party industrial property rights at the place of delivery as well as at the destination place of the end product.

8.2 If claims concerning product liability are made against us, the supplier shall indemnify us for damage sustained, as far as the cause of damage lies within its organization and sphere of control and the supplier itself is responsible for the mistake leading to liability.

8.3 The supplier is obliged to take out an appropriate insurance policy to cover its liability risks and provide us with evidence of this cover on request.

9. TRANSFER

The subcontracting or passing on of our orders to third parties is prohibited unless agreed by us in writing and entitles us to withdraw from the contract and to demand compensation.

10. PROVISION OF MATERIALS

10.1 Materials, substances or parts provided to the supplier by us (hereinafter referred to as “materials”) remain our property and may be processed and used only as directed. The processing or altering of the materials is performed for us by our order and we remain the manufacturer as defined by law. The parties are in agreement that we become (co-) owners of the new or altered object. 

10.2 The supplier shall store the materials for us with the care of a proper businessman free of charge. The materials may be used only for the fulfillment of our orders. In the event of depreciation in value or loss, the supplier must make compensation. The supplier bears the risk of loss or deterioration of the materials provided.

11. INDUSTRIAL PROPERTY RIGHTS, NONDISCLOSURE

11.1 We retain all property rights and copyrights to illustrations, plans, drawings, calculations, instructions, product descriptions and other documentation provided by us to the supplier. 

11.2 Such documents shall be stored securely protected against any unauthorized viewing or use, used exclusively for the contractual performance, and returned to us in an orderly condition, at the latest after completion of the contract or if negotiations do not result in the conclusion of a contract. In this case, any copies the supplier has made of the documents are to be destroyed; this excludes any data stored pursuant to the legal storage and data backup requirements.

11.3 The supplier shall not make the documents or the goods manufactured pursuant to them accessible to third parties without our express consent; nor use them directly as the basis for deliveries to third parties, for its own advertisement purposes, or even after termination of the contract. The obligation to maintain secrecy initially expires if and to the extent to which the knowledge contained in the provided documents becomes generally known.

12. RESERVATION OF TITLE

Unless otherwise agreed by the parties in writing, all forms of extended or prolonged reservation of title shall be excluded so that any reservation of title that may validly be declared by the seller shall apply only to the goods delivered to us and only until said goods have been paid for.

13. SUBCONTRACTOR, PRODUCT SAFETY, AND QUALITY MANAGEMENT

13.1 The seller shall not be entitled without our previous written consent to arrange for third parties (e.g. subcontractors) to provide the performance owed. If the supplier performs external activities with our consent (i.e. activities performed by third parties) such as e.g. heat or surface treatments, the corresponding test reports shall be attached to the delivery.

13.2 The supplier shall manufacture the performance object taking into account the respective quality, environmental, energy, and safety regulations applicable to its production by the supplier. 

13.3 To ensure the quality of its products, the supplier undertakes to set up, apply and maintain an effective quality management system, to subject it to continuous optimization and constant improvement, and to apply only suitable methods for this purpose.

14. CUSTOMS AND FOREIGN TRADE LEGISLATION

14.1 Pursuant to Clause 3.2 and Clause 4.1, delivery notes, dispatch notes, and invoices always must completely specify the relevant order numbers and item numbers. In addition, the tariff number with the corresponding country of origin must be specified for each order item. Changes to the origin of goods require at least six months advance notice in writing. 

14.2 The supplier shall support us in the fulfillment of foreign trade and customs requirements, and particularly in the import and export of the supplier's products (including changes and as components of other products). The supplier shall present long-term supplier declarations, certificates of origin, and movement certificates regarding the supplied products to us on request.

15. FINAL PROVISIONS

15.1 Only German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). 

15.2 The place of jurisdiction for all legal disputes in connection with this contract is Freiburg im Breisgau, Germany. We are also entitled to make our claims at the general place of jurisdiction of the customer.