Der Wimpel

Conditions of Purchase

General Terms and Conditions of Purchase

(Position as per: July 2010)

1. Scope

1.1 The following Terms and Conditions of Purchase of AHP Merkle GmbH (hereinafter: "we") shall apply to all business relationships with companies (Section 14 German Civil Code (BGB)), legal entities under public law, or special funds under public law (hereinafter: "Supplier") and to all present and future orders placed by us and contracts entered into between us and Supplier.

1.2 Deviating or supplementary Terms and Conditions of the Supplier shall only be deemed an integral part of any contract if we have expressly agreed to their applicability.

2. Conclusion of the Contract

2.1 Orders placed by us are revocable until receipt of the acknowledgement of the order or – in the absence of any acknowledgement of the order – until delivery.

2.2 The Supplier shall confirm our order without undue delay, at least within 3 working days by means of an order confirmation stating binding price and delivery times in text form or by delivery. A belated acceptance shall be deemed to be a new offer and shall be subject to our confirmation.

2.3 Unless expressly otherwise agreed, the delivery times stated by us are binding.

2.4 We are entitled to amend product specifications provided that said amendments can be implemented in the course of the Supplier's normal production process without any significant additional costs. We will in each case reimburse the Supplier the proven, reasonable extra costs incurred due to the amendment. If such amendments result in delays in delivery, which cannot be avoided in the Supplier's normal production and business activity using reasonable efforts, the originally agreed delivery date shall be postponed accordingly. The Supplier shall notify us in writing (incl. fax and email) of the additional costs or delays of delivery expected by Supplier in good time before the delivery date, but at least within 5 working days after receipt of our notification pursuant to sentence 1.

3. Prices and Payment Terms, Set-off

3.1 The agreed prices are fixed prices and binding for the present order. All prices are stated exclusive of value added tax, but inclusive of packaging, insurance, carriage (DDP Gottenheim, Incoterms 2010) and other incidental costs. Any price increases are subject to our prior written approval.

3.2 For each delivery a separate invoice in double copy stating the date of dispatch, our order number, the article number, delivery quantity, delivery address and our VAT ID number shall be submitted to the invoice address stated in our order immediately after dispatch of the goods. Invoices which do not contain our order data or which have not been properly prepared shall be deemed not to have been issued.

3.3 Unless otherwise agreed payments shall be made

(i)         within 14 calendar days following receipt of the proper invoice and delivery with the deduction of a 3% cash discount,

(ii)        within 60 calendar days following receipt of the proper invoice and delivery without any deductions whatsoever.

3.4 Payment shall be made subject to verification of the invoice. Payment shall not be deemed to be any acknowledgement of proper performance.

3.5 In the case of deliveries with installation, assembly or other services, the date of acceptance shall apply instead of the date of delivery.

3.6 The Supplier may exercise a right of retention and/or rights to offset only insofar as his counterclaim is based on the same contractual relationship or on an undisputed claim or a claim which has become final and absolute.

4. Delivery and Delivery Dates

4.1 Delivery notes and dispatch notes must always state our order numbers and article numbers in full. In the event of non-compliance, we shall be entitled to refuse acceptance of the delivery and to invoice the Supplier for any additional costs that may have been incurred. This shall also apply to deliveries to a third party designated by us as recipient. In the case of delivery on pallets, the Supplier shall ensure that only impeccable, exchangeable Euro pallets (DB standard) are used. In case that we detect any damaged pallets at the time of acceptance or, if not identifiable there, during the processing of the delivered goods, we shall be entitled to the rights under Sec. 7. Deliveries on disposable and special pallets require our prior written consent.

4.2 Unless expressly otherwise agreed, the agreed delivery deadlines and dates are binding. The Supplier shall immediately inform us of any threatening or existing delay in delivery and obtain our decision.

4.3 Whether agreed delivery deadlines and dates have been met 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 any delay in delivery for which the Supplier is at fault we are entitled – after prior written notification and at our discretion and in addition to further-reaching statutory claims – to demand a contractual penalty as compensation for the damage caused by the delay in performance, which contractual penalty shall be 0.2 % of the contract value of the belated part of the affected order per working day of late delivery, however a maximum of 5%. This shall be without prejudice to our right to claim any further proven damage due to delay in performance. The Supplier retains the right to prove that we did not suffer any damage whatsoever or only less damage.

4.5 The Supplier shall reimburse all additional costs incurred due to delayed delivery. The receipt and the acceptance of delayed deliveries and services shall not constitute any waiver of claims for compensation. Early delivery is only permitted with our prior written consent and does not affect the agreed payment date. We are not obliged to accept the delivery and the goods before the agreed delivery date. We are entitled to claim price reductions which occur prior to the scheduled delivery date.

5. Acceptance, Transfer of Risk, Place of Performance

5.1 Delivery and passing of risk are subject to Sec. 3.1. If, pursuant to a separate agreement, the freight charges are to be borne by us, the Supplier must choose the mode of delivery that is most favourable for us. We are under no obligation to accept any part deliveries or excess deliveries, which have not been agreed to.

5.2 If we are unable to accept delivery as a consequence of circumstances for which we are not responsible (e.g. stoppages due to internal or third-party industrial disputes, force majeure etc.), the risk shall not pass until the grounds for hindrance have been removed and the subject matter of the contract is available to us at the place of delivery. We shall notify the Supplier without undue delay if any grounds for hindrance of this nature have occurred or it is expected that they will occur.

5.3 The place of performance for all obligations arising out of the contractual relationship shall be the place of our registered office (seat).

6. Assignment of Claims

Assignment of claims against us requires our prior written approval. The provision of Sec. 354a German Commercial Code (HGB) remains unaffected.

7. Warranty, Claims for Defects, Notification of Defects

7.1 The Supplier warrants that the delivered item is free from defects, meets the specifications as stipulated in the order, uses the latest available technology and complies in particular with the relevant regulations, standards and guidelines, safety and accident prevention standards and other customary technical standards. In particular, the Supplier shall comply with the Product Safety Act (ProdSG) and all ISO, EN-, DIN- and VDE- standards insofar as these are applicable to the manufacture of the subject matter of the contract at the respective place of manufacture. Furthermore, the Supplier undertakes to comply with all applicable regulations for placing the products on the market in the European Union (in particular 2011/65/EC – RoHS and 1907/2006/EC – REACH) as required for suppliers in the EU, i.e. as if he was a supplier located in the European Union.

7.2 By acceptance or approval of submitted samples or specimens we do not waive any warranty claims.

7.3 If the subject matter of the contract does not have the agreed quality or is defective for other reasons, our warranty claims shall be in accordance with the statutory provisions unless otherwise agreed below.

7.4 If Supplier fails to comply with his obligation to remedy the defect within a reasonable period of time set by us, we shall be entitled to remedy the defect ourselves and demand reimbursement of the expenses incurred or a corresponding advance payment from Supplier. If the supplementary performance by Supplier has failed or is unreasonable for us (e. g. due to special urgency, endangering operational safety or imminent occurrence of disproportionate damage), no deadline shall be required; we shall inform Supplier of such circumstances without delay, if possible in advance.

7.5 Unless otherwise agreed, the general limitation period for warranty claims is 3 years. The period begins upon delivery of the goods or acceptance of the goods/services by us if acceptance is required. Any statutory provisions providing for longer limitation periods shall remain unaffected.

7.6 Our obligation to inspect incoming goods shall be limited to defects which become apparent upon visual external inspection of the goods including the delivery documents as well as during our quality control by taking samples (e.g. transport damage, wrong and shortage of delivery). Notwithstanding our obligation to inspect, any defects shall in any case be deemed to have been notified without undue delay and in good time (notification of defects) if notified by us within 5 working days of their discovery (and in compliance with the obligation to inspect pursuant to sentence 1).

8. Product Liability, Indemnification

8.1 Irrespective of the contractual warranty claims the Supplier shall, upon first demand, 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 particularly applies to claims made on the basis of any intentional or negligent infringement of third-party intellectual property rights at the place of delivery and at the end product's place of destination known to the Supplier.

8.2 The Supplier shall, upon first demand, indemnify us from and against all claims based on product liability (“Produkthaftungsansprüche”) to the extent that the cause of the claim lies within the Supplier’s sphere of control and organization and the Supplier itself is directly liable to third parties.

8.3 The Supplier shall maintain appropriate liability insurance with extended product liability coverage and shall provide us with proof of the cover upon request.

9. Assignment of Orders

The assignment of our orders to third parties is not permitted without our prior written consent and entitles us to withdraw from the contract and to assert claims for damages.

10. Provision of Materials

10.1 Materials and parts provided by us to the Supplier shall remain our property and may only be used and processed in accordance with instructions by us. Any processing or transformation of the materials provided shall be performed on our behalf and we remain legal manufacturer. The parties are in agreement that we become (co-)owners of the new or transformed object.

10.2 The Supplier shall store the materials and parts provided by us free of charge with the diligence of a prudent businessman. The materials and parts may only be used to fulfil our orders. The Supplier shall compensate us for any reduction in value or loss. The Supplier shall bear the risk of loss and of deterioration of the materials provided.

11. Intellectual Property Rights, Confidentiality

11.1 We reserve title to and the copyrights in all pictures, plans, drawings, calculations, instructions for execution, product descriptions and other documents.

11.2 Documents of this kind must be stored safely against unauthorised use and access, used solely for the contractual performance and must be returned to us once the contract has been performed or if negotiations fail to lead to the conclusion of a contract. In this case, copies made by the Supplier shall be destroyed except for storage within the scope of statutory storage and data backup obligations.

11.3 Without our prior express consent, the Supplier may not provide third parties with access to the documents or the goods manufactured in accordance therewith, use them directly as a basis for deliveries to third parties or use them for its own purposes or for advertising purposes, even after termination of the contract. The confidentiality obligation shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known.

12. Retention of Title

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

13. Subcontractors, Product Safety and Quality Management

13.1 All of the obligations under the contract must be fulfilled by the Supplier himself. A subcontractor may be engaged only with our prior written consent. If, with our consent, the Supplier performs work by third parties, e.g. thermal or surface treatments, the corresponding test reports must be enclosed with the delivery.

13.2 The Supplier shall manufacture the subject matter of the contract in compliance with the respective quality, environmental, energy and security provisions applicable to the manufacture of the subject matter of the contract by Supplier.

13.3 To ensure the quality of its products, the Supplier undertakes to establish, apply, maintain and continuously optimize and enhance an effective quality management system and to adopt only appropriate procedures

14. Customs and Foreign Trade Law

14.1 Delivery notes, consignment notes and invoices must always state the order numbers and article numbers in full in addition to the information specified in Sec. 3.2 and 4.1. In addition the customs tariff number with the corresponding country of origin must be stated for each purchase order position. Changes in the country of origin of the goods require a prior written notice of at least six months.

14.2 The Supplier shall assist us to comply with foreign trade and customs requirements, especially with regard to the import and export of Supplier’s products (including changes or as a component of other products). On request, the Supplier shall submit to us long-term supplier declarations, certificates of origin and movement certificates concerning the delivered products.

15. Miscellaneous

15.1 This General Terms and Conditions of Purchase are subject to German law excluding the UN Convention on Contracts for the International Sale of Goods.

15.2 The courts competent for Freiburg i. Breisgau, Germany, shall have jurisdiction for all legal disputes in connection with this contract. We shall also be entitled to assert our claims in the courts competent for the place of general jurisdiction of the Supplier.