Terms and condition
Terms and condition 2018-02-20T13:08:48+00:00

Terms of service

1. General Terms and Conditions for the Supply of Goods

General Terms and Conditions for the supply of goods (hereinafter referred to as General Conditions of Sale) for Merkel Jagd- und Sportwaffen GmbH (hereinafter referred to as Merkel).

§ 1 General, Basis of Contract

(1) All deliveries, performance, and contractual offers of Merkel are exclusively governed by the following General Conditions of Sale. The General Conditions of Sale shall only apply where Merkel’s contracting party (hereinafter referred to as the Customer) is a business entity within the meaning of sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal entity governed by public law, or certain public law funds.

(2) These General Conditions of Sale apply to the exclusion of any other terms. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become a part of the contract where Merkel consents in writing to their incorporation. This consent requirement shall apply in any event, for example, also in circumstances where Merkel delivers the goods to the Customer unconditionally whilst being fully aware of the Customer’s general terms and conditions.

(3) Declarations and statements of a legal nature (e. g. the setting of deadlines, notices of defects, statements of rescission (Rücktritt), or price reductions (Minderung)) made by the Customer to Merkel after conclusion of the contract must be made in writing (Schriftform) in order to be effective.

§ 2 Conclusion of Contracts

(1) All offers made by Merkel shall be discretionary and non-binding. This also applies where Merkel provides the Customer with catalogues, technical documentation (e. g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which Merkel reserves its proprietary and copyrights. Any passing on of information by the Customer to third parties which is marked as “confidential” or with other similar marking shall require the prior written consent of Merkel.

(2) The ordering by the Customer of goods constitutes a binding offer (verbindliches Vertragsangebot) by the Customer. Merkel is entitled to accept this offer (Annahme) within 2 (two) weeks of receipt by providing a written acceptance confirmation. Any customary modifications made by Merkel to the offer do not constitute a change of the order and shall be considered as having been approved by the Customer. Any such modification shall not be considered as having been approved by the Customer where the Customer objects to the acceptance confirmation in writing to Merkel without undue delay (unverzüglich) after receipt.

§ 3 Delivery Date

(1) The delivery date (Lieferfrist) shall be agreed individually or determined by Merkel on acceptance of the order. The delivery date shall be deemed met if the goods have been made available to the Customer at the place of delivery (Lieferort) within the delivery period. Deliveries in part shall be permitted insofar as the partial delivery is comprised of complete parts of the ordered goods, takes place within the delivery period, and is acceptable to the Customer.

(2) Where Merkel fails to meet the agreed delivery date for reasons for which Merkel is not responsible (non-availability of performance) Merkel shall, without undue delay, inform the Customer thereof together with the expected new delivery date. Merkel shall be entitled to rescind (zurücktreten) the contract in whole or in part where the goods are not available within the new delivery period; Merkel will without undue delay reimburse any payments made by the Customer. An example of non-delivery by Merkel in this sense includes the delayed delivery to Merkel by any of its suppliers when Merkel has entered into a matching cover transaction (kongruentes Deckungsgeschäft), and neither Merkel nor the supplier are at fault, or if in the individual case Merkel is not obliged to source the particular item.

(3) The rights of the Customer pursuant to sec. 9 of these General Conditions of Sale and the statutory rights of Merkel, in particular regarding the release from the obligation to perform (e. g. due to impossibility to perform (Unmöglichkeit) or disproportionality (Unzumutbarkeit) of the contractual performance and/or the specific performance (Nacherfüllung)), shall remain unaffected.

§ 4 Delivery, Passing of Risk, Acceptance, Delay of Acceptance

(1) The delivery of Merkel shall take place EXW („ex works“), Schützenstraße 26, Suhl, Germany, Incoterms 2010, unless otherwise agreed.

(2) A formal acceptance (Abnahme) within the meaning of sec. 640 BGB shall be relevant for the passing of risk (Gefahrübergang) as far as such formal acceptance is agreed. The statutory provisions applicable to works (Werkvertragsrecht) shall accordingly apply to the agreed formal acceptance. Where the Customer is in delay of acceptance (Annahmeverzug) this will be considered as handover (Übergabe) or formal acceptance within the meaning of sec. 640 BGB.

(3) Merkel shall be entitled to claim damages including additional expenditures (e. g. storage costs) that arise out of a delay of acceptance, a failure of cooperation and assistance of the Customer, or a delay of delivery for other reasons for which the Customer is responsible. For this purpose, Merkel shall be entitled to liquidated damages (pauschalierte Entschädigung) at a fixed damages rate of 0.5% (per cent.) of the price (ex VAT) per calendar week beginning on the delivery date.

The right of Merkel to demonstrate greater damage and the right to make the statutory claims (in particular claim of additional expenditures, reasonable compensation, notice of termination) shall remain unaffected; payments made under the fixed damages rate may be set-off against valid Customer claims. The Customer is entitled to prove that Merkel incurred no loss or that the loss incurred is significantly lower than the total amount charged in accordance with the fixed damages rate.

§ 5 Price and Payment Terms

(1) Unless otherwise agreed, the prices are in Euro (ex. VAT) and EXW („ex works“) within the meaning of Incoterms 2010.

(2) Negotiations regarding price adjustments shall be held on Merkel’s request where a delivery date and/or contractual performance is set to occur more than four months after conclusion of the contract and where prices for the required material and/or labour costs (including labour related costs due to statutory or negotiated (tariflich) changes), increase by more than 5% (per cent.) as compared to the date on which the contract was concluded.

(3) Unless otherwise agreed, the Customer shall bear the bank charges incurred outside Merkel’s home country as well as all bank letter of credit charges even if these are incurred in Merkel’s home country. The Customer shall bear exchange rate risks and costs on payments made in foreign currencies (currencies other than the Euro or the official currency for the time being in Germany).

(4) In accordance with the German Packaging Ordinance (Verpackungsordnung), other than in respect of the transport packaging, Merkel does not arrange for or accept the return of any packaging.

(5) The purchase price is due (fällig) immediately and is payable within 30 days without any deduction from and including the later to occur of: (i) date of the invoice; and (ii) delivery or formal acceptance (as the case may be).

(6) The Customer is in delay (in Verzug) on the lapsing of the aforementioned payment period (Zahlungsfrist). Payments shall be deemed made when received by Merkel. Payments made by cheque shall be deemed to have been received only after the amount has been credited to Merkel’s bank account. During any delay (Verzug), the Customer shall pay the statutory interest rate (gesetzlicher Verzugszinssatz) applicable at that time on the purchase price. Merkel reserves all rights to claim further damages for delay. In respect of Customers that are business people or entities (Kaufleute), Merkel shall also be entitled to claim the commercial interest rate payable when due (kaufmännischer Fälligkeitszinssatz) (sec. 353 of the German Commercial Code, Handelsgesetzbuch, HGB).

(7) Cheques and bills of exchange may be accepted, however, without any legal obligation, on the basis of prior written agreement only, on account of performance (erfüllungshalber), and without prejudice to any other payment obligations. The Customer shall bear any discount charges.

§ 6 Set-off, Rights of Retention and Assignment

(1) The Customer shall only have a right of set-off (Aufrechnung) and a right of retention (Zurückbehaltungsrecht) if and to the extent its claim is final and binding (rechtskräftig) as determined by a competent court or is undisputed (unbestritten). In case of defective delivery, the Customer’s legal rights shall remain unaffected.

(2) The Customer shall not be entitled to assign (abtreten) receivables arising out of the contractual relationship with Merkel.

§ 7 Retention of Title

(1) Merkel retains title to the goods sold as well as illustrations, drawings, calculations and other documents until receipt of full payment from the Customer of all its present and future payment obligations whether arising out of the specific sale of goods or the ongoing business relationship between the parties (secured receivables).

(2) Goods which are subject to retention of title must not be pledged (verpfändet) to third parties or provided as security (zur Sicherheit übereignet) prior to full payment. The Customer shall inform Merkel immediately in writing if and to the extent third parties try to take hold of goods owned by Merkel.

(3) Merkel shall be entitled to rescind (zurücktreten) the contract according to the statutory rules where there is a Customer breach, in particular, upon non-payment of the due purchase price, and to recover the goods to which Merkel retains title. Where the Customer fails to pay the due purchase price Merkel shall only be entitled to the above rescission and recovery rights where Merkel has set a reasonable new deadline and this is not met by the Customer or where the relevant statutory provisions do not require the setting of such new deadline.

(4) The Customer shall be entitled to sell and process (verarbeiten) the goods to which Merkel retains title within the ordinary course of its business. In such cases, the following provisions shall apply in addition:
(a) The retention of title shall apply to products to their full value which arise out of processing (Verarbeitung), mixing (Vermischung) or assembly (Verbindung) of the goods of Merkel whereby Merkel shall be considered as the manufacturer (Hersteller). Merkel shall acquire co-ownership in cases where the property right of third parties remains post processing, mixing, or assembly with the goods proportional to the invoice value of the processed, mixed, or assembled goods.
(b) The Customer hereby assigns its right to receive payment from its customers arising out of the resale of the goods or products to Merkel as a security (in total or in the amount of the co-ownership pursuant to the aforementioned subparagraph). Merkel hereby accepts the assignment. The Customer’s obligations under subparagraph 2 shall also apply to the assigned receivables.
(c) In addition to Merkel the Customer shall remain entitled to receive the assigned receivable. Merkel will not claim payment from the Customer’s debtor to the extent the Customer complies with all its own payment obligations towards Merkel, is not in delay of payment, no application for the opening of insolvency proceedings has been filed, and no other lack of performance exists. Where one of the above events have occurred, Merkel shall be entitled to request that the Customer discloses the assigned payment obligation and the Customer’s debtor, discloses all information necessary for the collection of the outstanding debt, hands over the relevant documents, and informs the debtor (third party) of the assignment.
(d) Where the realisable value of the security taken (in the form of the receivables assignment) exceeds Merkel’s payment claim by more than 10%, Merkel is obliged, on the Customer’s request, to release an appropriate amount of the security. Merkel is solely entitled to elect which particular security is released.

§ 8 Claims for Defects of the Customer

(1) Unless specified otherwise in the following, the statutory provisions regarding the rights of the Customer relating to material defects (Sachmangel) and defects of title (Rechtsmangel) (including but not limited to incorrect delivery, reduced delivery, as well as improper assembly or defective assembly instructions) shall apply. The specific statutory provisions regarding the final delivery of the goods to a consumer shall in any event remain unaffected (recourse of the supplier (Lieferantenregress) pursuant to sec. 478, 479 BGB).

(2) Insignificant and technically unavoidable discrepancies in quality, colour, weight, measurement, and design do not constitute a defect as far as such discrepancies are not unusual in the ordinary course of business (handelsüblich).

(3) The claims for defects (Mängelansprüche) of the Customer are subject to compliance with its statutory inspection and objection obligations (Untersuchungs- und Rügepflicht) (sec. 377, 381 HGB). The Customer is obliged to immediately notify Merkel in writing of any defect which is revealed during an inspection or thereafter. Any notification which is made within two weeks shall be deemed immediate whereby the timely sending (Absendung) of the notification shall suffice to meet this deadline. Irrespective of this inspection and objection obligation, the Customer shall be obliged to notify Merkel of any obvious defects (including incorrect delivery and reduced delivery) within two weeks of delivery whereby the timely sending of the notification shall also suffice to meet this deadline. The liability of Merkel in respect of defects not notified in the above manner or in respect of which no inspection was undertaken is excluded.

(4) Where delivered goods are defective, the Customer is entitled to claim specific performance (Nacherfüllung) by claiming either: (i) remedy of the defect (Nachbesserung) ; or (ii) substitute delivery free of defects (Ersatzlieferung). Where the Customer fails to make an election, Merkel is entitled to set a reasonable period within which the Customer is obliged to make an election. Where the Customer fails to make an election within the period set, the right to elect which form of specific performance is provided passes to Merkel.

(5) Merkel shall be entitled to make the specific performance conditional on the payment of the due purchase price by the Customer. The Customer shall be entitled to withhold a portion of the purchase price proportionate to the defect.

(6) The Customer is obliged to grant Merkel the time and opportunity necessary for the specific performance, in particular, to hand over the rejected goods for inspection purposes. In the case of the provision of a replacement, the Customer shall be obliged to return the defective good to Merkel pursuant to the statutory provisions. The specific performance does not include the disassembly of the defective goods or the re-assembly if Merkel was not responsible for the original installation.

(7) If a defect in fact exists, Merkel shall bear the costs necessary for the purpose of the inspection and specific performance, in particular transport costs, travel costs, personnel costs, and costs of material (not: disassembly and re-assembly costs). Merkel shall be entitled to claim compensation in respect of such costs incurred if it becomes apparent that the request for the remedy of defects of the Customer was unjustified.

(8) The Customer shall be entitled to rescind the contract or reduce (mindern) the purchase price where the specific performance failed or an adequate time line for the specific performance has either lapsed without success or was unnecessary according to statutory provisions. No right to rescind shall exist in case of an insignificant defect.

(9) Claims of the Customer for damages (Schadensersatz) or compensation for wasted expenditures (Ersatz vergeblicher Aufwendungen) shall only exist in accordance with sec. 9 and are otherwise excluded.

§ 9 Miscellaneous Liability

(1) Unless otherwise stated in these General Conditions of Sale, Merkel shall not be liable under any applicable statutory provisions for a breach of contractual or non-contractual obligations.

(2) In case of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit), Merkel shall be liable for damages (Schadensersatz) – irrespective of the legal source. In case of simple negligence (einfache Fahrlässigkeit), Merkel shall only be liable:
a) for damages arising from injury to life, body or health,
b) for damages arising out of a breach of material contractual obligations (Verletzung einer wesentlichen Vertragspflicht) (those fundamental obligations whose fulfillment makes the proper performance of the contract possible and whose observance the contracting party usually relies on and is entitled to rely on) ; in such cases the liability of Merkel is limited to the compensation of the reasonably foreseeable, typically to be expected damage. Merkel shall only be liable for those indirect and consequential damages which result from a breach and to the extent such damage can reasonably be expected to result from the ordinary use of the goods as contemplated by the contract (bestimmungsgemäße Verwendung des Vertragsgegenstandes).

(3) The limitations of liability pursuant to foregoing subparagraph 2 shall not apply in cases of Merkel’s fraudulent intent (Arglist) in respect of a defect or where Merkel has provided a guarantee in relation to a certain condition (Beschaffenheit) of the goods. The same shall apply for claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz).

(4) The Customer shall only be entitled to rescind or to serve a termination notice (kündigen) where there is a breach of an obligation which does not constitute a defect and where Merkel is responsible for that breach of obligation. A Customer termination right (in particular under sec. 651, 649 BGB) is excluded. Other than described in this paragraph, the applicable statutory provisions and legal consequences shall apply.

§ 10 Force Majeure

(1) In the event of the occurrence of force majeure, the relevant party shall inform the other party without undue delay (unverzüglich) and in writing of such event as soon as such event becomes known to it. The affected party shall not be responsible for the delay or the inability to perform caused thereby.

(2) All unforeseeable events or events which are beyond the sphere of influence of the contractual parties and the effects of which on the performance of the contract cannot be avoided by reasonable efforts of the parties shall be considered a case of force majeure within the meaning of these General Conditions of Sale. This shall include, amongst others, the following events: war (declared or not), warlike state, acts of terrorism, riot, revolution, rebellion, military or civil coup, revolt, tumult, excesses, blockade, embargo, government order, obstruction, strikes, go-slow strikes, lock-out, epidemics, fire, flooding, storm surge, typhoon, hurricane or other storms having the magnitude of a catastrophe, earth quake, landslides, lightning, general lack of material, massive transportation accidents, and remanufacture of system parts for reasons over which Merkel has no influence if this leads to a delay of the contractual performance.

§ 11 Termination

Merkel shall be entitled to terminate the contract in writing with immediate effect for good cause at any time. The opening of insolvency proceedings over the assets of the Customer or the verifiable threat of such, or the winding up of the Customer shall constitute good cause. In such a case, all outstanding payments in respect of goods or services delivered or provided by Merkel shall become due and payable immediately; deferred payment agreements shall become null and void.

§ 12 Limitation Periods

(1) Notwithstanding sec. 438 para. 1 no. 3 BGB, the general limitation period for material defects and defects of title shall be one (1) year as of delivery. To the extent a formal acceptance is agreed, the limitation period commences with the formal acceptance.

(2) Statutory specific provisions regarding claims for restitution in rem (dingliche Herausgabeansprüche) of third parties (sec. 438 para. 1 no. 1 BGB), fraudulent intent (Arglist) of the seller (sec. 438 para. 3 BGB), and claims regarding a recourse of the supplier in cases of a delivery to a consumer (sec. 479 BGB) shall remain unaffected.

(3) The aforementioned limitation periods of the sale of goods law (Kaufrecht) shall also apply to contractual and non-contractual damage claims of the Customer based on a defect of the goods, provided the regular statutory provisions (sec. 195, 199 BGB) would not lead to a shorter limitation period in the individual case. The limitation periods of the German Product Liability Act shall in any event remain unaffected. Other than as described in this paragraph, the statutory limitation periods shall apply exclusively to damage claims of the Customer under to sec. 9.

§ 13 Choice of Law and Place of Jurisdiction

(1) The laws of the Federal Republic of Germany (excluding the provisions on international uniform law, in particular, the United Nations Convention on Contracts for the International Sale of Goods) shall apply to these General Conditions of Sale and all legal relations between Merkel and the Customer. The laws of the place where the good (Lageort der Sache) is located shall apply to the requirements and effects of the retention of title pursuant to sec. 7 insofar as the choice of law in favour of the German law is prohibited or invalid under this.

(2) Exclusive – also international – place of jurisdiction for all disputes directly or indirectly arising out of the contractual relationship with business people or entities (Kaufleute) within the meaning of the German Commercial Code, legal entities governed by public law, or certain public law funds shall be the registered seat of Merkel in Suhl. Notwithstanding the foregoing, Merkel shall be entitled to file a statement of claim in the home jurisdiction (allgemeiner Gerichtsstand) of the Customer.

§ 14 Consent in Data Use for Shipment Tracking

(1) In order to allow for our logistic partners to inform you by email about the status of your shipment and the date of delivery we will pass on your postal address and your email address to the relevant logistic partner.

(2) If you do not consent, you can object to the passing on of the aforementioned data. In this case, please contact us at info@merkel-waffen.de.

§ 15 Severability

If and to the extent any of the provisions of these General Conditions of Sale is or becomes invalid or void, the validity of the remainder of these General Conditions of Sale shall remain unaffected. The provision which is partly or completely invalid shall be replaced by a valid provision which comes as close as possible to the original economical intent of the parties.

Status of May 2017

2. General Terms and Conditions of Purchase

General terms and conditions of purchase (hereinafter referred to as General Conditions of Purchase) for Merkel Jagd- und Sportwaffen GmbH (hereinafter referred to as Merkel).

§ 1 General, Basis of Contract

(1) These General Conditions of Purchase shall apply to all deliveries, performance, and contractual offers to Merkel. The General Conditions of Purchase shall only apply where Merkel’s contracting party (hereinafter referred to as the Seller) is a business entity within the meaning of sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal entity governed by public law, or certain public law funds.

(2) The General Conditions of Purchase shall apply in particular to contracts regarding the sale and/or delivery of movable property (bewegliche Sachen) (hereinafter referred to as Goods), regardless of whether the Seller manufactures the Goods or purchases them itself from suppliers (sec. 433, 651 BGB).

(3) These General Conditions of Purchase apply to the exclusion of any other terms. Deviating, conflicting, or supplementary general terms and conditions of the Seller shall only become a part of the contract where Merkel consents in writing to their incorporation. This consent requirement shall apply in any event, for example, also in circumstances where Merkel unconditionally accepts the delivery of the Goods from the Seller whilst being fully aware of the Seller’s general terms and conditions.

(4) Declarations and statements of a legal nature (e. g. the setting of deadlines, notices of defects, statements of rescission (Rücktritt), or price reductions (Minderung)) made by the Seller to Merkel after conclusion of the contract must be made in writing (Schriftform) in order to be effective.

§ 2 Conclusion of Contracts

(1) An order placed by Merkel shall at the earliest be considered binding on its written submission or confirmation. Prior to an acceptance (Annahme) and as a prerequisite to valid conclusion of the contract, the Seller shall, for the purposes of correction, be obliged to point out any obvious mistakes (e. g. misspellings and miscalculations) or lack of completeness of the order or order documentation to Merkel.

(2) The Seller shall be obliged, within a period of two (2) weeks, to confirm Merkel’s order in writing stating the order number or ship the relevant Goods without any conditions attached (Acceptance) (Annahme).

A late acceptance shall be considered as a new offer which is subject to acceptance by Merkel.

(3) All correspondence from the Seller to Merkel shall contain Merkel’s order number.

(4) Upon acceptance of the order, the Seller undertakes to: (i) enable the relevant customs authorities to review any relevant documentary evidence of origin and/or supplier declarations; and (ii) provide the relevant customs authorities with any requisite additional information including any official confirmations (Auskunftsblätter). Further, the Seller undertakes to indemnify Merkel in respect of any damage arising out of the responsible authority not accepting the stated origin.

The Seller undertakes to comply with all applicable environmental regulations relating to delivery and/or any element of contractual performance.

§ 3 Delivery Period and Delay

(1) The delivery period (Lieferzeit) determined by Merkel in the order is binding. Merkel and the Seller will agree the delivery period separately where this is not specified in Merkel’s order. Where it becomes reasonably foreseeable that the Seller is unlikely to meet agreed delivery dates – for whatever reason -, the Seller shall be obliged to inform Merkel in writing without undue delay (unverzüglich) indicating the reasons and anticipated duration of the delay.

(2) Where the Seller fails to perform, does not perform within the agreed delivery period, or is in delay (in Verzug), subject to the statutory provisions, Merkel shall in particular have the right to rescind the contract and the right to damages. The provisions in subparagraph 3 shall remain unaffected.

(3) Where the Seller is in delay, in addition to its statutory claims, Merkel shall be entitled to liquidated damages in respect of the delay (pauschalierter Ersatz des Verzugsschadens) in an amount of 1% (per cent.) of the price (ex VAT) for each full week but not more than 5% (per cent.) of the price (ex VAT) of the Goods that are delivered late. Merkel shall be entitled to demonstrate that it suffered a higher loss. The Seller shall be entitled to prove that Merkel did not suffer a loss or suffered a significantly lower loss.

§ 4 Performance, Delivery, Passing of Risk, Delay of Acceptance

(1) The Seller shall not be entitled to have the contract performed through a third party (e. g. a sub-contractor) without Merkel’s prior written consent. Unless otherwise agreed, the Seller shall bear the procurement risk (Beschaffungsrisiko) for its performance of the contract (e. g. the availability of goods in stock).

(2) Unless otherwise agreed, delivery shall take place carriage paid (frei Haus) within Germany to the place specified in the order. Where the place of destination (Bestimmungsort) is not specified and unless otherwise agreed, the place of delivery shall be Merkel’s registered seat in Suhl. The relevant place of destination shall also be the place of fulfillment (Erfüllungsort) (obligation to deliver, Bringschuld).

(3) A delivery note (Lieferschein) together with the date (issuance and shipment), content of the delivery (item number and quantity) and Merkel’s order identification (date and number) shall be enclosed with the delivery. Merkel shall not be liable for delays in handling and delays in payments arising out of missing or incomplete delivery documentation.

Written confirmations regarding material testing or outgoing goods inspections (Warenausgangskontrolle), where agreed, form an integral part of the delivery or performance and shall be sent to Merkel together with the delivery, performance, or invoice.

(4) The risk of accidental loss (Gefahr des zufälligen Untergangs) and accidental deterioration of the Goods shall pass to Merkel on handover (Übergabe) at the place of fulfillment. Where a formal acceptance (Abnahme) is agreed, this shall be relevant for the passing of risk (Gefahrübergang). The statutory provisions applicable to works (Werkvertragsrecht) shall accordingly apply to the agreed formal acceptance. The point in time when Merkel is in delay of acceptance (Annahmeverzug) will be deemed as the time of handover (Übergabe) or formal acceptance.

(5) The relevant statutory provisions shall apply in determining the occurrence of Merkel’s delay of acceptance. Notwithstanding the parties having agreed a specific or determinable date for an action or cooperation (e. g. supply of material), before Merkel can be in delay of acceptance, the Seller is obliged to expressly offer Merkel its contractual performance. Thereafter, where Merkel is in delay of acceptance, the Seller shall be entitled to claim compensation for additional expenditures (Ersatz von Mehraufwendungen, sec. 304 BGB) pursuant to the statutory provisions. Where the contract includes individual Goods which the Seller is obliged to manufacture (Einzelanfertigung), the Seller shall only be entitled to additional remedies where Merkel is obliged to assist with the manufacture and is at fault for any failure to assist.

§ 5 Price and Payment Terms

(1) The price determined in the order is binding. Unless expressly stated, all prices include VAT.

(2) Unless otherwise specifically agreed, the price includes the entire contractual performance and any ancillary services (e. g. assembly, installation) as well as all ancillary costs (e. g. correct packaging, transport costs including any transport and third party liability insurance). On Merkel’s request, the Seller shall be obliged to arrange for the return of any packaging.

(3) The price is due (fällig) within 30 calendar days from the complete delivery and performance (including an agreed formal acceptance, if any) as well as receipt of two proper and complete original invoice copies. Merkel is entitled to a 3% (per cent.) rebate on the value of the invoice (ex VAT) where Merkel pays within 14 calendar days.

(4) Merkel is not obliged to pay ‘due and payable interest’ (Fälligkeitszinsen). Late payment interest (Verzugszins) shall be at the annual rate of 5% (percentage points) above the statutory base rate (Basiszinssatz). The statutory provisions shall apply in respect of the commencement of Merkel’s delay of acceptance, whereby a written reminder (Mahnung) by the Seller shall be required in any event.

(5) Merkel shall have the benefit of the statutory provisions relating to the right to set-off (Aufrechnung) and the right of retention (Zurückbehaltungsrecht) as well as the defence alleging lack of performance of the contract (Einrede des nicht erfüllten Vertrages). Merkel shall be entitled, in particular, to withhold due payments insofar as Merkel has a claim for incomplete or improper delivery against the Seller.

(6) The Seller shall only be entitled to a right of set-off (Aufrechnung) and rights of retention (Zurückbehaltungsrechte) if and to the extent its claim is final and binding (rechtskräftig) as determined by a competent court or is undisputed (unbestritten).

§ 6 Non-Disclosure and Retention of Title

(1) Merkel retains all proprietary rights and copyrights in and over illustrations, plans, drawings, calculations, user or other manuals, product descriptions, and other documentation. Such documents must be used exclusively for the contractual performance and must be returned to Merkel on fulfillment of the contract. The documents must be kept strictly confidential and secret from third parties, also after completion of the contract. The obligation of confidentiality does not apply where the information is already known to the Seller, has been provided to the Seller by a third party, is known to the public, or is generally accessible.

(2) The aforementioned provision shall also apply to substances and materials (e. g. software, finished and semi-finished products) as well as tools, models, samples, and other objects which Merkel provides to the Seller for manufacturing purposes. Such objects shall be stored separately at the Seller’s expense and shall be insured up to an appropriate level against destruction and loss whereby Merkel shall make a reasonable contribution to the costs of such insurance.

(3) Any processing (Verarbeitung), mixing (Vermischung) or assembly (Verbindung) (further processing, Weiterverarbeitung) by the Seller of objects provided by Merkel shall be undertaken on behalf of Merkel. The same applies where Merkel further processes the delivered Goods so that Merkel shall be deemed the manufacturer (Hersteller) and at the latest shall gain ownership of the product under the statutory provisions relating to further processing of products.

(4) The transfer of title (Übereignung) to the Goods to Merkel must be unconditional (unbedingt) and independent of the payment of the price:

(a) In circumstances of payment in advance, title to the Goods passes to Merkel at the time full payment is made. In such circumstances, the Seller shall be obliged to label the Goods as Merkel’s property. The Seller’s statutory obligation to bear the risk of loss (Gefahrtragung) until delivery shall remain unaffected.

(b) Where in a specific case Merkel accepts the Seller’s offer regarding the transfer of title to delivered Goods being conditional on payment of the purchase price, the Seller’s retention of title shall at the latest be extinguished on such payment. Subject to the prior assignment to the Seller by Merkel of Merkel’s receivables arising out of such unpaid for delivered Goods (in default of this, a simple retention of title extended to the resale will apply), Merkel shall within the ordinary course of its business be entitled to sell the Goods prior to the payment of the purchase price. All other forms of retention of title, in particular a broadened (erweiterter), downstream (weitergeleiteter) retention of title, and an extended retention of title to the resale (auf Weiterverarbeitung verlängerter Eigentumsvorbehalt) are hereby excluded.

§ 7 Defective Delivery

(1) Unless specified otherwise in the following, the statutory provisions regarding Merkel’s rights relating to material defects (Sachmangel) and defects of title (Rechtsmangel) of the Goods (including but not limited to incorrect delivery, reduced delivery, as well as improper assembly or defective assembly or operating instructions, or user manual), and other breaches of duty by the Seller, shall apply.

(2) In accordance with the statutory provisions, the Seller shall be liable in particular for the agreed condition (vereinbarte Beschaffenheit) of the Goods on the passing of risk (Gefahrübergang) to Merkel. The product descriptions (Produktbeschreibungen) which form part of the individual contract or which are incorporated into the contract in a similar manner to the incorporation of these General Conditions of Purchase (in particular by way of a description or reference by Merkel made in the order) shall be considered as an agreement as to the condition (Vereinbarung über die Beschaffenheit). It does not make any difference in this respect whether the product description originates from Merkel, the Seller, or the manufacturer.

Merkel will only accept those specific quantities or number of items ordered by Merkel. Deliveries which include less or more than the ordered quantity shall only be permitted on prior agreement with Merkel.

(3) Notwithstanding sec. 442 para. 1 sen. 2 BGB, Merkel is also entitled to the unrestricted claims for defects (Mängelansprüche) where, at conclusion of the contract, it failed to recognize the defect due to its gross negligence (grobe Fahrlässigkeit).

(4) The statutory provisions in respect of the commercial inspection and objection obligations (kaufmännische Untersuchungs- und Rügepflicht) (sec. 377, 381 of the German Commercial Code, Handelsgesetzbuch, HGB) shall apply provided that: Merkel’s inspection obligation shall be limited to defects which can be identified by way of a superficial delivery inspection encompassing the shipping documents as well as a quality control test by way of a sampling procedure (Stichprobenverfahren) (e. g. damage during the transport, incorrect delivery, and reduced delivery). No inspection obligation shall exist insofar as a formal acceptance (Abnahme) is agreed. In other cases, it is relevant if an inspection appears to be reasonably necessary when taking into account the individual case as well as the ordinary course of business.

Merkel’s objection obligation in respect of defects which are discovered later shall remain unaffected. In any event, objections made by Merkel (notice of defects, Mängelanzeige) shall be considered as having been made without undue delay (unverzüglich) and in time (rechtzeitig) where the Seller receives notice within five (5) working days.

(5) The Seller shall be obliged to bear the costs of its inspection and the remedy of defects (including potential disassembly and re-assembly costs) even if it turns out that no defect in fact existed. Where there has been an unjustified request for the remedy of defects, Merkel’s liability for damages shall remain unaffected; Merkel shall only be liable insofar as Merkel is grossly negligent in failing to identify that no defect in fact existed.

(6) In cases where the Seller fails to fulfill its specific performance (Nacherfüllung) obligation – under which Merkel is entitled to elect either (i) remedy of the defect (Nachbesserung) or (ii) substitute delivery free of defects (Ersatzlieferung) – within the reasonable deadline set by Merkel, Merkel is entitled to remedy the defect itself and to claim compensation for the required expenditures or claim an appropriate advance payment from the Seller. No setting of a deadline is required where the specific performance of the Seller has failed or has become unacceptable to Merkel (e. g. due to special urgency, danger to the operational safety (Betriebssicherheit), or imminent occurrence of disproportionate damages) ; Merkel shall be obliged to inform the Seller without undue delay of such circumstances, if possible before they occur.

(7) In cases of a material defect or defect of title, Merkel shall in addition be entitled to reduce (mindern) the purchase price or to rescind (zurücktreten) the contract in accordance with the statutory provisions. In addition, Merkel shall be entitled to claim damages and reimbursement of expenses (Aufwendungsersatz) in accordance with the statutory provisions.

§ 8 Supplier Recourse

(1) In addition to the claims for defects (Mängelansprüche), Merkel is without restriction entitled to the statutory claims for recourse (Regressansprüche) within the supply chain (recourse of the supplier, Lieferantenregress, pursuant to sec. 478, 479 BGB). Merkel shall be entitled to request that particular kind of specific performance (remedy of defects or substitute delivery free of defects) from the Seller which Merkel is obliged to provide to its customer in the individual case. The statutory election right (sec. 439 para. 1 BGB) shall remain unaffected hereby.

(2) Prior to Merkel accepting (anerkennen) or fulfilling (erfüllen) a claim for defects (including reimbursement of expenses (Aufwendungsersatz) pursuant to sec. 478 para. 3, 439 para. 2 BGB), Merkel will inform the Seller, summarize the circumstances, and request a written statement. Where no statement is made within a reasonable deadline or no other solution is found jointly, the remedy of the defect actually granted by Merkel to its customer shall be considered as the relevant remedy owed; the Seller shall have the burden to prove otherwise (Gegenbeweis).

(3) Merkel’s claims arising out of the supplier recourse shall also apply where the Goods are further processed by Merkel or its customer (e. g. by assembly into another product) prior to the sale to a consumer.

§ 9 Manufacturer’s Liability

(1) Where the Seller is responsible for a product defect, it is obliged to indemnify Merkel against third party claims insofar as the cause is within the Seller’s sphere of direct influence (Herrschaftsbereich) and its sphere of organizational influence (Organisationsbereich), and insofar as a direct third party liability would exist.

(2) Within the framework of its obligation to indemnify (Freistellungsverpflichtung), the Seller shall be obliged to reimburse Merkel’s expenses pursuant to sec. §§ 683, 670 BGB which occur out of or in connection with a third party claim including product recalls made by Merkel. Merkel will inform the Seller of the content and scope of product recalls insofar as reasonably possible and give the Seller the opportunity to make a statement. Further statutory rights and claims shall remain unaffected.

(3) The Seller shall be obliged to insure against product liability in an amount of at least 10 million Euros per personal injury or material damage and to maintain such insurance.

§ 10 Intellectual Property Rights

(1) The Seller represents and warrants that all delivery of Goods are and/or the performance is free of third party intellectual property rights (Schutzrechte) and that in particular no patents, licenses, or other third party intellectual property rights are infringed by the delivery and use of the delivered Goods and/or the performance.

(2) The Seller shall indemnify Merkel against third party claims relating to or arising out of alleged intellectual property right infringements (Schutzrechtsverletzungen) on demand and shall bear all costs incurred by Merkel in this respect.

(3) Merkel shall be entitled at the Seller’s expense to seek the intellectual property right owner’s consent in respect of the use of the relevant delivered Goods and/or the performance.

§ 11 Limitation Periods

(1) Unless stated otherwise in the following, the claims of the contracting parties shall be subject to the statutory limitation periods.

(2) Notwithstanding sec. 438 para. 1 no. 3 BGB, the general limitation period for claims for defects shall be three (3) years as of the passing of risk. To the extent a formal acceptance is agreed, the limitation period commences with the formal acceptance. The limitation period of three years also applies in respect of claims regarding defects of title, provided that the statutory limitation period regarding claims for restitution in rem (dingliche Herausgabeansprüche) of third parties (sec. 438 para. 1 no. 1 BGB) shall remain unaffected. Notwithstanding the above, the limitation period relating to claims regarding defects of title (Rechtsmangel) shall not lapse where a third party has a legal right to make a claim against Merkel, in particular due to the application of a longer limitation period.

(3) The limitation periods under the sale of goods law (Kaufrecht) including the aforementioned extension shall apply within the statutory framework regulating contractual claims for defects. Insofar as Merkel can claim non-contractual compensation (außervertragliche Schadensersatzansprüche) in respect of a defect, the ordinary statutory limitation periods (sec. 195, 199 BGB) (as opposed to those under the sale of goods law) shall apply – provided that the limitation periods under the sale of goods law would not in the individual case lead to a longer limitation period.

§ 12 Choice of Law and Place of Jurisdiction

(1) The laws of the Federal Republic of Germany (excluding the provisions on international uniform law, in particular, the United Nations Convention on Contracts for the International Sale of Goods) shall apply to these General Conditions of Purchase and all legal relations between Merkel and the Seller. The laws of the place where the good (Lageort der Sache) is located shall apply to the requirements and effects of the retention of title insofar as the choice of law in favour of the German law is prohibited or invalid under this.

(2) Exclusive – also international – place of jurisdiction for all disputes directly or indirectly arising out of the contractual relationship with business people or entities (Kaufleute) within the meaning of the German Commercial Code, legal entities governed by public law, or certain public law funds shall be the registered seat of Merkel in Suhl. Notwithstanding the foregoing, Merkel shall be entitled to file a statement of claim at the place of fulfillment (Erfüllungsort) of the delivery obligation.

§ 13 Severability

If and to the extent any of the provisions of these General Conditions of Sale is or becomes invalid or void, the validity of the remainder of these General Conditions of Sale shall remain unaffected. The provision which is partly or completely invalid shall be replaced by a valid provision which comes as close as possible to the original economical intent of the parties.

Status of May 2017