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MHA ZENTGRAF GmbH & Co. KG – General Terms of Sale and Delivery

May 2013



1.1 The following Terms apply for all deliveries and services offered by MHA ZENTGRAF.

1.2 Deviating or additional terms of the client do not apply.

1.3 In the context of an ongoing business relationship, these Terms apply in their respective version without explicit reference to their inclusion with all future deliveries and services by MHA ZENTGRAF.


2. Object of the contract and Prices

2.1 Regarding special designs, MHA ZENTGRAF shall examine the client’s guidelines on their correctness. MHA ZENTGRAF shall inform the client if they do not consider guidelines as plausible.

2.2 Services by MHA ZENTGRAF, which exceed the duties for a seller, such as consultancy, planning, installation and maintenance services, are to be fixed separately in writing.

2.3 All prices are net and apply ex works; VAT at their current applicable rates, packaging, transport, installation and insurance costs shall be payable additionally.

2.4 The prices according to the respective current price list of MHA ZENTGRAF at the moment of order are applicable. With a period of more than 4 months between conclusion of the contract and agreed delivery date, MHA ZENTGRAF shall be entitled to adapt the prices, if suppliers of MHA ZENTGRAF have changed their prices taking effect on the order. The client is to be immediately informed.

2.5 The minimum order value is set at EUR 300,--. If the order falls below this limit, the client shall pay an appropriate supplement to the list prices.


 3. Offer and Conclusion of Contract

3.1 Offers of MHA ZENTGRAF are not binding. Cost estimates for special designs shall be unbinding and payable.

3.2 The contract shall be entered into when the client’s order is confirmed in writing or if the performance has started or if the Products were delivered. Verbal ancillary agreements and confirmations are invalid without MHA ZENTGRAF’s written approval.

3.3 MHA ZENTGRAF is entitled to withdraw from the contract without observing a notice period, if the client’s financial situation persistently deteriorates or if the opening of insolvency proceedings on his assets have been demanded.

3.4 If a right to withdraw has been granted to the client and if the client uses such right, he shall then pay to MHA ZENTGRAF cancellation costs of 50% of the order value.


 4. Delivery, transfer of risk and Delay

4.1 Delivery and service deadlines are only binding with the written confirmation of MHA ZENTGRAF. The delivery period begins at the moment of dispatch of the order confirmation, however not before additional documents, confirmations, releases or materials of the client are complete, as well as before receipt of an agreed deposit.

4.2 With service or delivery delays, which MHA ZENTGRAF is not liable for, such as force majeure, strike, import and export limitations, interruption of operations or disruption of traffic routes, the delivery period shall be prolonged – also within a delay - accordingly. The same applies if such conditions occur at the suppliers‘ or subsuppliers‘ of MHA ZENTGRAF. MHA ZENTGRAF shall immediately inform the client of such delays and their probable duration.

4.3 If MHA ZENTGRAF is liable for the delay, the client shall be entitled to rescind the contract after an appropriate extension period, which was fixed in writing.

4.4 Should there be a default of acceptance on the client’s side, MHA ZENTGRAF shall then be entitled to claim the costs actually resulting from storage, starting one month after notification of readiness to dispatch, or of 0,,5% of the invoice amount for each begun month, unless the client can prove a lesser damage to MHA ZENTGRAF. At the end of an appropriate period, MHA ZENTGRAF shall be entitled to rescind the contract. The risk of an accidental deterioration and of an accidental loss is transferred to the client at the moment of default of acceptance.

4.5 Deliveries are ex works (EXW INCOTERMS 2010) Merzig. The delivery period is met when MHA ZENTGRAF has issued its readiness to deliver the Products before its expiration. The transfer of risks occurs at the moment of the notification of readiness to dispatch.

4.6 Safety devices are only provided if agreed on in writing.

4.7 MHA ZENTGRAF is entitled to partial deliveries to a reasonable degree. The client is obligated to pay for such partial deliveries.


5. Payment

5.1 Payments shall be made without deduction within 30 days after the invoice date.

5.2 The right to withhold payments or to set them off against counterclaims is only granted to the client insofar that his claims are undisputed or finally recognized by declaratory judgment.


6. Intellectual property and Property Rights

6.1 MHA ZENTGRAF reserves all property rights and rights if use for all offer documentations, drawings, descriptions, samples and cost estimates. They shall not be transferred, published, copied or otherwise made accessible to third parties without MHA ZENTGRAF’s prior written consent.

6.2 The client shall ensure that the construction of Products according to his guidelines does not infringe the industrial property rights of a third party. The client shall hold harmless MHA ZENTGRAF from all claims due to violation of such property rights.

6.3 If common developments between MHA ZENTGRAF and the client result from special designs, the contractual partners shall conclude a separate agreement on the distribution of the intellectual property rights.


7. Retention of title

7.1 MHA ZENTGRAF reserves the title of ownership on the Products until their payment is completed. With Products, which are provided to the Client in the context of an ongoing business relationship, MHA ZENTGRAF reserves the title of ownership until all claims resulting from such relationship are settled. Client shall maintain the Products supplied in an orderly condition for the period of the retention of title and shall execute all required maintenance works or have them executed by a third party.

7.2 Client is entitled to the processing or combination of the products Zentgraf still has title on in the context of his proper business operations. MHA ZENTGRAF acquires co-ownership of the resulting Products, which the Client transfers already now. The amount of the co-ownership share of MHA ZENTGRAF is calculated according to the relation of the supplied Products‘ value and the other products. Client shall in these cases store the Products owned or co-owned by MHA ZENTGRAF free of charge.

7.3 Client shall be entitled to resell the Products Zentgraf still has title on in the proper business operations against payment or under reservation of title. Claims arising from this resale or any other legal basis (insurance, unlawful acts) are already now transferred from Client to MHA ZENTGRAF with all subsidiary rights together with all ancillary rights. MHA ZENTGRAF accepts this transfer. If the resold supplied Products are co-owned by MHA ZENTGRAF, the transfer includes all claims from the amount corresponding to MHA ZENTGRAF’s share value to the co-ownership.

7.4 MHA ZENTGRAF authorizes Client irrevocably to collect the claims transferred to MHA ZENTGRAF for their invoice in their own name. This authorization to collect can be revoked if Client does not meet his payment duties. Revenues that MHA ZENTGRAF is entitled to from the transfer are payable immediately after their receipt. On request, Client shall notify his clients of this transfer and provide MHA ZENTGRAF with the names of the debtors of the transferred claim, in order for MHA ZENTGRAF to be able to perform the collection of transferred claims and/or their disclosure.

7.5 Client shall not be authorized to pledge or assign by way of security the products Zentgraf still has title on. If a third party accesses such Products and/or claims transferred to MHA ZENTGRAF, the Client shall then be obligated to notify MHA ZENTGRAF accordingly without delay. Costs arising for MHA ZENTGRAF from such access shall be borne by Client, as far as a substitution cannot be obtained by a third party.

7.6 If the value of the security becomes excessive by more than 20%, MHA ZENTGRAF shall be entitled to release collateral of their choice to the extent of the excess.


8. Warranty

8.1 Client shall examine the delivered Products or services immediately after receipt on their kind and quantity. Apparent defects and those recognizable after proper examination shall be immediately, but not later than 5 days following receipt of the product, reported in writing, stating the detailed description of the defect. Defects that cannot be detected within this period in spite of a careful examination are to be notified in writing immediately when detected. If the client fails to notify, the goods shall be deemed approved.

8.2 All claims arising from a defect shall lapse 12 months after delivery. The period of limitations begins on acceptance for work performance contractually agreed. Compensational claims are valid only to the extent of the regulations stated in point 9.

8.3 Client shall immediately stop the use of defective Products, particularly their resale or processing.

8.4 MHA ZENTGRAF shall not be held liable for defects caused by natural wear and tear, contamination, improper transport, treatment, storage, use, installation of the Products or defects caused by the Client or a third Party. A damage resulting from specialties in operating conditions, which cannot be foreseen by MHA ZENTGRAF (such as risk of contamination), do not represent a defect in terms of the warranty.

8.5 Specifications of the Products or other information on the subject of the agreement serve only as a description and include no guarantee on their condition. Deviations from these specifications are not considered as defects as long as they remain within the frame of the state-of-the-art permitted and as long as their functionality is not considerably affected. This does not apply if MHA ZENTGRAF has expressly guaranteed in writing these specifications upon conclusion of the contract.

8.6 Client shall not be authorized to repair defects on his own or have a third party do so, unless MHA ZENTGRAF is unduly delayed with the supplementary performance or if the client is forced to repair the defect due to urgent operational requirements or danger ahead. If the Client fails to comply, MHA ZENTGRAF’s duty to warranty for the affected Products is cancelled.

8.7 For the fulfillment of their duties to warranty, MHA ZENTGRAF is entitled to a supplementary performance of their own choice by repairing the defects or delivering defect-free Products. If the costs for such supplementary performance are disproportionate, MHA ZENTGRAF shall be entitled to refuse such performance. Replaced parts become property of MHA ZENTGRAF.

8.8 If a supplementary performance is not done within a set time period or cannot be met on a second try, the client is entitled to claim a discount or to rescind the contract.


9. Liability

9.1 MHA ZENTGRAF shall be liable for damages caused by them intentionally, by gross negligence or while violating essential contractual duties with slight negligence. Compensation for the violation of essential contractual duties in cases of slight negligence is limited to the contractually typically foreseeable damages, at the maximum the purchase price.

9.2 The regulations of point 9.1 do not apply for compensational claims according to the product liability statute and claims arising from the injury to life, body and health.

9.3 As far as these regulations exclude or limit the liability, this also applies for the liability for officers of MHA ZENTGRAF as well as for the liability of employees and coworkers, performing and vicarious agents.

9.4 All liability claims lapse after twelve months. With intentional breach of duties or gross negligence, injury to life, health and body as well as with claims according to the product liability laws, the statutory periods apply.


10. Duty to co-operate of the Client

10.1 As far as necessary for the execution of the contract, the client shall provide MHA ZENTGRAF with all information, documentation and other means in due time.

10.2 If Client realizes that his own information is incorrect, incomplete, ambiguous or impossible to execute, he shall notify MHA ZENTGRAF immediately.

10.3 If Client does not comply with his duty to co-operate and this results in delays or additional expenses, he shall compensate MHA ZENTGRAF for those suffered damages.


11. Place of Performance, Place of Jurisdiction and Applicable Law

11.1 Place of performance and jurisdiction is Merzig. MHA ZENTGRAF is entitled to sue the supplier at his registered office.

11.2 All legal relationships between MHA ZENTGRAF and the supplier are subject to the law of the Federal Republic of Germany with the exception of UN Purchase Law and International Private Law.


MHA ZENTGRAF GmbH & Co. KG – General Terms of Purchase

May 2013


1. Scope

1.1 The following Terms apply for all orders issued by MHA ZENTGRAF.

1.2 Deviating or additional terms of the supplier do not apply.

1.3 In the context of an ongoing business relationship, these Terms apply in their respective version without explicit reference to their inclusion with all future orders by MHA ZENTGRAF.


2. Orders

2.1 Orders, call-offs by MHA ZENTGRAF as well as their changes or additions are only binding if issued in a written form. Oral additional agreements are invalid without MHA ZENTGRAF’s written confirmation.

2.2 Orders and call-offs shall be immediately confirmed in writing by the supplier. If the supplier does not accept the order within 5 work days, MHA ZENTGRAF shall be entitled to cancel the order free of charge.

2.3 Cost estimates and samples of the supplier are binding and free of charge.

2.4 MHA ZENTGRAF can request changes to the delivery item regarding its construction and execution as far as these are reasonable for the supplier. With these contractual changes, consequences, particularly those regarding costs and agreed delivery dates, shall be taken into account appropriately.


3. Delivery

3.1 The delivery date stated on the order of MHA ZENTGRAF is binding.

3.2 If the supplier realizes that a set delivery date cannot be met, he shall immediately notify MHA ZENTGRAF in writing of the new delivery date while indicating of the reason for such delay.

3.3 The acceptance without reservation of the delayed delivery does not constitute a waiver of the claims to compensation to which MHA ZENTGRAF is entitled on account of the delayed delivery.

3.4 If the supplier defaults by exceeding the date of delivery, MHA ZENTGRAF shall at their discretion be entitled to claim, in addition to the fulfilment of the order without further warning, compensation due to the delay in delivery, or, instead of the fulfilment of the order, compensation for nonfulfillment, or rescind the contract. Instead of a compensation due to the delay in delivery, MHA ZENTGRAF may claim a contractual penalty of 0,5% of the order value, but not exceeding 5% of the order value, for each begun week exceeding the delivery date, without reservation of such claim upon acceptance of the delivery. MHA ZENTGRAF may raise such claim until final payment. The supplier is reserved the right to furnish proof that MHA ZENTGRAF did not suffer any damage or less damage.

3.5 If the supplier exceeds the agreed delivery period, MHA ZENTGRAF may rescind the contract, even when the non-compliance is due to circumstances, which the supplier is not responsible for (force majeure, strike, etc.).

3.6 MHA ZENTGRAF shall be entitled to refuse deliveries made before the agreed delivery date and to send back the products to the supplier at his risk and expense.

3.7 Delivery shall be made DDP (Incoterms 2010) to the premises of MHA ZENTGRAF in Merzig. The supplier shall duly insure the products at his expense against loss and damage. Supplier hereby assigns to MHA ZENTGRAF all claims entitled to him against the shipper or carrier commissioned by him.

3.8 Regarding quantities, weight and measurements, the numbers determined at the incoming products inspection by MHA ZENTGRAF shall prevail, unless proof is rendered of their incorrectness.

3.9 Suborders may only be placed with the prior written consent by MHA ZENTGRAF, as far as they do not only involve the delivery of standard products.

3.10 A delivery note including the order number of MHA ZENTGRAF as well as a description of the content according to type and quantity shall be added to each delivery.

3.11 The supplier shall take back packaging and shipping material on MHA ZENTGRAF‘s request.

3.12 Partial deliveries shall only be permitted with MHA ZENTGRAF’s approval.


4. Prices, Invoices and Terms of Payment

4.1 The agreed prices are fixed prices. The prices include free delivery.

4.2 Invoices including the order number of MHA ZENTGRAF shall be sent separately to their address as a single copy.

4.3 Invoices are payable by MHA ZENTGRAF within 60 days following receipt of the products and invoice without deduction or within 30 days less 3% discount. With early deliveries, the deadlines start on the agreed delivery date.

4.4 Payments do not constitute the acknowledgement of the products and services as being in line with the contract. For defective or incomplete delivery, MHA ZENTGRAF shall be entitled to withhold payment in reasonable amounts until proper fulfilment.

4.5 Claims against MHA ZENTGRAF shall not be assigned to third parties without MHA ZENTGRAF’s prior written consent. The supplier shall only be entitled to offset claims against MHA ZENTGRAF that are either uncontested or have been recognized by final judgment.

5. Transfer of risks and title of ownership

5.1 The risks and title are transferred at the moment of receipt of the delivery at the seat of MHA ZENTGRAF.

5.2 Supplier’s retention of title regarding the delivered products is excluded.


6. Warranty  

6.1 The supplier warrants that the delivered products comply with the contractual agreements, statutory and administrative requirements.

6.2 If MHA ZENTGRAF has informed the supplier of the intended use of the ordered product or if the intended use is recognizable without explicit indication, then the supplier shall immediately inform MHA ZENTGRAF in writing if the ordered product is not suited for this particular purpose. The supplier shall immediately examine the documentation submitted by MHA ZENTGRAF for the manufacture of the products. Should construction documents be missing or if there is any doubt regarding their correctness, the supplier shall inform MHA ZENTGRAF of this fact without being asked.

6.3 Changes regarding material or construction require prior written consent by MHA ZENTGRAF.

6.4 Safety-relevant defects detected by production monitoring after delivery by the supplier shall be reported in writing without request to MHA ZENTGRAF by the supplier even after the expiration of the warranty period.

6.5 If products are to be manufactured following plans, designs or other guidelines of MHA ZENTGRAF, the compliance of the delivery with such guidelines shall be considered as guaranteed. Should the delivery deviate from the guidelines, then MHA ZENTGRAF shall be entitled to rescind the contract or to reduce the agreed price as well as to claim additional compensation.

6.6 The supplier shall perform a quality control on the products before delivery. An incoming goods inspection is only made by MHA ZENTGRAF regarding externally recognizable damage and deviations in kind and volume. Complaints by MHA ZENTGRAF are timely, if they are issued within 2 weeks following the receipt of goods or, in the case of hidden damage, following their discovery.

6.7 MHA ZENTGRAF is entitled to choose the type of subsequent performance.

6.8 Should the supplier not comply with his obligation of subsequent performance within a reasonable period set by MHA ZENTGRAF, then MHA ZENTGRAF shall be entitled to remedy the defect on his own or by a third party at the cost of the supplier or to find a substitute solution. The same shall apply in cases of immediate danger of disproportionally high damage or other particular urgency, especially in the case of a threatening production standstill at MHA ZENTGRAF or one of his customers. MHA ZENTGRAF shall inform the supplier of such measures with undue delay.

6.9 The warranty period is of 36 months starting with the transfer of risk.

6.10 In case of repeated defaults MHA ZENTGRAF shall be entitled to rescind the entire contractual relationship. In this case, also future deliveries resulting from this or another contractual relationship shall be included in the rescission.


7. Product Liability

7.1 If the supplier is responsible for damage caused by his product, he shall hold MHA ZENTGRAF harmless from damage claims of third parties on first demand if the cause is located within the Supplier's sphere of authority and organizational area, and the Supplier is also liable to third parties.

7.2 The supplier shall have appropriate coverage by a product liability insurance. He shall prove the insurance on MHA ZENTGRAF’s request. Other claims of MHA ZENTGRAF shall remain unaffected.


8. Supplier’s declarations, Export regulations

8.1 The Supplier shall be obligated to issue supplier’s declarations according to VO / EG 1207 / 01. With long term supplier’s declarations, the supplier shall immediately notify MHA ZENTGRAF in writing of changes in the originating status.

8.2 Should the supplier’s declarations be faulty or not sufficient and MHA ZENTGRAF is subject to the submittal of an information document INF4 for the customs authorities, then the supplier shall immediately provide MHA ZENTGRAF with complete and correct information documents confirmed by customs regarding the origin of the products.

8.3 If MHA ZENTGRAF or its customers suffer financial damages due to incorrect declaration of origin of the supplier, he shall reimburse the damage.

8.4 The supplier shall inform MHA ZENTGRAF in writing if the re-export of the products is excluded or subject to approval according to the respective relevant export regulations. Damage suffered by MHA ZENTGRAF due to the violation of such duty to notify, shall be compensated by the supplier.


9. Confidentiality

9.1 The supplier shall treat any technical or commercial details, which are not in the public domain and which are brought to him by this business relationship, as confidential and not pass them on to third parties. Subcontractors shall be obligated accordingly.

9.2 MHA ZENTGRAF shall remain owner of all property rights and rights of use for drawings, images, sketches, calculations, plans, models, templates, samples and other documentation, which the supplier is provided with for the execution of the contract. None of the above shall be made accessible to third parties, published or copied without MHA ZENTGRAF’s prior approval. They shall be used for contractual purposes only and returned to MHA ZENTGRAF after completion of work unsolicitedly.

9.3 Products, which are fabricated according to MHA ZENTGRAF’s guidelines, shall neither be used by the supplier himself nor be offered or delivered to third parties.

9.4 The supplier can only advertise with his business relation with MHA ZENTGRAF with their prior written approval.


10. Industrial Property rights

The supplier guarantees that the delivered Products do not violate industrial property rights of a third party. The supplier holds harmless MHA ZENTGRAF and its customers from claims of a third party resulting from violations of industrial property rights and shall bear all costs arising for MHA ZENTGRAF in this context.


11. Readiness for delivery and spare parts

11.1 The supplier guarantees his ability to deliver spare parts for the probable technical life span of the delivered products, at least 10 years after the last delivery.

11.2 In the event that the supplier is no longer able to deliver spare parts, he shall inform MHA ZENTGRAF in writing and give the opportunity for a last order.

11.3 11.1 and 11.2 do not apply if the delivered products are standard mass products.


12. Place of Performance, Place of Jurisdiction and Applicable Law

12.1 Place of performance and jurisdiction is Merzig. MHA ZENTGRAF is entitled to sue the supplier at his registered office.

12.2 All legal relationships between MHA ZENTGRAF and the supplier are subject to the law of the Federal Republic of Germany with the exception of UN Purchase Law and International Private Law.