General Terms and Conditions of Business

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Sauer Bibus GmbH
Last updated: 5th July 2002

1. General – Sphere of application
1.1 These General Terms and Conditions of Business apply to all our
company’s current and future deliveries, goods and services under
contracts of purchase, contracts for services and contracts for work,
labour and materials.
1.2 Differing, contradicting or supplementary General Terms and
Conditions do not become an integral part of the contract, even if
we are aware of them, unless their validity is explicitly consented
to in writing.
1.3 The latest version of the "Incoterms" stipulated by the International
Chamber of Commerce applies to the interpretation of the delivery
clause (e.g. FOB, CIF, CAF).
 
2. Proposals and scope of delivery
2.1 Our quotations are given without obligation. Documents pertaining
to the quotation such as illustrations, drawings, indications of weights
and measures are only approximations, unless specifically designated
as binding. The customer may make changes provided they do not
exceed the extent standard in the trade. We reserve proprietary rights
and copyright to cost estimates, drawings and other documents. They
must not be made accessible to third parties.
2.2 The customer is bound by the order and his repair order for up to not
more than 4 weeks. The contract is concluded if we confirm acceptance
of the order for the detailed goods in writing within this time limit, confirm
the repair order in writing or the delivery has been made.
2.3 All agreements entered into between the customer and us must be
laid down in the respective contract of purchase, contract for services,
contract for work, labour and materials or delivery contract.
2.4 Statements in the descriptions of scope of delivery, appearance,
services, weights, measures and running costs given to the customer
are an integral part of the contract. They are to be taken as a criterion
for establishing whether the goods are free of defects.
2.5 If import licences or other authorisations are required in the country
of destination, we have to be notified of their number, date of authorisation
and period of validity when the order is placed.
 
3. Price and payment
3.1 The purchase prices are current prices. They are net prices ex works
and/or ex customs warehouse, without packing. The calculation is based
on the prices applicable on the day of delivery. Down-payments made do
no count as part-performance. Bills of exchange and cheques are not
deemed payment until conclusively honoured. Discount and bank charges
are borne by the customer.
3.2 Unless specifically agreed, payment is to be made after receipt of our
invoice without any deduction free to our office of payment. This does
not affect the right of retention to which the customer is entitled under
§ 320 of the BGB [German Civil Code]. Cash discounts granted apply only
if the customer is not in arrears with the payment of previous deliveries.
3.3 Reconciliation against any of the customer’s counterclaims contested
by us or not established in law is not admissible.
3.4 The customer may assert a right of retention only insofar as it is
based on claims arising from the same contractual relationship. If a
complaint about defects is notified, the customer’s payments may be
retained only to the extent that is reasonably proportional to the defects
being claimed.
3.5 If we are obliged under a contract for work, labour and materials to
dispatch the goods to a place other than the place of performance,
payment is due the moment the risk is transferred to the customer
(see sub-clause 5.2).
 
4. Time limits and delay
4.1 Delivery periods and deadlines are only bindingly agreed if they have
been expressly designated as such by us. The same also applies to the
completion of repairs.
4.2 These time limits commence with the conclusion of the contract,
albeit not before any documents, authorisations and clearances the
customer has to procure have been produced and not before any agreed
down-payment has been received.
4.3 These time limits are considered complied with if the customer has
been notified of the readiness for dispatch within the delivery or
completion period. A precondition for compliance with the delivery and
completion period is the fulfilment of the customer’s contractual duties.
4.4 The delivery and completion periods are extended commensurately
if the delivery of the goods is delayed by external circumstances for
which we are not responsible such as war, the forces of nature, civil
disorder, acts of sovereign power and measures taken during lawful
industrial disputes, in particular strikes and lockout.
4.5 The same applies accordingly if we on our part do not receive delivery
on time. We are entitled to cancel the contract if the manufacturer does
not deliver to us. This does not apply, however, if we are responsible
for the non-delivery.
4.6 At all events our liability for loss or damage due to delay remains
limited to gross negligence and wilful intent. The customer may demand
compensation for loss or damage proven to have been sustained, albeit
only in the amount of 1/2% of the agreed payment per week of delayed
delivery, and altogether not more than 5% of the agreed payment.
4.7 We are not responsible for delayed or omitted deliveries that are
our supplier’s fault, unless our selection or monitoring of our supplier
is at fault. Sentence 1 does not apply if the relationship between the
customer and us is regulated by the law governing contracts for services.
At all events we are obliged to indemnify the customer if the customer is
unable to assert in full the claims assigned to him against the ancillary
supplier.
4.8 In addition to the statutory time limit of § 286 Para. 3 of the BGB
and a demand for payment, we may also place the customer in default
by another term of payment to be determined by the calendar as
defined in § 286 Para. 2 of the BGB.
4.9 We may demand compensation from the customer for additional
expenses incurred by us owing to the customer’s delay in accepting
delivery.
 
5. Transfer of risk and dispatch
5.1 Unless specially agreed, we are free to choose the means of dispatch
and routing. The customer bears the costs of dispatch. The goods are
insured at the customer’s wish and expense.
5.2 If the goods are transported, the risk is transferred to the customer
when the goods are handed over to the forwarder or carrier, albeit not
later than when the goods leave the warehouse or, in the case of direct
dispatch ex works, when the goods leave the factory. The same also
applies if there are part-deliveries or if we have taken on additional
services.
5.3 If dispatch is delayed as a result of circumstances for which the
customer is responsible, the risk is transferred to the customer from the
day the goods are ready for dispatch. We are however obliged to effect
the insurance the customer requests at the customer’s wish and expense.
5.4 The customer is required to receive the goods even if they show minor
defects, notwithstanding the rights arising from clause 7 (Notice of defects
and liability for defects).
5.5 Part-deliveries are admissible, provided this is reasonably acceptable
to the customer.
 
6. Proprietary rights
6.1 We reserve the right of ownership until all claims arising from the
business agreement with the customer have been paid in full.
6.2 The customer is obliged to handle the object of purchase with care,
to secure it against third-party interference and – if this is agreed in
writing – to insure it promptly against loss or damage "for another’s
account" and to prove this upon request. Otherwise we are entitled to
insure the goods ourselves at the customer’s expense. The customer
herewith assigns to us any claims under insurance law or other claims
for damages. If there are any claims against the customer on the basis
of a contract for services, we explicitly reserve a contractor’s lien
under § 647 of the BGB.
6.3 The customer must not pledge the goods or assign ownership
thereof as security without our consent. The customer is obliged to notify
us promptly in writing of attachments or other third-party intervention
to enable us to file a court action under § 771 of the ZPO [German Civil
Procedure]. If the third party is not in a position to reimburse us for the
court and out-of-court costs of a lawsuit under § 771 of the ZPO, the
customer is obliged to settle the costs.
6.4 The customer is entitled to resell the goods in the usual course of
business. The customer hereby assigns to us all accounts receivable
in the amount of our final amount invoiced (incl. VAT) arising from this
business and in the amount of all other unpaid final amounts invoiced
(incl. VAT) accruing to the customer from the resale against its purchasers
or third parties. The assignment is irrespective of whether the goods
were resold without or after processing. We accept the assignment.
6.5 The customer is authorised to collect these accounts receivable
after the assignment as well. This does not affect our authorisation
to collect the accounts receivable ourselves. We undertake not to collect
the accounts receivable so long as the customer duly and properly
complies with his payment obligations. Otherwise we can demand that
the customer informs us of the assigned accounts receivable and their
debtors, furnishes us with all the information required for collection,
provides us with the appurtenant documents and informs the debtors
of the assignment.
6.6 Any processing of the goods by the customer is invariably in our
name of and on our behalf. If the goods are processed with other
objects that do not belong to us, we acquire co-ownership of the new
goods in the proportion of the value of the goods delivered by us to
the other objects processed. The same applies if the goods are mixed
with other objects that do not belong to us.
6.7 If the customer is in breach of contract, particularly by defaulting on
payment, we are entitled to claim recovery of possession of the goods
after a warning. In this case and in the event of the goods being
pledged, the contract is only cancelled if we explicitly declare this in
writing.
6.8 All the costs of taking back and reusing the object of purchase are
borne by the customer. The reuse costs amount without proof to 10%
of the proceeds of reuse including sales tax. They are to be rated higher
or lower if we provide proof of higher costs or the customer lower costs.
The proceeds are paid out to the customer after deduction of the costs
and other accounts receivable in connection with the contract of purchase as well as all other accounts receivable to which we are entitled.
6.9 Should the value of the existing security deposits exceed the
secured accounts receivable altogether by more than 20%, we are
obliged at the customer’s request to release security deposits of our
choice in this respect.
 
7. Notice of defects and liability for defects
7.1 The customer is required to examine the goods received promptly
after arrival for quantity, condition and warranted qualities. The customer
is required to give written notice of apparent defects promptly, within
14 days at the latest.
7.2 The customer’s right to assert claims arising from defects ceases to
apply at all events one year after the time of the transfer of the risk.
7.3 At our equitable discretion it is our choice whether we remedy
defects in or deliver anew free of charge all such parts that prove to be
unusable or considerably impaired in their usability as a result of a
circumstance extant prior to the transfer of the risk, particularly on
account of defective construction, poor construction materials or defective
workmanship. Parts replaced become our property. If the entire object of
purchase is replaced by way of subsequent performance, we are entitled
to compensation for use from the customer for the object taken back.
7.4 No responsibility is accepted for loss or damage sustained for the
following reasons: unsuitable or improper use, defective fitting or start-up
by the customer or third parties; modification by installing parts of
third-party origin; omitted maintenance work if this was recommended by
us or the manufacturer; normal wear and tear, particularly of consumable
parts; defective or negligent handling; unsuitable building ground;
chemical, electronic or electrical influences.
7.5 This does not apply if the damage is attributable to our fault. In
particular no responsibility is accepted for damage caused by exceeding
the maximum admissible operating speeds or pressures.
7.6 In the event of defects being remedied, the customer is required
to set us a fair and reasonable time limit for the necessary work. If the
customer should refuse to do so, we are released from liability for defects.
In urgent cases where operating safety is in jeopardy and to avert
disproportionately severe loss or damage, we must be notified immediately.
If we are then unable to rectify the defect immediately or if we are
otherwise late in remedying the defect, the customer is entitled to rectify
the defect himself or have third parties remedy it. He may demand
compensation from us for the requisite costs.
7.7 The warranty period for the replacement part and remedying of
defects is one year. The warranty period for the original delivery item
is extended by any stoppage. Should the remedying of defects or
replacement delivery incumbent upon us fail despite repeated attempts,
the customer may cancel the contract or demand a corresponding
reduction in the payment. As a rule we are to be given two opportunities
for subsequent performance within a stipulated time limit.
7.8 We do not accept any responsibility for used goods unless this was
agreed in writing.
 
8. Liability restrictions
8.1 We are liable only for gross negligence and wilful intent within the
provisions of law. The same applies if the goods lack a warranted quality
or if we are culpably in breach of a major contractual duty. If we are in
breach of a major contractual duty our obligation to render compensation
is limited to contractually typical foreseeable loss or damage. In all other
cases our liability is precluded, regardless of the legal basis. We shall not
cite this exclusion clause if there is sufficient insurance cover in our favour
for the claim asserted by the customer.
8.2 The preceding limitations of liability do not relate to the customer’s
claims arising from product liability. Furthermore, the limitation of liability
does not apply to physical injury and injury to health or the customer’s
death attributable to us.
8.3 The customer’s claims for compensation on account of a defect lapse
one year after the transfer of risk. This does not apply if we are to blame
for gross negligence and in the event of physical injury and injury to
health or the customer’s death attributable to us.
 
9. Final provisions
9.1 This contract is subject to the law of the Federal Republic of Germany.
The provisions of UN law governing the sale of goods do not apply.
9 .2 If the customer is a trader, legal entity under public law or a special
fund under public law, the sole place of jurisdiction for any disputes arising
from this contract is our registered place of business. The same applies if
the customer does not have any general place of jurisdiction in Germany,
or his domicile or usual place of residence are not known at the time the
court action is filed.
9.3 Should individual provisions of the contract with the customer including
these General Terms and Conditions of Contract be or become wholly or
partly invalid, this shall not affect the validity of the remaining provisions.
The wholly or partly invalid provision shall be replaced by a provision that
most closely approximates the intended commercial sense and purpose.
The same applies accordingly in the event of an omission.