The following general Conditions of Sale and Delivery shall apply to all contracts made with SATA GmbH & Co. KG (“SATA”), unless the parties have expressly varied the Conditions in writing:

 

I. Purchase Order
1. SATA’s sales literature, price lists and quotations are not binding offers. All illustrations, drawings, descriptions, weight and dimension data contained in such sales literature, price lists and quotations are issued or published by SATA for the sole purpose of giving an approximate idea of the goods, unless the documentation is explicitly classified as binding by SATA. SATA reserves ownership of and intellectual property rights, including copyrights in the estimates, drawings and other documentation; they must not be disclosed to any third party. SATA is obliged not to disclose to a third party any plans classified as confidential by the buyer, except with his express consent.
2. Each order for goods by the buyer from SATA shall be deemed to be an offer to purchase goods subject to these Conditions and no order placed by the buyer shall be deemed to be accepted by SATA until a written acknowledgement of order is issued by SATA or (if earlier) SATA delivers the goods to the buyer. It shall be assumed that terms and conditions other than those contained in the written acknowledgment of order and these Conditions have not been agreed.

 

II. Scope of delivery
1. The quantity, quality and description of the goods shall be as set out in SATA’s written acknowledgment of order. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgment of order, invoice or other document issued by SATA is subject to correction by SATA without liability on the part of SATA.
2. SATA reserves the right to alter or change the specification, design or details of any goods provided that these do not materially affect quality or performance.
3. The following measures may differ by +/- 5 %: Dimensions, weights and quantities in the case of small parts which are difficult to count.
4. Tools, models and test samples remain the property of SATA, even if they have been invoiced in part or in total. SATA shall only be obliged to keep these items  for a period of two years after the last delivery. In the case of deliveries made in accordance with drawings or instructions received from the buyer, the buyer will indemnify SATA against any claims made by a third party for breach of intellectual property or any other rights.

 

III. Price and Payment
1. All prices shall be exclusive of statutory value added tax and apply ex works Kornwestheim, Germany. Prices do not include packaging, freight, postage and insurance costs. SATA reserves the right to apply a charge for a minimum quantity for single orders for spare parts, repairs and goods manufactured to the buyer’s specification.
2. Invoices are due on the last working day of the month following the date of the invoice. Bills of exchange shall only be acceptable upon special agreement; discounts and expenses shall be debited according to normal banking practice. If the buyer fails to pay any sum due to SATA, the buyer is liable to pay default interest to SATA at the annual rate of 8% above the basic interest rate from time to time pursuant to § 247 BGB (German Civil Law Code). SATA reserves the right to claim additional damages.
3. The buyer shall make all payments without any deduction whether by way of set-off, deduction, counterclaim, discount (save as expressly mentioned in these Conditions) abatement or otherwise and shall not be entitled to exercise a right of retention unless such amount is undisputed between the parties or the buyer has a final court order or where such a final court order is about to be issued, requiring an amount equal to such deduction to be paid by SATA to the buyer. In addition, the buyer shall only be entitled to exercise a right of retention, if SATA’s claims and the buyer’s claim arise from the same contract.

 

IV. Delivery time
1. Unless otherwise agreed in writing by the parties, delivery dates or times specified by SATA are intended to be an estimate. In case of a binding delivery time, it shall start with the despatch of the written acknowledgement of order but not before the buyer has provided SATA with the necessary documentation, consents and releases, and SATA has received the agreed deposit.
2. Delivery of the goods shall have taken place within the specified time if the goods have left the factory or if information has been provided to the buyer that the goods are ready for despatch, whichever is the earlier, on or before the specified delivery date or time.
3. SATA reserves the right to defer the date of delivery appropriately in the event of industrial action such as strikes and lock-outs, taking place at SATA or a sub-contractor of SATA as well as unforeseeable events beyond the control of SATA or a sub-contractor, provided that such events can be proved to have a substantial influence on the production or supply of the goods. In important cases, SATA shall inform the buyer of the start and end of such events at the earliest possible date.
4. The buyer is entitled to withdraw from the contract covering the respectively delayed delivery if SATA has caused the delay and a reasonable extension stipulated by the buyer, together with a warning that the buyer will withdraw from the contract, has passed without the desired result. The buyer shall, upon SATA’s demand, within a reasonable time declare either that he withdraws from the contract due to the delayed delivery and/ or demands damages, or that he insists on the contract being performed. Further claims based on delays in delivery are exclusively determined in accordance with VIII.5 of these Conditions.
5. Should despatch be effected at a later time at the request of the buyer, SATA may store the goods until actual delivery and the buyer will be liable for all related costs and expenses (including without limitation storage and insurance), starting one month after the buyer has been informed that the goods are ready for despatch. If the goods are stored in SATA’s factory, the charge shall be a minimum of 0.5% of the invoiced amount for each month.

 

V. Transfer of risk and taking delivery
1. The risk shall pass to the buyer at the latest when the goods are dispatched, even if part shipments are made or if SATA has undertaken other services, e.g. payment of shipping costs or the transport and assembly of the goods. If requested by the buyer, the shipment will be insured by SATA at the buyer’s expense against theft, breakage, damage during transport, fire damage, water damage and other insurable risks.
2. Should despatch be delayed as a result of circumstances for which the buyer is responsible, the risk passes to the buyer from the day of notification to the buyer that the goods are ready to be dispatched; SATA is however under an obligation to arrange insurance at the request and expense of the buyer.
3. Part deliveries shall be allowed as long as this may be considered reasonable for the buyer.

 

VI. Retention of title
1. Ownership of the goods shall not pass to the buyer until SATA has received in full (in cash or cleared funds) all sums due to it in respect of (a) the goods, and (b) all other sums which are or which become due to SATA from the buyer on any account.
2. Until ownership of the goods has passed to the buyer, the buyer shall:
a) hold the goods on a fiduciary basis as SATA’s bailee;
b) store the goods (at no cost to SATA) separately from all other goods of SATA or any third party in such a way that they remain readily identifiable as SATA’s property;
c) not destroy, deface or obscure any identifying marking or packaging on or relating to the goods; and
d) maintain the goods in satisfactory condition and keep them insured on SATA’s behalf for their full price against all risks to the reasonable satisfaction of SATA. On request the buyer shall produce the policy of insurance to SATA.
3. The buyer shall not encumber pledge or in any way charge any of the goods. In the event of seizure, confiscation or other disposals by a third party, the buyer shall inform SATA of this without delay.
4. Should the buyer be in breach of contract particularly if payments are in arrears, after having sent a demand for payment to the buyer, SATA shall be entitled to take back the goods and the buyer shall be under an obligation to return them.
5. The buyer’s right to possession of the goods shall terminate immediately if:
a) a bankruptcy order is made against the buyer or the buyer makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statute for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/ or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the buyer; or
b) if the buyer suffers or allows an execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/ perform any of its obligations under the contract or any other contract between SATA and the buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency ct 1986 or the buyer ceases to trade; or
c) the buyer encumbers, pledges or in any way charges any of the goods.
6. Asserting the retention of ownership, taking back or pledging the goods as security by SATA does not constitute a withdrawal from the contract. After having had the goods returned to them, and after having given a warning and after having set a deadline, SATA is entitled to freely decide how best to realise the goods. After deduction of reasonable realization costs, the proceeds will be credited against SATA’s claims.
7. The buyer grants SATA, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the buyer’s right to possession and/ or power of sale has terminated, to recover them in either of which case the buyer shall place the goods at the disposal of SATA.

 

VII. Quality control, complaints
1. The buyer shall examine the goods immediately upon receipt for defects and guaranteed characteristics. Obvious defects detected in the goods are to be notified in writing to SATA without undue delay, at the latest within seven days after receipt of goods; hidden defects are to be notified to SATA at the latest within seven days after the discovery of the defect. Otherwise the goods shall be considered as approved.
2. The buyer shall give SATA sufficient opportunity to verify the complaint; in particular put damaged goods and their packaging at SATA's disposal for inspection. In case of refusal, SATA shall be free from any liability. Only in urgent cases when operating safety may be endangered or in order to avoid unreasonable damage – while SATA is to be notified immediately – or should SATA in default with remedying the defect, the buyer is entitled to remedy the defect himself or with the help of a third party, and claim reimbursement of the cost incurred from SATA.

 

VIII. Liability for defects in the goods
1. SATA shall at its sole discretion be entitled to repair the defective goods or replace the defective goods (or the part in question). If it is not possible to repair or replace the defective goods, or if a repair or replacement, for reasons for which SATA is responsible, is not effected or fails, within a reasonable period specified by the buyer, the buyer has the option to either withdraw from the contract covering the defective goods or reduce the purchasing price. Replaced goods remain SATA's property in accordance with the "Retention of Title" clause (VI.) until SATA has received in full (in cash or cleared funds) all sums due to it in respect of (a) the goods, and (b) all other sums which are or which become due to SATA from the buyer on any account.
2. Shall the complaint about the defect be justified, out of the direct cost incurred by repair or replacement, SATA shall bear the cost for the replacement part including shipment. The buyer shall bear any costs incurred by him. Necessary assembly and travelling cost incurred in connection with unjustified complaints, are to be borne by the buyer. SATA shall not be liable for any modifications or repair work or the consequences thereof effected by the buyer or a third party in an improper manner and without previous consent by SATA.
3. The buyer shall not be entitled to claim expenditure incurred in connection with the repair or the replacement of the defective goods – in particular transport, travel, labour costs and costs of materials – where such costs are increased due to the fact that the goods supplied had been transported subsequently to a place other than the buyer's place of business, unless this transport is in accordance with the goods proper use.
4. SATA shall not be liable for damages, defects or deterioration of the goods arising from fair wear and tear, improper or inappropriate use, faulty assembly or putting into operation, excess use or improper alteration or repair by the buyer or a third party, improper cleaning methods, electrochemical or electrical influences, provided such damages, defects or deteriorations are not due to SATA's fault.
5. SATA shall not be liable to the buyer for any further claims, in particular for any damages instead of performance of the contract, or for any indirect or direct loss or damage – including collateral or consequential loss or damage, howsoever caused unless:
a) SATA has fraudulently concealed any legal or actual defect or has guaranteed the quality of the goods
b) the damage is caused by acts of deliberate intent or gross negligence or by breach of material obligations under the contract (Kardinalpflichten) due to ordinary negligence on the part of SATA, its legal representative or Erfüllungsgehilfen (person employed in the performance of the obligation) , or
c) a culpable breach of obligations by SATA, its legal representative or Erfüllungsgehilfen (person employed in the performance of the obligation) has led to damage to life, limb and health.
Provided that:
d) Liability for acts of minor or ordinary negligence that have led to a breach of material obligations under the contract (Kardinalpflichten) is limited to the loss that might typically be expected in connection with this contract.
e) Liability for acts of gross negligence is limited to the loss that might typically be expected in connection with this contract.
f) Liability for acts of minor or ordinary negligence that have led to damage to life, limb and health is limited to the loss that might typically be expected in connection with this contract.
6. The limitations of liability in clause VIII.5 also apply to the buyer's direct claims against SATA's legal representatives or Erfüllungsgehilfen (person employed in the performance of the obligation).
7. Any claims for defects, including the claims for damages listed in clause VIII.5 and 6, become statute-barred within one year after delivery of the goods to the buyer. For replacement parts and repairs, the limitation period is 12 months; however, it shall continue to run at least until the expiration of the original limitation period for the goods supplied. The period for liability for defects of the goods supplied is extended by the time the operations are interrupted due to the repair work.
8. In case of a purchase of consumer goods by the buyer, the buyer's rights pursuant to §§ 478, 479 BGB (German Civil Law Code) shall remain unaffected.
9. In all other respects, the statutory provisions shall apply.

 

IX. Liability for collateral duties
If, due to fault on the part of SATA, as a result of a failure in or faulty execution of proposals and consultations or other contractual collateral duties before or after the contract was concluded, especially with regard to the operating and maintenance instructions for the goods supplied, the goods supplied cannot be used by the buyer as intended in the contract, the provisions in Sections VII, VIII and XI shall be applied accordingly to the exclusion of further claims on the part of the buyer.

 

X. Limitations of Disposal
The buyer shall refrain
1. outside the United Kingdom and within the European Community and the remaining European Economic Area from marketing the goods, and shall not establish any branch or maintain any distribution depot for the sale of the goods, to the extent that SATA is exclusively entitled to the distribution in these areas or has allocated it exclusively to specific dealers,
2. from entering into direct or indirect business with buyers whose business or residential address is located outside the member states of the European Community or other states of the European Economic Area.
3. from entering into direct or indirect business with buyers whose business or residential address is located outside the country to which SATA delivers the goods if his/ its business or residential address is outside the European Community or outside the remaining European Economic Area.

 

XI. Rights of the buyer to withdrawal and other liability of SATA
1. The buyer may withdraw from the contract if it finally proves impossible for SATA to perform the entire obligation before the transfer of risks. The same applies if there is inability on the part of SATA to perform the contract after the contract has been entered into. The buyer may also withdraw from the contract if, for an order of similar goods, the delivery of a number of goods is not possible and the buyer has a legitimate interest in refusing a part delivery.
2. In case of delay by SATA in supplying the goods within the meaning of Section IV of these Conditions and after the buyer has granted a reasonable extension with the express notification that after this period has passed he will refuse to accept the goods, and if the goods are not provided within this additional period, the buyer shall be entitled to withdraw from the contract.

 

XII. Exclusiveness, partial nullity
1. Unless otherwise confirmed by SATA in writing the contract between the parties will be on these Conditions to the exclusion of any terms and conditions which the buyer purports to apply under any enquiry, order, acceptance, specification or other document.
2. If any of the aforementioned conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability, or unreasonableness be deemed severable and the remaining provisions shall continue in full force and effect.

 

XIII. Place of jurisdiction and applicable law
1. The parties irrevocably agree that the courts of Stuttgart, Germany shall have exclusive jurisdiction over any claim or matter arising under or in connection with this contract or the legal relationships established by this contract and that accordingly any proceedings in respect of any such claim or matter may be brought in such courts. Nothing in this clause shall limit the right of SATA to take proceedings against the buyer in any other court of competent jurisdiction.
2. This contract shall be governed by and construed in all respects in accordance with the laws of the Federal Republic of Germany law. The parties agree that the provisions of the United Nations Convention on the International Sale of Goods shall not apply.

 

The currently valid Conditions of Sale and Delivery (United Kingdom) may be retrieved at any time under www.sata.com/CSDUK.

 

Order No. 138 354 (Conditions of Sale and Delivery; SATA Germany / United Kingdom)

 

Issued: 2006-06-30