Terms & Conditions of Sale and Delivery of SATA GmbH & Co. KG, Domertalstr. 20, D-70806 Kornwestheim
The following Terms & Conditions of Sale and Delivery shall apply to contracts concluded with SATA GmbH & Co. KG (SATA), unless other agreements are made in writing:
I. Quotation and Order
1. Quotations are subject to change. All documents belonging to the quotation, such as illustrations, drawings and weight and dimension specifications, shall be approximations only, unless they are expressly described as binding. SATA retains all ownership rights and copyright over cost estimations, drawings and other documents; these may not be made accessible to third parties. SATA may make plans submitted by the purchaser and described as confidential accessible to third parties only with the purchaser’s permission.
2. Orders shall be deemed to have been accepted only if no objection is made to them within an appropriate period of time or once they have been confirmed in writing by SATA. No agreements other than those contained in the order confirmation have been entered into.
II. Scope of the Delivery
1. The scope of the delivery shall be laid down in the order of the purchaser or in SATA’s written order confirmation. All agreements concluded between the supplier and purchaser for the purpose of executing this Contract shall be laid down in writing in this Contract.
2. Dimensions, weights and – in the case of uncountable small parts – quantities may differ by +/- 5% upon delivery.
3. Tools, models and samples shall remain the property of SATA, even if these are invoiced, in whole or in part. A retention obligation shall expire two years after the last delivery. In the event of deliveries according to drawings or data of the purchaser, SATA shall be free from all third-party protective rights.
III. Prices and Payment
1. All prices are exclusive of the mandatory value-added tax and shall apply ex-works Kornwestheim. They do not include packaging, freight, postage and insurance costs. For individual orders for spare parts, repairs and custom-made goods, small-volume surcharges may be invoiced.
2. Invoices for repairs, tool and development costs are payable net immediately. All other invoices are payable net within 14 days of receipt of invoice, unless an agreement to the contrary has been reached. Bills of exchange shall be accepted by way of payment only subject to a specific agreement, discounts and expenses shall be charged at usual banking rates. Should the purchaser fall into payment arrears, SATA shall be entitled to enforce late-payment interest, plus additional default damages. In the event of late payment, SATA shall be entitled to charge late-payment interest at 8% above the base rate valid at the time pursuant to § 247 BGB. SATA’s right to enforce any additional default damages shall be unaffected.
3. The purchaser may only offset a counterclaim if this is undisputed, has been legally established or is ready for a decision. A right of retention on the grounds of a counterclaim may be exercised under the terms of sentence 1 only if the claims of SATA and the counterclaims of the purchaser are based on the same contractual relationship.
IV. Lead Time
1. Lead times or deadlines specified by SATA shall be non-binding unless expressly agreed otherwise. In the event of a binding lead time, this shall run from the time the order confirmation is submitted, but not before the documents, permits and releases to be obtained by the purchaser have been provided, or before any agreed advance payment has been received.
2. The lead time shall be deemed to have been complied with if the delivery item has left the factory or has been declared ready for dispatch before the end of the lead time.
3. The lead time may be extended appropriately in the event of measures in the framework of industrial disputes, in particular strike and lockout, or in the event of unforeseen obstacles beyond SATA’s control, as long as these obstacles can be shown to have a considerable influence over the production or delivery of the delivery item. This shall also apply if such circumstances affect SATA’s suppliers. The beginning and end of such obstacles shall be notified by SATA to the purchaser as soon as possible in major cases.
4. The purchaser is entitled to withdraw from the Contract on the grounds of late delivery if SATA is in default and an appropriate grace period set by the purchaser with warning of denial of service expires without results. Upon request by SATA, the purchaser shall state, within a reasonable period, whether it intends to withdraw from the Contract on the grounds of the delay in the delivery and/or seek compensation in lieu of performance or still insists on performance. Any other claims on the grounds of late delivery shall be determined solely on the basis of section VIII of these Terms & Conditions of Delivery.
5. If, by request of the purchaser, dispatch is carried out at a later date, it will be charged, from one month after notification of readiness for dispatch, for the storage costs arising from storage in the factory of SATA, but at a level of at least 0.5% of the invoice amount for each month.
V. Transfer of Risk and Acceptance
1. The risk shall transfer to the purchaser at the latest when the delivery items are dispatched, even if partial deliveries are made or if SATA has also undertaken other services, e.g. shipping costs, delivery and installation. By request of the purchaser and at its own costs, SATA’s dispatches may be insured against theft, breakage, transport, fire and water damage and other insurable risks.
2. If the dispatch is delayed due to circumstances for which the purchaser is responsible, the risk shall be transferred to the purchaser from the day on which readiness for dispatch is notified; however, SATA is required, by request of the purchaser and at its costs, to take out the insurance policies requested by the purchaser.
3. Partial deliveries are permissible as long as this is acceptable to the purchaser.
VI. Retention of Title
1. SATA shall retain ownership of the items delivered by it until it has received all payments arising from the business relationship. In the event of the sale of goods subject to retention of title before SATA’s claims have been satisfied in full, the purchaser shall assign all claims still existing against its customer to the level of the invoice value of the goods subject to retention of title along with any claims from its own retention of title. SATA undertakes, by request of the purchaser, to release the securities to which it is entitled under the above conditions of SATA’s choice to the extent to which their achievable value exceeds the claims to be secured by 20%.
2. The purchaser shall neither pledge nor assign by way of security the delivery items. In the event of attachment or confiscation or any other dispositions by a third party, it shall notify SATA of this immediately.
3. In the event of a breach of contract on the part of the purchaser, in particular in the event of late payment, SATA is entitled to take back the goods following a reminder and the purchaser shall be required to return them.
4. In the event that the retention of title is exercised or the delivery item is repossessed or attached by SATA, this shall not constitute termination of the Contract. In the event of repossession, SATA may freely decide how best to realise the goods, following prior warning and setting an appropriate deadline. Following deduction of reasonable costs of sale, the proceeds of the sale shall be offset against SATA’s claims.
VII. Incoming Goods Inspection, Complaints
1. The purchaser shall, immediately upon receipt, inspect incoming goods for defects and guaranteed condition. It shall report all visible defects to SATA in writing immediately, and no more than seven days after receipt of the delivery, and invisible defects within seven days of discovery. Otherwise, the delivery shall be deemed to have been approved.
2. The purchaser shall give SATA the opportunity to check complaints and, in particular, shall make damaged goods and their packaging available for SATA to inspect. Should it refuse to do so, SATA shall be released from any liability for defects. Only in serious cases of endangerment of operational safety and in order to prevent disproportionate damage, in which case SATA shall be notified immediately, or if SATA is in default in remedying the defect, shall the purchaser be entitled to remedy the defect itself or to have it remedied by third parties and to ask SATA to reimburse the costs arising.
VIII. Liability for Defects in the Delivery
1. SATA may decide whether to remedy the defect at its own costs within a reasonable period of time determined by the purchaser or to replace the goods. Replaced goods shall become its property. If it is not possible to remedy the defect or to replace the goods or, for other reasons for which SATA is responsible, this is not carried out within the period specified by the purchaser or is carried out unsuccessfully, the purchaser may choose to withdraw from the Contract for the defective delivery or to reduce the purchase price.
2. Of the indirect costs arising from the remedy of the defect or delivery of a replacement, SATA shall – to the extent that the complaint proves justified – bear the costs of the replacement part including shipping. Any costs arising to the purchaser shall be borne by it. All necessary assembly and travel costs incurred due to unjustified complaints shall be borne by the purchaser. Any improper changes or repair work carried out incorrectly by the purchaser or third parties without the prior approval of SATA shall release SATA of its liability for the resulting consequences.
3. Claims of the purchaser for expenditure necessary for the purposes of subsequent performance, in particular transport, travel, labour and materials costs, are excluded to the extent that such expenditure increases because the delivery item has subsequently been taken to a place other than the premises of the purchaser, unless this is in line with its intended use.
4. SATA shall accept no liability for damages to the goods caused by natural wear and tear, inappropriate or incorrect use, faulty assembly or maintenance, overload or improper changes or repairs carried out by the purchaser or third parties, or as a result of unsuitable cleaning methods, electrochemical or electrical influences, if these cannot be imputed to SATA’s fault.
5. Any further claims of the purchaser, particularly claims for damage in lieu of performance or for compensation for direct or indirect damage – including concomitant or consequential damage, regardless of the legal grounds – are excluded. This shall not apply if
- a) SATA has fraudulently concealed a defective title or material defect or has issued a guarantee for the condition of the goods,
- b) the damage is due to a deliberate act or gross negligence on the part of SATA, its legal representative or agent or to a negligent breach of major contractual obligations by such persons,
- c) a culpable breach of duty on the part of SATA, its legal representative or agent has led to physical injury or harm to health.
In the event of ordinary negligence, however, SATA’s obligation to pay compensation shall be limited to foreseeable damages typical for this type of contract.
6. The provisions in §5 shall apply correspondingly to direct claims of the purchaser against SATA’s legal representatives or agents.
7. All claims for defects of the purchaser, including claims for compensation referred to in §5 and §6, shall expire one year from delivery of the goods to the purchaser. For replacement parts and repairs, the limitation period shall be 12 months, but shall run at least until the end of the original limitation period for the delivered goods. The limitation period for liability for defects of the delivered goods shall be extended for the duration of the period for which operations are disrupted as a result of the repair work.
8. The rights of the purchaser arising from §§ 478, 479 BGB shall be unaffected in the event of the purchase of consumer goods by the purchaser.
9. The statutory provisions shall also apply.
IX. Liability for Additional Obligations
If, for reasons imputable to SATA, the delivered goods cannot be used by the purchaser in line with the Contract due to non-performance or incorrect execution of proposals and consultations that took place prior to or after entering into the Contract or any other additional contractual obligations – in particular instructions for the operation and maintenance of the delivered goods – the rules of sections VII, VIII and XI shall apply correspondingly, in exclusion of any further claims of the purchaser.
X. Restrictions on Disposal
The purchaser undertakes
1. To refrain from actively soliciting customers or maintaining subsidiaries or delivery warehouses outside the country in which the offices or places of business to which the delivery was made are located and inside the EEA or to maintain print or online offers in the national languages of countries, if SATA has reserved for itself, in a legally permissible manner, sales in these areas or countries or has exclusively allocated them to another customer,
2. to refrain from doing business, directly or indirectly, with customers whose office or place of business are outside the EU and EFTA States.
3. If it does not have an office or place of business outside the EEA, to refrain from doing business, directly or indirectly, with customers whose office or place of business is outside the country to which SATA delivered the items.
XI. Purchaser’s Right to Withdraw and Other Liability of SATA
1. The purchaser may withdraw from the contract if the entire performance prior to the transfer of risks is ultimately impossible for SATA. The same shall apply in the event of SATA’s inability to deliver arising after the conclusion of the contract. The purchaser may also withdraw from the contract if, in the event of an order of items of the same type, execution of part of the delivery is impossible with respect to quantity and it has a legitimate interest in rejecting partial delivery.
2. In the event of a delay in the performance within the meaning of § IV of the Terms & Conditions of Delivery and if the purchaser grants the defaulting supplier an appropriate grace period with the express proviso that it shall refuse to accept performance after the expiry of this grace period, and if the grace period is not complied with, the purchaser shall be entitled to withdraw.
XII. Exclusivity, Partial Ivalidity
1. These Terms & Conditions of Sale and Delivery shall not be restricted by any provisions to the contrary of the General Terms & Conditions of the purchaser, unless these have been confirmed by SATA.
2. Should any of the above provisions prove invalid for any reason, the remaining provisions shall be unaffected.
XIII. Place of Jurisdiction and Applicable Law
1. For all disputes arising from this contractual relationship, if the purchaser is a registered trader, a legal person under public law or special fund under public law, the dispute shall be brought to the court that is competent for the registered office of SATA or its branch that executed the delivery. SATA shall also be entitled to bring proceedings at the place of the registered office of the purchaser.
2. This contract is subject to the law of the Federal Republic of Germany excluding UN sales law.
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Version dated 01/2019