GTC - General Terms and Condition of Business
of SETEX Schermuly textile computer GmbH ("SETEX GmbH")
§ 1 Area of validity
(1) Our offers, deliveries and services are performed exclusively on the basis of these GTCs. The same applies to pre-contractual obligations.
(2) Even if these GTCs are not referenced in future purchase orders, replacement deliveries and repair orders, SETEX GmbH GTCs shall apply exclusively, unless the contracting parties have agreed otherwise in writing.
(3) We hereby reject any of the buyer's terms and conditions that deviate from our GTCs. We only recognize these to the extent that we agree to them expressly in writing.
(4) Our GTCs also apply when we render deliveries and services to the buyer without reservations and with the knowledge of any conditions of the buyer that contradict or deviate from our GTCs. Our silence in the face of other conditions or counter-confirmations is not equivalent to our recognition or consent.
§ 2 Offer, contractual documentation and prices
(1) Our offers are subject to change and are non- binding; their validity is restricted to three months from the date of the offer.
(2) Our suggested prices, offers, drawings and slides, as well as all printed material and documentation, including those in electronic form, must be treated confidentially and may not be disclosed to third parties, especially not to competing companies, without our express written consent. We reserve the copyright to such documents and property, even if we are not awarded the order.
(3) Purchase orders are only binding for us if we confirm them in writing or fulfil the purchase order by making a delivery. Fundamentally, the written order confirmation or contract is the relevant document with respect to the scope and all other particulars of our deliveries and/or services.
(4) Constant technical innovations mean that we reserve the right to modify the design of our products and services.
(5) Our quoted prices are net prices (plus VAT), ex works Mengerskirchen, and do not include the cost of packing, freight, transport insurance, assembly or commissioning.
(6) In the event of order cancellations after order con- firmation, we are entitled to bill the buyer for 3% of the cancelled order value as compensation.
§ 3 Delivery time and delivery conditions
(1) Goods are sent from our plant at the expense and risk of the buyer.
(2) We assume no liability for damage or loss during transport.
(3) We may also retain third parties to undertake delivery.
(4) The scope, nature and quality of deliveries and services are governed by the contract signed by both parties, or by the order confirmation issued by SETEX GmbH; alternately, these parameters are subject to the offer by SETEX GmbH. Other specifications or requirements are only incorpo- rated into the contract if the contracting parties agree to the same in writing, or if they are con- firmed in writing by SETEX GmbH. Subsequent changes to the scope of delivery require written agreement or written confirmation by SETEX GmbH. Product descriptions, illustrations, test programs, etc. are descriptions of service, but do not constitute warranties. A warranty requires a written declaration by the Management Board of SETEX GmbH.
(5) Our stated delivery times are to be regarded as approximate and subject to change. They shall only be considered binding in the event of an express written agreement to this effect. We are not responsible for delivery delays due to unforeseen events at our plant or at our suppliers' plants that significantly frustrate our
delivery efforts, despite any binding delivery dates or deadlines to which we may have agreed. Such impediments or disturbances may be caused e.g. by shortages of goods and materials, power outages, strikes, labour shortages, or other force majeure events. In such cases, we are entitled to postpone the delivery date until these impediments have been rectified, or to withdraw from the contract; other rights or damage claims on the part of the buyer are excluded.
(6) The buyer may withdraw from the contract within the framework provided by statutory provisions to the extent that we are responsible for the delay in provision of service. In the event of a delay on our part that causes the buyer to suffer a loss, damages shall be limited to 0.5% per initiated delivery week, though no more than 5% of the value of that part of the total delivery that could not be used promptly or in accordance with the contract as a result of the delay for which we are responsible. This limitation on liability also applies to any damage compensation claims brought within the framework of statutory provisions in lieu of the service and/or compensation claims due to wasted expenditures. However, this limitation does not apply to damages arising from gross negligence or wilful breach of duty, or to damages arising from culpable injury to life and limb.
(7) Our agreed delivery and performance obligations presuppose timely compliance with all existing payment obligations by the buyer.
(8) We are entitled to render partial deliveries and services, and may also bill proportionally for the same.
(9) To the extent that down payments have been agreed, our stated lead times begin once the agreed down payment has been received.
(10) Acceptance delay: If the buyer refuses accept- ance of the product without sufficient cause or if, in the case of "purchase on demand" the product is not called off within the agreed time frame, payments owed after the agreed due date are not affected. If this grace period expires without achieving the desired result, we are entitled
a) To assess a fee of 1.2% of the gross sum for each month of warehousing
b) To withdraw from the contract and dispose of the delivery item in a manner of our choosing.
In the event of delayed acceptance, the risk of accidental loss or accidental deterioration of the purchase object is transferred to the buyer from the time the delay in acceptance begins.
§ 4 Payment terms
(1) To the extent that nothing to the contrary has been agreed, the following payment conditions shall apply: Payment for product and software deliveries is due net within 30 days of the invoice date; payment remitted within 10 days of the invoice date is eligible for a 2% discount.
Payment for repairs and services must be made immediately, net. In the event of project business, new customers, customers in third countries, or customers who have failed to remit payment for our prior deliveries or services to them, we may require advance pay- ment or down payment.
(2) Payments are considered to have been effected once the sum is available in one of SETEX GmbH's accounts. SETEX GmbH reserves the right to apply payments to settle the oldest invoice items, plus any interest and fees assessed on arrears, in this order: Fees, interest, principal receivable.
(3) In the event of a payment delay, we are entitled to charge interest assessed at 8% above the baseline interest rate set by the European Central Bank. We reserve the right to assert further damage claims. The buyer is entitled to demonstrate to us that the delay has caused us no loss or a smaller loss than that asserted.
(4) To the extent that the buyer is in arrears in remit- ting payment for billed invoice items, including any accrued interest and overdue fees, we may withhold further deliveries stemming from current (1) contracts until the buyer has fulfilled all of its outstanding payment obligations.
(5) The right of the buyer to withhold payments or assert counterclaims only obtains to the extent that we recognise these counterclaims, or that they have been deemed legally enforceable.
(6) If payment conditions are not satisfied, or in the event that circumstances raise justifiable doubts as to the creditworthiness of the buyer in our obligatory commercial assessment, we are entitled, without prejudice to further legal rights, to request advance payment or the provision of sureties for additional outstanding deliveries, and to withdraw from the contract and bring damage claims in the event that an appropriate grace period for the provision of such sureties elapses without result.
Furthermore, we are entitled to prohibit further sale of delivered products subject to retention of title.
(7) Payment obligations are to be satisfied in our country's currency (EURO). Payments may also be remitted in US dollars in the event of an agree- ment to this effect.
(8) Bills of exchange will not be accepted as payment.
(9) Our employees, representatives and agents are only entitled to accept payments to the extent that we expressly communicate this to the contractual partner in question.
§ 5 Software / licensed programmes
(1) Our software products (esp. programmes and user manuals) are protected by law. Any copy- rights, patents, brands or other intellectual prop- erty rights associated with the software or other objects licensed by SETEX GmbH or otherwise made available to the buyer in the course of con- tractual preparations and contractual performance are the exclusive property of SETEX GmbH in the relationship with the contractual partner. To the extent that these rights accrue to third parties, SETEX GmbH has obtained the right to utilise them accordingly.
(2) Upon delivery of our software products, the pur- chaser acquires a non-transferable right of use that is valid for internal use only.
Copying our software is expressly prohibited. The buyer is only entitled to process its own data using this software; it must perform such processing independently, in the course of its own operations, and for its own purposes. The software may only be copied or transferred over a network to another system to the extent required for operation of the licensed system, and for archiving and backup purposes. The customer is obligated to retain and refrain from modifying any proprietary notices associated with the software, such as copyright notices and other legal reservations. Any further rights to the same shall remain with us. (3) Software provided by us may neither be disclosed nor sold to third parties.
(4) The licence acquired for the use of our software pertains only to the software acquired by the customer in keeping with the order confirmation. Any enhancement of this licence requires the prior written consent of SETEX GmbH.
(5) We hereby expressly note that our software may contain errors. However, as long as the functionality corresponds to our description, the ordering party is not entitled to assert any damage claims or to request a discount of the purchase price due to such errors. Furthermore, we do not warrant that our software will satisfy the buyer's particular needs.
(6) For programmes made by external manufacturers and which we operate under licence, the conditions defined by the respective licensor remain valid in full, even if they deviate from our GTCs. For such software, we obtain only the necessary usage rights together with our licensed programmes (especially for user-specific full-use licences).
(7) We shall not assume any liability for damages that arise in connection with the use of our software, the restoration of lost data or the import of updates (e.g. operational disruptions, data loss), unless it can be proven that we acted wilfully or with gross negligence.
(8) In the event that malicious software, e.g. viruses, damage the buyer's systems or prevent our soft- ware programmes from executing properly, our warranty is void, both with respect to the function- ality assured in our product description and with respect to the restoration of our software.
§ 6 Warranty and defect claims
(1) In the event of legitimate complaint, we are obligated, at our discretion, either to provide fault-free replacement software or to remedy the defect, unless the costs associated with supple- mentary performance are disproportionate to the significance of the defect and are unreasonable for us to undertake. Otherwise, valid legal provi- sions shall apply. The warranty period extends for 12 months from receipt of the products. Complaints are only considered if they are sub- mitted in writing without delay, though in no case more than ten days after receipt of the product, and must include documentation of the defect. In the event of hidden defects, the written complaint must be submitted immediately after detection of the defect. The burden of proof to demonstrate the existence of a hidden defect rests with the buyer.
(2) The warranty is contingent on the buyer having completely satisfied all payment obligations with respect to the product in question. In the event that the buyer violates its obligation to inspect and provide notice of any defects, the delivery item shall be considered to have been approved with respect to the defect in question.
(3) Rejected goods must be returned to us imme- diately once the defect is detected.
(4) The warranty is void in the event of defects caused by natural wear and tear, transportation damages, wilful or negligent damages, incorrect operation, incorrect installation or commissioning by the buyer or by a third party retained by the buyer, connection to incorrect voltage, pollution, and in the event of repairs or modifications per- formed on our products by the buyer or a third party commissioned by the buyer.
(5) With respect to substantial third-party products, liability is limited to the liability claims assigned with respect to the upstream supplier.
(6) The warranty period is not renewed or extended through repair or replacement.
(7) The limitations on liability mentioned above do not apply in the event of wilful misconduct or gross negligence, or where liability is stipulated by law.
§ 7 Liability
(1) We and our representatives and agents are only liable to provide compensation for damages, irrespective of legal grounds (e.g. arising from obligations stemming from legal transactions or events approximating legal transactions, material and legal defects, breach of duty or unlawful acts), to the extent that these GTCs do not specify any- thing to the contrary, as set forth below:
a) Liability arising from wilful misconduct and warranty obligations is unlimited.
b) In the event of gross negligence, SETEX GmbH is only liable up to the amount of typical damages that could have been foreseen upon conclusion of the contract.
c) In the event of a breach of duty attributable to a cause other than gross negligence, and where this duty is material to the point where the purpose of the contract is jeopardised (cardinal obligation), SETEX GmbH's liability shall be limited to the typical damages that could have been foreseen at the time the contract was concluded, though in no event amounting to more than EURO 500,000 per damage event, or EURO 1 million for all damage events stemming from the contract. Cardinal obligations are those obligations which must be fulfilled in order for the contract to be properly executed, and on whose fulfilment the parties to the contract rely and may be relied upon to fulfil in turn, and whose violation jeopardises the achievement of the contractual purpose.
d) SETEX GmbH shall only be liable for indirect dam- ages (e.g. lost profits, property damage) in the event of gross negligence on the part of SETEX GmbH or its officers or other agents.
(2) SETEX GmbH is entitled to advance the objection of contributory negligence. The buyer is obli- gated in particular to perform data backup and to combat malicious software using state of the art techniques.
(3) In the event of injury to life or limb and of claims asserted in keeping with the German Product Liability Act, valid legal provisions shall apply without restriction.
(4) In the event of purchase transactions, all damage claims against us are time-barred 12 months after delivery unless the claim is based on tort. This does not apply to liability arising from wilful misconduct, fraudulent concealment of a defect, or the lack of a guaranteed feature.
(5) Further claims by the buyer are excluded.
§ 8 Confidentiality
(1) Each contracting party undertakes to treat as confidential all objects with which it is provided by the other party or otherwise made acquainted prior to or during contractual performance (e.g. software, documents, information) and which are legally protected or contain commercial or operational secrets or are otherwise characterised as confidential, both during and beyond the term of the contract, unless such objects are already in the public domain without breach of this duty. The contracting parties will store and secure these materials in such a way that third parties are unable to access them.
(2) The buyer will only make contractual materials available to those employees and third parties who require access to them in the performance of their job-related duties. The buyer shall instruct these persons regarding the confidentiality of the materials in question.
(3) SETEX GmbH may cite the customer as a refer- ence customer after successful conclusion of all services.
§ 9 Acceptance of services
(1) Once we have provided our services, the customer is obligated to inspect our systems and pro- grammes to ensure that they function as agreed. Any defects must be reported to us immediately in writing, though no later than 10 days after they are detected; failing this, our services are consid- ered to have been accepted. If we are unable to remedy the defects identified by the buyer within an appropriate period of time, the buyer is entitled to demand a discount.
(2) To the extent that the customer has agreed to an acceptance log and has signed this log, the underlying final invoice or service invoice is due immediately after the signing date.
(3) Unplanned delays caused by the buyer in our provision of on-site services (commissioning, installation work or servicing) are billed separately to the buyer, on a time and materials basis.
(4) Additional on-site services and changes to the agreed scope of service are to be ordered and paid for separately.
§ 10 Retention of title
(1) The product remains our property until the buyer has satisfied all payment obligations arising from the delivery contract.
(2) In the event of a payment delay or material dete- rioration in the buyer's financial circumstances, and in the event of insolvency proceedings opened against the buyer, we are entitled to demand that the buyer return all products subject to retention of title, and to withdraw from any existing delivery contracts.
(3) If ownership has not yet been transferred to the buyer, the buyer is obligated to handle the goods with care.
(4) To the extent that the buyer resells products subject to such retention of title, the buyer shall in advance assign to us as surety all receivables owed it by its customer in connection with resale and in the amount of the final invoice sum agreed with us (including VAT) (extended retention of title). The buyer is obligated to disclose such a third- party obligation on request and to provide notice of this assignment.
(5) If during the course of installation the product de- livered by us is mingled with other devices in such a way that they can no longer be separated or that such separation should involve considerable expense, we shall acquire fractional co-ownership in the newly created object; this fraction shall be calculated as the proportion of the share of the materials supplied by us to the total value of the new object. The receivable associated with the secondary buyer is considered to have been assigned to us also in the event that this newly created object is resold, in this case also in proportion to our co- ownership share in this object.
(6) If products in our ownership or co-ownership are seized or otherwise become subject to third-party interventions, the buyer is obligated to inform us of the same immediately. The buyer is not entitled to pledge or mortgage products in our ownership or co-ownership.
§ 11 Jurisdiction and place of performance
(1) Changes and additions to the contract must be made in writing. The written form requirement can be waived only in writing.
(2) This contract is subject to the laws of the Federal Republic of Germany to the exclusion of the CISG. The place of performance and jurisdiction for all disputes arising from and in connection with this contract is the registered office of SETEX GmbH.
(3) Should individual clauses of this contract be invalid in whole or in part, this shall not affect the validity of the remaining clauses or remaining parts of such clauses. The parties are required to replace any such invalid clause with a valid clause that most closely approximates the economic purpose of the invalid clause.