General terms and conditions - SETEX Schermuly textile computer

General terms and conditions
of SETEX Schermuly textile computer GmbH ("SETEX GmbH"), for commercial use only, hereinafter referred to as GTCs.
§ 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.
These GTCs can also be viewed online at "http://
www.setex-germany.com/English/GTC_E.pdf".
(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 nonbinding; 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 confirmation, 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 incorporated into the contract if the contracting parties
agree to the same in writing, or if they are confirmed 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.
contracts until the buyer has fulfilled all of its
outstanding payment obligations.
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.
(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) 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 acceptance 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.
(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 agreement 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 copyrights, patents, brands or other intellectual property rights associated with the software or other
objects licensed by SETEX GmbH or otherwise
made available to the buyer in the course of contractual 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 purchaser 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.
Payment for repairs and services must be made
immediately, net.
(3) Software provided by us may neither be disclosed
nor sold to third parties.
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 payment or down payment.
(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.
(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.
(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.
(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.
Furthermore, we do not warrant that our software
will satisfy the buyer's particular needs.
(4) To the extent that the buyer is in arrears in remitting payment for billed invoice items, including
any accrued interest and overdue fees, we may
withhold further deliveries stemming from current
(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
SETEX Schermuly textile computer GmbH, Hauptstraße 23–25, 35794 Mengerskirchen, Germany – 06/2010
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.
d) SETEX GmbH shall only be liable for indirect damages (e.g. lost profits, property damage) in the event
of gross negligence on the part of SETEX GmbH or its
officers or other agents.
(8) In the event that malicious software, e.g. viruses,
damage the buyer's systems or prevent our software programmes from executing properly, our
warranty is void, both with respect to the functionality assured in our product description and with
respect to the restoration of our software.
(2) SETEX GmbH is entitled to advance the objection
of contributory negligence. The buyer is obligated in particular to perform data backup and to
combat malicious software using state of the art
techniques.
§ 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 supplementary performance are disproportionate to the
significance of the defect and are unreasonable
for us to undertake. Otherwise, valid legal provisions shall apply. The warranty period extends for
12 months from receipt of the products.
Complaints are only considered if they are submitted 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 immediately 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 performed 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 anything 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.
(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.
The buyer is obligated to disclose such a thirdparty obligation on request and to provide notice
of this assignment.
(5) If during the course of installation the product delivered 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 coownership 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.
(3) SETEX GmbH may cite the customer as a reference 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 programmes 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 considered 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 deterioration 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).
SETEX Schermuly textile computer GmbH, Hauptstraße 23–25, 35794 Mengerskirchen, Germany – 06/2010