General Terms and Conditions
of Schulte Elektrotechnik GmbH & Co. KG (SET)
1. General Terms and Conditions
The terms and conditions of business below only apply to business persons, legal entities established in accordance with public law or a special fund established in accordance with public law.
Goods shall only be supplied in accordance with the terms and conditions below – irrespective of the value of the order.
The Buyer’s terms and conditions of purchase or his other terms and conditions of business shall only apply if they have been confirmed in writing by SET. When business relationships already exist, these terms and conditions shall also apply to them for future transactions in which no express reference is made to them, provided that the customer has already received these terms and conditions.
Deliveries shall be subject to change without notice or by agreement with the customer. Delivery periods shall begin once all the documents required for the order and payment have been received, in so far that payment in advance has been agreed. If a delivery consists of a special production (cf. Number 3), the delivery period shall begin when the customer’s clearance confirmation including signature has been received, but not however, before any documents, licences, clearances which may have to be obtained by the Buyer have been furnished. If it subsequently turns out that there are technical queries or errors in the customer’s order or documents signed by the Buyer, the delivery period shall only commence once all the queries / errors have been solved.
The delivery period shall be regarded as having been observed if the Buyer is notified that the goods are ready for dispatch before the delivery period expires but there is a delay in dispatch or the goods cannot be dispatched and we are not to blame.
If orders are called off without a delivery period, production volumes and acceptance dates having been agreed, SET may demand a binding agreement to cover these issues no later than three months after the contract has been signed. If the customer fails to comply with this demand within three weeks, SET shall be entitled to set a subsequent period of 2 weeks for compliance. Once this subsequent period has expired, SET shall be entitled to withdraw from the contract and / or to demand compensation for damages.
Force majeure events shall entitle SET to postpone delivery by the duration of the hindrance plus a reasonable start-up time or to withdraw from the part or all of the part of the contract not yet fulfilled. Strike, lock-out, or unforeseeable and unavoidable events such as operational disruptions making it impossible for SET to supply goods on time in spite reasonable efforts to do so being made, shall be regarded as being the equivalent of force majeure. SET shall have to furnish evidence of this. This shall also apply if the aforenamed hindrances occur during a default or affect a supplier of SET. The customer may call upon SET to state within 2 weeks whether SET intends to withdraw from the contract or to supply within a reasonable subsequent period. If SET fails to make a statement, the customer may withdraw from the part of the contract not fulfilled. SET shall inform the customer straight away if an instance of force majeure occurs. SET shall have to limit the adverse effects to the customer to the minimum amount.
3. Special productions
Special productions, that is goods which are procured at the customer’s request or are manufactured specially in response to a customer request can no longer be cancelled once the order confirmation has beenreceived and cannot be exchanged and / or taken back in exchange for a credit note as a matter of principle. The warranty rights / notifications of defects shall not be affected by this.
4. Passing of risk
The risk of a consignment shall pass over from SET or the supply depot concerned to the customer when the goods are dispatched. This shall also apply for part consignments.
SET shall calculate the prices for the individual product group in accordance with the relevant price list in force. The respective prices agreed and confirmed in writing by SET shall apply for special projects. Unless SET confirms otherwise in writing, the stated prices shall apply ex Lüdenscheid or ex Supply depot and do not include VAT, postage, packing and insurance. Packing shall be invoiced at cost. Packing and dispatch shall be carried out at the best judgement of SET. In the event that there is damage in transit, the customer shall have to inform the haulier / freight forwarder and to notify us straight away.
6. Terms and conditions of payment
Invoices raised by SET are to be paid in Euro within 10 days from the date of invoice, unless an agreement has been made to the contrary. This shall also apply for part consignments.
7. Warranty and notification of defects
Defects are to be notified straight away in writing. If the defects are concealed, they are to be notified straight away once they have been ascertained. In both cases all claims under warranty shall become time barred 12 months from the passing of risk unless an agreement is made to the contrary. Longer periods of limitation shall apply as long as they have been prescribed by law.
All defective parts which turn out to be defective as a result of a circumstance existing before the risk passes over are to be repaired free of charge or replaced with a new part as SET decides. SET is to be notified in writing straight away if such defects are identified. Replaced parts shall become the property of SET.
Once the customer has informed SET of a defect, SET is to be allowed the time and opportunity required by the customer to carry out all repairs and supply new parts appearing necessary to SET. Otherwise SET shall be exempted from the liability for the resulting consequences.
The costs incurred as a result of a repair or new part being supplied, that is the costs of the replacement part including packing and dispatch, shall be borne by SET – provided that the complaint turns out to be justified.
The customer shall be entitled to withdraw from the contract in accordance with the statutory regulations if SET - taking into consideration the statutory exceptions – allows a reasonable period set by the customer for him to carry out the repair or to supply a replacement part on account of a quality defect to elapse unsuccessfully.
SET shall not furnish a warranty in the following cases in particular: unsuitable or improper use, faulty installation (assembly) or start-up by the customer or third party, natural wear and tear, faulty or negligent operation, improper use or maintenance, use for an improper objective, modifications by the customer to the live parts. If the customer or third party carries out repairs incorrectly, SET shall not be liable for the consequent results. The same shall apply for modifications to the item supplied without the prior consent of SET.
If SET has advised the customer over and above the scope of his contractual obligation, SET shall only be liable for the supplied item working properly and the suitability of the supplied item for the intended use if SET furnishes an express assurance to this effect in advance.
If the customer finds out that a third party proprietary right could be breached as a result of the goods delivered by SET, the customer shall be obliged to notify SET of this straightaway. The same applies in the event that a claim is asserted against the customer as a result of the purchase of a consumer good (§ 478 of the German Civil Code [BGB]).
8. Use of software
In the event that software is included in the scope of delivery, SET shall grant the customer a non-exclusive right to use the software supplied including any documentation which may have been handed over. It is only handed over for use. The use of the software on more than one system is expressly forbidden. The software may only be reproduced within legal limits, in particular in accordance with those in § 63a et seq of the German Copyright Act [UrhG]. The software may only be reproduced, revised, translated or converted from the object code into the source code as allowed by the German Copyright Act. SET forbids the customer from removing and / or from modifying the manufacturer’s name. This also includes references to the copyright in particular. Moreover SET and / or its software supplier alone shall retain all other rights to the software and to the documentation including the reproduction of the software. Sub-licences may only be granted on the basis of separate contractual agreements. It shall be incumbent upon the customer to back up adequately all the data and software settings to which he has access himself. In all cases data must be backed up before the customer carries out any modifications and in particular before he transfers software and all updates. Under no circumstances may the back up copies produced by the customer be saved on the server. In the event of damage arising as a result of the software being used, SET shall only be liable for the costs of recovery for data lost even when it has been backed up properly. This liability shall however only exist within the scope of these terms and conditions of business. Set’s liability under the German Product Liability Act shall not be affected by this.
9. Other liability
If, as a result of SET being to blame as a result of failing to carry out suggested proposals and advice or carrying out such proposals and advice incorrectly either before or after the contract is signed, or as a result of being in breach of other secondary contractual obligations, - in particular by failing to hand over to the customer instructions for use and maintenance of the supplied item, the customer is unable to use the supplied item as provided for by the contract, the customer shall not be able to assert any other claims, but the following shall apply:
SET shall only be liable for damage not incurred by the supplied item itself, regardless of whatever legal reason upon which a claim may be asserted, in cases of intent, gross negligence, and in cases in which SET is culpable of death, personal injury and physical harm. SET shall be liable for defects, which SET concealed maliciously or for defects if the absence of which was guaranteed by SET. If the supplied item suffers from defects, SET shall be liable for damage to the extent that it would be liable under the German Product Liability Act for personal injury or property damage to items in personal use. In the event of a culpable breach of important contractual duties, SET shall also be liable in the event of gross negligence committed by non-senior staff, and for ordinary negligence. In the latter case the liability of SET shall be limited to damage typical for the contract and reasonably foreseeable damage.
The customer shall not be entitled to assert any other claims.
10. Reservation of title
SET shall reserve the title to all parts supplied until all accounts including secondary accounts against the customer under the business relationship, including those accounts created in the future, have been settled. The customer is entitled to resell those items supplied subject to reservation of title in the course of a proper commercial transaction. But he shall assign here and now to SET all accounts against his buyers or third parties accruing to him from resales. This shall apply regardless of whether the goods subject to reservation of title are resold without or after having been processed or modified. The customer shall be entitled to collect the accounts assigned to SET until revocation. SET shall undertake not to collect the accounts for as long as the customer fulfils his payment obligations properly.
The customer shall not be entitled to use the items supplied subject to reservation of title other than as provided for above, or to assign them as a security or to dispose of them otherwise. At the customer’s request, SET shall undertake to release the securities to which it is entitled, in so far as their value exceeds the total value of SET’s accounts against the customer by 20%. The taking back of goods subject to the reservation of tile or levy of execution on these goods by SET shall not be regarded as a withdrawal by SET from the contract. If SET makes use of its reservation of title in accordance with the above provisions by taking back the goods, SET shall be entitled to sell the goods or to have them auctioned in the open market. If the goods are taken back, they shall be taken back at the proceeds obtained from selling or auctioning them but at no more than the prices at which they were supplied. In addition to the above, SET shall reserve the right to assert additional claims to compensation for damages, in particular lost profit. When taking back the goods a lump sum shall be agreed for costs, and to be more precise, for goods which are in their original packing and are still in the range of goods supplied by SET, this lump sum shall be 15% of the invoiced amount. SET shall also be entitled to assert a claim at any time for damages actually incurred instead of claiming 15% lump sum.
11. Offsetting and rights of retention
The customer is only entitled to offset those accounts recognised by SET or which have been declared final and absolute in a court of law. The same shall apply for exercising the right to refuse performance and retention with regard to the customer’s underlying claim.
12. Contractual amendment
Contractual supplements, amendments or side agreements shall be subject to written confirmation by SET to be legally valid.
The place of jurisdiction and place of fulfilment is Lüdenscheid as SET’s principal place of business. SET shall reserve the right to choose to take legal action against the customer at his general place of jurisdiction. Should one or more of the above clauses be or become invalid, the validity of the remaining clauses shall not be affected as a result. Invalid or impractical clauses are to be replaced with such clauses coming closest to the sought-after economic objective of the inapplicable clauses. Data about the customer and suppliers shall be stored and processed as part of business relationships.