Terms and Conditions of Sale and Delivery

Scope and general provisions

The following General Terms and Conditions shall apply to the provision of repair and service services of Setolite Lichttechnik GmbH (hereinafter called Setolite) in accordance with the agreement concluded between Setolite and the customer. General terms and conditions of business of the customer, even if they are later used by the customer, are contractually binding without the written consent of Setolite insofar as they do not contradict the present conditions. Contradictory general terms and conditions do not affect the effectiveness of the concluded contract. In the event of conflicting conditions, the statutory provisions shall apply. These General Terms and Conditions apply to all current and future business relations with the customer.

Definition

2.1. Product: The product/device delivered by the customer for repair is called product subsequently.

Costs, cost estimate

3.1. In general, the repair is calculated according to the working hours as well as the costs of the used spare parts. Costs, which are mentioned before the repair of Setolite, are non-binding.

3.2. If a cost estimate with binding price quotations is desired before the repair is carried out, this is expressly required by the customer. Such a cost estimate is only binding if it is made in writing and is expressly designated as binding and the order is issued by the customer within four weeks after the customer has given the cost estimate. Services for the submission of a cost estimate are charged at a flat rate of 39, – Euro net against the customer. The lump sum invoiced to the customer for the provision of the cost estimate is fully charged for the commissioning and execution of the repair in the customer order if the invoice amount exceeds 120, – €. A pro-rata refund of € 19 will be made below this amount. In the case of non-repairs, the lump sum shall be payable and billed for payment by the customer.

Scope of Services / Unperformable Repair

4.1. All products, components and parts to be repaired must be in a repairable (complete) condition.

4.2. Setolite has the right to carry out the repair of defective assemblies and parts by exchanging parts with the same function.

4.3. If a repair can not be carried out / completed for Setolite’s reasons, Setolite is entitled to charge the incurred and documented expenses (error-finding time equal to working time) in the form of a flat-rate processing fee. The reasons for an unworkable repair are:

the defect in question has not occurred during the inspection;
spare parts can not be procured;
parts and assemblies are so damaged that repair is not possible;
the customer has neglected an agreed date culpably;
the contract has been terminated during execution.

4.4. The product needs to be returned to its original condition only at the explicit request of the customer, against reimbursement of the lump-sum fee, unless the necessary work was not required.

Price and payment

5.1. The amount of the price is based on the billing rate (hours worked) at the time the order was placed. Repairs up to a net value of 120, – Euro are carried out directly in the event that no request for a cost estimate was expressed by the customer. If during the repair the repair costs exceed 120, – Euro net, then consultation with the customer is held and possibly the consent is obtained. The payment of a repair or a flat-rate cost estimate is, unless otherwise agreed in writing, to be paid directly net of the invoice without any cash discount. The value added tax is charged to the customer at the statutory rate.

5.2. The retention of payments or set-off on the basis of any counterclaims by the customer is only valid if these counterclaims are undisputed or legally established and their counterclaim is based on the same contractual relationship in the case of retention.

5.3. In the event of a delay in payment, interest of 8% p. A. above the base rate is charged. The assertion of further default damages remains reserved. In this case, the customer reserves the right to prove that Setolite has suffered no or a substantially lower loss as a result of the delay in payment.

Transport and insurance for repair in Setolite’s premises

6.1. Unless otherwise agreed in writing, transportation of the object of repair carried out at the customer ‘s request, including any packaging and loading, shall be carried out at his own expense. Otherwise, the repair item shall be delivered by the customer at his own expense to Setolite and picked up by the customer again.

6.2. Repairs transported with transport service providers (UPS, FedEx, DHL or others) are insured according to their guidelines. The customer is entitled to apply for further insurance cover in writing in order to return the goods to Setolite. The costs will be charged to the customer.

6.3. For devices that are sent, transferred or fetched, the danger is transferred to Setolite as soon as these devices are delivered.

6.4. When picking up or returning the equipment, the risk passes to the customer with delivery to the customer. In the case of dispatch by transport service provider, the risk passes to the customer when the device has been handed over to the latter.

6.5. If the customer does not specify the return route, Setolite chooses the shipping route and the transport service provider with the care of a proper merchant.

6.6. In order to avoid transport damage Setolite reserves the right to replace damaged or unusable cardboard boxes with new ones. The customer bears the costs for the new carton delivery and the inner packaging.

6.7. Complaints regarding completeness and transport damage must be reported immediately to the transport service provider and / or Setolite. A notification has to be made in writing.

Repair period

7.1. The data on the repair periods are based on estimates and are therefore not binding.

7.2. The lead time can be extended considerably if the spare parts necessary for the repair are not available in time and / or the error described by the customer is not reproducible and / or a long-term test is necessary.

7.3. If the repair is delayed as a result of labour disputes, in particular strikes and lockouts, as well as the occurrence of non-indebted circumstances on Setolite, an appropriate extension of the repair period shall apply, unless such obstacles have a significant effect on the completion of the repair.

Acceptance

8.1. A formal acceptance will only take place if this has been agreed in writing.

8.2. The acceptance is deemed to have taken place as soon as the customer has accepted the device.

Setolite’s right of lien and abandoned collection, retention of title

9.1. Setolite is entitled to a contractual lien on the equipment which has been acquired by Setolite within the scope of the order.

9.2. If the customer does not release the device, which has been sent to him by cash on delivery, even after the service has been performed, after he has received a further request, or if the customer does not pick up the device within four weeks after the second request, Setolite is entitled to calculate an appropriate storage fee.

9.3. If the device has not been collected even after three months after the second request, Setolite is not obliged to keep it for further storage and is free from any liability, even for negligent damage or loss. After the expiry of this three-month period, Setolite shall be free to send the customer a threat of a sale. Four weeks after sending this warning, Setolite may sell the relevant device to cover the service performance requirement against the customer. If this results in a rebate in relation to repair charges, it is to be returned to the customer.

9.4. Setolite reserves the right to ownership of all used accessories, spare parts and replacement units until receivement of all payments under the repair contract, without prejudice to any further securing agreements. In the case of the connection, Setolite shall be entitled to a co-ownership share of the repair item in the amount of the value of the repair work.

Claims for defects

10.1. Defects in the work which are demonstrably attributable to faults in the material used or to non-impeccable work are remedied by supplementary performance in accordance with the following provisions:
A) Deficiencies must be immediately notified to Setolite in writing; Recognizable deficiencies, however, within 14 days from the date of take-over in own company; As long as a trial operation has been agreed, after faultless trial operation.

B) Claims for defects become statute barred one year after acceptance; This shall not apply insofar as the law pursuant to Art. § 438 I No. 2 and No. 634a I No. 2 BGB stipulates longer deadlines. The statute of limitations begins with the takeover in the own enterprise; As long as a trial operation has been agreed, after faultless trial operation. If Setolite is not responsible for circumstances beyond the control of Setolite, or if more than 14 days have elapsed, the liability for the duration of the delay shall be shortened.
C) For the purpose of subsequent performance, the customer shall provide Setolite the necessary time and opportunity to an appropriate extent. If he refuses to do so, Setolite is exempted from supplementary performance.
D) Insofar as Setolite fails to reach a reasonable deadline for subsequent performance without rectifying the defect, the improvement is refused or does not lead to the correction of the defect and the customer can not be expected to be reworked further, the customer has the right to cancel the remuneration by declaration As opposed to Setolite; In so far as it is not a question of construction work, the customer may, instead of decreasing the contract, rescind the contract.
E) The deficiency claims expire if the object of the work has been caused by improper handling or storage or if modifications or repairs have been made to it without the written consent of Setolite and the changes or repairs have led to the defect. Claims for defects do not exist if the defect is based on wear.
F) The parts replaced in the performance of these claims are transferred to the property of Setolite, subject to a different agreement.
G) For the supplementary performance, Setolite shall be liable to the same extent as for the original work until the end of the period of limitation of the claims for the original work.

10.2. In the case of incorrect work by the staff provided by the customer, Setolite shall only be liable if setolite has given faulty instructions or violated supervisory duties.

10.3. Further claims of the customer against Setolite due to defective work are excluded, in particular claims for replacement of consequential damages such as loss of production and use as well as lost profit. This does not apply to the extent that in the case of personal injury or damage to privately used items, the product liability law or in cases of intent, gross negligence or breach of essential contractual obligations is mandatory. The claims of the customer due to damages resulting from the work itself are governed by § 12 of these conditions.

Liability

11.1. Unless otherwise stated in these General Terms and Conditions, including the following provisions, Setolite shall be liable in the case of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

11.2. Setolite shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the case of simple negligence, Setolite shall only be liable:

11.2.1. For damages from injury to life, body or health,

11.2.2. For damages resulting from a breach of a material contractual obligation; In this case, however, Setolite’s liability is limited to the replacement of the foreseeable, typically occurring damage.

11.3. The liability limitations resulting from 11.2 shall not apply insofar as Setolite has maliciously concealed a defect or assumed a quality guarantee. The same applies to claims of the customer under the Product Liability Act, as well as claims for damages resulting from impossibility and default due to the violation of cardinal obligations.

11.4. Insofar as the customer is entitled to claims for damages pursuant to Article 11, these shall become statute-barred after expiry of the limitation period applicable to claims for defects. In the supplier rebate, in the case of malice and in the cases specified in 11.2.2, as well as for claims under the Product Liability Act,the statutory provisions shall apply exclusively.

11.5. As far as the liability for damages is excluded or limited, this also applies to the personal liability for damages of the staff members, employees and co-workers, representatives and vicarious agents of Setolite.

Safety requirements to the customer

12.1. To ensure the security of the international supply chain, the customer issues the security declaration for AEO’s authorized economic agents and in particular declares:

12.1.1. The fact that goods which are produced, transported, delivered to, or carried over by AEO (authorized AEO) are produced, stored, processed or loaded at secure workshops and secure transhipment sites,

12.1.2. That they are protected against unauthorized access during production, storage, processing, loading and transport, and that the personnel employed for the production, storage, processing, loading, transport and take-over of such goods is reliable,

12.1.3. As well as the fact that business partners acting on behalf of the customer are informed that they must also take measures to secure the above supply chain.

Payments shall be made in the Euro currency.
Jurisdiction

14.1. In the case of contracts with merchants, legal persons governed by public law or public special funds, the Court of Jurisdiction shall be the court competent for the headquarters of Setolite. Setolite shall also be entitled to sue at the customer’s headquarters or at the headquarters of its branches for which the repair has been carried out.

14.2. The law of the Federal Republic of Germany applies exclusively to the contractual relationship as well as to its entire settlement.

Final provisions

Should individual provisions of the contract with the customer including these General Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected thereby. The wholly or partly ineffective regulation is to be replaced by a regulation whose economic success comes as close as possible to that of the ineffective.

Place of business

SETOLITE Lichttechnik GmbH

Bockhackerstr. 13
D-42499 Hückeswagen
Tel.: 0 21 92 / 9 36 24 – 0
Fax : 0 21 92 / 9 36 24 – 25

Internet: www.setolite.com
E-Mail: info@setolite.com
Managing Director: Peter Schultz
Commercial register: Amtsgericht Köln HRB 36445
VAT ID no. DE 811757897