Terms & Conditions – EN – SETOLITE Lichttechnik GmbH

1. Acceptance of the General Terms and Conditions of Sale and Delivery

These General Terms and Conditions of Sale and Delivery apply to all our business relationships with our customers (“Customers”). They only apply if the Customer is an entrepreneur (Section 14 German Civil Code (BGB)), a legal entity under public law, or a special fund under public law. Our delivery shall only be made on the basis of the following terms and conditions, which are deemed to have been accepted when the order is placed. Terms and conditions other than those printed here – in particular, contradictory or supplementary general terms and conditions of the Customer – shall not apply. Anything to the contrary shall only apply if the other terms and conditions have been accepted by us in writing. Our silence does not constitute consent. We and the Customer each waive the objection to any verbal collateral agreements. Amendments to individual terms and conditions shall not affect the other terms and conditions.

2. Offers

Our offers are always non-binding and subject to change, unless they contain declarations to the contrary. Orders shall only be deemed accepted if they have been confirmed by us in writing. This also applies to sales concluded by representatives. Additions, amendments or verbal ancillary agreements require our written confirmation to be effective.

Illustrations, drawings, dimensions, weights and colour shades contained in catalogues, price lists and other printed matter are approximate values customary in the industry. We also reserve the right to make any changes that are technically necessary or urgently required to improve the design.

The following also applies to orders for custom-made products: Details of the design, dimensions, etc. must be confirmed in writing without exception.

3. Prices

Unless otherwise agreed, our prices are ex warehouse at our site in Hückeswagen, Germany. They do not include VAT, packaging, freight, insurance, or stamp duty. Orders for which prices have not been agreed shall be invoiced at reasonable daily prices. The prices are only valid for the place of use specified in the offer.

For deliveries to countries outside the European Union, additional costs may be incurred in individual cases for which the supplier is not responsible and which are to be borne by the Customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of funds if the delivery is not made to a country outside the European Union, but the Customer makes the payment from a country outside the European Union.

Should unforeseeable cost increases occur (e.g. currency fluctuations, unexpected price increases by suppliers, etc.), we shall be entitled to pass this cost increase on to the Customer, offsetting it against any cost reductions. However, this only applies if the delivery is made later than four months after the conclusion of the contract as agreed.

4. Packaging

The delivered goods shall be packed at our discretion in a customary manner and at the Customer’s expense. Packaging will be charged at the lowest possible price and will not be taken back unless we are legally obliged to do so.

5. Delivery, Shipment, Transfer of Risk, Transport Insurance

Delivery is ex warehouse, which is also the place of performance for the delivery and any subsequent performance. The goods may be shipped to another destination at the request and expense of the Customer (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment, in particular the transport company – e.g. rail, parcel service, forwarding agent or our own truck – as well as the shipping route ourselves.

The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest when the goods are handed over. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier, the parcel service, or the person or organisation otherwise designated to carry out the shipment. We shall only take out transport insurance for the customer in the event of a sales shipment at the Customer’s express request and expense.

We are entitled to make partial deliveries insofar as this is reasonable for the Customer. In the case of permissible partial deliveries, we are also entitled to issue partial invoices.

In the event of a delay in delivery or shipment for which the Customer is responsible, the risk shall pass to the customer upon notification of readiness for shipment. In order to avoid legal disadvantages in the event of a claim for transport damage against the shipping service provider or the transport insurance company, the shipping service provider (e.g. forwarding agent or parcel carrier) must be notified of any transport damage to the packaging or goods that is apparent to the Customer upon delivery directly upon receipt of the goods; in addition, the transport damage and the notification must be documented in writing and we must be notified within one working day by submitting the documentation.

6. Delivery Time, Force Majeure, Labour Disputes

The delivery time shall only be deemed to have been agreed as approximate. The delivery period shall commence on the day on which the order confirmation is sent, but not before all documents required for the execution of the order have been provided, and shall be deemed to have been met if the goods have left our factory/warehouse by the end of the delivery period or, in the event that the goods can be dispatched, if readiness for dispatch has been notified. Correct and punctual self-delivery is reserved. If we are prevented from fulfilling our obligation due to the occurrence of unforeseeable circumstances which we could not avert despite reasonable care in the circumstances of the case – e.g. force majeure, operational disruption, delay in the delivery of essential parts – the delivery period shall be extended to a reasonable extent if the delivery or performance does not become impossible. If delivery or performance becomes impossible due to the above-mentioned circumstances, we shall be released from our obligation to deliver. The same applies in the event of a strike or lockout.

If the delivery time is extended in these cases or if we are released from our delivery obligation, any claims for damages on the part of the Customer derived from this shall lapse, with the exception of those based on intentional or grossly negligent conduct on our part or on the part of our executive employees, or relating to injury to life, limb or health.

If the above-mentioned circumstances occur on the part of the Customer, the same legal consequences shall apply to the Customer’s obligation to take delivery. Deliveries ordered on call must be accepted within 6 months of order confirmation.

7. Notice of Defects, Warranty / Limitation Period, Liability

a) Warranty claims for material defects

A prerequisite for the acceptance of a notice of defects is the immediate, proper and careful inspection of incoming goods. If the Customer is a merchant, Section 377 German Commercial Code (HGB) applies. If the Customer is not a merchant, he/she must notify us in writing of any defects immediately – in the case of recognisable defects, within no more than 5 working days after receipt of the goods or, in the case of defects not recognisable during the incoming goods inspection, within no more than 5 working days after their discovery. If no notification of defects is made in good time, the goods shall be deemed to have been approved.

No liability shall be accepted for defects in the event of natural wear and tear or damage caused by incorrect handling, excessive load, unsuitable use, exposure to excessive heat or cold, or failure to provide the necessary lubrication or chemical, electrochemical or electrical influences. To ensure the function of the tools or lights, please refer to our product information.

The warranty claim is excluded as soon as any subsequent work or changes are carried out on the goods.

If the delivered goods are defective, the provisions of the statutory liability for defects shall apply with the following proviso:

If the delivered goods are defective or lack warranted characteristics, we shall initially have the right, at our discretion, to deliver a replacement or repair the goods. If we allow a reasonable grace period granted to us – which will regularly amount to a period of 6 weeks – to elapse without having provided a replacement or remedied the defect, the Customer shall have the right to reduce the purchase price or withdraw from the contract at his/her discretion; the assertion of further claims is excluded – subject to liability in accordance with the following clause 7.b). Defective goods may not be installed or assembled. In particular, the goods must be subjected to a functional test by an electrotechnically trained person before installation or assembly. The tested, functioning product may only be installed or assembled by electrotechnically trained specialist personnel. The assembly and operating instructions supplied with the goods must be followed. The Customer must ensure that any damage is kept as minimal as possible. The limitation period for claims for defects begins with the delivery of the goods and expires after 12 months.

We shall be liable for replacement deliveries and rectification work to the same extent as for the original delivery item. The warranty period shall begin anew for any replacement deliveries. We shall not be liable for errors resulting from the documents submitted by the Customer (drawings, samples and the like). Defects in part of the goods do not entitle the Customer to complain about the entire goods. Goods may only be returned with our consent and must be returned by the Customer at our request and at a reasonable price.

b) SETOLITE shall be liable to the Customer for all contractual, quasi-contractual and statutory claims, including tortious claims for damages and reimbursement of expenses as follows:

(1) SETOLITE is liable without limitation for any legal reason

– in the event of intent or gross negligence,

– in the event of intentional or negligent injury to life, limb or health,

– on the basis of a guarantee promise, unless otherwise agreed,

– on the basis of mandatory liability, e.g. under the German Product Liability Act (ProdhaftG).

(2) If SETOLITE negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical of the contract, unless liability is unlimited in accordance with the above clause. Essential contractual obligations are obligations which the contract imposes on the seller according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the Customer may regularly rely.

(3) Any further liability on the part of SETOLITE is excluded.

(4) The above liability provisions shall also apply with regard to the liability of our vicarious agents and legal representatives.

8. Payment Terms

Pricing and invoicing are in EURO plus statutory VAT. All changes in the exchange rate of the EURO occurring after the conclusion of the sale (date of order confirmation) shall affect the Customer.

Invoices are payable from the invoice date within the terms of payment shown on the respective invoice.

Bills of exchange and cheques are only accepted on account of performance without guarantee of protest and only by agreement and subject to discountability. Discount charges shall be borne by the Customer from the due date of the invoice amount and are payable immediately. If the target is exceeded, 3% above the Bundesbank discount rate may be charged as default costs, unless the supplier provides evidence of higher debit interest. We only ship to unknown Customers against prepayment or, at the Customer’s request and expense, against cash on delivery.

If advance payment by bank transfer has been agreed, payment shall be due immediately after conclusion of the contract, unless the parties have agreed a later due date. A payment is deemed to have been received as soon as the equivalent value has been credited to one of SETOLITE’s accounts.

When accepting orders, we assume the creditworthiness of our Customer. If reasons become known which give rise to justified doubts as to the Customer’s continued compliance with proper payment – e.g. composition proceedings, imminent suspension of payments, etc. – we shall be entitled to withhold deliveries not yet made until our outstanding invoices have been paid in full in advance and to withdraw from the contract in the event of non-payment by the Customer. Claims for damages cannot be asserted on this basis. This does not release the Customer from his/her obligations arising from the parts of the contract already fulfilled by us.

The withholding of payments or offsetting against any counterclaims of the Customer is only permissible if the Customer’s counterclaims have been legally established or are not disputed by us.

9. Title Retention

The delivered goods remain the property of SETOLITE until all claims arising from the business relationship between SETOLITE and the Customer have been paid in full and until the bills of exchange and checks issued for them have been honored. Notwithstanding Section 449 (2) BGB, SETOLITE may also withdraw from the contract if the Customer is merely in default of payment. The inclusion of individual claims in a current invoice as well as the balancing of accounts and their recognition shall not affect the retention of title. The Customer is entitled to resell the reserved goods in the normal course of business, but is not permitted to pledge them or assign them as security.

The Customer hereby assigns to the supplier the Customer’s claim arising from the resale of the reserved goods; the supplier accepts this assignment. The Customer is entitled to collect these claims as long as he/she fulfills his/her obligations to the supplier. At the supplier’s request, the Customer is obliged to specify the third-party debtors and to notify them of the assignment. Any processing of the reserved goods shall be carried out by the Customer on behalf of the supplier, without any obligations arising for the latter. If the delivered goods are processed or combined with other items, the supplier’s ownership shall not expire as a result, but the supplier shall become a co-owner of the new items in the ratio of the invoice value of its reserved goods to the other processed goods.

If the goods subject to retention of title are resold after processing or combination with other goods, the advance assignment agreed above shall only apply to the amount of the invoice value of the goods subject to retention of title. The Customer must inform the supplier immediately of any enforcement measures taken by third parties against the reserved goods or the claims assigned in advance, handing over the documents necessary for intervention.

The supplier undertakes to release the securities to which it is entitled in accordance with the above provisions at the request and discretion of the Customer to the extent that the value exceeds the conveyances to be secured by 20%.

10. Tool Costs

Tool costs are calculated separately from the value of the goods.

a) By paying a share of the costs for the tools, the Customer does not acquire any claim to the tools; they remain the property and in possession of the manufacturer. The manufacturer undertakes to keep the tools for the Customer for 1 year after the last delivery. If the Customer informs us before the expiry of this period that orders will be placed within a further year, the retention period shall be extended by a further year. After this time and in the absence of a repeat order, the manufacturer can freely dispose of the tools.
b) Tool costs incurred for orders that do not materialise: We reserve the right to invoice the costs incurred for orders that are cancelled during the development stage (due to difficulties in shaping or forming) or during the start-up period.
aa) The costs incurred for the initial tool set are calculated before the samples are released,
bb) in the event of cancellation after sample approval, the costs incurred for the entire scope of the series tools, special equipment and gauges will be invoiced depending on the amount of the planned monthly requirement.

The processed, invoiced tools are retained for inspection for four weeks and are scrapped after this period.

Completed stage plans and construction drawings of the tools are not subject to the obligation to provide evidence in order to protect the processes used.

11. Applicable Law and Jurisdiction

The parties to the contract expressly agree that German law (in particular BGB, HGB) shall apply as a choice of law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and other laws is excluded.

The exclusive – and international – place of jurisdiction for disputes arising from or in connection with this contract with Customers who are registered traders, a legal entity under public law or a special fund under public law is the court responsible for our registered office. However, we reserve the right to take legal action at the Customer’s registered office.

12. Service and Repairs

When returning your goods for service or repair purposes, please also note our separate Service T&Cs. These can be found on our website in the GTCs section.

Registered Office

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
Geschäftsführer: Peter Schultz
Handelsregister: Amtsgericht Köln HRB 36445
USt.-IdNr. DE 811757897