1. Scope of validity
1.1 The goods and services rendered by SWD are so rendered
exclusively under the provisions of the General Terms and Conditions
of Business (hereinafter also called the AGB) that follow and those
of the applicable price list unless otherwise agreed in writing.
The manufacturer's license conditions enclosed with the contractual
goods and / or services also refer. The currently valid price list is
that published on the Internet at the address http://www.swd.de.
1.2 SWD does not recognise any conditions made by the client that
deviate from, or are contrary to, these Terms and Conditions (AGB)
unless SWD has otherwise explicitly agreed in writing. Any and all
amendments and / or supplements to the contract must be in writing
to be effective. SWD's AGB remain in effect even if SWD renders its
contractual goods and / or services to the client without reservation
despite knowledge of client conditions contrary to, or deviating from,
the AGB. Any and all guarantees and / or ancillary provisions /
conditions must be confirmed in writing by SWD to be effective.
1.3 SWD renders its goods and services solely for trade use.
Consumers within the meaning of § 13 of the German Civil Code
are excluded from supply of same.
2. Goods and services
2.1 The goods and / or services offered by SWD are so offered without
obligation and subject to change without notice. They are always to be
understood to be subject to our being properly furnished with the
contractual goods and / or services by our suppliers. Contract is first
made when SWD furnishes written confirmation of an order or orders, but
when the client accepts delivery of same at the latest.
2.2 SWD is entitled to withdraw from any contract / s insofar as facts
come to light showing that the client is not creditworthy.
2.3 SWD reserves the right to engineering and / or design deviation / s
from information given in prospectuses, catalogues and written documents
as well as to make changes in model / s, design / s and / or material / s
as a result of engineering advances and product development insofar as the
client can reasonably be expected to tolerate same without any right as
toward SWD resulting therefrom.
2.4 SWD expressly reserves the right to render part-shipment and invoice same
insofar as reasonable.
2.5 Agreed delivery dates are considered adhered to if the contractual product / s
have been handed over to the carrier by the agreed date / time provided no
other agreement has been specifically made in writing.
Should the movement of wares ready for shipment be delayed for reasons for which
SWD cannot be made liable, then the contractual product / s may be stored at the
costs and risk of the client / s.
2.6 Delivery dates are agreed on the basis of the anticipated capacity of SWD.
They are understood not to be binding and subject to SWD themselves being provided
with goods and / or services in good time. Such dates are also subject to unforeseen
circumstances / events, regardless of whether same affect SWD, the maker, or both.
This last particularly applies to force majeure, intervention on the part of any
government, official approvals / permits not being granted, industrial action of any
kind whatsoever, sabotage, lack of raw material / s and / or delayed delivery of material
/ s for which the recipient cannot be made liable. Any such event delays the delivery date
appropriately, including in those cases in which they arise during another delay. In such
cases, any period of grace granted by a client is extended by the duration of the unforeseen
event / s and / or circumstances. Should SWD be more than 4 weeks in arrears with any delivery
and / or part / s thereof, then the client may withdraw from the contract / s affected, subject
to their first having granted SWD a reasonable period of grace in writing, all and any other
rights being excluded in such case / s. The client's right to claim damages in the event of
delayed delivery due to common negligence is excluded. Under all other circumstances, SWD
liability is limited to the damage anticipated in financial terms, but to a maximum of 5%
of the value of the shipment / s concerned. SWD reserves the right to withdraw from the contract
should delivery delay due to one or more of the causes cited above exceed 6 weeks and SWD not
be liable for said delay / s.
3. Application engineering consultancy services
3.1 Application engineering consultancy services are rendered to the best of our
knowledge and belief based on our experience and product information provided by the
maker / s and / or supplier / s. All data and information on suitability and application /
utilisation of our wares are not binding and do not relieve the orderor of any necessity to
carry out their own testing as appropriate.
3.2 No liability whatsoever other than that in 3.1 above can be accepted for
programmes functioning correctly. To prevent damage, users themselves bear the
responsibility of testing whether or not programme / s process user data correctly.
Complete retrieval of data cannot be guaranteed in the event of data reorganisation.
The client may exchange programmes for updated and improved versions insofar as we are
in a position to do so in view of our own delivery capacity and such programmes being
made available by their maker / s. SWD will invoice the client the amounts shown in the
current valid price list as update cost / s in such cases.
4. Any and all agreement /s on amending delivery dates must be in writing to be
effective. In the event of acceptance delay, SWD not only retains the right to payment
but also has the additional right to determine a new delivery date or to withdraw from
the contract at their sole discretion.
5. Testing and transition of risk
5.1 The client must check all wares received without delay for completeness
according to the invoice. Should no notification be received on this subject
within a week of delivery, then the goods and / or services delivered / rendered
shall be considered to have been so rendered / delivered correctly and in full
unless the defect / s in question is / are such that it / they could not have been
recognised during any such testing / inspection.
5.2 Minor defects not affecting the functionality of the product / s delivered /
rendered do not entitle the client to refuse acceptance.
5.3 All risks associated with the contractual product / s pass to the client when said
product / s is / are handed over to the carrier, their agent / s or any third party
nominated by SWD. Should shipment be delayed or become impossible for reasons for which
SWD cannot be held liable then the risk passes to the client when readiness for shipment
is advised. The provisions of 5.3 above also apply to return shipment / s after defect
correction and the rendering of repair goods and / or services for which charge is made.
6. Prices and Terms and Conditions of Payment
6.1 The prices in the valid price list are ex warehouse Quickborn, Germany. VAT and
other legally prescribed charges in the country of delivery together with packaging,
shipping costs and insurance, ecological and processing charges will be invoiced the
client in accordance with the valid price list.
6.2 SWD reserves the right to increase prices as appropriate should SWD costs
increase after contract has been made. This particularly applies where price
increases by suppliers and / or currency exchange rate deviations are concerned.
Documentary proof of same will be provided the client on demand in such cases.
6.3 Payment is due within 10 days of invoicing without deduction / s. . Invoicing is
always together with the affected delivery / deliveries.
Cheques are only accepted on account of performance. In the event of payment being in
arrears, SWD has a right to charge interest of 5% over and above the currently valid
discount rate of the German Bundesbank without further advice. This does not affect
their right to make any further claim / s in law.
6.4 Repair and workshop commissions / orders are payable in full immediately on
receipt of the goods and / or services involved.
6.5 SWD is entitled, regardless of any rules to the contrary the client may have,
to set-off payments made against older debts of the client. If any costs and / or
interest has / have accrued and / or been incurred due to payment arrears, SWD is
entitled to set any payment /s off against first the costs, then the interest and
finally the goods and / or services concerned.
6.6 Setting-off or applying any right / s of retention due to counter-claims not
recognised by us or that are not res judicata is excluded.
6.7 Should the above payment provisions be deviated from without justification,
SWD shall be entitled to make delivery in parts against payment for each such part
/ s or to demand payment in advance or security. All open demands, including those
for which SWD has accepted bills of exchange or promissory notes or for which payment
by instalment has been agreed, will then be payable immediately.
6.8 Delivery and installation of the devices and / or installation and adjustment
of software by us will be invoiced the client, as will familiarising their staff with
same.
6.9 Should the customer be permitted the use of any goods and / or services for
trial purposes then the free trial period will be one week unless otherwise agreed
in writing.
6.10 On expiry of a period of one week from the time any such goods and /
or services were handed over to the client, rent for every month or part thereof
amounting to 5% of the commission / order value concerned for such values not exceeding
DM 20,000 and of 3% for such values exceeding that sum becomes payable unless otherwise
agreed in writing.
6.11 Such rental payment may be set off against the purchase price by written
agreement.
6.12 In cases where consultancy goods and / or services have been tendered
in hard- and / or soft-ware matters, an amount equivalent to 5% of the value
of the hard- and / or soft-ware affected will be payable for such goods and
/ or services should no sale result.
7. Reservation of title
7.1 Contractual products remain the property of SWD until all demands, including
future ones, arising from this agreement have been met, as well as those arising
from our commercial relationship with the client in question.
7.2 The client is revocably entitled to pass the goods and / or services
subject to reservation of title on to others in the normal course of business
insofar as they sell said wares subject to their own reservation of title,
but not to use same as security or hypothecate them in any way whatsoever.
The client must make SWD's reservation of title in the goods and / or services
affected known without delay to any third party having access to same.
7.3 In the event the goods and / or services subject to reservation of title
as above are processed, connected to, or mixed with, any wares not belonging
to SWD, SWD shall acquire joint title pro rata to the ratio of the invoiced
value of their goods and / or services so affected in the remaining wares.
Processing of goods and / or services subject to reservation of title is performed
from SWD's standpoint as maker within the meaning of § 950 of the German Civil Code
without any obligation whatsoever on their part. SWD acquires joint ownership in
the processed goods and / or services within the meaning of the above provisions.
7.4 In the event of arrears of payment, whether for other and / or future goods and
services supplied by SWD or not, and / or any decay in the client's financial situation,
SWD may enter the client's business premises and remove the wares subject to reservation
of title in order to assert that reservation of title.
7.5 Assertion of reservation of title or attachment of the goods and / or services
supplied by SWD is not considered withdrawal from the contract provided the client
is a registered merchant in German law.
7.6 The client assigns their right / s to make future claim / s on the basis of
their passing on the wares subject to reservation of title at their invoiced value
at the time of originally ordering same to SWD in advance. The client remains
entitled to seizure despite said assignment. SWD is entitled to seizure in the
course of normal business nevertheless, but will not assert this right except in
cases of arrears of payment or when application has been made by the client for
bankruptcy or composition proceedings. At SWD's request, the client will detail
the demands assigned, give all necessary information, hand over all relevant documents
and inform debtors of said assignment. SWD may publicise the assignment at any time
to safeguard their payment demands.
7.7 The choice of securities to release is at SWD's sole discretion. SWD's net price
list valid at the time release is requested is the basis for valuing securities where
wares subject to reservation of tile are concerned. Where assigned demands are concerned,
the net invoice amount less a security deduction of 30% is the basis of calculation.
If the client's customer / s is / are already in arrears of payment where a demand is
concerned, or facts are known justifying assuming any shortfall, then the security
deduction will be 50%. Where security in the form of joint ownership due to mixing
and / or processing and / or connection is concerned, the net SWD list price for the
wares supplied less a deduction of 30% is the calculation basis.
7.8 Wares supplied for test and / or demonstration purposes remain the property of SWD.
They may only be used for any other purposes / s with express written permission from SWD.
8. Guarantee
8.1 SWD guarantees that the contractual goods and / or services do not have major defects.
This includes guaranteed characteristics. Manufacture of the contractual goods and / or
services is performed with the required care and attention. The parties are, however,
aware that it is impossible to exclude software malfunction / s under all and / or any
conditions of use given current engineering and technical knowledge.
8.2 SWD guarantees that the contractual goods and / or services are fittingly described
in general terms in the supplied product information and basically capable of use within
those limits. The technical data and descriptions in the product information mentioned
alone do not constitute any warranty of specific characteristics. Warranty of characteristics
in the legal sense is only extant when the specific details involved are confirmed in writing
by SWD. SWD assumes no liability for the program functions satisfying the client's needs and /
or functioning together with other goods and / or services in the combination selected by them.
8.3 Defects and / or damage due to any of the following is / are specifically excluded from
the guarantee:
normal wear and tear /improper use / operating and / or control errors and negligent behaviour
on the client's part / operation with the incorrect type of power supply and / or voltage and
/ or connection to unsuitable power source / s / fire, lightning strike, explosion or
overvoltage due to mains fault / s / humidity and / or damp of any kind / wrong or
faulty program and / or software and / or processing data and / or any components subject ot
wear and tear unless the client can prove that such circumstance / s were not causally connected
with the defect / s complained of.
The guarantee expires should serial number and / or type description, and / or similar labelling
be removed or made illegible.
8.4 The guarantee period is according to the german law actual in force from the
date the risk transfers. This period is one of limitation and also applies to the remedying of damage consequential to defect / s insofar as no
claims based on illegal action / s are made. Guarantee claims are non-transferable. Regardless of
the above, SWD will pass on makers' guarantees in full to the client without assuming any liability
whatsoever for same.
8.5 Should quantitative shortfalls be proven, we will supply the deficit insofar as the maker's
supply capabilities render us able to do so. Our guarantee for equipment is restricted to repair
/ remedy. In all other cases, our guarantee is restricted at our discretion to exchange, rescission
of the contract of sale, or reduction of the purchase price.
8.6 In the event of guarantee claim, SWD will either remedy the defect or supply replacement / s
at their sole discretion. Replaced parts become SWD property. Should SWD not remedy defects within
a reasonable period of grace set in writing then the client shall be entitled either to rescind the
contract in question or to demand an appropriate reduction in the purchase price.
8.7 In the event of remedy, SWD will pay labour costs. All other remedy costs and ancillary costs
associated with replacement shipment / s, particularly shipping costs for the replacement part / s,
will be born by the client insofar as they are not disproportionate to the value of the order / commission.
8.8 Should checking of any defect report reveal that the guarantee does not apply to same then SWD
shall be entitled to demand restitution of all their costs incurred in connection with the matter.
Costs for repair and / or checking will be invoiced at SWD's currently valid service price / s.
8.9 All and any other right / s of the customer to make claims other than those detailed in these
provisions, regardless of its / their legal basis, is / are excluded unless otherwise specifically
provided herein.
8.10 The customer must observe our Customer Service processing guidelines in their valid edition and
/ or the appropriate procedure / s in the currently valid SWD price list when making guarantee claim
/ s and / or where return shipment / s and / or repair commissions is / are concerned.
9. Third party industrial property rights and copyright
9.1 SWD assumes no liability for the contractual goods and / or services not being in breach of any
third party's industrial property rights and / or copyright. The customer must advise SWD without
delay of all and any claim / s made against them for this reason.
9.2 The customer must indemnify SWD against all and any claim / s that might be made by third party
/ parties due to wares supplied being in breach of industrial property rights and / or copyright where
the wares supplied are manufactured / rendered to design / s and / or instructions from the client.
All legal costs are to be advanced as appropriate.
10. Liability and extended guarantee
10.1 Unless otherwise stated herein, any further right / s to make claim / s on the part of the
customer - regardless of legal basis - is / are excluded. SWD therefore assumes no liability
whatsoever for damage / s not occurring to the wares supplied themselves. In particular, SWD
assumes no liability whatsoever for lost profit / s and / or any other damage to client's assets.
All liability is restricted in amount to the current value of the wares involved. This exclusion
particularly applies to claims of liability at making of contract and / or breach of ancillary duties
and / or manufacturer's liability within the meaning of § 823 of the German Civil Code.
10.2 This exclusion of liability does not apply if the claim is based on deliberate act /
s of omission or commission and / or gross negligence. It also does not apply if the client
makes claim / s for non-fulfilment on the basis that characteristics covering the consequential
damage / s concerned were not guaranteed.
10.3 SWD's duty to make remedy for damage to person / s and / or property is limited to the
amount covered by their product liability insurance policy in cases in which SWD negligently
breaches a major contractual duty.
10.4 The foregoing liability exclusions and limitations do not apply for claims made on the
basis of product liability law and / or initial inability to perform and / or impossibility
of performance for which SWD can be held liable. Insofar as liability is excluded or limited,
this also applies to the personal liability of any employee and / or representative and / or
vicarious agent.
11. Export and import approvals
11.1 The goods and / or services and / or technical know-how supplied by SWD is / are intended
for use in the country agreed on with the client and to remain there. Re-export of them, either
individually or as part /s of an integrated system, is subject to approval being granted the
client for so doing and is always subject to German export law or that of the country to which
the goods and / or services and / or technical know-how were supplied as agreed with the client.
The client is responsible for informing themselves of such German rules by enquiring of the
Federal Export Office, 65760 Eschborn/Taunus, Germany and of such US rules by enquiring of the
US Department of Commerce, Office of Export Administration, Washington, D.C. 20230, USA.
Regardless of whether the client states the final destination of the wares supplied or not,
they are responsible for obtaining all necessary approvals from all responsible authorities
before exporting said wares.
11.2 Any onforwarding of contractual goods and / or services by the client to third parties,
with or without the knowledge of SWD, is subject to simultaneous assignment of the export
approval conditions. The client is solely liable toward SWD for proper adherence to all
applicable such conditions.
12. EU import turnover tax
12.1 If the client has their head office / s outside Germany then they are obliged in law to
adhere to the applicable rules on EU import turnover tax. This specifically includes advising
SWD of their EU turnover tax identification number without this having to be requested. The
client has a duty to give the necessary information to SWD on request on their legal status
as a commercial enterprise and the use and shipment of the wares supplied, and to fulfil their
legal duty to supply statistical data.
12.2 The client has a duty to recompense SWD for any and all costs incurred due to defective
and / or deficient details supplied by the client concerning import turnover tax and in particular
to pay a processing fee in such cases to them.
12.3 SWD liability for any consequences arising from the details given by the client for import
turnover tax purposes and / or the relevant data hereto is excluded unless SWD is guilty of
deliberate act / s of omission or commission and / or gross negligence in the matter.
13. Miscellaneous provisions
13.1 The client is not entitled to assign their rights under the contract.
13.2 Place of performance is the company's head office location.
13.3 Sole place of judicature for any and all disputes arising from, or in connection
with, this agreement is that place in which the court is sited having jurisdiction over
the location of our head office. This is binding on both parties and also applies to proceedings
brought concerning bills of exchange and / or cheques.
13.4 The law of the Federal Republic of Germany is the sole applicable. The UN Convention on the
International Sale of Goods is excluded.
13.5 Order / commission processing is performed within the SWD group using automated data processing
facilities. The client herewith expressly agrees to such processing by SWD within the limits of
the data that has become known in the course of their mutual contractual relations and that data
which is essential to such processing. The client agrees to SWD utilising data within the meaning
of the German Data Protection Act gained in the course of that relationship for their commercial
purposes, including within the SWD group.
13.6 Should any provision / s in this of this AGB be null and void for any reason whatsoever, or
this AGB contain a loophole or loopholes of any kind, the contracting parties will replace / fill
same with suitable provision / s coming as close as legally possible to the same economic effect
as that originally intended, or amend the AGB appropriately.
This will not affect the validity of the remaining provision / s in any way whatsoever.
Issue date June 2002
Vendor Identification
SWD GmbH
Raiffeisenstr. 4
D-25451 Quickborn
Tel: +49 (0)4106 6109-0
Fax: +49 (0)4106 6109-40
Email: 
General Manager: Uwe Wannags
VAT ID: DE 196590199
Amtsgericht Pinneberg, HRB 5523 PI
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