Maintenance and Repair Conditions - SWAP Europe

§ 1 Validity

(1) These terms and conditions of maintenance and repair apply exclusively to all contractual relationships between (SWAP) and its customers. Deviating or conflicting conditions will not be accepted by SWAP, unless SWAP has expressly agreed to them in writing.

(2) These terms and conditions of maintenance and repair also apply to all future work and services between the parties, and even if SWAP in the knowledge of deviating or conflicting conditions maintenance or repair work for the customer.

§ 2 Scope of Services

(1) SWAP Europe offers to repair or replace mechanical, electrical or electronic parts (including labor) whose defectiveness has been duly reported. These services also extend to other parts damaged by the defective part (consequential damage).

(2) Not included in the scope of maintenance and repair are:

a) deterioration due to external circumstances

b) replacement of wearing parts and consumables

c) defects that are due to improper care or maintenance of the product by the customer

d) parts and accessories that are not part of the original equipment of the respective product

e) the consequences of incorrect or improper use of the product or modification of the product

f) damages caused by intent or gross negligence of the customer

g) damages resulting from the defect of a part not under warranty

h) any indirect or consequential damages, such as in particular loss of use and depreciation.

§ 3 Offer, Acceptance

(1) All offers made by SWAP are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. SWAP may accept orders within (14) days after receipt. For the conclusion of a maintenance or repair contract with SWAP, the submission of a warranty claim for a registered device via the SWAP web application to SWAP Europe is to be considered as an offer, which SWAP Europe can accept. For details, please refer to the "aftersales quick start procedure" (link pdf).

(2) Solely authoritative for the legal relationship between SAWP and the customer is the maintenance and repair contract concluded in writing, including these maintenance and repair conditions. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises of SAWP before the conclusion of this contract are legally non-binding and oral agreements of the parties to the contract are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.

(3) Supplements and amendments to the agreements made, including these Maintenance and Repair Conditions, must be in writing to be effective. With the exception of managing directors or authorized signatories, the employees of SAWP are not entitled to make verbal agreements deviating from the written agreement. The telecommunicative transmission, in particular by fax or by e-mail, is sufficient to maintain the written form, provided that the copy of the signed declaration is transmitted.

(4) Information provided by SAWP on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

(5) SAWP retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer. The customer may not make these items accessible to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without the express consent of SAWP. At the request of SAWP he must return these items completely to SAWP and destroy any copies made if they are no longer needed by him in the proper course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of usual data backup.

§ 4 Prices, Payment

(1) Costs invoiced to the Customer in connection with the performance of the maintenance or repair work shall be due for payment net within 30 days from the date of invoice. After the due date, interest on arrears shall be charged at a rate of 8% above the respective base interest rate p.a.. SWAP reserves the right to claim further damages for default.

(2) Maintenance or repair shall first require the timely and proper fulfillment of the customer's obligations. SWAP reserves the right to plead non-performance of the contract.

(3) In the event of default of acceptance or other culpable violation of cooperation obligations on the part of the customer, SWAP is entitled to compensation for the resulting damage, including any additional expenses. SWAP reserves the right to assert further claims. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser at the time of default of acceptance or other breach of duties to cooperate.

§ 5 Offsetting, retention

The Buyer shall be entitled to set-off only to the extent that its counterclaims are undisputed or have been finally determined by a court of law. The customer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same contractual relationship.

§ 6 Retention of title

(1) The goods remain SWAP's property until all payments have been received in full. In case of breach of contract by the customer, including default of payment, SWAP is entitled to take back the goods as far as this is possible according to the nature and type of the goods.

(2) The customer shall handle the goods with care, insure them appropriately and, if necessary, maintain them.

(3) Insofar as the consideration has not been paid in full, the customer must inform SWAP immediately in writing if the goods are encumbered with the rights of third parties or exposed to other interventions by third parties.

(4) The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, however, the customer hereby assigns to SWAP all claims arising from such resale, regardless of whether such resale takes place before or after any processing of the goods delivered under retention of title. Notwithstanding SWAP's authority to collect the claim itself, the customer shall remain authorized to collect the claim even after the assignment. In this context, SWAP undertakes not to collect the claim as long as and insofar as the customer meets its payment obligations, no application for the opening of insolvency or similar proceedings has been filed and no cessation of payments has occurred.

(5) Insofar as the above-mentioned securities exceed the claims to be secured by more than 10 %, we shall be obliged to release the securities at our discretion upon the customer's request.

§ 7 Warranty

(1) The warranty period shall be one year from the date of performance of the service or, if acceptance is required, from the date of acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by SWAP or its vicarious agents, each of which shall become statute-barred in accordance with the statutory provisions.

(2) The delivered items and services shall be carefully inspected immediately after delivery or performance to the customer or to the third party designated by the customer. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the Customer if SWAP does not receive a written notice of defect within 7 (seven) working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Purchaser if the notice of defect is not received by SWAP within (seven) working days after the point in time at which the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. Upon SWAP's request, a rejected delivery item shall be returned to SWAP freight prepaid. In the event of a justified complaint, SWAP shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

(3) In the event of material defects in the delivered items, SWAP shall first be obligated and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reasonably reduce the purchase price.

(4) If a defect is due to the fault of SWAP, the Customer may claim damages under the conditions set forth in § 8.

(5) In the event of defects in components from other manufacturers that SWAP cannot remedy for licensing or factual reasons, SWAP shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Principal or assign them to the Principal. In the event of such defects, warranty claims against SWAP shall only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against SWAP shall be suspended.

(6) The warranty shall lapse if the Principal modifies the delivery item or has it modified by a third party without SWAP's consent and the elimination of defects is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of defect rectification resulting from the modification.

(7) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.

§ 8 Liability

(1) SWAP's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is involved in each case.

(2) SWAP shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the customer's personnel or to protect the customer's property from significant damage.

(3) Insofar as SWAP is liable on the merits for damages pursuant to § 8 (2), this liability shall be limited to damages which SWAP foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.

(4) The above exclusions and limitations of liability shall apply to the same extent in favor of SWAP's corporate bodies, legal representatives, employees and other vicarious agents.

(5) Insofar as SWAP provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by SWAP, this shall be done free of charge and to the exclusion of any liability.

(6) The limitations of this § 8 do not apply to SWAP's liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 9 Statute of Limitations

(1) Notwithstanding § 634a para. 1 no. 1 BGB, the general limitation period for claims arising from defects in work and title against entrepreneurs within the meaning of § 14 BGB shall be one year from acceptance of the performance.

(2) The above limitation periods under works law shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Customer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

§ 10 Applicable law, place of jurisdiction

(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between SWAP and the customer shall be, at SWAP's option, the Hanau Regional Court or the customer's place of business. In such cases, however, the Hanau Regional Court shall be the exclusive place of jurisdiction for actions against SWAP. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relationship between SWAP and the client shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.

(3) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole.

(4) The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.