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-Europe.com (SWAP) and its customers. Deviating or conflicting conditions
will not be accepted by SWAP, unless SWAP has expressly agreed to them in
(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
(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
§ 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
(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
§ 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
(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
(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.