General terms and conditions of service, sale and business
§ 1 General Regulations
1.1. The contracting parties are SWAN GmbH, (hereinafter referred to as “SWAN”) with its registered office in Augsburg and the business partner, jointly referred to as “the Parties”. SWAN provides its services in principle on the basis of the following general terms and conditions.
1.2. The following terms and conditions apply to all offers, purchase, service and delivery contracts concerning SWAN’s products and services. Any terms and conditions of the business partner that conflict with or deviate from these terms and conditions of service, sale and business are expressly not recognized; separate recognition shall only occur if SWAN expressly agrees to their validity in writing.
1.3. The scope of each delivery shall be governed exclusively by the specifications in the written order confirmation. All verbal subsidiary agreements and any subsequent amendments to the contract shall only be valid if they are expressly confirmed by SWAN in writing or text form. The waiver of this formal requirement must be in writing. These Terms and Conditions of Sale shall also apply to all future transactions with the business partner.
1.4. The information, drawings, illustrations, technical data, weights, dimensions and performance descriptions contained in brochures, advertisements, price lists or in the documents belonging to the offer are only approximate values, unless they are expressly designated as binding in the order confirmation. SWAN reserves the right to make changes in design and form during the delivery period, provided that the delivery item and its appearance are not substantially changed.
1.5. The type and scope of the services and deliveries to be performed as well as the terms of remuneration and payment for SWAN shall be determined by separate agreement, such as a submitted offer or a service contract or contract for work and services. SWAN reserves the right to recalculate the offer price if individual partial services are removed.
1.6. The offers and the descriptions of the deliveries and services of SWAN contained therein are in principle subject to change and non-binding. SWAN shall be bound by specifically prepared offers in accordance with the specific information in the offer. A contract shall only be concluded upon acceptance by countersignature of the offer or final signature of the separate agreement in writing or text form. Should SWAN receive an order from the business partner, the contract shall be deemed accepted only upon confirmation in writing or text form within four (4) weeks to the business partner or, alternatively, upon commencement of performance implementation or delivery. The order declared by the business partner is a binding offer. In the event of change requests on the part of the business partner during the term of the contract, these shall be represented as far as possible by means of supplementary offers, for which the written or text form must also be observed. SWAN is entitled to correct obvious calculation errors or mistakes in the price quotation or the description of the goods at a later date.
1.7. The business partner shall provide SWAN with all accesses required for the ordered deliveries and services (in particular VPN and SAP accesses) to the extent necessary for operations. Delayed or non-delivery of information and access may result in a scheduling delay or additional expense. Any additional costs incurred shall be borne by the business partner.
1.8. The business partner shall inform SWAN in a timely manner and without special request of events and circumstances that may have a recognizable serious impact on the execution of the contractual relationship.
1.9. The business partner shall provide all necessary and contract-relevant data completely and truthfully and shall promptly report any relevant changes to the information provided.
1.10. SWAN is entitled to amend or supplement these General Terms and Conditions at any time, subject to six (6) weeks’ notice. The Business Partner shall be notified of the change in writing or text form. The amendment shall be deemed accepted if the Business Partner does not object within a period of six (6) weeks after notification of the amendment. If the business partner does not disagree, the changes shall become effective in accordance with the announcement. If, on the other hand, the business partner disagrees in due time, the parties shall be entitled to terminate the contract as of the date on which the changes are to come into force, subject to a notice period of six (6) weeks, while continuing the contractual relationship with the previous general terms and conditions. Further termination rights of the parties shall remain unaffected.
1.11. SWAN is entitled to make editorial changes in the text of the General Terms and Conditions on a continuous basis. The Business Partner shall refrain from providing any information in this regard. In the event of major textual changes, SWAN will inform the business partner before the amended general terms and conditions come into force.
§ 2 Contractual Terms and Periods of Notice
2.1. In the case of individual contractual arrangements, the contractual terms and periods of notice from the respective individual or permanent contract agreement take precedence. For the other items, reference is made to the following supplementary information.
2.2. In the case of permanent contract agreements with ongoing, continuous service provision, such as maintenance, framework or service agreements, the minimum contract term shall be twelve (12) months, unless otherwise stipulated in the individual contract. In this case, the notice period is three (3) months to the end of the term. The term of uncancelled contracts shall be extended by a further twelve (12) months after the expiry of the contract. The right of termination for cause shall not be affected thereby.
2.3. If no contract term or notice period has been determined between the parties, the statutory provisions shall apply.
§ 3 Retention of Title
3.1. The delivered goods shall remain SWAN’s property until full payment of all claims of SWAN against the business partner existing on the invoice date. The business partner shall only be entitled to resell the goods in the ordinary course of business. The business partner hereby assigns its claims from the resale to SWAN. SWAN hereby accepts the assignment. At the latest in the event of default, the business partner is obliged to name the debtor of the assigned claim within the scope of an assured right to information. In the event of treatment or processing of goods delivered by SWAN and owned by it, the business partner shall be deemed to be the manufacturer in accordance with §§ 3 and 4 of the German Civil Code. § 950 BGB and retains ownership of the products at all times during processing. If third parties are involved in the treatment or processing, SWAN shall be limited to a co-ownership share in the amount of the invoice value of the reserved goods. The property thus acquired shall be deemed to be reserved property. In the event of access by third parties to the reserved goods, the business partner must point out SWAN’s ownership and notify SWAN immediately. Costs and damages shall be borne by the business partner.
3.2. The assertion of the reservation of title shall only be deemed to be a withdrawal from the contract if SWAN expressly declares this in writing or text form. SWAN reserves the right to withdraw from the contract in case of filing for insolvency. The business partner shall be obliged to surrender all delivered items prior to the opening of insolvency proceedings.
§ 4 Delivery and Provision of Services
4.1. In the case of business transactions with entrepreneurs, the delivery obligation is subject to the correct and timely provision of services to SWAN, unless SWAN is responsible for incorrect or delayed delivery.
4.2. Delivery and performance deadlines and dates shall be deemed to have been agreed only approximately, unless SWAN has expressly given a commitment in writing or text form as binding. The delivery period shall commence on the date of acceptance of the contract or receipt of the order confirmation, but not before full clarification of all details of execution and timely fulfillment of all obligations of the business partner, such as making down payments in accordance with the terms of the contract. § 6.4. Fixed deals are excluded. In the case of sales ex works, the delivery periods and deadlines are deemed to have been met if the goods leave the SWAN factory or the partners commissioned by SWAN within the delivery period or on the delivery date. The delivery deadline shall be deemed to have been met upon timely notification of readiness for shipment if shipment is impossible through no fault of SWAN. The delivery period shall be extended appropriately in the event of force majeure, labor disputes, riots, pandemics (in particular the Sars-CoV-2 pandemic), official measures, failure to receive deliveries from suppliers and other unforeseeable, unavoidable and serious events for the duration of the disruption. The agreed delivery period shall be extended – without prejudice to SWAN’s rights arising from default on the part of the business partner – by the period by which the business partner is in default with its obligations under this or any other contract. The expiry of certain delivery periods/deadlines shall not release the business partner who wishes to withdraw from the contract or claim damages for non-performance from setting a reasonable grace period, generally four (4) weeks, for performance and declaring that it will refuse performance after expiry of the grace period. If SWAN is only guilty of slight negligence, compensation for damages shall be limited to the additional expenses for a covering purchase or substitute performance. Claims for damages due to non-performance or delayed performance are excluded for contracts with entrepreneurs. The business partner may not reject partial deliveries.
4.3. Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back by SWAN. The business partner shall ensure proper disposal of the packaging at its own expense.
§ 5 Shipping and Transfer of Risk
In principle, delivery shall be made ex manufacturer’s works (place of performance) and with simultaneous transfer of risk to the business partner as soon as the consignment has been handed over to the person performing the transport or has left the warehouse of SWAN or the partners commissioned by SWAN for shipment. Any shipment requested by the business partner shall always be made on its behalf and at its expense ex manufacturer’s works and exclusively at the business partner’s risk. SWAN shall not assume any warranty arising from any shipping instructions that may have been issued.
§ 6 Prices and Terms of Payment
6.1. All prices according to the respective valid price list are in EURO (€) ex works plus the applicable statutory value added tax, even if the value added tax has not been expressly stated in the individual case, as well as plus packaging, freight, postage, insurance and other shipping costs. The prices stated in SWAN’s contractual agreement shall prevail. The agreement of discount or rebate requires confirmation in writing.
6.2. SWAN reserves the right to change its prices to the extent that cost reductions or increases occur after the conclusion of the contract due to “collective bargaining agreements” or changes in the price of materials. SWAN shall provide evidence of this to the business partner upon request. All ancillary fees, public charges, as well as any newly added taxes, freight, etc. or increases thereof, by which the delivery and performance of services is directly or indirectly affected or taxed, shall be borne by the business partner, unless mandatory statutory provisions to the contrary apply. The prices stated in SWAN’s offer are subject to the proviso that the order data on which the offer was based remain unchanged and are confirmed by SWAN in writing or text form. In the case of orders and deliveries to third parties, the business partner is deemed to be the customer unless otherwise expressly agreed.
6.3. If the parties have not agreed on a fixed remuneration or if the services are not included in the scope of services, SWAN’s remuneration shall be based on time and effort. The hourly or personal daily rates valid at the time of performance of the service shall apply and shall be notified to the business partner by SWAN prior to the commencement of the service. If the hourly or personal daily rates are not disclosed, the usual remuneration of the hourly or personal daily rates shall be deemed to have been agreed.
6.4. SWAN is entitled at any time of the contractual relationship to demand down payments or payments on account for project progress. The amount and due date of these amounts shall be determined by the offer, the progress of implementation or any other individual contractual agreement reached between the parties. In the event that such an agreement does not exist, SWAN shall be entitled to demand reasonable down payments or payments on account for partial services.
6.5. In addition to the agreed project remuneration, SWAN is entitled to claim incurred expenses and out-of-pocket expenses, such as travel expenses and accommodation costs, upon presentation of appropriate evidence, unless otherwise stipulated in the offer, order or contract.
6.6. In the case of permanent contracts with ongoing, continuous provision of services, the agreed remuneration shall be paid pro rata in weekly or monthly settlements at the start of the operational provision for the respective service period. SWAN is entitled to adjust and redetermine the billing periods at any time.
6.7. In the absence of any agreement to the contrary, payment of the benefit shall be due monthly. SWAN is entitled to adjust and redetermine the billing periods at any time. Usage-based prices are billable after the service has been provided.
6.8. Unless otherwise agreed in individual cases, services shall be rendered on account. Invoices shall be payable within thirty (30) days without deduction, unless another performance deadline has been set.
6.9. Default in payment shall occur upon exceeding the set payment deadline or, at the latest, upon expiration of thirty (30) days after receipt of the invoice. In the event of default, SWAN reserves the right to charge interest at a rate of nine (9) percent above the base interest rate applicable from time to time vis-à-vis entrepreneurs, as well as to claim damages for default in the amount of the respective damage in the event of greater damage caused by default. Should the business partner be in arrears with the payment of a not insignificant part of more than one month’s remuneration in the case of ongoing services, SWAN shall be entitled to discontinue the performance/implementation of the service without notice after prior notification. In this case, the Business Partner shall remain obliged to pay the remuneration owed. In such cases, SWAN also reserves the right to terminate the contractual relationship without notice and to demand reimbursement of lost profits and other damages from the business partner, taking into account the expenses saved. SWAN is also entitled to terminate the contractual relationship without notice if insolvency proceedings have been opened against the business partner’s assets or insolvency proceedings have been rejected for lack of assets.
6.10. Objections to an invoice must be raised by the business partner with SWAN in writing or text form within four (4) weeks after receipt of the invoice.
6.11. In the event of a change in the statutory value-added tax, SWAN reserves the right to adjust the prices accordingly without giving rise to a separate right of termination for the business partner.
§ 7 Warranty and Liability
7.1. The warranty period shall be twelve (12) months vis-à-vis entrepreneurs and shall commence after performance of the service, acceptance of the service or commissioning of the solution or productive use of the work. Warranty shall only exist until the end of the warranty for the original object of performance, unless a statutory provision takes precedence. Notices of defects do not release the customer from the obligation to comply with the agreed payment obligations. Assurances of properties and guarantees require in any case the written declaration of SWAN and confirmation.
7.2. In the event of defective delivery or performance, SWAN shall be entitled to remedy the defect free of charge or to replace the defective goods to the exclusion of any other claims. In the event of rectification of defects, SWAN shall be obligated to bear the expenses required for the purpose of rectification of defects, in particular labor and material costs. The business partner is obligated to surrender the defective services to SWAN or to allow SWAN to collect them. If the repair or replacement delivery finally fails, the business partner has the right to a reduction of the remuneration or to withdraw from the contract. The repair or replacement shall be deemed to have finally failed after three (3) attempts. The warranty for the repair or replacement shall be the same as for the original object of performance.
7.3. Claims for defects shall generally not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of non-observance of prescribed maintenance intervals or non-observance of service intervals, in the case of systemic wear and tear or impairments which occur after the transfer of risk as a result of incorrect or negligent handling, excessive stress or which occur due to special external influences which are not assumed under the contract. For services that SWAN has not produced itself, SWAN shall provide a warranty to business partners only in the form in which it itself is provided a warranty by the manufacturer or provider of such services, and primarily only in the form of assignment of such claims to the business partner.
7.4. Technical changes to the services to be provided by SWAN or to the form, in particular at the request of the business partner, do not constitute defects, insofar as these are reasonable for the business partner, taking into account the interests of SWAN.
7.5. The warranty assumed by SWAN shall expire if improper repair work has been carried out on the service provided by SWAN itself or by third parties or if these services have been changed by additions and modifications of third party origin and the damage is causally related to the change made. There shall likewise be no claims for defects arising from the consequences thereof. Natural wear and tear and damage resulting from negligent and/or improper use or handling are excluded from the warranty.
7.6. SWAN shall not be responsible for any disruptions of performance due to force majeure (in particular the Sars-CoV-2 pandemic) that make it significantly more difficult or impossible for SWAN to provide its services.
7.7. If SWAN has taken action based on a report without the business partner proving a defect, SWAN may demand compensation for its expenses.
7.8. Claims for damages arising from culpa in contrahendo, breach of contract and tort against SWAN are excluded, except in cases of intent or gross negligence. SWAN shall further be liable in the event of a breach of material contractual obligations to the extent that the achievement of the purpose of the contract is jeopardized, in the absence of warranted characteristics and in cases of mandatory liability under the German Product Liability Act (ProdHaftG). In the event of culpable breach of material contractual obligations, liability shall be limited to foreseeable damage typical of the contract. The same principles apply to the liability of SWAN’s vicarious agents.
7.9. For the recovery of data in the event of culpable action by SWAN, SWAN shall only be liable to the extent that the contracting partner has taken all necessary and reasonable data security precautions and has ensured that the data can be reconstructed from the data material held in machine-readable form with reasonable effort.
7.10. SWAN shall be liable without limitation for personal injury for which it is responsible and, in the event of damage to property for which it is responsible, shall reimburse the cost of restoring the property up to an amount of EUR 500,000 per loss event, but not exceeding an amount of EUR 3,000,000 in total over the agreed term of the contract. In the event of damage to data storage media, the obligation to pay compensation does not include the cost of replacing lost data and information.
7.11. The business partner is obligated to report complaints or defects due to recognizable, incomplete and incorrect performance or possible transport damages, which occur during contractual use, to SWAN in writing or text form immediately within one (1) week, at the latest after receipt of the performance. Defects which cannot be discovered within the above period after the most careful inspection shall be reported immediately in writing or text form within one (1) week after discovery. In the case of mutual commercial transactions between merchants, § 377 HGB and § 378 HGB shall remain unaffected.
7.11. The business partner shall support SWAN in the elimination of defects within the scope of reasonableness.
7.12. Insofar as the Client is entitled to claims for damages, these shall become statute-barred upon expiry of twelve (12) months.
7.13. Further claims for damages and reimbursement of expenses, irrespective of the legal basis, in particular due to breach of duties arising from the contractual obligation and from tort, are excluded. This applies in particular to claims for consequential damages (including consequential harm caused by a defect) such as loss of profit, interruption of business, loss of use, loss of interest, loss of information and data or contractual claims by third parties.
§ 8 Offsetting and Right of Retention
8.1. The business partner may only offset such claims that are undisputed or have been legally established or that initially existed as a reciprocal claim for payment in kind and later turned into a claim for damages.
8.2. SWAN shall be entitled to assert a right of retention against all future contract offers of the business partner, including those already accepted, if the business partner fails to meet its payment obligations in due time.
§ 9 Prohibition of Assignment
9.1. The business partner may only assign claims arising from the contractual relationship with the consent of SWAN.
9.2. The consent of SWAN requires text or written form.
§ 10 Copyright and Intellectual Property
10.1. The intellectual property or industrial property rights, in particular the copyright, to the drafts, templates, sketches, samples, films, products, digital data, plans, drawings, calculations, photos, illustrations, logos and other data records, etc. (hereinafter: working materials) developed by SWAN shall belong exclusively to SWAN, unless otherwise stipulated. The business partner may not use these working materials without prior express written agreement in which an appropriate usage fee is specified.
10.2. The business partner shall be liable for ensuring that the goods produced by SWAN according to its working materials or other specifications or instructions do not infringe any third-party rights, in particular intellectual property rights or industrial property rights. The business partner hereby undertakes to indemnify SWAN upon first request against any claims asserted by third parties against SWAN for alleged or actual infringement of intellectual property and/or industrial property rights, insofar as SWAN has manufactured the goods according to the business partner’s working materials or other specifications or instructions.
10.3. Working materials that are necessary for the production of the goods and that have been produced by SWAN remain the property of SWAN, even if the business partner has contributed financially to the production costs. There is no obligation to hand over the material.
10.4. SWAN shall store and save working materials and data records provided by the business partner only at the business partner’s risk. SWAN shall only be liable for due diligence in its own affairs and shall insure such working materials and data sets only at the express request of the business partner and only at the business partner’s expense. If the business partner has not requested the return of these working materials within one (1) year, or the data sets within three (3) years after their last use by SWAN, SWAN shall be entitled to destroy them after prior notification of the business partner.
10.5. SWAN shall provide the working materials only in compliance with its property rights and copyrights. The data may only be passed on to third parties if SWAN has given its express prior written consent.
§ 11 Data Protection and Rights of the Business Partner
11.1. SWAN observes the legal regulations on data protection when handling personal data.
11.2. SWAN collects, stores and processes the personal data received in the course of the business relationship exclusively for the purpose of executing the order in accordance with Art. 6 para. 1 (b) DSGVO.
11.3. When visiting the SWAN website, the IP address currently used by the business partner’s PC, the date and time, the browser type and the operating system of the PC as well as the pages viewed by the business partner are logged. However, it is not possible and not intended to draw conclusions about personal data.
11.4. The business partner agrees that SWAN may obtain and evaluate corresponding creditworthiness information about the business partner in connection with the ordering of goods. Furthermore, SWAN will only pass on the business partner’s data to the shipping company commissioned with the delivery, insofar as this is necessary for the delivery of the goods. In order to process payments, SWAN passes on the business partner’s payment data to the credit institution commissioned with the payment.
11.5. Every service provision is based on the current data protection laws. The business partner itself is responsible for the processing of data in its area under data protection law.
11.6. If access by SWAN to personal data in business partner systems cannot be ruled out, SWAN will act exclusively as an order data processor. It will only collect, process and use this data for the execution of the contract. SWAN will observe instructions from the business partner for handling this data. The business partner shall bear any adverse consequences of such instructions for the performance of the contract.
11.7. The business partner undertakes not to disclose to unauthorized third parties any information, data and documents arising within the scope of the business relationship and to securely protect and store such information, data and documents from access and misuse by unauthorized persons, unless SWAN is legally obligated to do so or the business partner has expressly consented thereto in advance.
11.8. SWAN is entitled to make working copies of the files and documents provided. All data, documents and other items provided shall be returned to the business partner upon termination of the contractual relationship or deleted from the IT systems upon request. A right of retention shall be excluded unless otherwise provided by law.
11.9. Personal data that the business partner has communicated to SWAN via its website, its webshop, online sales portals, social media such as Facebook or Instagram, will only be stored until the purpose for which this data was entrusted to SWAN has been fulfilled. Insofar as retention periods under commercial and tax law must be observed, the duration of storage of certain data may be up to 10 years.
11.10. If the business partner no longer agrees to the storage of personal data or if this data has become incorrect, the business partner may revoke the declared consent at any time without giving reasons. The revocation must be sent in writing to SWAN (SWAN GmbH, Annastraße 3, 86150 Augsburg, Germany). SWAN will then arrange for the deletion, correction or blocking of the personal data within one month within the scope of the technical possibilities or available technologies. Upon request in writing, the business partner shall receive free of charge information about all personal data that SWAN has stored about the business partner, their processing and their use. The business partner may request in writing to SWAN the correction or completion of incomplete personal data. The Business Partner may also request in writing the deletion of corresponding personal data. The Business Partner has the right to complain to the supervisory authority regarding the handling of its personal data.
§ 12 Written Form, Place of Jurisdiction and Severability Clause
12.1. Subsidiary agreements, amendments and additions to the contractual agreements require the consent of both parties in writing or text form for documentation purposes.
12.2. Should any provisions of these General Terms and Conditions and/or the separate agreement be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace an invalid provision with a valid agreement whose economic success comes closest to that of the invalid agreement.
12.3. All legal disputes arising from the contractual relationships of the parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.4. A dispute resolution procedure before a consumer arbitration board is excluded.
12.5. The place of jurisdiction for all disputes is 86150 Augsburg, Germany.
12.6. Contract language is German. Any translations of contractual agreements into other languages are for support purposes only and shall not be used to interpret the contractual agreement. The German language applies to the interpretation of texts as well as to the contractual language itself.
12.7. For all deliveries and services as well as the execution of any remedial action, 86150 Augsburg shall expressly be deemed the place of performance.