Terms and Conditions
1. Scope of validity1.1 The deliveries and services by Uwe Wannags e.K. (short SWD called), 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 services2.1 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 services3.1 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 risk5.1 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 Payment6.1 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 Payments are due net as payment in advance or via Paypal. Existing customers after verifying the solvency: due 10 days after invoice net. 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 title7.1 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. The return delivery has free and the products must be salable.
8. Guarantee8.1 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 copyright9.1 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 guarantee10.1 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 approvals11.1 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 tax12.1 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 provisions13.1 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 IdentificationUwe Wannags, Hard-+Software Distribution e.K.
Tel: +49 (0)4106 6109-0
Fax: +49 (0)4106 6109-40
General Manager: Uwe Wannags
VAT ID: DE 134462888
Amtsgericht Pinneberg, HR A 4338 PI