§ 1 General Provisions
The Swyx Products (hereinafter referred to as "Company" and "Products") have been developed and manu-factured in accordance with the requirements and state-of-the-art technology.
The General Terms and Conditions for Products, shall, after receipt by Customer, apply to all subsequent purchase agreements, unless the parties expressly agree on different General Terms and Conditions.
Deviating Terms and Conditions of Customer shall apply only to an individual contract if they have been recognized by Company in writing.
§ 2 Compensation
Unless otherwise agreed in an individual contract, the prices set forth in the then-applicable price lists for Swyx Products shall apply to world wide business.
Any transportation and travel costs and expenses incurred in connection with work performed under a warranty obligation shall be assumed by Customer.
Prices set forth in price lists, quotations, and order confirmations of Company and any other invoiced amounts (e.g. travel expenses, out-of-pocket-expenses, incidental costs, etc.) are subject to the statutory value added tax at the then-applicable rate.
§ 3 Terms of Payment
The parties shall agree on the payment date in each case. If no payment date has been agreed upon, invoices shall be payable within 2 weeks from the date of invoice without any deduction. Customer may setoff only against claims that are undisputed or finally adjudicated.
In case Customer is in default with its payments, Company may charge interest on the outstanding amount at an annual rate of 5 per cent above the base rate of the European Central Bank in accordance with § 1 of the Discount Rate Transitional Act of June 9, 1998.
§ 4 Terms of Delivery
The delivered Products remain the property of Company until Customer has satisfied all claims that Company may have against Customer from the business relationship. If the value of all rights retained by Company exceeds the amount of the security interests by more than 20%, Company shall, at the request of Customer, release the corresponding part of the security interests.
As long as Company retains its rights in the Products, any attachment or assignment for security is prohibited, and the Products may only be resold by Customers within the normal course of business and only under the condition that the reselling Customer either receives payment from its customer or that the Customer reserves its ownership rights in the goods until full payment has been received from its customer.
In case of attachments, seizures, or other third party decrees or interventions, Customer shall inform Company immediately.
Company shall make all efforts to comply with the agreed upon dates and periods. Fixed dates require written confirmation by Company.
Unless expressly otherwise agreed in an individual contract, delivery shall be FOB. In this case, Customer shall be invoiced a lump-sum for transportation costs. For special delivery procedures – e.g. express delivery – a higher lump-sum or, in exceptional cases, the total cost actually incurred shall be invoiced.
§ 5 Liability and Damages
Company’s liability for lost profits, lost savings on the part of Customer, indirect damages and atypical, unfore-seeable consequential damages, for instance, due to third party claims, are excluded and disclaimed. In particular, Company excludes liability for financial loss resulting from fees charged for the use of Company’s Products in public communication networks or from the loss of recorded or transmitted data.
Company’s liability for any damages that are caused by willful misconduct or gross negligence of the user, its legal representatives or agents is excluded. The same applies to liability for default and impossibility.
Liability for typical, foreseeable damages is restricted per Customer and contract to € 1.022.584 for personal injury and property damages; and € 153.388 for financial loss, based on the overall delivery (overall contract value) per Customer, and also in the event that this results from several partial deliveries.
§ 6 Force Majeure
In case of force majeure that materially impairs or prevents Company from performing this Agreement, Company shall have the right to postpone performance of its duties under this Agreement for the period during which the impairment exists and for a reasonable period thereafter. Force majeure shall include strikes, lock-outs, and similar events to the extent that they are unforeseeable, have a material impact, and that Company is not responsible for them. Company shall inform Customer immediately if such an event occurs.
§ 7 Warranty
The warranty period for all Products shall be 12 months from the date of delivery. Customer shall notify Company immediately and in writing of any defects, with the exception of hidden defects. Customer shall inform Company of the type and effects of the defect. Company shall remove the de-fect(s) within a reasonable time. To the extent that Customer may reasonably be expected to do so, Customer shall assist Company.
If a Product is defective, Customer’s warranty claims shall be restricted, in Company’s discretion, to subsequent improvement or to the delivery of a comparable replacement. If the subsequent improvement or delivery of a replacement fails after the third attempt, Customer may, in its discretion, claim a reduction of the compensation or rescission of the Agreement.
According to industry’s experience, it is not possible to manufacture software products completely free from defects, due to the technical complexity of software products. Therefore, certain types of errors are excluded from warranty obligations. Software products are only considered to be defec-tive, if their data carrier cannot be read, or in the event of non-compliance with material characteristics described in the documentation. In the latter case, Company shall inform Customer of the date by which this defect shall be removed by providing a new version. If no substitute may be provided within 8 weeks after the original delivery date, Customer may return the defective goods to Company and rescind the purchase agreement.
In case a replacement is delivered for a Product that Customer rightfully claimed to be defective, the payment period shall be governed by § 3. The due date shall be determined based on the invoice date for the non-defective replacement delivery.
§ 8 Evaluation Product Versions
If, prior to supplying the final program version, Customer is provided with a Product version free of charge that is expressly referred to as "evaluation version", "beta version", or "ß version", any liability of Company – except in case of willful misconduct and fraudulent non-disclosure of a defect – is excluded and disclaimed. These Product versions are still undergoing final testing so that Customer shall assume that not all Product properties are fully functional at this time. Customer bears the full and exclusive risk of the use of such Product versions.
Company shall provide users of such "evaluation versions", "beta versions", or "ß versions", with free and enhanced support and assistance so that any defects in these Product versions may be discovered and removed at the earliest possible date. User agrees to implement such versions, to closely monitor the operation of these Products, and to immediately notify Company of any problems, and not to disclose any information regarding the functions or defects of these program versions to third parties without the written consent of Company.
Upon delivery of a newer variant of an evaluation version, the right to use an earlier evaluation version shall expire.
Upon delivery of the final Product version, the right to use the evaluation version shall expire. At the same time, Company shall become liable under its warranty and liability duties.
§ 9 Returned Goods
Customer shall advise Company of all goods to be returned so that these goods may be handled properly.
Customer shall notify Company in due time of all goods to be returned and arrange the return shipment with Company to enable Company to take the required measures.
If Company has no warranty obligation, Customer shall assume the costs and risk of shipment. Customer is required to prove that its claim is covered by Company’s warranty obligation.
§ 10 Repairs
Repairs that are not covered by Company’s warranty obligations shall be performed in consideration of the agreed upon costs, otherwise against payment of the customarily charged amount. Customer shall assume the costs and risk of shipment and return shipment.
§ 11 Right to Use
Unless expressly agreed otherwise, Customer is granted a non-exclusive right to use the Product in accordance with the Enduser License and Use Agreement accompanying the Product concerned, or, in their absence, in accordance with the General Terms and Conditions for Swyx Products of Swyx Solutions AG. Company retains the copyright and any other rights to use the Product.
§ 12 Miscellaneous
This Agreement shall be governed by the laws of the Fe-deral Republic of Germany, including the UN-Convention on the International Sale of Goods.
Place of performance for the shipment of the goods shall be Dortmund, Federal Republic of Germany.
If any provision of the General Terms and Conditions for Swyx Products is found to be invalid, this shall not affect the remaining provisions. The parties shall replace any invalid provisions with other provisions having the same economic effect.
Modifications and amendments to this Agreement must be in writing and shall be expressly marked as such. Company may assign its rights and duties arising under this Agreement to a third party.
Venue shall be Dortmund, Federal Republic of Germany.