Date: April 2018
1.1 These General Terms and Conditions of Swyx Solutions GmbH (hereinafter referred to as “Swyx”) apply to all sales and deliveries of Swyx products and third party products as well as to services related to these products provided by Swyx (hereinafter referred to as “the Products”) to customers of Swyx and its subsidiaries (hereinafter referred to as “End Customer”).
1.2 These General Terms and Conditions shall apply, after they have once been received by the End Customer, to all subsequent orders and agreements unless an updated version of the “Swyx End Customer T&C” have been announced by Swyx or Swyx and the End Customer have expressly agreed otherwise in writing.
1.3 In addition to the conditions set out in these “Swyx End Customer T&C” further conditions shall be applicable according to exhibits and/or documents which have been provided by Swyx to an individual order or agreement. These conditions will be incorporated into the respective order or agreement by reference.
1.4 Deviating terms and conditions of the End Customer shall only be applicable to an individual order or agreement with the prior written consent of Swyx and exclusively apply to the respective order or agreement. Confirmed deviating terms and conditions of the End Customer have no effect to other orders placed by the End Customer or agreements between Swyx and the End Customer.
2.1 Unless otherwise agreed, every individual order placed by the End Customer and every agreement entered into by Swyx and the End Customer related to the Products will be based solely on the prices shown in the country-specific „Swyx Price List“ – alternatively in the Swyx Price List for Germany - valid at the time of order or effective date of the agreement.
2.2 Swyx shall be entitled to adjust, to alter or to modify the „Swyx Price List“ including the Products and prices shown in the pricelist for future orders or agreements at any time on its own discretion. Adjustments of alterations to the “Swyx Product Pricelist” made by Swyx have no effect to such orders which have already been received by Swyx.
2.3 All prices shown in pricelists, proposals or acknowledgements of orders and all additional fees invoiced by Swyx are to be regarded as net fees (VAT excluded). VAT incurs according to statutory provisions.
3.1 Unless otherwise agreed, Products shall be delivered „ex works“ Swyx pursuant to the „Incoterms 2010“ at End Customer’s expense. Swyx shall be entitled to charge additional fees or, in exceptional cases, its proven costs for special delivery procedures - e.g. express delivery - requested by the End Customer. Swyx will inform the End Customer about such additional fees and / or costs for delivery.
3.2 Swyx uses its best efforts to accomplish the delivery pursuant to the desired date of delivery stated by the End Customer. Binding delivery dates shall only be effective with the prior written confirmation of Swyx. Confirmed orders and delivery dates by Swyx shall at all times be subject to timely and orderly receipt of goods from its own suppliers.
4.1 Swyx shall be entitled to retain title of each and every delivered Product until receipt of all payments and fees in full (hereinafter referred to as „Reserved Goods“).
4.2 The End Customer is obligated to handle the Reserved Goods with care and in an appropriate manner.
4.3 In cases of breach of contract by the End Customer, in particular default in payment, Swyx shall be entitled to take possession and to utilize the delivered Products upon expiration of an appropriate and reasonable period of time. Profit of exploitation will be credited for outstanding debts of the End Customer. Further rights of Swyx shall remain unaffected.
4.4 The End Customer shall not be entitled to pledge Reserved Goods or use them to secure third party claims.
4.5 The End Customer shall notify Swyx immediately if Reserved Goods are pledged or otherwise claimed by third parties. The End Customer shall be liable for all reasonable judicial and extrajudicial costs and expenses of Swyx incurred by third party action against execution in pursuance of § 771 of Code of Civil Procedure (§ 771 ZPO).
5.1 Project-specific deliveries and services, i.e. services and deliveries which will be customized to the specific project of the End Customer, shall only be provided by Swyx on the basis of an individual and separate agreement between Swyx and the End Customer. The individual agreement shall set out the content and frame of the project-specific deliveries and services.
5.2 Project-specific deliveries and services which are described in § 633 of the German Civil Code (§ 633 BGB) deemed to be accepted unless the End Customer refuses the acceptance in written form with a notification of defects or deviations within a period of 21 days after receipt of the respective deliveries or services.
5.3 Unless Swyx and the End Customer have not agreed to deviating conditions, the conditions set out in these “Swyx End Customer T&C” shall also be applicable to all project-specific services and deliveries provided by Swyx.
6.1 Unless otherwise agreed, invoices shall be payable within two weeks from the date of invoice without any deduction.
6.2 If the End Customer is in default of payment, Swyx shall be entitled to claim default charges up to 9%-points above the base interest rate.
6.3 The End Customer shall only be entitled to retain payments or to set off, if the related counterclaim of the End Customer is uncontested, conclusively determined by a court or expressly recognized by Swyx. In cases Swyx denies such counterclaims, the End Customer may only retain payments or set off if the respective claim is ripe for adjudication.
7.1 If, prior to supplying the final product version, Swyx has provided the End Customer with a free of charge product version that is expressly referred to as „Evaluation Version“ or „Beta Version“, Swyx shall only be liable for damages caused by intent, for damages to life, health or personal injury and in accordance with the product liability law. Such „Evaluation Versions“ or „Beta Versions“ which have been provided free of charge are currently in testing and therefore the End Customer must assume that not all of the features and characteristics perform flawlessly. Beyond the scope of Swyx’s liability for “Evaluation Version” and “Beta Version” the End Customer bears the full and exclusive risk of the use of such product versions.
7.2 Upon release of a newer variant of the “Evaluation Version” or “Beta Version” by Swyx the right of the End Customer to use an earlier provided variant shall expire.
7.3 The End Customer’s usage right of an “Evaluation Version” or “Beta Version” shall expire immediately upon Swyx’ release of the final version of the Product.
8.1 The Products have been developed and manufactured in accordance with the state-of-the-art technology. However, the accordance with the state-of-art-technology may not implicate any guarantee of general or specific characteristics of the Products. All specifications and descriptive data from brochures, catalogues, prospectus and other related documents are only approximate and non-binding general descriptions of the Products. Properties and characteristics of the Products shall only be binding if expressly guaranteed in an individual agreement between Swyx and the End Customer.
8.2 With due regard to the technical complexity of Software-Products, Swyx warranty obligations of such products only cover the functionality of proper use, the functionality of essential features and specification set out in the description of the Products and the functionality of those characteristics and properties which are expressly guaranteed by Swyx.
8.3 Warranty claims for all Products shall be time-barred after 12 months of the date of delivery to the End Customer, or as far as Software-Products are concerned, of the date the Software-Products have been downloaded by the End Customer.
8.4 The End Customer shall only be entitled to claim any warranty rights if the End Customer examines the delivered products and immediately notifies Swyx of any ascertained defect in writing. Hidden defects must be notified in written immediately after their detection. Each notification of defects by the End Customer require a statement of the type and effect of the ascertained defect.
8.5 If a defect occurs, warranty rights of the End Customer shall be restricted to claim alternative performance in the form of subsequent improvement or delivery of conforming Products in accordance with Swyx choice. If Swyx is unable to remedy the defect within two attempts, the End Customer shall be entitled to reduce the subscription price of the defect Product or to annul the respective order or respective agreement without any additional fees on its own decision. The right of annulling the respective order or respective agreement does not apply if the defect is insignificant.
9.1 Swyx shall be liable for damages to life, health or personal injury, to damages caused by intent or gross negligence and in accordance with the product liability law without any limitation.
9.2 Swyx liability for negligent violation of such obligations which are essential for achieving the purpose of the agreement shall be limited to the typical foreseeable damage.
9.3 Further claims for damages are excluded unless liability is prescribed by statutory provisions. In particular, Swyx shall not be liable for indirect damages and consequential damages or for financial losses or wasted expenditure, if and so far such financial losses or wasted expenditure are indirect or consequential damages.
9.4 If the Parties agreed to a binding date of delivery, Swyx shall be liable for all provable damages accrued to the End Customer with regard to the aforementioned limitation of liability.
Any inability to deliver products or perform services as a result of force majeure, inter alia strike, lock out and other similar events of force majeure which are unforeseen, grossly and outside Swyx’s responsibility, relieves Swyx from its obligations to comply with its performances or with any confirmed binding date for delivery for the duration and in accordance with the impact. Swyx shall immediately notify the End Customer if a case of force majeure should occur.
By signing an individual agreement or placing an order of Swyx Software Products the End Customer expressly agree to the End User License Agreement for Swyx Software (hereinafter referred as “EULA”) – available at www.swyx.com/legal/eula.html -. As a principal, the End Customer shall only be entitled to use Swyx Software Products in accordance with the provisions of the EULA.
Swyx provides repair and other support services beyond the scope of warranty only on the basis of a separate order or agreement. Swyx shall be entitled to charge the agreed fees or, if not agreed, the usual costs for the performance of such services. In every case, the End Customer bears the costs and risks of the dispatch and the return.
13.1 All agreements and contracts between Swyx and the End Customer shall be governed by the laws of Germany, except for the UN – CISG.
13.2 The place of performance for all obligations and services related to the business relationship between Swyx and the End Customer is at the seat of Swyx, Dortmund, Germany.
13.3 Any disputes arising out of or in connection with the business relationship between Swyx and the End Customer shall be exclusively litigated by the competent Courts for Dortmund, Germany.
13.4 Swyx and the End Customer may not assign orders or agreements related to their business relationship in full or rights or obligations of orders or agreements related to their business relationship without the prior written consent of the other Party. Swyx and the End Customer will not unreasonably withhold or delay the consent to a request for assignment. Any attempted assignment in violation of this Section is null and void.
13.5 Should any provision of this “Swyx End Customer T&C” be invalid or become invalid or non-executable, the validity of the other provisions shall not be affected thereby. In the case any provision is invalid or non-executable Swyx and the End Customer shall agree to a provision which comes closest to what the Parties wanted to replacing the invalid provision. Where this is not possible, the invalid clause shall be replaced by statutory provisions.
Dortmund, April 12th 2018
Swyx Solutions GmbH