General Terms and Conditions of Sale SWAREFLEX GMBH
1. General These General Terms and Conditions of Sale shall apply to all product sales by SWAREFLEX and its affiliates, and shall take precedence over the Client’s additional or different terms and conditions, which are hereby rejected. The Client’s purchase of SWAREFLEX’s products represents acceptance of these General Terms and Conditions of Sale and any attachments, which together constitute the entire understanding between the parties and supersede any previous communications or representations by either party whether oral or written. No change or modification of any of the General Terms and Conditions of Sale shall be valid or binding on either party unless in writing and signed by one authorised representative of each party.
2. Orders 2.1. All orders are subject to acceptance by SWAREFLEX and become legally effective only with the written order acknowledgement of SWAREFLEX, or in the absence thereof upon delivery. Upon acceptance by SWAREFLEX, all Client orders are binding and cannot be varied by Client without the written agreement of SWAREFLEX. 2.2. Minimum order quantities may apply as communicated by SWAREFLEX.
3. Product Specifications 3.1. SWAREFLEX may change its product specifications at any time. 3.2. Information appearing in catalogues, brochures etc. or qualities of a product such as colour, quality or dimensions will be binding only when referenced in the order acknowledgement. 3.3. Deviations due to manufacturing process, e.g., in quantities, colours, dimensions, weights and product qualities are permissible.
4. Prices Unless agreed otherwise in writing, all prices are shown net in Euro and are quoted EXW (Vomp) in accordance with Incoterms 2011, with the exception that the transport is insured by SWAREFLEX and the Client shall bear the cost of packaging. All prices charged are subject to the price list in effect on the date of delivery and are invoiced in Euro, and other prices quoted by SWAREFLEX are valid only for the period of time stated in SWAREFLEX’s quotation. Sales tax, VAT or any other taxes and customs applicable on the sales transaction are invoiced in addition.
5. Terms of Payment 5.1. Unless agreed otherwise in writing, payments shall be made in Euro either in advance or by means of an irrevocable letter of credit, at SWAREFLEX’s request to be confirmed by a bank acceptable to SWAREFLEX. 5.2. Payment is effected when SWAREFLEX may freely dispose of the funds. In case of payment in a freely convertible currency other than the invoice currency, the exchange risk and all related charges shall be borne by the Client. All bank charges shall also be borne by the Client. 5.3. The Client is liable for interest charges of 12 % per annum starting from due date. No claim made by the Client extends the time for payment. 5.4. SWAREFLEX reserves the right to change payment terms or to discontinue performance under any agreement with the Client at any time, when in SWAREFLEX’s opinion the Client’s financial condition or previous payment record so warrants.
6. Delivery 6.1. All deliveries are made according to Incoterms 2011 EXW (Vomp), with the exception that the transport is insured by SWAREFLEX and the Client shall bear the cost of packaging. Delivery dates are subject to availability. The delivery period begins with the date of the order acknowledgement. SWAREFLEX shall not be liable for its failure to meet delivery dates. Delivery dates are non-binding indications only and subject to availability. Partial delivery is permitted and may be invoiced. 6.2. SWAREFLEX shall not be liable for any delay in performance hereunder due to unforeseen circumstances or due to causes beyond SWAREFLEX’s control, including, but not limited to force majeure, acts of government, military conflicts, delays in transportation or customs formalities, transport damage, energy shortages or labour disputes, and delays in delivery or inability to deliver by SWAREFLEX’s suppliers. 6.3. Should the dispatch of goods ready for shipment be delayed by circumstances beyond the control of SWAREFLEX or for reasons attributable to the Client, SWAREFLEX may have the goods stored at the risk and the expense of the Client. Upon such action, delivery and acceptance shall be deemed to have taken place, and payment becomes due accordingly. 6.4. In the absence of specific agreements the packaging is chosen by SWAREFLEX.
7. Limited Warranty and Liability 7.1. SWAREFLEX provides statutory warranty. 7.2. SWAREFLEX’s liability is limited to direct damage with respect to the good themselves, and shall in no event exceed the amount paid to SWAREFLEX for the relevant goods. In no event is SWAREFLEX liable for any indirect, incidental, special, punitive, consequential or other damages, however based and irrespective of whether SWAREFLEX had knowledge of the possibility thereof, unless where liability is enforced by law in case of wanton or gross negligence. The burden of proof is with the client. 7.3. Within the scope of product liability, SWAREFLEX’s liability is limited to personal injury or to damages sustained by a consumer. 7.4. Any oral, written or test-based advice that SWAREFLEX provides regarding techniques for application of SWAREFLEX products are recommendations based on SWAREFLEX’s current knowledge and the information provided by its suppliers. Such advice does not discharge Client from carrying out its own tests of techniques it proposes to use and their suitability for the intended application. The application, use and processing of these techniques and products are solely Client’s responsibility. 7.5. The Client shall ensure that Sections 7.1 through 7.4 are made binding on all subsequent purchasers.
8. Industrial Protection Rights 8.1. The Client is entitled to utilize the trademarks which are affixed to the goods or its packaging by SWAREFLEX for the purposes of identification of the unchanged or originally packed goods. Any further utilization (e.g. the utilization of the trademarks, names, logos or other industrial protection rights of SWAREFLEX, together with trademarks, names or other industrial protection rights of the Client or third parties or for the purposes of identification of the Client’s products or third parties’ products) is prohibited. The utilization of SWAREFLEX’s industrial protection rights in publications, irrespective of the medium, is only permitted after the prior written consent by SWAREFLEX. Upon utilization of trademarks, the registration thereof should be identified, by way of the ® symbol. 8.2. Plans, sketches and other technical documentation remain the property of SWAREFLEX just the same as the models, catalogues, brochures, illustrations and such like and are protected by the appropriate statutory provisions with regard to copying, imitation, competition etc. At the latest upon takeover of such documentation, the Client accepts SWAREFLEX’s rights thereto and the Client’s obligation to keep this documentation confidential. The Client undertakes not to allow third parties partial or entire access thereto without the prior written consent of SWAREFLEX or to utilize same for any other purpose than for the purpose for which such was submitted. In the event of orders not placed, all documentation has to be returned to SWAREFLEX, in the event of orders being placed, only upon request. 8.3. The Client is obligated to point out SWAREFLEX’s industrial protection rights and other before mentioned rights to its customers (this excludes consumers) and to oblige its customers to comply with and pass on the before mentioned provisions. This especially applies to the obligation to commit each further customer (with the exception of consumers) to comply with the before mentioned provisions. 8.4. SWAREFLEX is not liable for the violation of industrial protection rights of third parties if goods are manufactured or brought into circulation due to drawings, designs, models, specifications or other manufacturer statements of the Client. The Client shall defend, indemnify and hold SWAREFLEX harmless from any and all third party claims based on industrial protection rights or otherwise relating to uses of SWAREFLEX products purchased by Client, and waives all its own claims. 8.5. The Client shall ensure that this Article 8 is made binding on all subsequent purchasers.
9. Retention of Title 9.1. SWAREFLEX shall retain ownership of all goods supplied until settlement in full of all accounts receivable has been made. 9.2. Where goods supplied by SWAREFLEX are subjected to further processing, SWAREFLEX shall be deemed to have joint ownership of the new product, the share of ownership to be calculated by the relative value of the components incorporated. Such working or processing is carried out on behalf of SWAREFLEX as producer within the meaning of applicable legal terms, but without binding SWAREFLEX. SWAREFLEX automatically acquires title to the new product resulting from such working or processing. Where products that are the reserved property of SWAREFLEX are worked or processed together with products that do not belong to SWAREFLEX, SWAREFLEX acquires co-ownership of the resulting new product proportionately to the relation which the market value of its original product bears to the third-party products used in the processing. In the event that during processing SWAREFLEX loses title over the goods and ownership passes on to the Client, it is now and hereby agreed that as soon as the Client acquires ownership, ownership is transferred from the Client back to SWAREFLEX. Goods over which SWAREFLEX retains title may not be mortgaged, pledged or transferred by way of security, nor may Client grant any other security interest therein. 9.3. The Client is entitled until further notice to resell the goods supplied or said products of further processing in the course of his regular business activities under retention of title for SWAREFLEX. Until SWAREFLEX has been paid in full, The Client hereby assigns to SWAREFLEX by way of security all its claims against third parties resulting from the sale of the goods (including claims for outstanding current account balances) as well as any other claims related to the goods (e.g. for tort, insurance claims, etc.) up to the value the Client owes to SWAREFLEX. SWAREFLEX hereby accepts the assignment. The Client shall communicate to SWAREFLEX on request all necessary documents and information substantiating such claims. SWAREFLEX hereby revocably authorizes the Client to collect the assigned claims in its own name for account of SWAREFLEX. Should the Client not duly honor its payments obligations towards SWAREFLEX, SWAREFLEX may revoke the authorization. 9.4. The Client is entitled and obligated until further notice to collect all such assigned claims. SWAREFLEX is entitled to inform the final purchaser of such assignment at any time. 9.5. SWAREFLEX is entitled to take possession of all goods subject to SWAREFLEX’s retention of ownership if the Client breaches these terms, including, without limitation if: (i) Client fails to store and maintain the goods in a reasonable manner, (ii) is in default of payment of the purchase price, or (iii) Client fails to make a debtor in any insolvency proceeding, formal or informal. Returning the goods by the Client or taking possession by SWAREFLEX does not constitute termination of the contract and does not release the Client from his contractual obligations, in particular to pay the purchase price in full. 9.6. The Client shall ensure that goods that are the reserved property of SWAREFLEX are adequately insured, at the Client’s expense, against theft, burglary, fire and damage by water and shall evidence the insurance to SWAREFLEX on request. The Client shall maintain the insurance coverage so long as SWAREFLEX holds claims against it in the context of the overall business relationship between them. The Client now and hereby assigns to SWAREFLEX all insurance claims arising in connection with goods that are the reserved property of SWAREFLEX. SWAREFLEX hereby accepts the assignment. 9.7. The Client shall promptly oppose any third-party attachments (e.g. seizure or attachment) in respect of goods on which SWAREFLEX has retained title or in respect of claims assigned to SWAREFLEX, indicating SWAREFLEX’s rights. Moreover, the Client shall inform SWAREFLEX forthwith in writing of any such attachment, providing the necessary documentation (e.g. copy of the attachment order) for intervention. 9.8. Should the Client default on payment or should it otherwise breach its contractual obligations, SWAREFLEX shall be entitled to enter Client’s premises and to repossess goods that are its reserved property at the Client’s expense or to demand assignment of the Client’s claims for surrender against third parties. The assertion of title retention rights, the repossession of goods or the seizure by SWAREFLEX of its own goods shall not be deemed as withdrawal from the sales agreement.
10. Data Protection The Client agrees to the electronic data collection and processing of the Client’s address, contact names and details and other data necessary for the business transaction for the purpose of internal use within the Swarovski Group in the meaning of applicable data protection provisions and to fulfill SWAREFLEX’s legal obligations.
11. Applicable Law and Venue This contract is subject to Austrian law without regard to principles of conflict of laws. The applicability of the United Nations Conventions on Contracts for the International Sale of Goods is herewith explicitly excluded. In the event of any dispute arising out of the contract, the competent court in Innsbruck, Austria, shall have exclusive jurisdiction, or - at the discretion of SWAREFLEX - the competent court at the Client’s place of business.
12. Miscellaneous 12.1. Assignments: The Client may only assign rights and obligations hereunder with the written consent of SWAREFLEX. 12.2. Set-off: The Client may only offset its claim or exercise a right of retention against SWAREFLEX’s claim when its claim is undisputed or has been established by due process of law. 12.3. Severance Clause: The invalidity of any individual provision hereof shall not affect the validity of the other provisions. If a provision is not incorporated in the Agreement, or is invalid, the content shall be based on statutory provisions. The invalid provision shall be replaced by a legally valid provision corresponding the same economic purpose as good as possible as the invalid provision. The same applies in the case of a commission.
Vomp, October 2011