General Terms and Conditions for
Internet Sales of SWAP SARL
32 Rue Aristide Bergès
31270 CUGNAUX - Frankreich
1. General, Customers, Language
(1) All offers, sales contracts, deliveries and
services made on the basis of orders by our customers (each, a „Customer“)
through our online shop www.swap-europe.com
(the „Online Shop“) shall be governed by these
general terms and conditions of sale (the „General Terms and Conditions“).
(2) The product offerings in the Online Shop are
directed to both Consumers and Business Customers (as defined below), but in
each case only to end users. For the purpose of these General Terms and
Conditions, (i) a „Consumer“ is any individual entering into the contract for a
purpose not related to his or her business, trade or self-employed professional
activity (Sec. 13 of the German Civil Code), and (ii) a „Business Customer“ is
an individual, company or partnership vested with legal capacity who enters
into the relevant contract in the conduct of its business or its self-employed
professional activity (Sec. 14 (1) of the German Civil Code).
(3) Standard business conditions of the Customer do
not apply, regardless of whether or not we expressly object to them in a
(4) Our contracts with the Customer shall be made
exclusively in the German or English language, in each case depending on
whether the Customer makes the relevant purchase on our English language or on
our German language website. Therefore, if the order is made on our German
website, exclusively the German version of these General Terms and Conditions
shall be relevant. If the order is made on our English website, exclusively the
English version of these General Terms and Conditions shall be relevant.
2. Conclusion of Contract
(1) Our offerings in the Online Shop are non-binding.
(2) By placing an order in the Online Shop, the
Customer makes a binding offer to purchase the relevant product. The offer will
remain open for acceptance by us for a period ending at the end of the (third)
business day following the day of the offer.
(3) Without undue delay upon receipt of the order, we
will send to the Customer by e-mail a confirmation of receipt, which shall not
constitute an acceptance of the order. The order shall be deemed to be accepted
by us either upon subsequent (e-mail) acceptance of the order or by dispatching
the product. The sales contract with the Customer shall not become effective
until our acceptance.
(4) Any Customer who is a Consumer shall be entitled
to revoke the offer and return the product in accordance with the cancellation
and return policy as separately made available to the Customer on our website
during the ordering process.
3. Prices and Payment
(1) Our prices include statutory VAT, but are net of
shipping costs. Any customs duties and similar public charges shall be borne by
(2) Unless expressly otherwise agreed by us, all
shipments by us shall require advance payment (to be made in the manner
specified in our order form made available in the Online Shop) or shall be paid
cash on delivery, in each case upon receipt of an invoice.
(3) In the event that we have agreed to payment after
delivery, our invoices shall be due and payable by the Customer with¬8 business
days upon receipt by the Customer of the product and the invoice.
(4) The Customer shall have no right of set-off or
retention, except to the extent that the counterclaim has not been disputed by
us or been determined by a final and binding decision.
4. Date of Dispatch of the
Product, Sell off, Partial Delivery
(1) Any period for the dispatch of the product,
specified by us at the time of the order or as otherwise mutually agreed upon,
shall begin (a) upon receipt by us of the full purchase price (including VAT
and shipping costs) if payment in advance has been agreed (b) upon conclusion
of the sales contract if cash on delivery or payment after delivery has been
agreed upon. The date of dispatch shall be such day on which the product is
handed over by us to the carrier.
(2) Any time period for the dispatch of the product
specified by us shall be only approximate and may therefore be exceeded by up
to two business days, except if a fixed date of dispatch has been agreed upon.
Unless a time period or date of dispatch has been specified or agreed upon, we
shall be required to dispatch the product within a period of (five) business
(3) Regardless of whether any product is indicated on
the order form as „in stock“, we may sell such product at any time, provided
that an agreed advance payment is not received by us within a period of (five)
business days upon our acceptance of the order. In such case, we shall only be
obligated to dispatch the product within the relevant time period (as agreed
upon or specified by us) as long as stock lasts; otherwise, a three-week period
(4) In the event that our supplier fails to deliver in
a timely manner a product that has been indicated on the order form as „not in
stock“ or has been sold off in accordance with subsection 3 above, any
applicable period for dispatch shall be deemed to be extended until delivery is
made by our supplier plus an additional period of three business days, but in
no event by a period exceeding three weeks; provided, in each case, that
supplier's failure to timely supply the products is not a result of our fault
or negligence and
have ordered the relevant product from the supplier prior to conclusion of the
sales contract (or, in case of subsection 3, the time of the sell-off) in such
a timely manner that under normal circumstances a timely delivery could
reasonably be expected.
In the event that the product is no longer available
for a reason not attributable to us or cannot be timely delivered despite our
timely order, we shall be entitled to terminate the sales contract. We shall
without undue delay inform the Customer of the non-availability of the product
and, in case of a termination, promptly reimburse the Customer any payments
made to us.
(5) If the Customer has purchased, through the same
order, several products that can be used separately, we may dispatch those
products in separate deliveries, provided that we shall bear any additional
shipping costs. The Customer’s statutory rights in relation to the timely and
proper delivery shall not be affected thereby.
5. Type and Time of Shipment,
Insurance and Passing of Risk
(1) Unless expressly otherwise agreed upon, we shall
be free to determine the appropriate mode of shipment and to select the carrier
at our reasonable discretion.
(2) We shall only be obliged to properly and timely
deliver the product to the carrier and shall not be responsible for any delays
caused by the carrier. Any transit time (i. e. the time between the delivery by
us to the carrier and the delivery to the Customer) specified by us shall
therefore only be non-binding. Notwithstanding the foregoing, if, we have
agreed to carry out any assembly or installation work, we shall timely complete
such work and deliver the product to the Customer at the place and time that
has been contractually agreed upon.
(3) If the Customer is a Consumer, the risk of
accidental destruction, damage or loss of the delivered product shall pass to
the Customer upon delivery of the product to the Customer or upon the
Customer’s default of acceptance. In all other cases, if our obligation is
limited to the dispatch of the product, such risk shall pass to the Customer
upon delivery of the product by us to the carrier. If, however, we have agreed
to carry out any assembly or installation work at the customer’s place, the
risk shall not pass to the customer until completion of such work and delivery
to the customer.
(4) We shall insure the product against the usual
risks of transportation at our cost and expense.
6. Retention of Title and Resale
(1) We retain legal title to any product supplied by
us until the purchase price (including VAT and shipping costs) for such product
has been fully paid.
(2) The Customer shall not be entitled to transfer
title to any products delivered by us which are under retention of title
(“Retained Goods“), except with our prior written consent. The Customer may,
however, dispose of its legal position (so called expectant) right in relation
to the Retained Goods, provided that the third party is made aware of our title
(3) The Customer shall treat the Retained Goods with
(4) In the event that any third party, in particular
in connection with any enforcement, seeks to take control of the Retained
Goods, the Customer shall make aware the third party of our title right and
shall without undue delay notify us in order to enable us to enforce our
(4) In case of a payment default by the Customer, we
may require the Customer to surrender the Retained Goods to us, as soon as we
have terminated the contract.
(1) In the event of a defect of the delivered product,
the Customer shall be entitled to request from us to repair the defect or to
supply another product (as ordered) which is free from defects. Notwithstanding
the foregoing, if the Customer is a Business Customer, we shall have the right
to choose between any such remedies at our discretion, provided that such
choice shall be made by us by written notice (in „text form“, including by
telefax or by e-mail) within a period of three business days following receipt
of the Customer’s notice of the defect.
(2) If remediation pursuant to subsection 1 fails or
cannot reasonably be expected from the Customer or we refuse to remedy the
defect, the Customer shall be entitled to terminate the sales contract, reduce
the purchase price or claim damages or frustrated expenses, in each case in
accordance with applicable law; provided, however, that damage claims of the
Customer shall be subject to the provisions contained in Section 9 of these
General Terms and Conditions.
(3) The warranty period shall be two years upon
delivery of the Product.
(4) With regard to Business Customers only, the
following shall apply: The Customer shall promptly upon delivery inspect the
product with due care. The delivered product shall be deemed to be approved by
the Customer unless the defect is notified to us (i) in case of any obvious
defects within a period of (five) business days upon delivery or (ii) otherwise
within five business days from the day when the defect has been identified.
8. Intellectual Property Rights
(1) The Customer is granted the non-exclusive right to
use any software delivered with the product for use in connection with the
(2) The Customer shall have no right to make copies of
the software, except for the purpose to use the software pursuant to Section 8
(1) or for back-up purposes.
(3) The Customer may transfer the rights to the
software to any third party only if at the same time title to the relevant
product (in particular, a hardware product) is transferred to such third party
and the Customer does not retain any copy whatsoever of the software.
(4) In no event shall we be required to make available
the source code of the software.
(1) Our liability for late delivery shall, except in
cases of wilful misconduct or gross negligence, be limited to an amount equal
to 3 % of the aggregate purchase price (including VAT).
(2) We shall not be liable (on whatever legal grounds)
for damages which may not reasonably be foreseen, assuming a normal use of the
product. Furthermore, our liability shall be excluded for damages resulting out
of a loss of data to the extent that data recovery is not possible or impeded
due to a failure to perform appropriate data back-up procedures. The foregoing
limitations of liability shall not apply in cases of wilful misconduct or gross
(3) The provisions of this Section 9 shall not apply
with respect to our liability for guaranteed product specifications (within the
meaning of Sec. 444 of the German Civil Code), personal injury or under the German
Product Liability Act.
10. Data Protection
We may save and process any data relating to the
relevant orders only to the extent permitted under applicable law. Details are
11. Applicable Law and Competent
(1) Any contracts entered into between us and the
Customer shall be governed by the laws of the Federal Republic of Germany under
exclusion of the UN Convention on the International Sale of Goods (CISG),
without prejudice to any mandatory conflict of laws provisions. If the Customer
is a Consumer and has his or her habitual residence in another country, the
Customer shall, however, continue to have the protection afforded to him by
provisions that cannot be derogated from by agreement by virtue of the law
applicable in the state of the Customer’s habitual residence.
(2) If the Customer is a corporation, limited
liability company or commercial partnership or otherwise operates a commercial
business (Kaufmann within the meaning of Sec. 1 (1) of the German Commercial
Code) or is a legal entity or special fund organized under public law, the
courts in Toulouse/Frankreich shall have exclusive jurisdiction in respect of
all disputes arising out of or in connection with the relevant contract. In all
other cases, we or the Customer may file suit before any court of competent
jurisdiction under applicable law.