1. conclusion of contract and contractual basis
1.1 For this and all subsequent transactions, i.e. contracts, deliveries and other services, including consulting services with the customer, only these terms and conditions shall apply (at the latest upon receipt of the goods, in particular in the case of telephone orders), but not any other terms and conditions of the customer, even if we do not expressly object to them again. Deviations due to individual agreements must be made in writing. Declarations of intent by and to or agreements with representatives and/or employees shall only become legally effective upon written confirmation by the contracting parties. The customer shall be bound by his contractual offer made to SWING Flugsportgeräte GmbH for 30 days from receipt of the declaration of intent or until acceptance of the contract.
1.2 All offers are always subject to change; contracts are only concluded by our written order confirmation after the order has been placed. All verbal, in particular ancillary and supplementary agreements, including those concerning the execution of the order, require our separate written confirmation. Our failure to respond to subsequent requests for amendments and/or additions shall constitute a rejection. Amendments and additions to this contract must be made in writing. The same applies to the cancellation of this written form requirement.
1.3 The documents on which our offers and contracts are based, for example illustrations, drawings, information on dimensions, functions, weights and DIN standards, as well as all brochure information and information in other printed matter are only approximate unless they are expressly designated as binding. An assurance of certain properties shall only be deemed to exist if a corresponding declaration has been expressly made.
1.4 We shall be entitled at any time to make changes which do not impair the contractual functionality of our delivery items due to deviations in weight or dimensions or color deviations, without this affecting the content of the contract in other respects. The purchaser cannot derive any rights from this.
1.5 SWING Flugsportgeräte GmbH reserves the right of ownership and copyright to cost estimates, drawings and all other offer documents. Such documents may not be made accessible to third parties and must be returned on request if the order is not placed.
2. prices and terms of payment
2.1 Our prices are quoted in EURO plus the statutory value added tax applicable at the time of delivery ex warehouse of SWING Flugsportgeräte GmbH. The prices stated in our price lists valid for the respective period shall apply as binding prices. Price increases shall only become effective if the products are delivered more than three months after conclusion of the contract.
2.2 Any discount shall be granted in accordance with the respective discount agreement.
2.3 The invoice shall be issued on the day of delivery or, in the event of a delay in delivery caused by the customer, on the day of our readiness for dispatch. The invoice amount is payable without deduction within 8 days of the invoice date. If reminders become necessary, we shall charge a flat-rate reminder fee of EUR 20.
All payments are to be made exclusively to the accounts specified in the invoice.
2.4 If the customer is in arrears with his acceptance or payment obligations or with his obligations under clause 5 (retention of title) in whole or in part, if he suspends his payments or if an application is made to open insolvency proceedings against the customer’s assets, all other claims on our part arising from the current business relationship shall become due for payment, even if bills of exchange or checks with a later maturity date are outstanding.
2.5 Acceptance of bills of exchange is generally excluded, but shall in any case only be deemed a deferral of the purchase price as long as the customer’s circumstances do not deteriorate. Bill charges are to be paid immediately. We are not liable for timely presentation, protesting and/or return of bills of exchange. Checks are only accepted on account of performance. Deliveries abroad shall only be made against advance payment or irrevocable, confirmed and free of charge documentary credit to be issued by our bank. Any bill of exchange, cheque or letter of credit costs shall be borne by the buyer.
2.6 In the event of default in payment, interest of 5% above the respective base interest rate, but at least 8%, shall be payable, without prejudice to further claims.
2.7 Offsetting or the assertion of a right of retention due to counterclaims not recognized by us or not legally established is excluded.
2.8 We are entitled to invoice partial deliveries from an overall order separately.
2.9 We are entitled to use incoming payments to settle the oldest debt item plus interest, even if the customer makes other arrangements. In this respect, the customer waives the defense of the statute of limitations.
2.10 If we take back goods for reasons for which the customer is responsible, we shall be entitled to reimbursement of lost profit, costs incurred and a reasonable reduction in value.
3. transfer of risk and shipment
3.1 Deliveries shall be made in accordance with the buyer’s instructions, uninsured and for account and – even if free delivery has been agreed – at the customer’s risk. The risk shall pass to the customer when the goods are handed over to the shipping agent, but at the latest when the goods leave our distribution warehouse. If dispatch is delayed at the customer’s request or as a result of circumstances for which we are not responsible, the transfer of risk shall take place upon notification of readiness for dispatch.
3.2 Packaging and shipping costs shall be charged at cost price.
4 Delivery, delivery time, delivery obligations, acceptance
4.1 The confirmed delivery periods or delivery dates are non-binding for us. They are subject to correct and timely delivery to us. They shall commence on the date of the order confirmation, but not before all details of execution have been clarified, and shall be extended by the time the customer is in default, without prejudice to our rights in the event of default by the customer.
4.2 Partial deliveries are permissible.
4.3 If we are in default, the customer must first set us a reasonable grace period in writing, which must be at least two weeks. After expiry of this period, the customer may only withdraw from the contract to the extent that the goods have not already been dispatched by then. In the event of partial default, he may only withdraw from the entire contract if partial fulfillment is of no interest to him. Further claims of the customer, irrespective of the legal grounds, are excluded, but claims for damages are only possible in accordance with Clause 7.
4.4 Force majeure or unforeseeable events for which we are not responsible and which subsequently make delivery significantly more difficult or impossible, e.g. strikes, lockouts at our premises or those of our suppliers, subsequent shortages of materials, operational disruptions, official orders, import and/or export restrictions or bans, or defective or incorrect deliveries. -B. strikes, lockouts at our premises or those of our suppliers, subsequent material shortages, operational disruptions, official orders, import and/or export restrictions or bans or incorrect or late delivery by our suppliers shall entitle us, after notifying the customer of the impediment, to postpone the delivery by the duration of the impediment plus a reasonable restart time or to withdraw from the contract due to the part not yet fulfilled. The customer may demand a declaration as to whether we wish to withdraw from the contract or deliver within a reasonable period of time. If we do not make a declaration, the customer may withdraw from the contract. Further claims of the customer are excluded, but claims for damages only in accordance with Clause 7.
4.5 If dispatch or delivery is delayed for reasons within the customer’s sphere of risk, we are entitled, after the fruitless expiry of a grace period of two weeks, to otherwise dispose of the delivery item and to supply the customer within a reasonably extended period or to withdraw from the contract or to claim damages for non-performance.
4.6 The customer may not refuse acceptance if any defect does not significantly impair the usability of the delivery item and we acknowledge our obligation to remedy the defect. If a delivery item consists of several independently usable units, acceptance may not be refused with regard to the remaining units if only some of the units are defective.
5. reservation of title
5.1 Until all receivables and claims, including all balance claims, from current accounts and any claims to which we are entitled against the customer – for whatever legal reason – for indemnification from liability risks or obligations assumed at the customer’s request – e.g. from bills of exchange – have been fulfilled, we shall be granted the following securities, which we shall release at our discretion upon request, insofar as their value exceeds our claims by more than 10% on a sustained basis.
5.2 All goods delivered by us shall remain our property. Processing or transformation shall always be carried out for us as the manufacturer, but without any obligation on our part. If the processing or transformation is carried out together with items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of our goods to the invoice value or, in the absence of an invoice value, to the current value of the other processed items. In the event that our goods are mixed or combined with other items, it is hereby agreed that the (co-)ownership of the customer shall be transferred to us in the ratio of the invoice value of our goods to the invoice value or, in the absence of an invoice value, to the current value of the main item. Goods to which we are entitled to ownership or co-ownership are hereinafter referred to as reserved goods.
5.3 The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in arrears to us, has not suspended his payments and no application for the opening of insolvency proceedings has been filed. Pledges, transfers by way of security or other transfers of the reserved goods are not permitted. The customer hereby assigns to us by way of security any claims arising from the resale or for any other legal reason (insurance benefits, claims in tort, etc.) in respect of the reserved goods (including all current account balance claims); claims arising from the utilization of reserved goods in which we are only entitled to co-ownership, however, only pro rata in the amount of our co-ownership share. The customer is revocably authorized until further notice to collect the claims assigned to us for our account in his own name. We are entitled to revoke this authorization if the customer does not meet his payment obligations. At our request, the customer shall inform us of the full addresses of his debtors and notify them of the assignment.
5.4 The customer shall store the reserved goods for us free of charge with due commercial care, keep them in proper condition and insure them at his own expense to an extent commensurate with due commercial care. The customer shall be liable for damage of any kind to delivered products until full payment has been made, even if the customer is not at fault. If third parties seize the reserved goods, e.g. by attachment, the customer shall draw attention to our (co-)ownership, immediately object to the intervention and inform us without delay. The customer shall bear the costs of measures to eliminate the interference of third parties, unless they can be collected from the other party. The customer is obliged to allow us to inspect his books insofar as this is relevant to the exercise of our rights.
5.5 In the event of breach of contract by the customer, in particular default of payment, we are entitled to demand immediate surrender of the reserved goods, without the customer being entitled to a right of retention, to enter the customer’s business premises, to take possession of the reserved goods and, if necessary, to demand assignment of the customer’s claims for surrender against third parties. The assertion of our rights, in particular the taking back or seizure of the goods subject to retention of title, shall not be deemed a withdrawal from the contract, unless the German Installment Purchase Act applies.
5.6 SWING Flugsportgeräte GmbH shall be entitled to dispose of the products subject to retention of title elsewhere after a reasonable period of time and, in the event of payment, to supply the buyer within a reasonable new delivery period.
6 Liability for defects
6.1 The customer must inspect the goods received immediately upon receipt for defects, quality and warranted characteristics and must notify us in writing of recognizable defects immediately, at the latest within one week after delivery, and of hidden defects after discovery, in order to avoid the loss of warranty claims.
6.2 We are liable for the items being free of defects in accordance with the state of the art and assume the following obligations for a period of 1 year – in the cases of §§ 475 para. 2 and 479 para. 1 BGB (purchase of consumer goods) for a period of 2 years – after delivery: If the items are faulty or defective, we shall remedy the defect free of charge – if necessary using new spare parts – or, at our discretion, make a replacement delivery. This obligation shall also extend to damage which should occur to other delivery items as a result of the defect. We are entitled to the defective items and parts. The customer shall grant us reasonable time and opportunity to remedy any defects. If the customer refuses to do so, we shall be released from the warranty.
If the repair or replacement delivery fails twice, even within a reasonable grace period to be set by the customer in writing, the customer may, at his discretion, demand a reduction in payment or rescission of the contract.
6.3 However, claims for defects shall not exist if defects are due to improper use, operation or care or inadequate maintenance or to other violent influences, or if delivery items have been stored in an unsuitable environment or if work has been carried out on delivery items for repair or other purposes by persons who were not expressly authorized by us in writing.
6.4 Claims of the customer for expenses incurred for the purpose of subsequent performance or rectification, in particular transport, labor and material costs, are excluded insofar as the expenses increase because the object of the subsequent delivery has subsequently been brought to a location other than our business location, unless the transfer corresponds to its intended use. We do not waive the defense of improper notice of defects by negotiating complaints.
6.5 Claims for damages due to the absence of warranted characteristics are excluded insofar as our warranties only extend to the contractual conformity of our deliveries. In all other respects, section 7 applies.
6.6 When purchasing a paraglider, harness or rescue system, the customer undertakes to observe the operating instructions supplied and to have a check and instruction flight carried out by the manufacturer or a third party recognized by the manufacturer.
7 General limitation of liability
7.1 Claims for damages by the customer arising from culpa in contrahendo, breach of primary or secondary contractual obligations, positive breach of contract, in particular for consequential damages, tort and other legal grounds are excluded, even if they are based on the actions of the legal representatives or vicarious agents of the user. This does not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health.
7.2 Claims for damages are limited as follows: Damages may not exceed the loss incurred and loss of profit which we should have foreseen as a possible consequence of the breach of contract at the time of conclusion of the contract, taking into account the circumstances which we knew or should have known. Irrespective of this, claims for damages are limited in amount to the purchase price of the delayed or non-delivered part of the respective delivery.
7.3 In the event of an obligation to pay damages in accordance with Clause 4.4, the damages to be paid to the Buyer shall be limited to the damage foreseeable at the time of conclusion of the contract, but to a maximum of 10% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay or non-delivery.
7.4 Claims for damages against us shall become statute-barred within the periods regulated for liability for defects (Clause 6.2) from the time the customer becomes aware of the damage and the person liable to pay compensation.
7.5 The personal liability of our executive bodies and employees who have acted as our vicarious agents is excluded.
7.6 SWING Flugsportgeräte GmbH accepts no liability for the function and safety of the products. The instructions for use and maintenance as well as the warranty conditions of SWING Flugsportgeräte GmbH apply.
SWING Flugsportgeräte GmbH is not liable for damage resulting from the use of the goods supplied by us, including damage to other objects.
8. other provisions
8.1 The assignment of rights or transfer of obligations from the concluded contract requires the prior written consent of SWING Flugsportgeräte GmbH.
8.2 The legal relationship between the customer and us is subject exclusively to the law of the Federal Republic of Germany. The application of the Uniform Laws on the International Sale of Goods and on the Formation of Contracts for the International Sale of Goods is excluded.
8.3 The place of performance is the registered office of SWING Flugsportgeräte GmbH.
The place of jurisdiction for all disputes, including actions on cheques and bills of exchange, is Fürstenfeldbruck, provided that the customer is a registered trader or has no general place of jurisdiction in Germany or moves his place of residence or business abroad after conclusion of the contract. However, we are also entitled to sue the customer at his general place of jurisdiction
8.4 The invalidity of individual provisions shall not affect the validity of the remaining provisions. Ineffective provisions shall be replaced by provisions that come as close as possible to the intended purpose.
8.5 If we do not tacitly make use of rights to which we are entitled, this shall not constitute a waiver of such rights.
