1. Applicability and Contractual Partners
These Standard Terms of Business shall apply to all orders placed via the Swarovski B2B website, www.swarovski-professional.com (the “Website”). Please read these Standard Terms of Business carefully before ordering products from the Website. By ordering our products, you indicate that you consent to the Standard Terms, below, and state that you are competent to enter into legally-binding contracts and are ordering in the name and on behalf of a company and for the purposes of that company. These Standard Terms of Business shall take precedence over the customer’s additional, different, or conflicting terms and conditions. The application of the customer’s terms and conditions is hereby expressly rejected. The ordering of Swarovski products by the customer represents acceptance of these Standard Terms of Business and any supplements, which together constitute the entire understanding between the parties and supersede any previous communications, representations, or agreements by either party, whether oral or written. No supplement or modification of these Standard Terms of Business shall be legally valid without the express, written acknowledgment of both contracting parties signed by authorized company representatives.
This Website for the sale of goods to B2B customers via the Internet is operated by D. Swarovski Distribution GmbH, Swarovskistraße 30, 6112 Wattens, Austria. This is where you can file complaints or assert warranty claims. You can reach our customer service with any questions at: firstname.lastname@example.org
2. Orders, Requests, and Availability
2.1. All orders and requests are subject to acceptance by Swarovski and become legally effective only with Swarovski’s written order confirmation, or, in the absence thereof, with acceptance of delivery. Upon acceptance by Swarovski, all customer orders shall be binding and cannot be changed by the customer without the written consent of Swarovski.
2.2. Minimum order quantities may apply as announced by Swarovski. Only applicable for payment on invoice there shall be a maximum amount per order (incl. transport costs) of EUR 3.500.
2.3. The products and prices are indicated on the Website. The products are available while inventory lasts. We reserve the right to change the products shown on the Website at any time and without prior notice and limit the number of products available for purchase by a customer. Liability for lack of inventory and non-availability of products is excluded.
3. Product Specifications
3.1. Swarovski may change its product specifications at any time.
3.2. Information appearing in catalogues, brochures, etc., or the characteristics of a product, such as color, quality, or dimensions, shall only be binding if referenced in the order confirmation.
3.3. Deviations due to the manufacturing process, e.g. in quantities, colors, dimensions, weights, and product characteristics, are permissible.
All prices are shown net in euros and are quoted EXW (Wattens/Innsbruck, Austria) in accordance with Incoterms 2010, with the exception that transport to the point of destination, as stated in the shipping documents, is insured by Swarovski. The total price of your order is displayed at the end of the checkout process. By confirming the order, you agree to the price of the goods. No subsequent adjustment of the price is possible. Sales tax, VAT, or any other taxes and customs levies applicable on the sales transaction may be invoiced separately.
5. Payment Terms
The purchase price for goods ordered shall be due when Swarovski executes your order. Payment may be by credit card (by entering your card data on the Website of our Payment Service Provider where you are automatically transferred to). For customers from Austria and Germany payment can be issued on account.
You may settle our claims for payment only by using uncontested or final and unappealable receivables.
If you pay with a credit card, we reserve the right to check the validity of the card and to monitor the availability parameters for collection and the address data. If the institution that issued the credit card refuses to make payment to us, we are not liable for delays or for failure to deliver. Your credit card will be debited with the total amount due once your order has been confirmed.
Payment is on account. For the purpose of offering the “purchase on account” payment method (hereinafter referred to as the “payolution payment method”) Swarovski is cooperating with payolution GmbH, Am Euro Platz 2, A-1120 Vienna, Commercial Court of Vienna, Austria, (hereinafter referred to as: “payolution”) and net-m privatbank 1891 AG, Odeonsplatz 18, 80539 Munich, Germany (hereinafter referred to as the “Bank”), and the following terms shall apply:
- This shall not establish a contractual relationship between the customer and payolution or the Bank.
- The use of the payolution payment method shall only be permitted to customers who have reached 18 years of age.
- Before each payment using the payolution payment method, Swarovski or the Bank shall carry out a credit check on the customer, subject to the customer’s separate consent.
- Swarovski shall be entitled to assign claims that are intended for payment using the payolution payment method, including all associated ancillary rights, to third parties.
- Swarovski shall retain title to the goods delivered until the complete amount has been paid.
- Swarovski shall send the customer an invoice that is payable immediately, without deductions, upon receipt of the invoice.
- If the invoice is not paid by the due date at the latest, the customer shall be in default, even without a separate reminder. In this case, Swarovski shall be entitled to charge the customer default interest at the applicable statutory rate.
In individual cases (e.g. high order value, technical problems with payment on account) Swarovski may offer the possibility to pay via prepayment. Your order will be processed upon receipt of your payment into our bank account. The amount is due for payment immediately.
Please transfer the amount to the account listed in the checkout process using your order number as payment reference. Please note that your bank may charge additional costs for international bank transfers.
In case the payment amount is not transferred to our bank account within 7 banking days after receiving the order confirmation, Swarovski has the right to cancel your order.
6.1. All deliveries are made according to Incoterms 2010 EXW (Wattens/Innsbruck, Austria), with the exception that transport to the point of destination, as stated in the shipping documents, is insured by Swarovski. Delivery dates are subject to Swarovski’s operational capabilities. The delivery period begins on the date of the order confirmation. Damage claims for non-performance or late performance are excluded. Delivery dates are non-binding indications.
6.2. Swarovski’s performance of the contract is subject to unforeseen circumstances and causes beyond Swarovski’s control, including but not limited to force majeure, acts of war, government interventions and prohibitions, delays in transportation, or delays due to customs formalities, damage in transit (to the extent that such damage is not covered by Swarovski’s insurance), energy shortages, or labor disputes, and delays in delivery or inability to deliver on the part of Swarovski’s suppliers.
6.3. The customer shall properly examine all deliveries for defects without delay. In the event of any claim based on damage in transit, the customer shall note the damage on the proof of delivery before signing and shall inform Swarovski immediately.
7. Warranty and Liability
7.1. Except as provided in Section 7.2, and unless otherwise agreed in writing, Swarovski warrants to customers that products purchased from Swarovski will be free from defects in materials and workmanship for 6 months from delivery.
7.2. Insignificant deviations from the product specifications are excluded from this warranty. Swarovski’s warranty shall not apply to any products which, in Swarovski’s opinion, have been subject to normal wear and tear, abuse, modification, attempted repair, negligence, misuse, or accident. Parts subject to wear, such as batteries, illuminants, etc., are also excluded from warranty. Unauthorized modification or misuse, non-compliance with instructions or the product information provided, or any use outside of the product’s intended purpose voids the warranty as well as any guarantee made by Swarovski. For the parts of its goods that were purchased from suppliers, Swarovski provides a warranty only to the extent of its own warranty rights against the supplier. This warranty extends to customers only. Warranty claims cannot be transferred or asserted in the name of purchasers subsequent to Swarovski.
7.3. Any warranty claim (except for claims for damage in transit – see Subsection 6.3) must be sent in writing by registered mail within 14 days after receipt of the defective goods at the intended destination and must include a detailed description of the defect. Otherwise the goods shall be deemed to have been approved. All warranty claims must be made by registered letter, immediately upon discovery of the defect.
7.4. As the customer’s sole and exclusive remedy for breach of this warranty, Swarovski shall – at its sole discretion – repair, or replace defective goods, which are acknowledged by Swarovski to be defective, with non-defective goods, or grant a reasonable price reduction in the form of a credit note. The goods may only be returned with the consent of and in accordance with the instructions of Swarovski. If Swarovski agrees to the return of goods, such goods will only be accepted if returned in the complete original package units.
7.5. The warranty claims set forth above are exclusive, and no other warranty claim, expressed or implied, can be asserted unless agreed in writing.
7.6. Swarovski’s liability is limited to direct damage to the goods themselves and – unless otherwise agreed in writing – shall in no event exceed the amount paid to Swarovski for the relevant goods. In no event shall Swarovski be liable for any indirect or consequential damages, including lost profit, or any other damages of any kind. This does not apply to damages due to wrongful intent or gross negligence directly attributable to Swarovski. The customer shall bear the burden of proof.
7.7. Swarovski’s product liability is limited to consumer claims based on personal injury and property damage for which Swarovski is demonstrably responsible.
7.8. Swarovski assumes no liability whatsoever in connection with the subsequent processing and/or further use of Swarovski products. Due to their physical properties, Swarovski crystals are unsuitable for such uses as adhesive bonding to teeth, use on or near mucous membranes, and other atypical uses. Swarovski’s technical advice, whether verbal, in writing, or by testing, is based on our current state of knowledge and the information provided by our suppliers. Such advice does not relieve the customer from the obligation to perform its own tests of the techniques proposed by Swarovski to determine their suitability for the intended application. The application, use, and processing of these techniques and products are the sole responsibility of the customer. The customer shall fully indemnify Swarovski and hold it harmless with respect to all third-party claims based on product liability or relating to other uses of the Swarovski products purchased by the customer, and waives all its own claims.
7.9. The customer shall ensure that the limitations on liability in Subsections 7.6 through 7.8 are made binding on all subsequent purchasers.
8. Intellectual Property Rights
8.1. The purchase of this product does not entitle the customer or any subsequent purchasers to use Swarovski’s and its Affiliates’ brands, trademarks, names, logos, designs, advertising slogans, designations, product designs, confidential information, and/or other intellectual property rights in any manner, including but not limited to the Swarovski name and logo, the Swarovski Swan logo, the SWAROVSKI ELEMENTS tag and logo, and the Crystals from Swarovski Ingredient Brand Logo (collectively the “Swarovski Trademarks”), without a written License Agreement signed by authorized representatives of Swarovski. Notwithstanding the foregoing, the customer may make certain limited text references to Swarovski’s and its Affiliates’ trademarks, brands, and names so long as such references are in full compliance with the Guidelines for Proper Use of Swarovski Trademarks, as provided to the customer and/or set forth on Swarovski’s website, and which may be modified from time to time in Swarovski’s sole discretion.
8.2. By entering into this agreement, the customer agrees to advise its own customers of this restriction, impose this restriction upon them, and advise them that the right to use the Swarovski Trademarks is only granted if they enter into a written License Agreement with Swarovski. All references to the goods that bear the Swarovski Trademarks must comply with the Guidelines for Proper Use of Swarovski Trademarks.
8.3. The customer shall not discredit Swarovski and, unless otherwise agreed in writing, shall not take any action or issue any communication that suggests a partnership or corporate relationship between the customer and Swarovski, or any authorization, endorsement, or sponsorship of the customer or the customer’s products by Swarovski.
8.4. All materials, including without limitation, specifications, drawings, or any other documents supplied to the customer, are Swarovski’s sole property, must be treated confidentially and may not be reviewed or accessed by anyone other than the customer without the prior written consent of Swarovski. The customer shall return or destroy all such materials on Swarovski’s request. Sales materials provided by Swarovski shall only be used for the purpose of promoting Swarovski’s products.
8.5. Swarovski shall not be liable for any infringement of patents, copyrights, design rights, trade secrets, trademarks, or other intellectual property rights resulting from its adherence to the customer’s designs, specifications, or instructions. The customer agrees to defend and indemnify Swarovski and its Affiliates and hold them harmless with respect to any claims in connection with (i) infringement or violation of intellectual property rights, (ii) any modifications or changes to Swarovski products by the customer or any third party, or (iii) the customer’s sale, advertising, marketing, promotion, or other distribution of products or customer products.
9. Retention of Title
9.1. Swarovski shall retain ownership of all goods supplied until all the customer’s financial obligations have been fully met.
9.2. Where goods supplied by Swarovski are subjected to further processing, Swarovski shall be deemed to have joint ownership of the new product with its share of ownership based on the relative values of the components incorporated. Such reworking or processing shall be carried out on behalf of Swarovski within the meaning of applicable legal provisions, but without placing any obligations on Swarovski. Swarovski shall automatically acquire a claim to the new product resulting from such reworking or processing. Where products that are subject to retention of title by Swarovski are reworked or processed together with other products that do not belong to Swarovski, Swarovski shall acquire co-ownership of the resulting new product in the proportion which the market value of the product subject to retention of title bears to the market value of the other product used in the processing. If Swarovski loses title to the goods due to the processing thereof and ownership passes to the customer, it is hereby agreed that ownership shall be transferred back to Swarovski as soon as the customer acquires ownership. Goods over which Swarovski retains title may not be pledged, transferred as security, or otherwise encumbered.
9.3. If the customer defaults on payment or otherwise breaches its contractual obligations, Swarovski shall be entitled to enter the customer’s business premises and repossess the goods subject to retention of title at the customer’s expense or to demand assignment of the customer’s claims against third parties for surrender of the goods. The assertion of title retention rights, the repossession of goods, or the seizure or attachment by Swarovski of its own goods shall not be deemed to be a rescission of the agreement.
10. Data Protection
11. Applicable Law and Jurisdiction
This contract shall be subject to Austrian law, excluding the provisions of international private law. The applicability of the United Nations Conventions on Contracts for the International Sale of Goods is hereby 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 option of Swarovski – the competent court where the customer has its registered office shall have jurisdiction. In the latter case, Swarovski may also apply the substantive law applicable where the customer has its registered office.
12.1. Assignments: The customer may only assign its rights and obligations under this agreement with the written consent of Swarovski.
12.2. Set-off: The customer may only set off its claim or exercise a right of withholding against Swarovski’s claims when its claim is undisputed or has been established by due process of law.
12.3. Severability: The invalidity of any individual provision shall not affect the validity of the other provisions of the agreement. If a provision is not incorporated into the Agreement, or is invalid, the content shall be based on statutory provisions. The invalid provision shall be replaced by a legally valid provision, which serves the same economic purpose as the invalid provision to the extent possible, if no dispositive law is available in this case. The same shall apply to any unintended gap in the agreement.
13. Special Conditions for CrystalpixieTM Nail Art Products
These special conditions are applicable to every purchase of CrystalpixieTM Nail Art Products from Swarovski by the customer (hereinafter referred to as the “Products”):
13.1. The Products contain loose Swarovski crystals and a leaflet with an application description.
13.2. Loose Swarovski crystals are to be professionally applied by the customer in connection with the services the customer offers to its own end-customers (a comprehensive package of products and services). The customer may not sell the Products or parts thereof or offer them for sale as independent products without the crystal application service. The product is not intended to be a “Do it Yourself” product for private individuals.
13.3. Training materials (including videos) are intended to serve as the basis for the promotion and sale of the Products and should not be distributed to end-customers or third parties.
13.4. Only loose Swarovski crystals will be delivered in the “Swarovski CREATE YOUR STYLE CrystalpixieTM Nail Art” box for application. Additional materials such as nail polish, nail glue, protective lacquer, and so forth, which are necessary for the application of the Swarovski crystals, shall be purchased and processed by the customer.
13.5. The customer shall perform the application with due care and shall comply with all applicable cosmetic and sanitary standards, laws, and regulations.
13.6. Swarovski assumes no liability for the durability of applied Swarovski crystals and in connection with subsequent processing of the Products. The customer alone is responsible for the professional and workmanlike application of Swarovski crystals. Furthermore, Swarovski assumes no liability or obligation for any unauthorized modification or improper use of the Products, or any non-compliance with the directions or the information with respect to the Products provided by Swarovski, whether in verbal or written form, or any abnormal use of the Products by the customer.
14. General Warnings
14.1. Loose crystals may present a small-parts hazard to young children, particularly children under 3 years of age. Depending on the size of the crystal and any attached material (such as glue, fabric, etc.), children may choke on, inhale, or swallow the crystal or insert it into their noses. Magnetic products with crystal applications pose a particular risk of serious intestinal injury if ingested.
14.2. The application techniques stated in the Application Manual do not guarantee that crystals will not come loose after application. For each application, the manufacturer must determine whether the product meets the relevant requirements related to small-parts hazards and assess any risk it may pose to small children. Failure to follow Swarovski’s care instructions may result in damage to the crystal, which could pose a risk of injury or other harm.
14.3. Warning for Magnetic Closures: Loose crystals may present a small-parts hazard to young children, particularly children under 3 years of age. Magnets with crystal applications pose a particular risk of serious intestinal injury if ingested. For each use of magnets with crystal applications, the manufacturer must determine whether the product meets relevant requirements related to small-parts hazards and assess any risk it may pose to small children.
14.4. Warning for Tableware: Application of loose crystals to tableware presents a potential risk of aspiration, choking, swallowing, or tooth damage should crystals come loose. To reduce this risk, crystals should never be applied to any surfaces likely to come in contact with food or the mouth, and crystals should never be placed on any tableware intended for use by children. Tableware with crystals, which is only intended for decorative use, should be labeled as such. To avoid dishwasher damage, tableware decorated with crystals should be washed by hand. The application techniques or recommendations in the Application Manual do not guarantee that crystals will not come loose. For each application, the manufacturer must determine whether the product meets relevant requirements related to small-parts hazards or use in items that customarily come in contact with food and assess any risk it may pose to users. The use of crystals (which may contain restricted substances deemed hazardous under national laws) and adhesives on tableware is subject to legal restrictions in certain countries. The customer is fully responsible for complying with these country-specific provisions and shall fully indemnify Swarovski and hold it harmless with respect to all third-party claims based on product liability in this regard, and waives all its own claims against Swarovski.
14.5. Unsuitable Applications: Crystals from Swarovski are intended for use in the field of fashion: jewelry, accessories, textile products, and for interior decor. Due to their physical properties, crystals from Swarovski are unsuitable for other uses (e.g., gluing onto teeth, using crystals on or near mucous membranes, and other unsafe uses). The customer shall fully indemnify Swarovski and hold it harmless with respect to all third-party claims based on product liability in this regard, and waives all its own claims.
14.6. Responsibility of the User: Any oral, pictorial, or test-based advice that Swarovski provides regarding techniques for application is based on Swarovski’s current state of knowledge and the information provided by its suppliers. Such advice does not relieve the customer from the obligation to perform its own tests of the techniques proposed by Swarovski to determine their suitability for the intended application. The application, use, and processing of these techniques and products are the sole responsibility of the user.
Wattens, July 1, 2018
D. Swarovski Distribution GmbH