GENERAL TERMS & CONDITIONS
concerning the sale and purchase of whisky through
THE SWEX
Version March 2024
Article 1 Definitions
Access Data: the username, password, and/or registration number, which grants the Client access to THE SWEX and allows the Client to use it;
Account: a personal account created by the Client on the Website of THE SWEX, accessible only with the Access Data, which grants the Client access to THE SWEX, allowing the Client to buy and sell Bottles and enter into a Custody Agreement;
Agreement: a Purchase Agreement and/or Custody Agreement;
Blocked Bottle(s): Bottles designated as such by SWI on THE SWEX and offered there by a Seller, which must remain in Custody by SWI during the Mandatory Custody Period pursuant to a Custody Agreement and can only be traded through THE SWEX during the Mandatory Custody Period;
Bottle(s): bottle(s) of whisky offered for sale through THE SWEX, including Virtual Bottles and Blocked Bottles;
Bottling Costs: the costs associated with bottling whisky into bottles per end of the Proposed Optimal Maturation Period (POMP), borne by SWI;
Buyer: any natural person and/or legal entity purchasing (a) Bottle(s) by entering into a Purchase Agreement through THE SWEX;
Call Off: the act of the Client sending a written notice to SWI explicitly stating the wish to take (a) Physical Bottle(s) held in custody by SWI into the Client's own possession and custody, which notice shall be considered as a termination of the Custody Agreement concerning these Physical Bottle(s);
Cask(s): barrel(s) of whisky (or parts thereof) held in Custody by or on behalf of SWI, traded on THE SWEX in the form of Virtual Bottles;
Client: a (potential) client of SWI, being a Buyer, a Seller, a visitor to the Website, user of THE SWEX, and/or the party entering into a Custody Agreement with SWI;
Custody Agreement: an agreement for custody within the meaning of of Section 7:600 (et seq.) of the Dutch Civil Code between SWI and a Client entered into through THE SWEX, pursuant to which SWI undertakes to take (a) Bottle(s) into Custody on behalf of the Client. The Custody Agreement for (a) Bottles terminates automatically upon the sale of the Bottle(s) concerned. The Custody Agreement for Virtual Bottles is deemed to also contain an instruction to SWI for bottling the relevant whisky by the end of the POMP;
Custodial Fee: the regular fee payable by the Client to SWI under the Custody Agreement for the Custody of Physical Bottle(s);
Custody Period: the period during which the Bottles are held in Custody by SWI;
Fraction: the portion of whisky remaining in a Cask after bottling, i.e., a portion that is insufficient to fully fill a bottle in the volume used in the relevant bottling (0.7 liters or otherwise);
General Terms and Conditions: the present general terms and conditions of THE SWEX as may be amended from time to time;
Mandatory Custody Period: i) the Custody Period applicable to Blocked Bottles as indicated on THE SWEX; and ii) the Custody Period applicable to Virtual Bottles, which period is equal to the POMP of the Cask(s) to which the whisky belongs that is part of these Virtual Bottle(s). During this period, the Client is obliged to give the Blocked Bottles and Virtual Bottles into Custody with SWI under a Custody Agreement;
Market Value: the market value of Bottles and Casks determined by SWI, which market value may fluctuate during the (Mandatory) Custody Period and is determined based on a dynamic valuation according to SWI's valuation model;
Physical Bottle(s): bottle(s) of whisky, including Blocked Bottles, offered for sale through THE SWEX, excluding Virtual Bottles;
POMP: the Proposed Optimal Maturation Period in years determined by SWI for a Cask, which period can be unilaterally extended or shortened by SWI. The period from the end date of the POMP to the bottling date is deemed to be part of the POMP within the meaning of these General Terms and Conditions;
Purchase Agreement: the agreement concluded through THE SWEX between a Buyer and a Seller regarding the purchase and sale of Bottle(s). SWI is explicitly not a party to the Purchase Agreement;
Seller: any natural person and/or legal entity offering and/or selling Bottle(s) on THE SWEX;
Shipping Fee: the regular fee as published on the Website charged by SWI for the shipment of the Bottle(s) to the Client, which fee includes at least the following costs: packaging costs, transport costs, transport insurance, and postage;
SWI: the private limited company Scotch Whisky International B.V. ‒ as well as its affiliated companies ‒ also trading under the name Scotch Whisky Investments, established at (2172 HV) Sassenheim at Industriekade 18 A, registered in the Trade Register of the Chamber of Commerce under number: 51096072, user of these General Terms and Conditions, and holder of an AFM license with registration number: 12042065;
THE SWEX: the online platform offered by SWI for the purchase and sale of Bottles, exclusively available on the Website, and only accessible by the Client by logging into their Account;
Transaction Fee: the regular fee i) payable by the Seller to SWI for the sale of a Bottle; and ii) payable by the Buyer to SWI for the purchase of a Bottle;
Virtual Bottle(s): bottle(s) of whisky that do not physically exist at the time of the conclusion of the Purchase Agreement as the relevant whisky is still in Cask(s). The Buyer of a Virtual Bottle buys, under the conditions set out in article 10, both factually and legally a quantity of whisky in a Cask equal to the Virtual Volume at the time of purchase, which whisky will be bottled after the expiration of the applicable POMP, thereby transforming the Virtual Bottle into a Physical Bottle;
Virtual Volume: the volume of a Virtual Bottle as determined at the time of purchase;
Website: www.theswex.com.
Article 2 Applicability
2.1 These General Terms and Conditions are not only stipulated for SWI but expressly also for third parties engaged by SWI in the performance of a Custody Agreement, as if these General Terms and Conditions were stipulated by these third parties themselves.
2.2 Unless expressly agreed otherwise in writing, these General Terms and Conditions apply to:
i) every Purchase Agreement;
ii) every Custody Agreement, and all offers, quotations, price quotations, and confirmations made by SWI concerning a Custody Agreement;
iii) all visits to the Website or THE SWEX and all use of the Website or THE SWEX by a Client.
2.3 The applicability of any special and/or general terms and conditions used by the Client is expressly rejected, and the special and/or general terms and conditions of the Client do not form part of any Agreement.
2.4 Any deviations from these General Terms and Conditions must be expressly agreed in writing and are only valid to the extent that they have been accepted and confirmed in writing by SWI.
2.5 If any provision of these General Terms and Conditions or any Agreement is void or declared void, the other provisions of these General Terms and Conditions or Agreement will remain in full force and effect. In that case, the parties will negotiate to reach agreement on (an) alternative provision(s) which most closely approximates the original provision.
2.6 If SWI does not insist on strict compliance with these General Terms and Conditions at all times, this does not mean that the provisions thereof are not applicable, or that SWI loses the right in any way to demand strict compliance with the provisions of these General Terms and Conditions in other cases.
2.7 These General Terms and Conditions replace previous version(s) of SWI's general terms and conditions, as provided to the Client and/or made public by SWI on the Website or otherwise on (a) previous date(s); and/or accepted by the Client on the Website.
2.8 SWI expressly reserves the right to unilaterally amend and/or supplement these General Terms and Conditions from time to time. Minor changes can be made at any time and will only be announced by publication on the Website. The Client will be informed in advance of any material changes.
2.9 In these General Terms and Conditions, references to the singular also include the plural and vice versa, unless the content and purport of these General Terms and Conditions clearly indicate otherwise.
2.10 In these General Terms and Conditions, the term "in writing" also means by email.
Article 3 THE SWEX / Account / Access Data
3.1 The Client can only use THE SWEX through his/her Account. To create an Account, the customer must purchase a certain number of bottles on THE SWEX in the form of a diversified portfolio compiled by SWI, for at least the minimum amount as indicated on the Website. SWI reserves the right to change the aforementioned minimum amount from time to time.
3.2 THE SWEX is only available via the Website.
3.3 On THE SWEX, the Client can only buy and sell Bottles.
3.4 The Account is only accessible with the Access Data.
3.5 The Client is obliged not to disclose the Access Data to third parties. The Client is bound to and liable for the (legal) acts performed or to be performed with their Access Data through THE SWEX.
3.6 The Client ensures that all data, including but not limited to contact and personal data, which SWI indicates as necessary or desirable, or which the Client should reasonably understand to be necessary for the services provided by SWI, are provided to SWI in a timely, clear, and complete manner.
3.7 The Client is not allowed to use THE SWEX for unlawful or punishable acts. SWI is entitled to suspend or terminate Agreements or access to or use of THE SWEX, the Account, or the Access Data in cases where, in its reasonable judgment, there is cause to do so.
3.8 The Client indemnifies SWI against claims from third parties relating to any breach of this Article 3.
Article 4 Terms of Purchase and Sale of Bottles on THE SWEX
4.1 A Client may only offer and sell Bottles through THE SWEX that have been placed in custody with SWI under a Custody Agreement.
4.2 The Client may only purchase Bottles by logging into their account and entering into a Purchase Agreement with a Seller.
4.3 The Client may only sell Bottles by logging into their account and entering into a Purchase Agreement with a Buyer.
4.4 The purchase/sale of Bottles through THE SWEX can only be concluded through a Purchase Agreement. Neither the Seller nor the Buyer are allowed to apply deviating and/or additional special and/or general terms and conditions to a purchase/sale of Bottles through THE SWEX.
4.5 A Client who purchases Virtual Bottle(s) or Blocked Bottle(s) agrees that these Virtual Bottle(s) or Blocked Bottle(s) may only be offered and sold through THE SWEX during the Mandatory Custody Period.
4.6 A Client who purchases Virtual Bottle(s) or Blocked Bottle(s) is always bound by the Mandatory Custody Period applicable to those Virtual Bottle(s) or Blocked Bottle(s), and cannot Call Off these Virtual Bottle(s) or Blocked Bottle(s) during the Mandatory Custody Period.
4.7 Only adult individuals who are legally competent to enter into binding agreements can enter into an Agreement through THE SWEX.
Article 5 Transaction Fee / Custody Fee / Shipping Fee
5.1 Creating and using an Account is free of charge.
5.2 For each Bottle that a Buyer purchases on THE SWEX, the Buyer owes a Transaction Fee to SWI, which Transaction Fee is collected by SWI through automatic debit via the Buyer's Account's digital wallet. The Transaction Fees are published on the Website.
5.3 For each Bottle that a Seller sells on THE SWEX, the Seller owes a Transaction Fee to SWI, which Transaction Fee is collected by SWI through automatic debit via the Seller's Account's digital wallet. The Transaction Fees are published on the Website.
5.4 SWI is entitled to change the Transaction Fees at any time. A change in the Transaction Fees will only be announced by publication on the Website.
5.5 For the custody of Physical Bottles, the Client owes the Custody Fee.
5.6 SWI determines the due Custody Fee per calendar quarter and collects it per calendar quarter through automatic debit via the Client's Account's digital wallet. The Custody Fee equals a percentage of the Market Value of the Bottle. The Client is never entitled to any refund of the Custody Fee, regardless of the duration of custody.
5.7 SWI is entitled to change the Custody Fee at any time. A change in the Custody Fee will only be announced by publication on the Website.
5.8 If the Mandatory Custody Period does not apply and the Buyer chooses not to place the purchased Physical Bottles in custody with SWI, or to Call Off the Physical Bottles at some point, then SWI will send the Physical Bottles to the delivery address specified in the Buyer's Account upon payment of the Shipping Fee. The Shipping Fee is published on the Website.
5.9 SWI is entitled to change the Shipping Fee at any time. A change in the Shipping Fee will only be announced by publication on the Website.
5.10 By bottling a Cask, Virtual Bottles legally and factually transform into Physical Bottles. The Client who becomes the owner of these Physical Bottles may ‒ unless the Mandatory Custody Period applies to the Physical Bottles thus created ‒ choose to: i) have these Physical Bottles placed in custody by SWI under a Custody Agreement, to which the Custody Fee applies; or ii) Call Off these Physical Bottles, after which SWI will send the Requested Bottles to the delivery address specified in the Client's Account, for which the Shipping Fee is payable.
Article 6 Display and descriptions of Bottles on THE SWEX
6.1 SWI strives to always provide a complete, accurate, and truthful representation, description, and (photo) image of the offered Bottles on THE SWEX, in order to enable the Client to make an adequate assessment of the offered Bottles. However, SWI emphasizes that it is possible for a displayed image, description, or depiction to differ from a Bottle purchased by the Client through THE SWEX since not all offered Bottles can be individually depicted, but only at the product level, meaning that for some (less unique) Bottles, the displayed image serves only as an illustration and may differ from the Bottles purchased by the Client through THE SWEX. All statements, (photo) images, descriptions, and other expressions on THE SWEX regarding the Bottles are placed with care. However, SWI cannot guarantee that no deviations will occur. The Client cannot derive any rights from the displayed statements, (photo) images, and descriptions on THE SWEX. SWI accepts no liability in this regard.
6.2 In the case of Virtual Bottles, the Client cannot derive any rights from displayed qualitative characteristics or properties, including but not limited to alcohol strength, taste, and coloration upon bottling. Statements regarding qualitative characteristics or properties of Virtual Bottles only reflect expectations and are merely indicative, from which the Client cannot derive any rights. Images of Virtual Bottles on THE SWEX are merely indicative in nature, and the Client cannot derive any rights from them.
6.3 By bottling, Virtual Bottles transform into Physical Bottles, whereby SWI determines the type of whisky bottles to be used (e.g. volume, shape, and color), as well as the name and labeling and the (possible) packaging of the whisky bottles.
Article 7 Maturation / evaporation / shelf life
7.1 Whisky matures exclusively in barrels. During this process, there are maturation risks, such as evaporation (both in volume and in alcohol strength) and negative development of quality and/or taste. During the period that whisky is stored in a barrel, a portion of the whisky evaporates (i.e., the so-called Angels' Share). This is generally a one-time occurrence of approximately 4% and then an average of approximately 2% of the remaining volume per year, depending on the type of barrels used. The Client is aware of these risks and accepts them. SWI therefore accepts no liability in this regard, except in case of intent or gross negligence by SWI.
7.2 During the POMP, SWI monitors the quality (development) of the Casks. Unless otherwise agreed in writing, SWI cannot be held liable for negative quality (development) of the whisky in the Casks.
7.3 Provided that a bottle of whisky remains unopened and no oxygen can come into contact with the whisky, whisky in a bottle in principle cannot spoil. SWI advises Clients who keep Physical Bottles in their own custody to store the Physical Bottles upright.
7.4 SWI endeavors to limit the evaporation of whisky in Bottles and Casks stored in its custody to the best of its knowledge and ability. Except in case of attributable failure on the part of SWI in the performance of its obligations under the Custody Agreement, SWI accepts no liability for damages resulting from the evaporation of whisky in Bottles and Casks.
Article 8 Warranties regarding quantity and quality
8.1 If SWI (whether or not through THE SWEX) has made a written, express, and unconditional statement to the Buyer that a certain number of bottles of whisky can be bottled from a specific Cask by the end of the POMP in a bottle size indicated by SWI (i.e., 0.7 liters or otherwise), this stated number shall be deemed a warranty, notwithstanding the provisions of Article 7.1 and Article 9.7. If and to the extent that SWI may incur any obligation to compensate for damages under this warranty, SWI is entitled to compensate for this damage in kind by delivering alternative whisky products comparable in market value.
8.2 During the POMP, SWI monitors the quality (development) of the Casks. If SWI (whether or not through THE SWEX) has made a written, express, and unconditional statement to the Buyer that the whisky in a specific Cask will have a certain (measurable) quality by the end of the (extended or shortened) POMP, then this quality shall be deemed a warranty. If and to the extent that SWI may incur any obligation to compensate for damages under this warranty, SWI is entitled to compensate for this damage in kind by delivering alternative whisky products comparable in market value.
Article 9 POMP / Mandatory Custody Period / disposition / bottling / dilution / Bottling Costs
9.1 To each Cask as indicated on the Website a POMP applies as determined by SWI. SWI is entitled to unilaterally extend or shorten the POMP in order to achieve the highest possible investment result for the Client. During the POMP, SWI has exclusive factual control over the Casks. SWI always informs the Client sufficiently in advance in writing of a change in the POMP, accompanied by a proper explanation of the reason for the change.
9.2 If a Buyer purchases (a) Virtual Bottle(s), the Buyer is required to enter into a Custody Agreement with SWI for the duration of the Mandatory Custody Period, equal to the remaining POMP of the respective Cask(s) to which the Virtual Bottle(s) belong(s), as per the date of purchase. Calling Off during the Mandatory Custody Period is not possible.
9.3 If a Buyer purchases (a) Blocked Bottle(s), the Buyer is required to enter into a Custody Agreement with SWI for the duration of the Mandatory Custody Period as indicated on THE SWEX as per the date of purchase. Calling Off during the Mandatory Custody Period is not possible.
9.4 During the term of the Custody Agreement, the Client cannot exercise factual control over the Bottle(s) (including but not limited to: moving, processing, handling, taking into their own custody or management, entrusting to a third party for custody or management, opening, etc.). During the term of the Custody Agreement, the Client transfers full factual control over the Bottle(s) to SWI unless the parties expressly agree otherwise in writing.
9.5 During the term of the Custody Agreement, the Client can offer and sell the Bottle(s), including Virtual Bottles and Blocked Bottle(s), at any time, provided that the sale is made through THE SWEX on the basis of a Purchase Agreement. Other legal acts regarding the Bottle(s) are only permitted during the term of the Custody Agreement with the prior written approval of SWI.
9.6 In case of extension of the POMP, the term of the Custody Agreement will be extended accordingly, under which SWI will also retain factual control over the respective Casks for the duration of the extension of the POMP, which (among other things) entails that the Client cannot determine the bottling moment of the Casks.
9.7 As a result of an extension of the POMP, fewer Bottles may be bottled from a Cask. However, the future value per Bottle is expected to increase more than proportionally. In case of an extension of the POMP, the Client cannot derive any rights from the warranty as referred to in Article 8.1. The aforementioned warranty then expires and is replaced by a warranty concerning a number of bottles of whisky to be determined by SWI by the end of the extended POMP in a bottle size indicated by SWI (i.e. 0.7 liters or otherwise), to which the last sentence of Article 8.1 also applies. SWI can also shorten the POMP if necessary. The specific developments regarding the number of bottles of whisky to be bottled and expected value development vary for each Cask.
9.8 SWI strives for the whisky in a Cask to have a minimum alcohol percentage of 46% at the end of the (possibly extended or shortened) POMP. If SWI determines that the whisky in a Cask has a higher alcohol percentage than 46% at the end of the (possibly extended or shortened) POMP, SWI reserves the right to dilute the whisky accordingly to achieve an alcohol percentage of 46%.
9.9 If whisky in a Cask, upon expiration of the (possibly extended or shortened) POMP, has an alcohol percentage between 46% and 40%, it will (in principle) be bottled at cask strength.
9.10 No Bottling Costs are due by the Buyer of Virtual Bottle(s). The Bottling Costs are borne by SWI.
Article 11 Custody and Insurance
11.1 Unless the Mandatory Retention Period applies, the Buyer, upon purchase of Physical Bottle(s), has the choice to either leave these Physical Bottle(s) with SWI for custody or not. SWI has specifically equipped custody facilities for the custody and safekeeping of these Physical Bottles in both the Netherlands and Scotland. SWI takes all reasonably required security measures in this regard. The Physical Bottles entrusted to SWI for custody are insured against Market Value. A copy of the insurance policy can be provided upon request.
11.2 The whisky belonging to Virtual Bottles is still in Cask(s) at the time of purchase. Casks are held in custody by/on behalf of SWI in the United Kingdom. Casks cannot leave the United Kingdom until they are bottled. In the United Kingdom, casks are stored in so-called 'bonded warehouses' and remain free from excise duty and VAT under the applicable laws and regulations of the United Kingdom. SWI requires the relevant distillery and/or manager of the bonded warehouse to take all reasonably required security measures. Casks are insured against Market Value by/on behalf of SWI. SWI reserves the right to reasonably change the aforementioned coverage. A copy of the insurance policy can be provided upon request.
11.3 If a Bottle is damaged or lost due to (including but not limited to) burglary, theft, fire, or water damage, SWI is liable for no more than the amount paid by the insurer of the respective Bottle or the insurer of the respective distillery or (the manager of the) bonded warehouse as referred to in Article 11.2. If the insurer makes a total payment for the loss of multiple Bottles, the total amount paid will be distributed proportionally, and SWI is not required to compensate more.
Article 12 Communication
12.1 The Client is required to immediately check the confirmations, statements, invoices, or other notifications sent by or on behalf of SWI upon receipt and, upon noticing any inaccuracies or incompleteness, promptly inform SWI thereof. If the Client does not dispute the content of the aforementioned communications from SWI within 7 days after they can reasonably be deemed to have reached the Client, the content thereof is deemed accepted by the Client.
12.2 The Client bears the own risk of malfunctions or any other defects in the functioning of the email address designated by the Client to SWI for communication and undertakes to maintain this address for the duration of the Custody Agreement, or to inform SWI in writing in advance of any changes to the email address. The Client ensures that all data, which SWI indicates as necessary or desired, or which the Client can reasonably understand to be necessary for the provision of services by or on behalf of SWI, are provided to SWI in a timely, clear, and complete manner. If the Client fails to provide this information, SWI cannot be held liable in any way for any damage resulting therefrom for the Client.
12.3 Notwithstanding the provisions of Article 12.2 above, SWI reserves the right to communicate exclusively with the Client via the Account. During the Custody Agreement, the Client undertakes to maintain the Account and ensures that the Client has access to the Account at all times through the Access Credentials.
Article 13 No Right of Withdrawal
The statutory right of withdrawal applies exclusively to consumer purchases: the purchase relating to a movable good (in Dutch: roerende zaak) concluded by a seller acting in the course of his trade, business, craft, or profession and a buyer, a natural person, acting for purposes outside his trade or profession. If the Seller does not qualify as a seller acting in the course of his trade, business, craft, or profession, the Purchase Agreement does not qualify as a consumer purchase, and the Buyer cannot invoke the statutory right of withdrawal.
Article 14 Execution and Termination of Custody Agreement
14.1 SWI shall perform the Custody Agreement to the best of its knowledge and ability and in accordance with the requirements of sound professional practice.
14.2 SWI has the right to have certain activities under the Custody Agreement performed by third parties. The application of Sections 7:404, 7:407 paragraph 2, and 7:409 of the Dutch Civil Code is expressly excluded.
14.3 The Client who enters into a Custody Agreement with SWI for Bottles to which no Mandatory Retention Period applies is at all times entitled to Call Off one or more Bottles, thereby terminating the Custody Agreement (solely) with respect to these Bottles immediately. The Call Off of Bottle(s) shall be deemed a termination of the Custody Agreement with respect to these Bottles. The Client is never entitled to any refund of the Custody Fee in case of termination, regardless of the duration of custody. SWI will dispatch the Called Off Bottles to the delivery address indicated in the Client's Account, for which dispatch the Client the Delivery Fee is due by the Client.
14.4 Notwithstanding Article 14.5 below, a Custody Agreement regarding Bottles to which the Mandatory Retention Period applies can never be terminated prematurely. The duration of the Custody Agreement is then equal to the Mandatory Retention Period unless the duration is extended after the expiration of the Mandatory Retention Period.
14.5 In the event the Client sells Bottle(s) via THE SWEX, the Custody Agreement with respect to this/these Bottle(s) shall terminate automatically.
Article 15 Termination and/or Suspension of Custody Agreement
15.1 If the Client fails to, properly, or timely fulfill any obligation under the Custody Agreement, or in case of:
i. bankruptcy, (provisional) suspension of payment, cessation or liquidation of its company, placement under guardianship and/or death of the Client;
ii. administration and/or guardianship of and/or attachment of (a part of) the assets of the Client;
iii. application of a statutory debt restructuring scheme to the Client;
iv. closure and/or termination and/or transfer of (a substantial part of) the Client's business;
v. if the Client is a legal entity: upon dissolution, winding-up, transfer (of the majority of the shares), merger, or demerger of the legal entity;
vi. in case of any form of fraud, including but not limited to deceit, misrepresentation, intentional prejudice, or (in form or effect) similar (legal) actions by the Client;
SWI, at its discretion, without prior notice of default, and without any obligation to pay damages and without prejudice to its other (legal) rights, is entitled to either terminate the Custody Agreement in whole or in part or suspend the (further) execution of the Custody Agreement.
15.2 As soon as a case as referred to in Article 15.1 occurs or is likely to occur, all SWI's claims against the Client as well as all obligations of the Client towards SWI shall become immediately and fully due and payable.
15.3 As long as the Client fails to pay an invoice of which the payment term has expired, SWI is entitled to suspend the performance of its obligations and thus the execution of its obligations in whole or in part. The Client's immediate payment obligation remains unaffected.
15.4 In case of termination or suspension of a Custody Agreement, SWI is authorized to cease performing the services and any orders/instructions given by the Client under that Custody Agreement..
Article 16 Payment and Prices
16.1 Unless otherwise stated, all prices quoted on (inter alia) the Website, and in quotations and offers include VAT (Value Added Tax) and (other) government-imposed levies.
16.2 SWI is entitled to proportionally increase the agreed prices, inter alia if one or more of the following circumstances occur after the conclusion of a Custody Agreement: increase in the costs of materials, semi-finished products, insurance, or services necessary for the execution of the Custody Agreement, increase in shipping costs, introduction of new and increase in existing government levies and taxes, and changes in exchange rates or, in general, circumstances similar thereto.
16.3 Payments of SWI's invoices shall (unless otherwise agreed) be made 21 days after the invoice date, to the account number and in the currency as indicated on the invoice.
16.4 If the Client is wholly or partly in default with the fulfillment of one or more of the Client's obligations, all reasonable costs for obtaining fulfillment of the Client's obligations, outside or in court, will be borne by the Client and will be determined at a minimum of 15% of the principal amount with a minimum of EUR 100. If and insofar as SWI demonstrates that higher costs have been incurred for obtaining fulfillment of the Client's obligations outside or in court, which were reasonably necessary, these will also be eligible for reimbursement.
16.5 SWI is always entitled to set off what it, whether on its own behalf or on behalf of its contracting party/parties, has to claim from the Client, whether due or conditional, with any, whether due or conditional, counterclaim of the Client against itself or its contracting party/parties. Claims in foreign currency are settled at the exchange rate on the day of settlement.
16.6 Payments made by the Client shall always be used for:
a. all due interest and costs;
b. the oldest outstanding invoices.
Article 17 Force Majeure
17.1 If proper performance by SWI is wholly or partially impossible due to one or more circumstances that cannot be attributed to SWI because they are not due to its fault and are not for its account under the law, (legal) act, or generally accepted principles ("force majeure"), SWI has the right to suspend the performance of its obligations under the Agreement or to dissolve the Agreement in whole or in part if performance is permanently impossible. SWI is not liable to the Client for damages in such event.
17.2 In addition to the statutory provisions, force majeure in these General Terms and Conditions means all external causes, foreseen or unforeseen, over which SWI cannot exercise any influence and which prevent SWI from fulfilling its obligations.
17.3 Force majeure includes, but is not limited to, war, war risk, mobilization, riots, sabotage, extreme weather conditions, fire, strikes, business and transport disruptions, shortages of raw materials or energy, delays in delivery by suppliers and/or government measures that make the performance of the Agreement impossible, the unavailability of the Websites, or the unauthorized use of Access Data by third parties, the non-availability or defective functioning of (internet or communication) services of third parties or of equipment or software of SWI.
Article 18 Limitation of Liability
18.1 SWI shall not be liable for indirect damages, including consequential damages, such as loss of profit, immaterial damage, business interruption, injury, losses, and/or environmental damage, caused to (property of) the Client or third parties due to non-performance, incomplete performance, or improper performance of a Custody Agreement, except in cases of gross negligence or willful misconduct,.
18.2 Insofar as SWI has any (legal) liability, the damage to be compensated by SWI will always be limited to the amount that, in the relevant case, will be paid under the (possibly) concluded (liability) insurance(s) of SWI or the amount received by SWI under the (possibly) concluded (liability) insurance(s), and in any case limited to the amount paid by the Client to SWI under the Custody Agreement to which the liability of SWI relates.
18.3 The Client shall indemnify SWI against all claims from third parties arising from and/or related to the Custody Agreement.
18.4 Any liability claim against SWI shall in any case lapse one month after the Client became aware of any damage or could reasonably have become aware of it. Within the aforementioned period of one month, the Client shall duly and motivated inform SWI about the damage, under penalty of forfeiture of any (damage) claim against SWI.
18.5 For all claims against SWI and/or the third parties (possibly) engaged by SWI, a limitation period of 1 (one) year shall apply from the date on which the damage occurred, in deviation from the statutory limitation periods.
18.6 SWI can only be held liable for any damage related to the shipment of Bottle(s) if and to the extent that its insurance covers it and up to the amount that the insurer pays out.
18.7 SWI accepts no liability for damage to Bottles that are sent by the Client to SWI or to a third party designated by SWI – by any means – and which are found to be damaged or diminished in value after dispatch or receipt, even in cases where any shipping instructions or advice from or on behalf of SWI or a third party indicated by SWI (carrier) were fully followed by the Client.
18.8 SWI ensures the management and accessibility of THE SWEX. SWI shall not be liable for damage due to power failure, connection failure, or any other defect or malfunction of THE SWEX. SWI shall rectify a malfunction as soon as possible.
Article 19 Confidentiality
19.1 The Client is required to maintain confidentiality regarding all information of which the Client knows or reasonably should know that it is confidential.
19.2 The Client shall not disclose the contents of Agreements, confirmations, quotations, reports, advice, and/or other written or non-written expressions of SWI.
Article 20 Privacy
20.1 SWI will carefully and confidentially store or process the data and information provided by the Client to SWI and collected by SWI in accordance with the relevant applicable legislation, including but not limited to the General Data Protection Regulation (“GDPR”).
20.2 The Client hereby expressly consents to the registration and use of his/her personal data, within the meaning of the law, solely for SWI's (and its affiliated companies') own use. The Client gives SWI permission to inform the Client on (new) products and/or services, and to be contacted by SWI employees for the purpose of providing information on (new) products and/or services. If the Client no longer wishes to receive such information, the Client may contact SWI by email, after which SWI will process this request as soon as possible.
Article 21 Other provisions
21.1 The Agreements constitute the entire agreements between the parties and, unless expressly agreed otherwise therein, supersede all prior oral or written agreements between the parties in this respect.
21.2 The General Terms and Conditions can be consulted and downloaded on the Website. SWI expressly reserves the right to unilaterally amend the General Terms and Conditions from time to time. Notification of changes to the General Terms and Conditions shall be made by publication on the Website. A copy of these General Terms and Conditions can be sent free of charge upon request.
21.3 In the event of any discrepancy between the Dutch text of the General Terms and Conditions and the translation into any other language, the original Dutch text shall prevail at all times.
Article 22 Applicable law and competent court
22.1 These General Terms and Conditions and any Agreement, offer, quotation, price quote, and/or confirmation are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is hereby excluded.
22.2 Any disputes arising out of or relating to an Agreement (or its conclusion) must be submitted exclusively to the competent District Court of North Holland in Haarlem.
Article 23 Contact
Complaints, as well as questions and/or comments, should be addressed to:
THE SWEX
Industriekade 18 A
2172 HV Sassenheim
THE NETHERLANDS
Telephone number: 0252 222011
Email address: info@theswex.com