version 17-1 from 11/03/2017
§ 1 scope of the terms
1.1 OWIS does not supply consumers within the meaning of Section 13 BGB (German Civil Code), this means private persons.
1.2 All deliveries and services shall be made or rendered pursuant to the following General Terms and Conditions unless specifically agreed otherwise in writing. Where terms contradict, OWIS shall not recognise any such terms, even if they have not been specifically rejected. The customer’s General Terms and Conditions shall only apply to the extent that we have specifically agreed to them in writing. Any information regarding the quality of our goods and services does not constitute a guarantee within the meaning of Section 443 of the German Civil Code unless we expressly state in writing that we provide a guarantee within the meaning of Section 443 BGB.
1.3 The terms shall also apply to future deliveries to the customer, unless OWIS has confirmed them at diverging terms.
1.4 These terms shall not apply if the customer is a consumer (Section 13 BGB).
§ 2 conclusion of the contract
2.1 All offers without exception shall be subject to change and have no binding force with respect to defects, price, delivery time and availability. Orders shall only be considered accepted if and in so far as OWIS has confirmed them in writing, or if OWIS has prepared the delivery note, proforma invoice or invoice.
2.2 Agreements by person, by telephone and by telegram shall only be binding if subsequently confirmed in writing.
2.3 Any names and specifications defined at the conclusion of the contract represent the technical state of the art at that time.
2.4 In the event that the customer fails to make full use of blanket orders or make-and-hold orders, OWIS reserves the right to deliver and invoice to the customer any goods still undelivered on expiry of the contract, without prior notice. A blanket order may only be canceled if the matter concerns a current off-the-shelf product. In this case, the cancellation fee is 25 % of the value of those products which have not yet been retrieved and delivered.
2.5 If the period of an existing blanket order or make-and-hold order is exceeded, OWIS reserves the right to review the individual prices for the products and to adjust them, if necessary.
2.6 In the case of standard products, customized products or modifications as well as optical articles which are neither part of the latest catalog nor of the latest price list, the existing contract cannot be terminated nor can the products be exchanged.
2.7 For return deliveries due to erroneous orders of the wrong parts we charge a processing fee of 10 %, or a minimum EUR 60.00 for the time spent checking. Any such return deliveries will only be approved if OWIS has received the goods ordered by mistake within 7 days after OWIS had shipped them to the customer, and if the product packaging is still unopened.
2.8 Goods for loan will be made available free-of-charge for a 14-day period, provided the customer has signed and presented the ‘General Terms for Loan Goods’ agreement. Beyond the free loan period of 14 calendar days we will charge a fee of 5 % of the net invoice value of the goods, or a min. of EUR 25.00, for every calendar week started. The invoice amount is due immediately on receipt of invoice.
2.9 If a product for loan provided by OWIS is sent back in a damaged condition, we shall charge the user for any repair costs to reestablish the trouble free function of the product for loan.
2.10 It is not possible to buy any equipment for loan.
2.11 For orders amounting to less than EUR 100.00 net, we charge a flat rate of EUR 12.00 for administrative costs.
§ 3 design changes, safety devices, estimates, drawings
3.1 We reserve the right to change the design, execution and assembly between concluding the contract and delivery, provided that the use intended by the customer will not be affected and the value of our goods or services will not be reduced.
3.2 All rights of ownership and copyright to cost estimates, drawings, models and other documents shall remain with OWIS. They must not be disclosed to third parties with our prior written consent. The customer must return any drawings and other documents belonging to OWIS offers, as well as all copies thereof without delay, on our request. The above terms shall apply accordingly to the customer’s documents. We may, however, make these documents available to any third parties whom we have permissibly involved in the production of the articles delivered or whom we have entrusted with the delivery.
3.3 Any information, drawings, illustrations and specifications provided in our catalogs, brochures, product literature, price lists or the documents forming part of the quotation are approximate values customary in the trade, except these were expressly confirmed by way of the order confirmation.
3.4 The transfer of our software to third parties or its duplication is subject to our written consent. This does not include the production of a back-up copy.
§ 4 samples
Specimens shall be considered samples of average quality. Samples shall remain the property of OWIS.
§ 5 repairs, service orders
5.1 Where chargeable repair work or servicing is required, the customer will inform OWIS by e-mail and OWIS will send him a “Return Authorization Number“ (subsequently “RMA number“). Make sure to use this RMA number in all the correspondence and indicate it on any product return papers. The customer returns defective products to OWIS and pays shipping costs, incl. the packaging. Once OWIS has received the product, it will check it with regard to the indicated defect or any other defects, examine the warranty period to be applied and inform the customer about any repair costs to be paid. OWIS shall make the customer a service offer for repairing the product. Based on the service offer, the customer shall then give a corresponding service order.
5.2 If the customer decides not to have the product repaired, we shall charge a service fee to be paid by the customer.
5.3 Any costs for returning the product shall be charged to the customer.
§ 6 prices
Prices are always in Euro and exclusive of the value added tax at the applicable rate. Unless otherwise agreed, prices apply for delivery from the site of manufacture and include standard packaging. Additional costs for special packaging, dispatch by haulage contractor, shipment by air or sea or in compliance with special packaging regulations as well as cost of transport insurance, handling and other fees will be additionally invoiced to
the customer. Any services – including those provided subsequently – for which no prices have been agreed, will be invoiced and confirmed by OWIS in line with the costs and prices applicable on the day of delivery. Fixed prices must be specifically agreed in writing.
§ 7 transfer of risk
The risk of destruction, deterioration and shipment shall in all cases pass to the customer as soon as the goods for delivery leave the premises of OWIS. This provision shall also apply if the parties agree on carriage-paid delivery. If the dispatch of the goods is delayed for some reason for which OWIS is not responsible, the risk shall already pass to the customer when customer is notified that the products are ready to ship. The same shall apply if OWIS makes use of a right of retention.
§ 8 delivery time and delay in delivery
8.1 The agreed delivery time shall not begin, until all details regarding the execution are clear and both parties have agreed on all the terms, preconditions as well as the content of the transaction, and all technical questions have been clarified.
8.2 Compliance with the delivery date depends on the prompt receipt of all documents to be supplied by the customer, the prompt granting of any requisite official permits and approvals and fulfilment of all contractual duties by the customer, especially the agreed terms of payment. If these preconditions are not met in good time, the delivery time shall be appropriately extended. This shall not apply if OWIS is responsible for the delay.
8.3 The delivery time shall be deemed met when the delivery has left the OWIS works or the factory of a sub-contractor, or has left the OWIS warehouse or a subcontractor’s warehouse. Where the acceptance is ex-works or by an agent acting for the customer, or where the consignment is delayed at the customer’s request or for other reasons attributable to the customer, the delivery date shall be deemed met if the consignment is ready for collection or dispatch within the agreed period of delivery. If the dispatch or the collection of the goods for delivery is delayed for reasons attributable to the customer, he will be invoiced for the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch or collection.
8.4 If the customer is in default of acceptance, or if he culpably fails to perform other duties on his part, OWIS is entitled to demand compensation for damage incurred, including any related additional expenses. We reserve the right to make more extensive claims.
8.5 If the provisions of section 8.4 apply, the risk of accidental destruction or deterioration of the supplied item shall pass to the customer from the time the latter falls into default in acceptance or fails to perform his duties.
8.6 In the event of force majeure or any other events beyond the will or control of OWIS, such as natural disasters, mobilization, warfare, riots, strikes and lockouts, official import and export restrictions and unforeseen obstacles to production or delivery – at OWIS or any of OWIS’ sub-contractors – the delivery date shall be deemed extended as appropriate. OWIS shall inform the customer of the start and end of such circumstances at the earliest possible time.
8.7 Partial deliveries and divergences up to ± 10 % from ordered quantities are permissible in so far as the customer may reasonably be expected to accept this bearing in mind his best interests.
8.8 On special articles, deviations between ordered quantities and quantities delivered are permissible up to ± 10 %.
8.9 Where OWIS is responsible for a delay in delivery, the customer is only entitled to rescind the contract after OWIS has been granted an extension of time appropriate to the circumstances. In all other cases, he may only rescind the contract on the basis of existing agreements. In this event, OWIS is entitled to claim compensation for costs and expenses arising out of the contract, including the obligations entered into by OWIS vis-à-vis third parties in relation to the scope of the agreed delivery. In such cases, the customer shall also replace the lost profit.
8.10 Upon request by OWIS, the customer undertakes to state within a reasonable time, whether, due to delayed delivery, he will rescind the contract and / or seek compensation in place of performance, or whether he wishes to insist on delivery.
8.11 Other claims in connection with delayed delivery shall be derived solely from section 11.2 of these terms.
§ 9 payment conditions
9.1 Invoices shall be due for payment from the date and receipt of invoice. Unless otherwise agreed in writing, invoices are payable net within 10 days of date of invoice. Deductions may not be made unless specifically agreed in writing.
9.2 Bills of exchange and cheques can only be accepted by prior agreement and only on account of performance. They shall be considered as payment only once they have been cashed. OWIS cannot accept any liability for the prompt presentation of cheques. Payments will always be used to settle the oldest payable debt plus any accumulated interest and costs. Bank charges in accordance with bank practices shall be borne by the customer.
9.3 The statutory rules shall apply with respect to delayed payment. We specifically reserve the right to claim further damages in connection with delayed payment.
9.4 In the event of a cessation of payment or the filing of an application for insolvency proceedings in relation to a customer’s assets, OWIS is entitled to require advance payment or security payments. In such cases, OWIS is entitled to retain pending deliveries or rescind the contract.
9.5 Payments shall be made by bank transfer, free of charge for OWIS.
9.6 The customer is only entitled to claim a set-off if his counterclaims are legally established, undisputed or have been recognised by OWIS. The customer is further entitled to exercise a right of retention to the extent that his counter-claim is based on the same contractual relationship.
9.7 Payments are accepted in EURO only.
§ 10 warranty
10.1 material defects
a) The customer must inspect the goods and their packaging immediately after delivery and in line with the usual trade practices and shall check the papers accompanying the goods as prescribed under public law with regard to conformity with the order, contractual quality and any possible defects. The delivery shall be considered accepted:
- if defects are not notified in writing within 3 calendar days of the goods arriving at their destination.
- if, in the case of hidden defects, defects are not notified in writing within 10 calendar days of the goods arriving at their destination.
In the event of visible damage in transit (damaged packaging) the goods may only be accepted if the shipping company (e.g. the parcel service) has documented the damaged packaging on the accompanying documents. Where customary in the trade, minor, technically unavoidable divergences in quality, colour etc. from samples or previous deliveries shall not give grounds for complaints. In the event of a justified complaint, if delivered goods are defective, OWIS shall either remedy the defect or deliver a substitute at its discretion.
Should these measures fail, or if OWIS fails to respect an appropriate deadline for providing a remedy or a substitute delivery, the customer is entitled, without prejudice to any claims for compensation as per section 9, to reduce the contract price within the scope of the law or to rescind the contract. In the event of minor defects, the customer shall only be entitled to reduce the contract price.
Recourse claims by the customer in respect of warranty claims by an end customer will not be accepted if the asserted defect was not already manifest when the risk passed to the customer. This applies in particular to any defects caused by improper storage or handling of the goods at the customer’s premises or at the premises of any of his agents.
In other respects the statutory provisions of Sections 478 and 479 of the German Civil Code apply.
b) Claims under warranty shall lapse after 12 months. In the event of jeopardy to life, bodily harm or damage to health, or in the event of an intentional or grossly negligent infringement of duty by OWIS, or fraudulent non-disclosure of a defect, the statutory time limits shall apply. The statutory time limits shall also apply to recourse claims (Section 479 (1) BGB) in respect of defects in structures and delivered goods which are used for a structure in the customary manner and have caused the deficiency of the latter (Section 438 (1) No. 2 and 634a (1) No. 2 BGB).
c) We cannot accept any liability for OWIS products in particular in the following cases:
- unsuitable or improper use
- incorrect installation or commissioning, storage or caused by misuse by the buyer or third parties
- natural wear
- faulty or negligent treatment
- inadequate maintenance
- inexpert thermal, mechanical, as well as chemical, electro-chemical or electrical treatment
- for products which have not been repaired or altered by us
- damage caused by an accident or by use, storage, transport or operation
d) If the customer or any third party carries out improper repairs, OWIS shall not be liable for any consequences. The same shall apply for any changes made to the delivered items without our prior consent.
e) We would like to explicitly advise that OWIS does not assume any warranty for broken and / or damaged piezo actuators on nanohybrid positioning systems. This does not include material defects according to Section 10 (10.1 a).
10.2 defects of title
a) If the use of the delivered goods infringes industrial property rights or copyrights inside Germany, OWIS shall, at its own cost, acquire the right for the customer to make continued use of the delivered goods, or shall modify the delivered goods in some way acceptable to the customer so that there is no further infringement of the protective rights. If this proves impossible to do, either on an acceptable financial basis or within an acceptable period of time, the customer shall be entitled to rescind the contract. Under the same circumstances OWIS shall also be entitled to rescind the contract. Furthermore, OWIS shall release the customer from undisputed claims or claims upheld by a declaratory judgement. With respect to any infringement of industrial property rights or copyright as per section 9, the above-mentioned obligations of OWIS are final. They only exist, if and whenever
- the customer notifies OWIS immediately of any claims of infringement of industrial property rights or copyright
- the customer provides OWIS with an appropriate level of support with respect to the assertion of claims or enables OWIS to execute the modification measures
- OWIS is allowed to reserve the right to adopt any means of defence, including out-of-court settlements
- the defect of title does not derive from any instructions given by the customer
- the infringement is not due to the customer having altered the delivered goods at his own initiative, or having used it in a noncontractual manner
§ 11 liability, compensation
11.1 If the customer is unable to use the delivered object as per the contract due to the fault of OWIS as a result of failure to execute, or faulty execution of, proposals or consultations before or after the conclusion of contract, or as a result of breaching other auxiliary contractual duties – in particular the instructions for operating and servicing the delivered goods – then the provisions of sections 9 and 10, sub-section 2, shall apply to the exclusion of other claims by the customer.
11.2 For damage incurred elsewhere other than to the goods delivered, OWIS shall only be liable – whatever the legal reason –
a) in case of intent
b) in the event of gross negligence on the part of the owner, executive bodies or senior executives
c) in the event of intentional injury to life, body and health
d) in the event of defects which OWIS has willfully concealed or which it has guaranteed absent
e) in the event of defects of the delivery item, provided there is a liability under the Product Liability Act for personal injury and damage to property on privately owned objects.
In the event of a culpable infringement of material contractual obligations OWIS shall be liable also in the event of gross negligence on the part of non-managerial staff and in the case of simple negligence, the latter case being limited to customary, reasonably foreseeable loss. Any further claims are excluded.
§ 12 retention of title
12.1 OWIS retains title to the goods delivered, until the customer has fulfilled the claims in conjunction with the delivery contract.
12.2 OWIS is entitled to insure the delivered goods against the risk of theft, breakage, fire, water or other damage at the customer’s cost if the customer cannot provide evidence of having arranged suitable insurance himself.
12.3 The customer is not permitted to sell, pledge or assign the delivered goods for collateral. In the event of pledging, seizure or any other interventions by third parties, he shall notify OWIS thereof without delay.
12.4 If the customer is in breach of contract, and in default of payment in particular, OWIS is entitled, after issuing a warning, to repossess the delivered goods, and the customer shall be obliged to surrender the delivered goods.
12.5 Owing to the reservation of title, OWIS may only demand the delivered goods to be returned if OWIS has rescinded the contract.
12.6 Where the goods are re-sold by the customer, he undertakes to pass on OWIS’ operating and assembly instructions together with the goods.
§ 13 data privacy
13.1 OWIS uses electronic data processing to store personal and business-related data about its customers within the framework of Section 28 Federal Data Protection Act (BDSG).
§ 14 copyright
14.1 Any designs, drawings, organisation plans etc. prepared and presented by OWIS shall remain its unrestricted property. They must not be copied nor disclosed to third parties without our consent.
§ 15 disposal of old appliances
15.1 In compliance with the law on disposal of electric and electronic appliances (WEEE 2002/96/EC) OWIS takes back free-of-charge and at the customer’s request any electric appliances as per the WEEE which we have supplied in the EU area after 12 August 2005 for the first time.
15.2 The take-back offer refers only to complete appliances as per WEEE directive and does not include individual components in the EU territory and is only valid if these appliances do not contain nor were exposed to any hazardous or toxic substances and if these are not contaminated by waste.
15.3 OWIS shall pay the cost incurring for the proper disposal. Any cost for the transport to OWIS shall be born by the sender.
§ 16 final provisions
16.1 Place of performance for all liabilities resulting from the delivery transactions, and place of jurisdiction for all disputes arising in connection with the delivery of goods and services is Staufen i. Br., Germany. The supplier is also entitled to bring claims against the customer in the place where the customer’s registered office is located.
16.2 Where individual provisions of these General Terms and Conditions are or become invalid, the validity of the other provisions will not be affected thereby. In this case, the invalid provision shall be replaced by a provision which, in a legally permissible manner, achieves the contractual purpose intended by the contracting parties, or by one that comes closest to the commercial purpose of the contract.
16.3 The legal relations are governed exclusively by the law of the Federal Republic of Germany with the exception of the UN Convention on the International Sale of Goods.
16.4 General Terms and Conditions as at 3 November 2017.
All previous issues are hereby invalid.