General terms and conditions
A: Gewerbeweg 44, 9486 Schaanwald
E: firstname.lastname@example.org, Internet: www.owls-ag.com
Whenever terms designating natural persons are used only in the male form in this document, they are meant to refer to females and males equally. When referring to specific natural persons, the respective gender form shall be used.
The following General Terms and Conditions of Business (hereinafter referred to as “GTCs”) are the exclusive legal basis for any legal relationship existing between OWLS AG, Gewerbeweg 44, 9486 Schaanwald, Principality of Liechtenstein (hereinafter referred to as “OWLS AG”) and a third party (hereinafter also referred to as Contracting Partner/Customer), whether non-contractual or contractual, including so-called “pitch submission agreements”. OWLS provides all of its services exclusively on the basis of these GTCs; this also applies if no corresponding indication is given. The GTCs are provided by OWLS at any time on request, are available for inspection at OWLS at any time and can also be inspected at any time on the official corporate website stated on the cover sheet. All quotes and cost estimates submitted by OWLS are non-binding and do not establish a legal right. A contract between OWLS and a Contracting Partner/Customer is concluded with legally binding effect only upon the written confirmation of order of OWLS. This confirmation also becomes an integral part of the contractual relationship, unless the Contracting Partner/Customer objects to it in writing within 3 days from receipt.
In addition, the most recent version of the GTCs shall apply to a legal relationship of whatsoever type between OWLS and a third party; these GTCs shall always have priority over those of the Contracting Partner/Customer. OWLS hereby objects explicitly to any GTCs of a Contracting Partner/Customer; any additional objection is not necessary. Any deviations from and supplements to these GTCs are only admissible and effective if these are agreed upon in writing between OWLS and the relevant Contracting Partner/Customer. The Contracting Partner/Customer is notified by OWLS of such changes and is granted the right to object to the changes within 14 days. If the Contracting Partner/Customer fails to object within this period, its silence is regarded as explicit consent.
If individual provisions of these GTCs are or become invalid or unenforceable after conclusion of the contract, the validity of the remaining provisions and of the contracts concluded on their basis shall not be affected. The invalid provision shall be replaced by a valid provision that comes as close as possible to the sense and commercial objectives. The aforementioned provisions shall also apply accordingly if any gaps are identified in the contract.
1. Scope of services / customer's duties of cooperation / engagement of third parties
a) The scope of delivery/services to be provided by OWLS results from the relevant delivery/service contract, the description of services included in said contract, the order confirmation issued by OWLS and, as a supplement, from the offer documents prepared by OWLS. After conclusion of the contract or submission of the order confirmation by OWLS, any amendments to the service contents must be made in writing; OWLS shall have the freedom to design the service contents.
b) The Contracting Partner/Customer shall be obliged to submit and make available to OWLS all relevant information and documents relating to the respective delivery/service, including after the start of delivery/service or during execution of the order. If a delivery/service or a partial delivery/partial service is delayed, impaired, to be repeated or the like as a result of incomplete, incorrect or subsequently modified information or documents provided by the Contracting Partner/Customer, the Contracting Partner/Customer shall bear the full resulting expenditure and the full risk.
c) Each delivery/service (in particular, all preliminary drafts, sketches, final artwork, copies and electronic files), including any partial delivery/partial service, must be reviewed by the Contracting Partner/Customer immediately after receipt and approved vis-á-vis OWLS within 3 days at the latest. If this period elapses unused, the silence of the Contracting Partner/Customer is also regarded as approval. Furthermore, the Customer shall be obliged to check the documents provided to OWLS for performing the order for any copyrights, trademark rights, distinctive signs or other rights of third parties (rights clearance) and to guarantee that the documents are free from third-party rights and can be used for the intended purpose. The Contracting Partner/Customer has to indemnify OWLS if a third party makes any claims against OWLS due to infringements of such rights, including for the costs of legal representation and any court fees. The Contracting Partner/Customer has to support OWLS in such a case and to provide all documents necessary for the appropriate legal enforcement of rights.
d) OWLS shall be entitled to perform deliveries/services itself or to employ expert third parties for this purpose or to substitute such deliveries/services; this entitlement is at OWLS’s free discretion. Engagement of third parties or vicarious agents is made in the name of OWLS or in the name of the Contracting Partner/Customer. The Contracting Partner/Customer has to assume any obligations towards third parties which exceed the term of the contract; this also applies in the event of termination by OWLS, both to ordinary and extraordinary termination.
a) The Contracting Partner/Customer has to check the goods or services provided by OWLS, including any partial deliveries/partial services, immediately after receipt or provision. They are deemed to be free from defects and approved by the Contracting Partner/Customer if the latter does not report any defects to OWLS within 3 days after receipt and including all evidence. In the event of hidden or concealed defects, the period of 3 days applies from discovery of the defect, but to a maximum of 3 months from receipt of the goods or provision of services. In addition, the Contracting Partner/Customer has to prove that earlier discovery was not possible. After expiry of these periods, any warranty and compensation claims as well as the right to avoidance on the ground of error due to defects are excluded.
b) Should the Contracting Partner give notice of defects within the defined period and on justified grounds, it is entitled to demand improvement or replacement of the delivery/service from OWLS, OWLS having the right to choose the relevant option. The Contracting Partner shall allow OWLS to perform the measures necessary for this purpose. In the event of complaints, all goods and components must be stored diligently in their original packaging and insured by a corresponding cover for return shipment. The Contracting Partner/Customer shall bear the cost of the return shipment. OWLS is entitled to refuse improvement or replacement of the delivery/service if it is impossible or results in disproportionately high expenditure. In this case, the Contracting Partner may demand rescission of the contract or reduction of the price. The Contracting Partner/Customer is not entitled to withhold payments due to reported defects.
3. Guarantee provisions
a) The term of the guarantee is indicated in the relevant product description. The order confirmation and invoice document constitute a guarantee certificate and are to be retained carefully by the Contracting Partner/Customer. OWLS will not recognise any guarantee claims if the guarantee certificate is lost.
b) The Contracting Partner/Customer is entitled to request improvement or replacement (substitute delivery) within the guarantee period, OWLS having the right to choose the relevant option. No substitute equipment is provided for the duration of the repair. Any repair or replacement within the guarantee period does not result in an extension of this period. The warranty obligation is not restricted thereby. The Contracting Partner/Customer is responsible for data backup. No other guarantee claims exist.
4. Liability and product liability
a) Any liability on the part of OWLS or its agents in the event of negligence is excluded, in particular for direct and indirect damage, loss of profits or consequential damages, losses due to delay, impossibility, positive breach of obligation, culpa in contrahendo as well as due to defective or incomplete performance. The damaged party has to provide proof of gross negligence or fault. The amount of claims for damages is limited to the net order value.
b) OWLS’s liability to pay damages for the deliveries/services provided, when such claims are made by a third party against the Contracting Partner/Customer, is explicitly excluded, provided that OWLS has fulfilled its duty to notify or if such a duty was not recognisable; negligence shall not be harmful. Apart from that, the Contracting Partner/Customer has to indemnify OWLS. Otherwise, the general provisions regarding claims for damages and those of the Product Liability Act shall apply.
a) The periods of delivery and performance specified by OWLS are in no case binding, but are always indicative values. The delivery and performance period commences, at the earliest, three days from receipt of the written and explicit approval of the samples from the Contracting Partner/Customer and after receipt of all information and documents necessary for the execution of delivery/service. In the case of doubt, a contract concluded by OWLS shall not be regarded as a fixed-term transaction. The written confirmation of OWLS is required for fixed-term transactions and arrangements on binding deadlines.
b) In the event of changes in the order contents, the period of delivery/performance commences anew. In the event of force majeure and any events that cannot be avoided with reasonable effort, the periods shall be suspended and re-commence when the reason for impairment has lapsed so that the period is extended accordingly. Events of force majeure also include, in particular: strikes, lack of commodities or goods, political embargos and difficulties of supply and delivery, including where these circumstances occur with subsuppliers and producers of OWLS. In these cases the Customer is not entitled to cancel the contract early due to a suspension of the delivery/performance period.
c) If OWLS is in delay with delivery/performance and if no event of force majeure or no unavoidable event exists, the Contracting Partner/Customer may cancel the contract only after it has granted a period of grace of at least 8 weeks in writing and if this period has passed to no avail. Claims for damages of the Contracting Partner/Customer due to non-performance or default are excluded.
6. Early termination
a) OWLS shall be entitled to terminate any contract early and without observing a period of notice with immediate effect for important reasons. Important reasons are, in particular, if OWLS’s performance becomes impossible or cannot be rendered due to a fault of the Customer or is delayed further in spite of a period of grace of at least 14 days; if the Contracting Partner/Customer repeatedly violates material provisions of the contract concluded with OWLS and continues this conduct in spite of a written reminder specifying a reasonable period of grace of at least 14 days; if there are justified doubts regarding the creditworthiness of the Contracting Partner/Customer and if the latter fails to make prepayments or to provide collateral within 14 days in spite of a request from OWLS. OWLS explicitly reserves the right to make claims for damages and to take any other legal steps, in particular any steps under criminal law.
b) The Contracting Partner/Customer shall be entitled to terminate any contract without observing a period of notice with immediate effect for important reasons. An important reason is given, in particular, if OWLS repeatedly violates material provisions of the contract concluded with the Contracting Partner/Customer and continues this conduct in spite of a written reminder specifying a reasonable period of grace of at least three weeks.
7. Purchase price / price of goods / handling of payments / reservation of title / no offsetting
a) The purchase price of OWLS consists of the net purchase price plus, if applicable, VAT in the statutory amount and VAT-free cash expenses. OWLS issues its invoices exclusively in EURO (€) or Swiss Francs (CHF). The prices are plus value added tax in the statutory amount, if applicable, and any incidental expenses such as shipping and packaging costs. The date of the binding purchase order or order placement shall be decisive for pricing. Any subsequent price fluctuations are not taken into account. OWLS is entitled to make any price changes at any time and without prior notice; technical changes, mistakes, typing and printing errors are reserved explicitly. OWLS reserve the right to obtain information about the creditworthiness of the Contracting Partner/Customer. Relevant data about the Contracting Partner/Customer may be forwarded to third parties for this purpose.
b) The standard term of payment of OWLS is 50% account payment upon placement of the order and the residual 50% prior to shipment of the goods (presentation of shipping documents). Any deviating terms of payment must be agreed upon separately in each individual case. OWLS only recognises any payments that are paid to the paying agent specified in the invoice. For all deliveries/services of OWLS that cannot be performed due to reasons under the control of the Contracting Partner/Customer, OWLS is entitled to the full purchase price agreed upon without any deductions. Any goods already generated pursuant to an order and not shipped due to late payment can be stored by OWLS at the cost and risk of the Contracting Partner/Customer, whereby the goods are regarded as delivered to the Customer, are invoiced and, thus, are due and payable.
c) If the Contracting Partner/Customer is in default with payment, OWLS is entitled to charge interest on arrears of 8% above the relevant applicable base interest rate of the European Central Bank. OWLS explicitly reserve the right to make claims for additional interest. The dunning expenses arising from late payment are to be borne by the Contracting Partner under default, who also has to bear the cost of legal representation and the full costs for appropriate legal enforcement, which also include all court fees. Payment in instalments is only permitted subject to the explicit consent of OWLS. A relevant instalment agreement must be concluded in writing between the parties for payment in instalments, which provides mandatorily for the payment of interest in the amount specified above. The costs of preparation and any other fees shall be borne fully by the Contracting Partner/Customer; these also include the cost of appropriate legal representation. If the Contracting Partner is late with payment, the entire sum becomes immediately due and payable and OWLS is entitled to invoice all contracts concluded with the defaulting Contracting Partner and request payment for all services or partial services provided by this date, without a further reminder; this also applies to instalment agreements. The late payment or non-payment of just a single instalment gives OWLS the right to request payment of the entire outstanding amount, including interest and other incidental claims.
d) Until settlement of the outstanding amount, OWLS is not obliged to provide any deliveries/services, including partial services; the obligation to make payment shall not be affected. The goods remain the property of OWLS until they have been paid for in full. In the event of late payment by the Contracting Partner/Customer, OWLS reserves the right to make claims for damages and to take relevant measures. OWLS is also entitled to assign the debts of the Contracting Partner/Customer to external collection agencies. The Contracting Partner is not entitled to offset any claims OWLS has against it with its own claims.
8. Industrial property rights and copyrights
a) All goods and services of OWLS (in particular its technical solutions, products, concepts, presentations and the like) are protected as intellectual property by industrial property rights and copyrights. Each Contracting Partner/Customer is prohibited from using, applying and exploiting the intellectual property of OWLS or disclosing it to third parties for this or any other purpose beyond the limits of the explicit and written consent given by OWLS. In particular, third parties are not entitled to change, modify or further develop any goods or services of OWLS, unless OWLS has granted its written consent.
b) Due to a contract with OWLS, the Contracting Partner/Customer does not acquire any intellectual property rights, instead, upon payment of the full invoice amount, it is only entitled to use the relevant product, system or other service of OWLS and only for the intended purpose agreed in the contract and within the territory of use specified in the contract. However, these rights are only granted subject to the full payment of the invoice issued by OWLS, including any cash expenses, interest and fees. Prior to such a date, any use by the Contracting Partner/Customer is based on a lending relationship, which can be revoked at any time. The written consent of OWLS is required for the use of services of OWLS beyond the originally agreed purpose and scope of use, and such use is subject to a mandatory agreement on reasonable remuneration at market terms. For each unauthorised use, the Contracting Partner/Customer is liable to OWLS by a total of three times the amount of fees reasonable for this use.
OWLS shall be entitled to mention the enterprise in all advertising measures; this also applies to identifications regarding the owner of an industrial property right or regarding the creator. This identification is free of charge, and the Contracting Partner is not entitled to demand any fees for such services from OWLS. OWLS shall also be entitled to mention previous or current partner or cooperation relationships with other enterprises in all public appearances, including on the internet site. OWLS is entitled to use both the name and the company logo of the cooperating enterprise for this purpose.
10. Data protection
OWLS is entitled to retrieve, store, process or otherwise use by automated means the personal data of the Contracting Partner/Customer for the purpose of performing the contract, for customer assistance and customer service and for statistical records (including market research), advertising purposes and references. Personal data includes, including but not limited to, name/corporate name, contact person, register of companies number, rights of representation, business address and other addresses of the customer, phone number, fax number, email address and bank details. OWLS is also entitled to send any advertising materials to the Contracting Partner/Customer; this applies until a written revocation is received from the Contracting Partner/Customer at no charge, which is possible at any time and is to be sent by email, fax or mail to OWLS. The contact details of OWLS are indicated on the cover sheet of these GTCs and the official corporate internet site specified on the cover sheet. The right of revocation becomes effective immediately. In addition, the applicable data protection provisions, in particular those of the Liechtenstein Data Protection Act (DSG) shall apply.
11. Applicable law / place of performance / place of jurisdiction
All legal relationships between OWLS and third parties, contracts and the resulting (mutual) rights and obligations shall be subject to the laws of the Principality of Liechtenstein. The application of any other legislation must be agreed between the parties explicitly and in writing. Generally and in the case of doubt, the place of performance shall be the principal place of business of OWLS in Schaanwald, Principality of Liechtenstein. In the event of shipment, the risk shall pass to the Contracting Partner/Customer as soon as the goods are handed over by OWLS to the selected forwarder/transportation company. The agreed place of jurisdiction for all disputes arising between OWLS and the Contracting Partner shall be the competent courts in the Principality of Liechtenstein. In addition, OWLS is entitled to sue the Contracting Partner/Customer at its general legal venue.
The Contracting Partner/Customer is liable to OWLS for any breach of the contract or of these GTCs, regardless of fault, with a penalty of EUR500,000.00 (in words: five-hundred thousand euro).This amount is payable by the Contracting Partner/Customer to OWLS within 14 days after a relevant request. In addition, the Contracting Partner/Customer shall indemnify OWLS without any restrictions from and against any losses incurred by OWLS due to conduct contrary to the contract or unlawful conduct on the part of a Contracting Partner/Customer.