General Terms and Conditions
1.1 These General Terms and Conditions of business (hereinafter referred to as "TCB") shall apply to all contracts and other legal transactions in connection with the service offered by COLOP-Stempelerzeugung Skopek Gesellschaft m.b.H. & Co. KG, Dr.-Arming-Straße 5, A-4600 Wels (hereinafter referred to as "COLOP") under the URL https://emark.colop.com which are concluded between COLOP on the one hand and customers on the other hand, irrespective of whether the customer is a natural person or a legal entity. These TCB shall take precedence over the general terms and conditions of COLOP (https://emark.colop.com) as a more specific contractual legal basis.
1.2 Consumers (but not corporate customers) shall have a right of rescission (right of withdrawal or revocation) in accordance with the statutory provisions for contracts concluded outside business premises and for distance contracts. Please refer to Annex ./1 to these TCB for the withdrawal and revocation instructions.
1.3 This TCB applies to customers whose companies are founded in accordance with the definition in the Austrian Commercial Code (hereinafter called: 'Corporate Customers') this TCB also applies to all future business transactions unless, even if, in an individual case, and in particular with future supplementary or subsequent orders, no specific reference is made to the TCB.
1.4 COLOP delivers goods and other services solely on the basis of TCB as well as any other more specific General Terms & Conditions of Business (e.g. TCB for the e-mark Webshop), for which more specific TCBs of this kind take precedence over this TCB. General Terms & Conditions of Business of the customer, or purchasing terms & conditions of customer only apply if these were expressly confirmed by COLOP in writing. A reference to attached General Terms & Conditions of Business, or to any customer TCBs that can be called up or made available at a specific location are not considered as express written confirmation. General Terms & Conditions of Business of the Customer, or General Purchasing Terms & Conditions of the Customer are viewed as side-arrangements and are expressly contradicted by a reference to this TCB. This point 1.5 only applies to corporate customers.
1.5 The following provisions relating to the supply of goods also apply in equivalent fashion to the supply of services.
2. OFFER/CONCLUSION OF CONTRACT
2.1 The presentation of goods by COLOP on its web store and in all documents designated by COLOP as "offers", "cost estimates" or similar are initially non-binding and changeable; they should be viewed as a call to present a bid for tender from the customer and do not become binding until a written confirmation of order is issued by COLOP (assuming that the offer comes from the customer). 'Orders' are deemed to be binding offers from the customer to COLOP. Where 'Orders' relates to items for which COLOP applies a minimum order number in accordance with its current price list, the offer must always be viewed as being for a quantity of items at least as high as the minimum order value.
2.2 "Orders", "Assignments" or similarly designated written documents as well as orders via the web store by clicking the button ["Order now subject to payment"] shall be deemed binding offers of the Customer to COLOP. The Customer must expressly and prominently indicate in such a document if it is not binding. If the Customer fails to make this reference, the Customer's offer shall be considered binding for at least 12 working days (including Saturday). An acknowledgement of receipt of an order does not constitute acceptance of the customer's offer. A purchase contract shall only be concluded if COLOP expressly declares acceptance of the purchase offer (order confirmation) or if COLOP ships the goods to the customer - without prior express declaration of acceptance. As far as COLOP accepts down payments or advance payments, the acceptance of the payment shall be deemed as acceptance of the order.
2.3 Verbal promises, assurances and guarantees from COLOP, or agreements that differ from these TCBs in connection with the conclusion of contract only become binding in favour of corporate customers in the event of written confirmation.
2.4 In respect of information provided in catalogues, price lists, brochures, adverts on trade fair stands, promotional mailshots or other media (information material) about the products and services of COLOP that did not originate from COLOP, the customer must disclose this to COLOP in cases where his decision to place an order is founded upon that information. In such cases, COLOP can express a view on the accuracy of that information. If the customer violates this requirement, details of this nature are non-binding, unless declared expressly - and in writing to corporate customers - to constitute contractual content.
2.5 All draft cost proposals issued by COLOP are billable items. Consumers as defined in accordance with Austrian consumer protection legislation (Konsumentenschutzgesetz) are advised of the billable nature of a draft cost proposal before one is produced.
2.6 The language of contract and of contractual negotiations shall be German or English. COLOP is entitled to have a translation into German or English made of all non-German or non-English language documentation submitted by the customer (or on behalf of the customer) to COLOP during the contractual negotiations. The customer is obliged to reimburse these translation costs to an appropriate extent. All delivery lead times for goods and services offered by COLOP shall be postponed for the time it takes to obtain a translation of these documents.
2.7 The corporate customer must take care to ensure that the products ordered from COLOP satisfy the purpose of the customer, or are suitable for the form of use intended by the customer. COLOP does not have an obligation to test, warn or notify in respect of suitability for the intended form of use, or of any particular property. The naming and description of the product designation or application does not alter in any way the aforementioned obligation of the corporate customer.
3.1 Insofar as a sales price for COLOP products has not been expressly agreed, the sales price shall be the list price stated in COLOP's generally applicable price lists on the day of dispatch.
3.2 If COLOP generally increases the price of a relevant product in the period between conclusion of the contract and delivery, COLOP shall be entitled to invoice the increased price to corporate customers. In this case, the Buyer may withdraw from the contract in writing immediately after notification of the price increase. In the event of increases in ancillary costs such as freight rates, insurance premiums, customs duties, etc., COLOP shall be entitled to corresponding price increases without the Buyer being entitled to withdraw from the contract.
3.3 All prices are, if not expressly agreed otherwise, EXW Wels in accordance with INCOTERMS 2010, and also exclude Value Added Taxes (hereinafter called “VAT”) or similar taxes (excise taxes, duties), and also exclude the cost of packaging. The place of execution is Wels.
3.4 Any discounts, rebates, goods credits, etc. granted shall be calculated from the sales prices exclusive of VAT.
3.5 In case of orders of the corporate customer that are below the total amount of EUR 300 (calculated from the sales prices of the ordered products minus any rebates or discounts and excluding VAT), COLOP shall be entitled to charge a small order surcharge in the amount of EUR 15 plus VAT.
3.6 Remuneration associated with long-term debt arrangements is agreed to have an assured value in accordance with VPI 2020 and remuneration levels are then adjusted accordingly. The starting point is taken as the month in which the contract was concluded.
4. DELIVERY AND ACCEPTANCE OBLIGATIONS
4.1 Any delivery and completion deadline for corporate customers is only binding if compliance with it was agreed expressly and in writing as a "binding delivery date". All other details relating to delivery or completion deadlines only serve as non-binding estimates.
4.2 If the start of performance or implementation of a service is delayed or interrupted by factors for which the customer is responsible, in particular resulting from any violation of the collaboration obligations or because agreed payments in advance were not made or because agreed orders of materials were not acted upon in a timely manner, delivery lead times will be extended accordingly, and agreed completion or delivery dates will then be rescheduled accordingly.
4.3 Deadlines and dates shall be postponed and extended to the extent of the duration of the relevant event in the event of force majeure, war (including war-related closures or traffic restrictions), strike, pandemic (including pandemic-related closures or traffic restrictions), unforeseeable delays of COLOP's suppliers for which COLOP is not responsible or other comparable events beyond COLOP's control. This does not affect the right of both parties to contract to withdraw from the contract in the event of delays of an unreasonable magnitude
4.4 Any delay by COLOP with contractual compliance entitles the customer to withdraw from the contract after setting an appropriate period of notice. Such a period of notice must be delivered in writing (by registered letter in the case of corporate customers), accompanied by the threat to withdraw from the contract.
4.5 From the outset, the customer is entitled to make technically justified minor modifications to the scope of delivery from COLOP. This right only applies to consumers as defined under Austrian consumer protection legislation if negotiated on a case-by-case basis.
4.6 Technically justified partial deliveries of goods and services are permitted and can be invoiced for separately.
4.7 Deviations of up to +/- 5% of the agreed quantity are permitted.
4.8 COLOP is not obliged to accept subsequent orders. In particular, COLOP shall not be obliged - unless an obligation arises due to mandatory law - to supply customers who have purchased a stamp or a stamp printer with consumables or spare parts after the purchase has been made.
4.9 If an agreed delivery date is postponed by mutual agreement at the request of the customer, COLOP shall be entitled to charge an appropriate storage fee for the period of longer storage at COLOP. In the event of default in acceptance or advance performance on the part of the customer, COLOP shall be entitled - insofar as COLOP insists on performance of the contract - to store the goods or products delivered either at COLOP's premises or in a warehouse close to the customer or COLOP, for which purpose COLOP shall be entitled to a weekly storage charge in the amount of the costs incurred by COLOP, but in any event in the amount of 10% of the order value
5. TRANSFER OF RISK, PACKAGING AND DISPATCH
5.1 Even in the case of carriage-free delivery, risk transfers to the customer when goods leave the factory. In the event of delays for which the customer is responsible (even if not necessarily guilty of causing them), risk transfers at the time that dispatch readiness is notified
5.2 Unless otherwise agreed, COLOP uses best judgement to select packaging and the type of dispatch. Only when called upon to do so in writing by the customer, and with costs being met by the customer, the delivered goods can be insured against breakage, damage while in transit and fire damage.
5.3 The following notice shall apply to customers domiciled in the Federal Republic of Germany who are consumers (notice pursuant to § 15 Section 1 of the Packaging Act): According to the (German) Packaging Act, COLOP is obliged to take back packaging that is not subject to system participation within the meaning of § 15 Section 1 Sentence 1 of the Packaging Act and to ensure that it is reused or recycled. The following types of packaging fall under this obligation:
- Transport packaging (transport packaging is packaging that facilitates the transport of goods in such a way that their direct contact as well as transport damage is avoided, and is typically not intended to be passed on to the end consumer)
- Sales and outer packaging that is not typically generated as waste by private end users after use.
- Sales packaging and secondary packaging for which system participation is not possible due to pollutant and/or health risks during recovery.
- Sales packaging of pollutant-containing filling goods
- Reusable packaging (reusable packaging is packaging that is designed and intended to be reused several times for the same purpose after use and whose actual return and reuse is made possible by adequate logistics and promoted by suitable incentive systems, usually by a deposit).
Accordingly, COLOP is obliged to take back such packaging free of charge at the place of actual handover or in its immediate vicinity. If this is not possible (as is the case in distance selling), customers have the option to return the packaging to COLOP. Unless otherwise provided by law, the costs of the return shipment shall be borne by the customer. With regard to corporate customers, the provisions of the Packaging Act are waived as far as legally possible.
6. ARREARS IN ACCEPTANCE OR IN ADVANCE PERFORMANCE
6.1 In the event of default in acceptance or advance performance on the part of the customer, COLOP shall be entitled to demand payment for services rendered and to withdraw from the contract after a reasonable period of grace.
6.2 In the event of a justified withdrawal from the contract by COLOP, COLOP is entitled to demand from its corporate customers a lump-sum compensation figure amounting to 95% of the value of the order plus VAT without having to provide verification of the actual damage. The obligation of a corporate customer to pay compensation applies regardless of culpability. A higher level of compensation may justifiably be claimed.
7. RETENTION OF TITLE
7.1 The goods and products supplied by or otherwise handed over by COLOP remain the property of COLOP until full and final payment has been received.
7.2 Resale shall only be permissible if (i) the Customer is not in default of payment of an obligation to COLOP, (ii) the purchase price claim against the purchaser is legally assigned to COLOP.
7.3 If COLOP does grant its consent, the purchase price receivable is considered to have been discharged in favour of COLOP. The legal transaction costs for ceding title in this way shall be borne by the customer, who must fully indemnify and hold harmless COLOP in this regard.
7.4 If the customer is in default of payment, the customer must - if he has resold goods subject to retention of title - disclose to COLOP upon request the name and address of the purchaser of the goods subject to retention of title and the amount of the purchase price claim against COLOP and must inform the purchaser of the goods subject to retention of title upon COLOP's request of the assignment of the claim that has taken place. In this case, COLOP shall also be entitled to inform the purchaser of the Reserved Goods itself of the fact of the assignment of the claim.
7.5 If the customer falls into payment arrears, COLOP is entitled, after first serving an appropriate period of notice, to demand return of the retained goods. Regarding consumers as defined in Austrian consumer protection legislation who are customers, COLOP is only entitled to exercise this right if at least one of the payments in arrears of the customer has been due for at least six weeks and COLOP has discharged its obligation to serve notice of possible legal action of at least two weeks, to no effect.
7.6 The customer must notify COLOP immediately of any liquidation proceedings it may be about to initiate, and of any pledging of the retained goods.
7.7 COLOP is entitled to apply its retention of title by entering the location where the retained goods are held, subject to this being just and reasonable to the customer, and subject to appropriate advance notice having been provided.
7.8 Necessary costs incurred by commensurate legal action shall be met by the customer.
7.9 In the application of this retention of title, a withdrawal from the contract only applies if one has been agreed explicitly.
7.10 COLOP is entitled at its own discretion to make the best possible use of the retained goods taken back in favour of corporate customers.
8.1 All payments must be made exclusively in Euro.
8.2 Unless otherwise agreed and no "online payment" (credit card, Paypal, instant transfer, etc.) is made by the customer, the purchase price is due immediately. Any prompt payment discount that may have been agreed is also conditional upon all previously due invoices being paid.
8.3 The legally stipulated rate of penalty interest applies to payment arrears, irrespective of a reminder being send, or of culpability on the the part of the customer.
8.4 COLOP reserves the right to petition for further damages resulting from arrears in payment by consumers as defined in Austrian consumer protection legislation. In the case of customers however, such cases need to be negotiated individually.
8.5 If a corporate customer goes into payment arrears in the context of other contractual arrangements with COLOP, COLOP is then entitled (in relation to corporate customers without the need to extend payment deadlines) to suspend fulfilment of COLOP obligations arising from this contract until the customer fulfils his payment obligations. Furthermore, COLOP is then entitled to call in all receivables from the customer for services already rendered from the current business relationship. In relation to customers who are consumers as defined in Austrian consumer protection legislation, any arrears must have been due for payment for at least six weeks, and COLOP must have served the customer an extended reminder of at least two weeks without success, having also threatened the above outcome.
8.6 The customer is only entitled to offset payments due against receivables due where those counter-claims have been upheld in court, or recognised by COLOP. Where the customer is a consumer as defined in Austrian consumer protection legislation, the authority to offset payments against receivables is granted provided that those counter-claims have legally approved status in relation to the obligation of the customer to make payment, and in the event of COLOP becoming insolvent.
8.7 The corporate customer shall not be entitled to retain delivered Products or to satisfy its claims from retained Products (§ 369 ff UGB).
9. THE RIGHT OF DIRECT DELIVERY IN THE EVENT OF A CONTRACTUAL VIOLATION BY THE CUSTOMER
9.1 In cases where goods and services that COLOP is contractually obliged to deliver to a given customer and where COLOP is aware of, that these are to be supplied to or performed for a third party by the customer (this third party hereinafter called the 'end customer') and where the customer commits a contractual violation towards COLOP (in particular such as payment arrears or a delay in acceptance), COLOP – irrespective of the rights defined in Point 6 of this contract and irrespective of other claims by COLOP (in particular compensation claims) arising from a contractual violation of this kind – is entitled to supply goods and or to deliver services directly to the end customer, by-passing the customer of COLOP.
9.2 In such cases, the delivery of goods or services to the customer are deemed to have been performed, when rendered instead to the end customer. The customer's claim against the end customer shall be deemed assigned to COLOP. Point 7.3 of these TCB shall apply mutatis mutandis.
10.1 Without exception, agreed properties as defined in accordance with Section 922 (1) ABGB only apply to properties that were explicitly agreed in writing. Compliance with other properties is thereby legally excluded to the fullest extent possible. The point established here 10.1 only applies to corporate customers.
10.2 Any warranty for habitually presupposed properties as defined in Section 922 (1) ABGB is legally excluded to the fullest extent possible. The point established here 10.2 only applies to corporate customers.
10.3 Unless otherwise explicitly agreed, COLOP accepts no liability or warranty for any defined period of use for supplied products. The point established here 11.5 only applies to corporate customers.
10.4 In favour of corporate customers, warranty extends across the board to the fulfilment of contractual obligations of the customer in favour of COLOP from related contracts and other contracts.
10.5 Unless expressly agreed in writing, COLOP does not warrant to corporate customers that delivered products comply with the national regulations applicable in the country of destination or any other country in which the products are to be resold to end users regarding quality, environment, safety and health requirements.
10.6 The warranty period in favour of corporate customers extends for six months from the date of handover.
10.7 The special right of recourse under § 933b ABGB is expressly excluded.
10.8 Investigations into a defect alleged by the customer do not constitute recognition of the defect being alleged by the customer.
10.9 To remedy a defect, COLOP shall be accorded the right by the corporate customer to make at least two attempts.
10.10 In the case of warranty, COLOP shall be entitled to determine the type of warranty (improvement, exchange, price reduction or cancellation) itself.
10.11 If the allegations of a defect made by the customer are not justified, the customer is obliged to reimburse COLOP for the costs incurred to determine freedom from defects or to take remedial action.
10.12 The corporate customer must always provide evidence that the defect was already present at the time of handover.
10.13 The corporate customer is obliged to carefully examine all goods and services provided by COLOP immediately after the time of handover. Defects in the goods or services being provided and that the corporate customer has detected in the normal course of business at the acceptance testing or handover stage by conducting an inspection, or ought to have detected, must be notified to COLOP in writing immediately and by no later than two days after the date of handover. Concealed defects must also be notified to COLOP within this reasonable period of time after detection. If a defect-related claim is not submitted in time, the goods or services in question are deemed to have been approved.
10.14 Any use or processing of the defective item that pose the threat of more extensive damage or that make it difficult or impossible to evaluate the cause must be terminated immediately by the customer unless such a course of action could not reasonably be expected.
10.15 The defective delivery or samples of it - to the extent that this is economically viable - must be returned to COLOP by the corporate customer. The customer shall meet the full cost for return transport of the defective item to COLOP.
10.16 Customers are obliged to facilitate COLOP with immediate assessment of the defect.
11.1 Due to the violation of contractual or of pre-contractual obligations, in particular non-feasibility, delay etc., COLOP shall only be liable for damage to assets in cases of deliberate intent or gross negligence.
11.2 In respect of corporate customers, the limitation periods defined in Section 1489 ABGB shall be shortened so that compensation claims lodged against COLOP must be argued in court after six months from awareness of damage and cause of damage, and by no later than three years after conclusion of contract in relation to other statutes of limitation.
11.3 In relation to corporate customers, liability, regardless of the legal reason for liability (contract, dereliction of duty, absolute liability or some other legal reason) shall be restricted, where legally permitted, to the lower of the following two amounts: (a) the actual amount of coverage of any public liability insurance taken out by COLOP or (b) the order value of the contract, the obligations of which have been violated by COLOP.
11.4 Any liability of COLOP towards the Customer for loss of profit, loss of contracts or any other consequential damage, is excluded.
11.5 This liability exemption also covers all claims that may arise in favour of the employees of COLOP, representatives and agents as a result of damages inflicted on the customer without reference to a contract existing between COLOP and the customer.
11.6 The liability of COLOP is excluded in respect of damages caused by improper handling or storage, excessive strain, failure to follow operating and installation specifications, defective installation, commissioning, maintenance or servicing by the customer or by third parties not authorised by COLOP, or natural wear and tear if the damages resulted from such an event.
11.7 If and to the extent that the customer can avail itself of insurance cover for damage for which COLOP is liable from its own indemnity insurance or that of a policy taken out in its favour (e.g.: public liability insurance, own damage claim, transport, fire, business interruption and others), the customer undertakes to do so, i.e. to take up that insurance cover, and to limit the liability of COLOP to the disadvantages arising for the customer through making an insurance claim of this nature (e.g. an increase in insurance premiums).
12. NOTE ON THE RETURN AND DISPOSAL OF BATTERIES/BATTERY PACKS AND ELECTRICAL AND ELECTRONIC EQUIPMENT
12.1 To avoid environmental damage, batteries and electrical appliances must not be disposed of in household waste. For this purpose, you can return your old batteries free of charge to the public collection points in your community or wherever batteries are sold. You can also hand in your old electrical equipment free of charge at one of the municipal collection points. In addition, you can drop off waste electrical equipment at our site in Wels, Austria. The acceptance of old appliances may be refused if there is a risk to the health and safety of people due to contamination.
12.2 Old batteries and accumulators that are not enclosed by the old device must be separated from it before handing it in.
12.3 You are responsible for the deletion of personal data.
13. INTELLECTUAL PROPERTY OF COLOP
13.1 Plans, descriptions, sketches, cost estimates and other documents provided by COLOP or resulting from a contribution by COLOP shall remain the intellectual property of COLOP.
13.2 The use of documents of this kind other than intended use, and in particular the dissemination, reproduction, publication and provision to others, even of partial copies, requires the explicit consent of COLOP.
13.3 The customer also undertakes to observe confidentiality towards third parties in respect of the knowledge he acquired during the business relationship.
Products supplied by COLOP may not be sold without the COLOP trademark affixed to each. The serial number may not be removed or made unrecognizable. Furthermore, the customer is prohibited from any use of COLOP's trademarks and brands beyond the sale of the products.
15. ALTERNATE DISPUTE RESOLUTION
15.1 The EU Commission has provided a platform for out-of-court dispute resolution. This gives consumers the opportunity to resolve disputes related to your online order first without going to court. The dispute resolution platform can be accessed via the external link http://ec.europa.eu/consumers/odr/.
15.2 We will endeavour to settle any disagreements arising from our contract amicably. Beyond that, we are not obligated to participate in arbitration proceedings and cannot offer you participation in such proceedings.
16. CLOSING PROVISIONS
16.1 In the event of import and export licences or currency approvals or similar approvals being required for execution of the contract with the customer, the customer is obliged to make all just and reasonable efforts to obtain those licences or approvals and to do so in good time in advance.
16.2 In the event of parts of these TCBs becoming ineffective, this shall not affect the validity of the remaining parts. COLOP and its corporate customers jointly undertake - based on the premise of their all being reasonable parties to contract – to find a replacement provision, one that most closely reflects the intended business outcome of the ineffective provision.
16.3 Austrian Law applies, which excludes any application of the referring statutes of international private law and of the UN convention on the international sale of goods (CISG). The place of execution is the registered office location of COLOP.
16.4 The sole court of jurisdiction for any and all disputes that may arise from (or in connection with) the contractual relationship or from future contracts between COLOP and the corporate customer shall be the court with jurisdiction for the town of Wels.