COLOP E-MARK – TERMS AND CONDITIONS, CANCELLATION INSTRUCTIONS
- 1.1 These general terms and conditions (these “T&C”) regulate any and all contractual relationships between us, COLOP-Stempelerzeugung Skopek Gesellschaft m.b.H. & Co. KG, a limited partnership with its headquarters in Wels and its business address in 4600 Wels, Dr.-Arming-Str 5, registered with the commercial register at the regional court of Wels, registered number FN 491965 d (hereinafter: „COLOP“ or simply „we“) and our customers in connection with our brand
These T&C are addressed to both, (i) customers with consumer attributes (consumers) according to the provisions of the Consumer Protection law (hereinafter: “Consumer-Customers”) and (ii) to customers without consumer attributes (hereinafter: “Entrepreneur-Customers”).
- 1.2 Consumer-Customers (but not Entrepreneur-Customers) have a statutory right to withdraw in case of distance contracts and online contracts; in each case in accordance with the applicable statutory provisions. Please cf. the instructions on the right to withdraw in Exhibit ./1 hereto.
- 1.3 Vis-à-vis Entrepreneur-Customers, these T&C shall also be applicable to any future contracts to be concluded (if any), even if such future contracts do not explicitly refer to these T&C.
- 1.4 Vis-à-vis Entrepreneur-Customers, the T&C published on our website (https://emark.colop.com/shop) shall apply as amended from time to time.
- 1.5 We provide our services exclusively provided based on these T&C. No conditions of purchase or other general terms and conditions of customer shall apply unless we confirm them expressly in writing. A reference to the customer’s terms and conditions of purchase or conditions of purchase, which can be retrievable or available at a specific location, shall not be considered as expressly written confirmation. General terms and conditions or conditions of purchase of the customers are regarded as insisted and are herewith expressly contradicted. This point 1.5 only applies to Entrepreneur-Customers.
- 1.6 The terms and conditions of these T&C, which refer to the delivery of goods and products, apply mutatis mutandi to the provision of services by us.
2. OFFER/CONCLUSION OF CONTRACTS
- 2.1 Any presentations and representations of COLOP on our web shop or in documents such as “offers”, “cost estimates” or similar, shall be made non-bindingly and subject to alteration and to be understood as an invitation to the customer to make an offer from his or her side. No contract shall be concluded before we either, issue and explicit order confirmation in written form, or factually perform our contractual obligations. Any of our offers that are not subject to a pre-existing contractual agreement are made non-bindingly and subject to alteration.
- 2.2 „Offers“ and similiar documents, as well as offers made by clicking on a button „Commit to Buy“ shall be considered a binding offers. Customers must explicitly and visibly state if an offer shall not be binding, otherwise an offer made by a customer shall be valid for at least 12 working days (Mo-Sa). Any confirmations of receipt shall not constitute an offer. No contract shall be concluded before we either, issue and explicit order confirmation in written form, or factually perform our contractual obligations. If and insofar we accept down payments or payments in advance, the acceptance of such payments shall be considered as an acceptance of the pertaining offer.
- 2.3 Oral representations, declarations and guarantees from COLOP’s side or any arrangements and clauses which deviate from these T&C shall not be binding vis-à-vis Entrepreneur-Customers if not explicitly confirmed in writing.
- 2.4 Information on our products and services contained in catalogues, price list, brochures and similar, which has not been drawn up by ourselves, has to be actively individualized by the customer before the conclusion of the contract, otherwise such information shall not be of any relevance for the contract or its construction or interpretation.
- 2.5 We provide cost estimations only against reasonable compensation. Consumer-Entrepreneurs shall be warned hereof in advance.
- 2.6 We conduct business exclusively in German or English. We reserve the right to translate any material provided by our customers in a different language into German or English on their costs. Any timeframes and deadline (such as delivery deadlines) shall be stopped for the duration of the translation.
- 2.7 Entrepreneur-Customers have to procure, that the products ordered by COLOP fit their respective purpose. Unless COLOP explicitly warrants that a product fits a particular purpose, COLOP shall bear no liability in this context. Product descriptions or presentations made by COLOP shall in no way reduce an Entrepreneur-Customers obligation in this context.
- 3.1 The prices according to the COLOP price list published and amended from time to time, shall apply, if not explicitly agreed otherwise.
- 3.2 In situations where COLOP raises the prices for a certain product between the conclusion of a contract and its delivery, COLOP may demand the increased price from the Entrepreneur-Customer. The Entrepreneur-Customer may however withdraw from the contract after he or she is informed from such price increase. COLOP is however entitled to pass on an increase in ancillary costs (such as insurance premiums or freight rates) without giving rise to a right to withdraw.
- 3.3 Prices shall be understood as EXW Wels (INCOTERMS 2010) and exclusive of value added tax or other applicable sales taxes and customs, as well as exclusive of packaging costs.
- 3.4 Any discounts granted shall be calculated from the net prices.
- 3.5 COLOP is entitled to a reasonable small order surcharge, if an Entrepreneur Customers orders goods below a €300 order value threshold (total net order value minus discounts).
- 3.6 Any consideration or prices for continuing obligations shall be indexed to the Austrian VPI 2010 and increased accordingly (the index basis shall be the months the contract is concluded).
4. DELIVERY AND ACCEPTANCE
- 4.1 Vis-a-vis Entrepreneur Customers, any deadlines shall only be binding if explicitly identified as “binding deadline” in writing. Any other deadlines are just non-binding estimations.
- 4.2 If a delivery or a discharge of our services is hindered by circumstances within the customers sphere (e.g. because the customers infringes its cooperation duties or does not make an agreed down payment), any agreed deadlines shall be postponed accordingly.
- 4.3 Any timeframes and deadlines shall be reasonably prolonged and postponed where we are hindered in our performance by circumstances beyond our reasonable control (e.g. acts of god, force majeure, labour strikes); leaving any withdrawal rights (if any) unaffected.
- 4.4 If we are in default of discharging our contractual obligations, the customer may withdraw after having granted a reasonable grace period. Grace periods must be set under the threat of withdrawal. Any such notices from Entrepreneur-Customers shall be invalid if not made by registered mail.
- 4.5 The customer agrees to minor and objectively justified changes to the contract in advance. This right shall not apply vis-à-vis Consumer-Customers if not specifically agreed on in advance.
- 4.6 Objectively justified deliveries in part are justified and may be invoiced separately.
- 4.7 Quantity deviations of +/- 5% are accepted.
- 4.8 COLOP is not obliged to accept any follow-up orders. Without limiting the generality of the foregoing, COLOP is not obliged (if not provided otherwise by mandatory provisions of law) to deliver any spare parts or expendables to customers who have purchase an e-mark stamp printer.
- 4.9 If an agreed delivery deadline is postponed by mutual consent based on a customer request, COLOP is entitled to charge adequate storage fees. In case of a default of acceptance, COLOP is furthermore entitled to storage fees in an amount of, the higher of, the actual costs, or 10% of the order value.
5. RISK TRANSFER, PACKAGING AND SHIPMENT
- 5.1 Risk shall pass to the customer as soon as the goods leave our works. This rule applies even if we agree on freight-free delivery. In case of any delays caused (albeit not without its fault) by the customer, risk shall pass a soon as we indicate that we are prepared for shipment.
- 5.2 If not explicitly agreed otherwise, we choose packaging and shipment method in our sole discretion. We shall only insure the shipped good, if explicitly required by the customers and where the customer pays such insurance.
6. DEFAULT OF ACCEPTANCE
- 6.1 In cases of default of acceptance COLOP is entitled to require payments for any performances already being made and to withdraw from the contract after having granted a reasonable grace period.
- 6.2 If COLOP withdraws from the contract on objective grounds, we are entitled to require our Entrepreneur-Customers to pay liquidated damages in an amount of 95% of the respective order value (without being required to proof any actual damages and without having to demonstrate fault on the customers side). We reserve the right to claim for further damages (if any).
7. RETENTION OF TITLE
- 7.1 We retain the title in our products until they have been actually fully paid.
- 7.2 Customers may (only) resale any products received from us if (i) the customer is not in default of payment or (ii) the customers claims against the buyer are assigned to us.
- 7.3 In case of a resale, any claims for the purchase price shall be assigned to us by virtue of these T&C. The customer shall bear any stamp taxes and levies triggered by such assignment and shall indemnify COLOP in this context.
- 7.4 In case of a customer’s default on a payment obligation with respect to any resold goods, COLOP may require the customer to disclose the name and address of the buyer and the amount of the purchase price and to notify the buyer of the assignment. COLOP’s rights to directly inform a buyer of the assignment remain unaffected.
- 7.5 In case of a customer’s default on a payment obligation, COLOP may (after having granted a reasonable grace period) demand the return of the delivered goods. Vis-à-vis Consumer Customers the exercise of such right requires that the customer has already been in default for at least six weeks and that COLOP has explicitly warned the customer and granted a grace period of at least two weeks.
- 7.6 The costumer shall inform COLOP if the delivery goods are subject to any enforcement acts or if the customers goes into insolvency.
- 7.7 COLOP is entitled to enter the premises where the delivered but unpaid goods are stored; always provided that such an inspection is objectively acceptable to the customer and that COLOP has announced such an inspection.
- 7.8 Necessary and costs adequate for the appropriate collection cost are born by customer.
- 7.9 Claiming reservation of title represents a rescission of contract only if this has been expressly declared.
- 7.10 COLOP is entitled to freely realize any returned goods at best.
- 8.1 Any payments have to be made in Euro.
- 8.2 If not specifically agreed otherwise (e.g. in cases of credit card payment, Paypal, …), the purchase price shall be due and payable immediately. Cash discounts shall only apply if the customer has duly paid previous invoices.
- 8.3 The statutory default interest rate shall apply.
- 8.4 We reserve to claim any (further) damages for late payment.
- 8.5 We are entitled to cease the performance of our obligations vis-à-vis an Entrepreneur-Customer, if such Entrepreneur-Customer default on any obligation towards us. In such cases, all our claims for previous deliveries or other performances become due. The same shall apply for Consumer-Customers, if the default persists for more than six weeks and provided that COLOP as duly warned the customer and granted a grace period of at least two weeks.
- 8.6 The customer is entitled to a right of retention and offset competence only to the extent that his/her counterclaims have been shown to be uncontested or legally effective. Consumer-Customers shall have a right to offset, if and insofar its claims are connected with its payment obligations.
- 8.7 The Entrepreneur Customer shall not have any right to retain delivered products or the realized delivered products according to section 369 et seq. of the Austrian Enterprise Act.
9. DIRECT DELIVERY RIGHT
- 9.1 If COLOP’s products shall be resold or redelivered to a final customer (the “Final Customer”) other than COLOP’s customer and if COLOP’s customer is in default of its (payment) obligations, COLOP may (notwithstanding its rights under section 6. hereof and notwithstanding its right to claim further damages) deliver directly to the Final Customer and thereby discharge its obligation towards COLOP’s costumer.
- 9.2 The direct delivery shall have discharging effect vis-à-vis COLOP’s customer, whereby the latter shall assign its claims vis-à-vis the Final Customer to COLOP. Section 7.3. of these T&C shall apply mutatis mutandi
- 10.1 Only such preferences shall be considered as agreed up preferences within the meaning of section 922 of the Austrian Civil Code, which have specifically agreed in writing. The compliance with any other preference shall be excluded. This section 10.1. shall only apply vis-à-vis Entrepreneur Customers.
- 10.2 Any warranty for usually expected properties or for suitability of the product for a specific purpose shall be excluded. This section 10.2. shall only apply vis-à-vis Entrepreneur Customers.
- 10.3 If not explicitly agreed otherwise, COLOP does not assume any liability or warranty for a certain product lifespan (term of use). This section 10.3. shall only apply vis-à-vis Entrepreneur Customers.
- 10.4 We shall not be obliged to provide any warranty services to Entrepreneur Customers if and as long such Entrepreneur Customers have not duly and fully discharged their obligations towards as under any and all contracts concluded between us.
- 10.5 If not explicitly agreed otherwise, COLOP does neither not warrant vis-à-vis Entrepreneur Customers that the delivered products may be used or resold in the country of destination, nor that they meet any specific national regulations on quantity, environment, security, safety or health.
- 10.6 Vis-à-vis Entrepreneur Customers, the warranty period shall be reduced to six months.
- 10.7 A right of recourse against us is expressly excluded in terms of § 933b ABGB.
- 10.8 Remedying faults alleged by customer does not constitute recognition of a fault.
- 10.9 Vis-à-vis Entrepreneur Customers, we shall have at least two chances to remedy a defect.
- 10.10 Vis-à-vis Entrepreneur Customers, we are entitled to choose the applicable warranty measures (rectification, price reduction, …)
- 10.11 If a complaint of defect proved unjustified, COLOP is entitled to demand compensation from the customer for the expenses incurred.
- 10.12 The Entrepreneur Customer will always be required to prove that the defects existed at the time of handover.
- 10.13 In order to maintain the claims according to § 377 sec. 2 Austrian Business Code, obviously recognizable defects of the COLOP-stamp must be reported within 5 working days after delivery, transfer or acceptance and hidden defects must be reported within 5 working days after their discovery. The customer is obliged to provide COLOP with all the information and documents necessary for the rectification of a defect.
- 10.14 The customer has to immediately cease the use of any defect product, if a further use increases the damage occurred or hinders the rectification of the defect.
- 10.15 Entrepreneur Customers have to return defected goods on their own account and their own costs.
- 10.16 The customer has to procure that we are able to inspect any defected goods.
- 11.1 Any and all liability for damages, which might occur on the grounds of COLOP having provided wrong and/or incomplete information shall be excluded, if and insofar the customer cannot proof willful or gross negligence. This clause applies to consumer-customers as well as to entrepreneur-costumers. The limitation of liability does not apply to loss or damage caused by injury to life, limb or health as well as in the event, that contrary mandatory legal regulations and essential contractual obligations are opposed.
- 11.2 The limitation periods of Section 1489 of the Austrian General Civil Code with respect to all contracts regarding the use or purchase of the stamp printer shall be shortened with respect to Entrepreneur-Customers with the effect, that claims for damages have to be asserted in court within the lesser of (a) six months from the point of time on which the aggrieved party became aware of the damage or (b) a period of five years running from the date the contract has been concluded.
- 11.3 With respect to Entrepreneur-Customers, any liability (with regard to the use of the App, but also with regard to all contracts concerning the use or purchase of the stamp) is, irrespective of the legal grounds (contract, tort, strict liability, …) and as far as legally permissible, limited to the lower of the following amounts: (a) the amount actually covered by the applicable liability insurance or (b) the fair value of the stamp used by the customer. This limitation also applies with respect to damages of items that we have accepted for treatment. The liability limitation does not apply to loss or damage caused by injury to life, limb or health as well as in the event, that contrary mandatory legal regulations and essential contractual obligations are opposed.
- 11.4 With respect to Entrepreneur-Customers, any liability for a standstill in production, lost profits, loss of use, loss of contract or any other consequential damage shall be excluded.
- 11.5 The exclusion of liability also includes claims against our employees as well as our representatives and agents with respect to damages, which they cause to the customer without reference to a contract (such as claims in tort, for example).
- 11.6 Any liability of COLOP’s for damages caused by customer’s improper storage, improper treatment, excessive use, use in contrary of manuals shall be excluded.
- 11.7 If and insofar the customer may, with respect to any damages caused by us, claim payments from an insurance for damages that has been taken out by him/her or in his/her favor (e.g. liability insurance, full coverage, transportation, fire, interruption of operation and other), customer undertakes to make use of such insurance payment and our liability shall be limited to the disadvantages customer suffers by making user of this insurance (e.g. increased insurance premiums).
12. NOTES ON RETURN OF BATTERIES AND ELECTRONIC EQUIPMENT
- 12.1 Batteries and electronic equipment shall not be disposed off in the ordinary household waste. Old batteries can be disposed off at public collection points or anywhere, where batteries are sold. The same applies with respect to old and outdated electronic equipment. You can furthermore return old and outdated electronic equipment at our premises in Wels, Austria. We can reject to accept old and outdated electronic equipment if it endangered the health and/or safety of human beings.
- 12.2 Old batteries and accumulators have to be separated from the device.
- 12.3 The customer has to procure that personal data has been deleted.
13. COLOP’S INTELLECTUAL PROPERTY RIGHTS
- 13.1 Any plans, descriptions, offers and other documents provided by COLOP or produced with COLOP’s aid shall remain (intellectual) property of COLOP.
- 13.2 Customers shall only use, reproduce, publish or otherwise exploit such documents with COLOP’s prior consent.
- 13.3 The customer has to keep confidential any information provided by COLOP during the business relationship.
Any products delivered by COLOP must be resold without COLOP’s trade mark. The serial number must not be removed. Any other use of COLOP’s trademarks is prohibited.
15. ALTERNATIVE DISPUTE RESOLUTION
- 15.1 The EU commission provides a platform for online dispute resolution under the following link: https://ec.europa.eu/consumers/odr/. This platform serves as a point of contact to settle the disputes out of online sales- or service contracts, concerning a consumer’s involvement, extrajudicial.
- 15.2 COLOP is neither obligated nor willing to participate in a dispute settlement procedure with a consumer dispute resolution board.
16. FINAL PROVISIONS
- 16.1 If the performance of the contract concluded with the customer requires certain permits (forex permits, import permits or similar), the customer has to procure that such permits are obtained in time.
- 16.2 Should any provision of these T&C be or become in whole or in part invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions. If an Entrepreneur-Customer is concerned, the invalid or unenforceable provision shall be deemed to be substituted by a valid or enforceable provision, which in its economic purpose comes as close as possible to the invalid or unenforceable provision.
- 16.3 Any contractual relationship between a customer and us shall be governed by Austrian law (without giving effect to its conflict of law rules and the Convention on the International Sale of goods). With respect to Consumer-Customers, this choice of law shall only be applicable insofar as the afforded protection is not deprived by obligatory provisions of the law of the state in which the consumer has its habitual place or residence.
- 16.4 The exclusive place of jurisdiction for any disputes arising from or in connection with the contractual relationship between the Entrepreneur-Customer and us is Wels, Austria.