1.1. These General Terms & Conditions of Business (hereinafter called: 'TCB') apply to all contracts and other legal business transactions between COLOP-Stempelerzeugung Skopek Gesellschaft m.b.H. & Co. KG, Dr.-Arming-Strasse 5, A-4600 Wels, Austria (hereinafter called: 'COLOP') on the one hand and all customers on the other hand, regardless of whether the customer is a natural person or a legal entity.
1.2. The General Purchasing Terms & Conditions of COLOP, and not these General Terms & Conditions of Business, apply to contractual relationships between COLOP and its suppliers, sub-contractors, service providers and other third parties from which COLOP sources services. Within the scope of application of these General Purchasing Terms & Conditions, a reference to this TCB is intended as a reference to the General Purchasing Terms & Conditions.
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. The version of TCB applicable to corporate customers is the one that can be called up on the COLOP website when a contract is concluded.
1.5. 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.
1.6. 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. All correspondence involving pages from COLOP designated as 'Offers ', 'Draft cost proposals' or similar are first and foremost non-binding and without obligation; 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. Acceptances, 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.
2.3. 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.
2.4. 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.
2.5. The language of contract and of contractual negotiations shall be German. COLOP is entitled to have a translation into German made of all non-German 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.
2.6. 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. In particular, the customer must take care to ensure (and must check) that the products ordered by the customer satisfy and are suitable for the intended form of use of the customer in structural terms and in relation to compliance with legislative standards (e.g. building directives, commercial codes etc.) and/or technical standards (ÖNORM, DIN, etc.). In this regard, unless expressly agreed in writing to the contrary, 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.
2.7. The customer is solely responsible in relation to compliance with any public-legal notification or consent obligations.
3.1. All prices are EXW Wels in accordance with INCOTERMS 2010, and also exclude VAT or similar taxes, and also exclude the cost of packaging. The place of execution is Wels.
3.2. All prices apply excluding sample testing costs and also excluding all costs for inspection and machining fixtures as well as the cost of any modifications called for by the customer. An entitlement to commensurate payment applies to services arranged by the customer that were not covered in the original order, or that constitute changes to the original order. Changes in quantities requested by the customer entitle COLOP, at its own discretion, to adjust the unit price or to withdraw from the contract (order).
3.3. If it is agreed that the price shall be dependent on component weight, the final price shall be obtained from the weight of the approved initial samples.
3.4. COLOP has an inherent obligation to its corporate customers, and if called upon to do so by the customer, to adjust the contractually agreed levels of remuneration if changes amounting to at least 5% arise from (a) payroll costs imposed by legislation, directive, collective bargaining agreement, company agreements or (b) other costs factors necessary for the delivery of a service, such as material costs affected by recommendations from Parity Commissions or by changes in national and/or world market prices for raw materials, changes in relevant exchange rates etc. after the conclusion of this contract. Adjustment is made to the extent that the actual manufacturing costs change between the date of conclusion of contract in relation to those incurred at the actual time of service delivery, provided that COLOP is not in arrears.
3.5. Remuneration associated with long-term debt arrangements is agreed to have an assured value in accordance with VPI 2010 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 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 defined in Point 13 of these TCBs, 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 dates will then be rescheduled accordingly.
4.3. Due dates and deadlines also extend in the event of force majeure, strike, unforeseeable delays by suppliers to COLOP for which COLOP is not to blame, or other comparable events over which COLOP has no influence, during the period of time during which such an event lasts. 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 +/- 10% of the agreed quantity are permitted.
4.8. COLOP is not obliged to accept subsequent orders, and expressly not to do so if moulds, tools and fixtures of the customer still belong to COLOP or if COLOP is still holding these in storage.
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. This also applies to partial deliveries.
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 goods can be insured against breakage, damage while in transit and fire damage.
5.3. The customer bears the risk of any and all materials and devices supplied by COLOP and stored or installed at the place of execution.
6. Arrears in acceptance or in advance performance
6.1. In cases where the customer goes into arrears by more than seven (7) days in relation to acceptance or advance performance (refusal of acceptance, delay in advance performance or similar), and if the customer then failed, after being granted a reasonable extension, to remedy those circumstances for which he is responsible and that delay or prevent delivery of goods or services, COLOP is then entitled, without disrupting the contract, to find a different use for the devices and materials specified for the delivery of that service, subject to COLOP being able, in the event that service delivery should be resumed, to obtain replacements within a reasonable period of time given the prevailing circumstances.
6.2. In the event of a delay in acceptance or advance performance by the customer, COLOP is equally entitled to store the goods needed to fulfil the contract at COLOP or in a nearby warehouse for which COLOP would be entitled to bill the customer for a weekly storage fee amounting to the costs incurred by COLOP, and amounting to at least 10% of the value of the order.
6.3. This does not affect the right of COLOP to ask for prompt repayment against services rendered, and to withdraw from the contract after serving an appropriate period of notice.
6.4. In the event of a justified withdrawal from the contract by COLOP or a failure to perform a task due to grounds for which the customer is responsible, 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 supplied by or otherwise handed over by COLOP remain the property of COLOP until full and final payment has been received.
7.2. Onward sale is only permitted if the customer has announced this in good time and in advance, stating the name and address of the purchaser, and if COLOP has consented to that sale.
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 falls into payment arrears, COLOP is entitled, after first serving an appropriate period of notice, to demand return of the retained goods. With regard to 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.
7.5. The customer must notify COLOP immediately of any liquidation proceedings it may be about to initiate, and of any pledging of the retained goods.
7.6. 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.
7.7. Necessary costs incurred by commensurate legal action shall be met by the customer.
7.8. In the application of this retention of title, a withdrawal from the contract only applies if one has been agreed explicitly.
7.9. 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, the purchase price must be paid within 30 days of the date of invoice. Any prompt payment discount that may have been agreed is also conditional upon all previously due invoices being paid.
8.3. Where necessary, agreed bonuses, discounts and similar items in favour of corporate customers may be linked to full payment being received on schedule, i.e. these arrangements can be cancelled retrospectively if the customer fails to make full payment, or fails to make payment on time (and can be billed subsequently by COLOP).
8.4. 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.
8.5. 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.
8.6. 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.
8.7. 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.
9. Additional materials supplied
9.1. In cases where the agreement allows for the customer to provide materials, these must be supplied at the cost and risk of the customer with an appropriate additional quantity of at least 5%, supplied on time and in accordance with the agreement and with the purpose for which those additional materials were obtained. In the event of any failure to satisfy these requirements, the delivery lead time shall extend accordingly, and by at least up to the next capacity window in the COLOP business, and the customer must reimburse COLOP for any damages arising, including damages resulting from interruptions in production, except in cases of force majeure.
9.2. COLOP shall accept no liability or warranty for devices or materials supplied by the customer, nor for any damage or poor compliance associated with the use of such devices or materials.
10. The right of direct delivery in the event of a contractual violation by the customer
10.1. In cases where goods and services that COLOP is contractually obliged to deliver to a given customer 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.
10.2. 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.
11.1 Unless otherwise agreed explicitly, COLOP provides no assurances for the products supplied by COLOP meeting the purpose of the customer nor of their being suitable for the intended form of use of the customer. The naming of a typical application specifically does not mean that a defined product is suitable for this application. Reference is made to Point 2.6.
11.2. Unless otherwise agreed explicitly, COLOP provides no assurance for the products supplied meeting the requirements nor the provisions of a given technical standard such as ÖNORMEN [Austrian standards] or DIN, nor any defined legal standard (e.g. building regulations or trade regulations). The point established here only applies to corporate customers.
11.3. 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 11.3 only applies to corporate customers.
11.4. 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 11.4 only applies to corporate customers.
11.5. 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.
11.6. Unless otherwise agreed, material of average quality grades is used for processing; it is a matter for the customer to specify better materials and processing methods, as well as tighter tolerances, for components subject to particularly high loadings, and where it is deemed necessary to do so.
11.7. 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.
11.8. The warranty period in favour of corporate customers extends for six months from the date of handover.
11.9. The timing of this handover, in the absence of any agreement to the contrary (e.g. in the event of agreement on a formal acceptance procedure), shall be the time of actual handover and/or the time of completion, and at the latest by the point where the customer has assumed jurisdiction over the goods or services, or has declined to accept the handover without providing reasons.
11.10. Investigations into a defect alleged by the customer do not constitute recognition of the defect being alleged by the customer.
11.11. To remedy a defect, COLOP shall be accorded the right by the corporate customer to make at least two attempts.
11.12. 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.
11.13. The corporate customer must always provide evidence that the defect was already present at the time of handover.
11.14. The corporate customer is obliged to examine carefully all goods and services provided by COLOP immediately after the time of handover, and by no later than the time of acceptance testing or handover to the customer. 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.
11.15. 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.
11.16. 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 corporate customer shall meet the full cost for return transport of the defective item to COLOP.
11.17. Customers are obliged to facilitate COLOP with immediate assessment of the defect.
11.18. Warranty cover is excluded if the technical systems of the customer are not in technically optimum and operational condition, or are not compatible with the items supplied, if this circumstance is the cause of the defect.
12.1. 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.
12.2. 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.
12.3. 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. This restriction also applies in relation to the damage to a physical item that COLOP has accepted for processing.
12.4. Except in the case of conflicting provisions in this TCB, all liability of COLOP towards the customer for production downtime, loss of profits, loss of use, contractual impairment or any other form of consequential damage shall be excluded.
12.5. 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.
12.6. 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. The liability waiver also applies to any failure to carry out necessary maintenance, unless COLOP accepted a contractual obligation to perform maintenance work.
12.7. 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).
13. Customer's obligation to cooperate
13.1. The obligation of COLOP to provide a service begins as soon as the customer has established the technical and legal prerequisites for performance described in the contract or prior to conclusion of contract where the information provided to the customer was redrafted, or if the customer should be aware of this on the basis of relevant technical expertise or experience.
13.2. If the customer fails to comply with this obligation to collaborate – only in respect of the resultant incomplete performance of service arising as the result of the customer providing incorrect details - the service rendered by COLOP is then not defective.
13.3. The customer is required at his own expense to obtain the requisite approvals from third parties as well as messages and consents from government bodies.
13.4. It is the responsibility of the customer to ensure that, when the consultancy assignment is carried out at his business premises, the organizational framework conditions allow the consultancy process to be conducted speedily and with a minimum of disruption.
The customer shall inform COLOP in full, also of previously conducted and/or ongoing consultancy sessions - also in relation to other subject areas. The customer shall ensure without having to be specifically requested that all documents necessary for the performance and completion of the consultancy assignment are made available to COLOP, and also that COLOP is kept apprised of all events and circumstances that are of significance to the completion of the consultancy order. This also applies to all documents, events, and circumstances which first become apparent over the course of the work of COLOP.
13.5. For the sake of clarity, it is established that COLOP is not obliged to examine the content or graphic aspects of the specifications produced by the customer, and in particular not the text panels designed by the customer or produced to customer template, and that no such examination is conducted on a regular basis. The customer therefore provides an assurance that the specifications made by him, in particular those designed by him or made available as a template in the form of text panels are entirely compliant with legislation, and in particular to not infringe any applicable law, nor the property rights of third parties (e.g. brand protection) and shall indemnify and hold harmless COLOP in this regard.
14. Intellectual property of COLOP
14.1. The copyrights on works created by COLOP and by its employees and by any third parties engaged by COLOP (in particular bids for tender, reports, analyses, expert opinions, organisational plans, programs, performance reports, drafts, computations, drawings, data carriers) shall remain with COLOP. During and after the contractual relationship, they may only be used for purposes covered in the contract. In this respect, the Client is not authorised to reproduce and/or distribute the work (the works) without the explicit agreement of COLOP. Under no circumstances shall COLOP bear liability for any unauthorised reproduction or dissemination of the work to third parties - in particular in respect of the accuracy of that work.
14.2. 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.
14.3. The customer also undertakes to observe confidentiality towards third parties in respect of the knowledge he acquired during the business relationship.
15. Third party property rights
15.1. The customer is liable to COLOP for ensuring that the goods and services ordered from it are unencumbered by third party property rights. If the customer creates intellectual property or documents and if third party property rights are applied successfully to such creations, COLOP is authorised to cease manufacturing the item being supplied at the risk of the customer until such time as the rights of third parties have been clarified, and to claim for reimbursement of related costs incurred by COLOP, unless such claims are manifestly unjust.
15.2. The customer shall indemnify and hold harmless COLOP in this regard.
15.3. COLOP is entitled to demand from its corporate customers commensurate advance payments towards the cost of any court action that may prove necessary.
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.