Version dated 1.10.2015
General Terms and Conditions for the Online Shop of Trotec Laser GmbH
1.1 All deliveries, services and offers in the Online Shop of Trotec Laser GmbH (”TROTEC”, “Online Shop”) with respect to the visitor ("Customer") shall be exclusively based on these General Terms and Conditions ("Terms").
1.2 The Online Shop is aimed exclusively at entrepreneurs. Use of Online Shops by consumers is expressly prohibited.
1.3 By submitting his contractual acceptance (see Point 3), the Customer accepts these Terms. Concluding contracts shall only be possible based on these Terms. Diverging, conflicting, restricting or supplementary Terms and regulations of the Customer must be expressly accepted by TROTEC in order to become part of the contract on a case-by-case basis. In particular, acts to fulfill the contract on the part of TROTEC shall not be deemed to be consent to any conditions deviating from these Terms.
1.4 In the case of several contract completions that do not fall on the same date, the valid version of the Terms published by TROTEC and entered into at the time of the submission of the contract declaration (see Point 3) by the Customer shall be the one that is a component of the contract. Several contracts entered into with a specific Customer without express written master agreement shall establish neither a continuing obligation nor a right to renewed conclusion of a purchase agreement.
1.5 TROTEC expressly reserves the right to unilaterally change the Terms for the future at any time. The currently valid version of the Terms shall be made available to the Customer in the ordering process and apply to the new order. The Customer accepts the Terms in the current version by accepting the contract.
2 Components of the Contract
2.1 Unless otherwise agreed in writing, the content of the contract with the Customer shall be based on the following contract components:
2.1.1 Customer Order;
2.1.2 Price Provisions;
2.1.3 Service Description;
2.1.4 Terms of Warranty;
2.1.5 These Terms.
2.2 The contract elements supplement each other. In the event of objections, the provision in Point 2.1 that is first stated shall have precedence.
3 Conclusion of Contract
3.1 Presentation of TROTEC products in the Online Shop shall not be an offer in the legal sense. The offer on the part of the Customer shall respectively occur on the basis of Point 3.2.
3.2 In the Online Shop, the offer of the Customer shall take place by ordering the article. To do this, the Customer clicks on the button “Add to Cart" after selection of the goods concerned. After clicking on the shopping cart, the Customer can register, sign-in, or use the order function for unregistered Customers (see Point 4). If the information is not pre-stored on the basis of Customer registration, the Customer will be presented an overview of the order after entering the invoice address, delivery address, shipping method and payment information. The offer of the Customer shall be binding for him by clicking the button “buy now”. A separate confirmation of receipt of his order shall be sent after receipt of his order by TROTEC. This confirmation still does not represent acceptance of the offer. TROTEC’s acceptance shall only occur with a separately sent order confirmation in writing or by delivery of the ordered good(s).
3.3 TROTEC shall also have the right to only partially accept orders or to refuse them without stating reasons at its own discretion.
3.4 TROTEC shall be entitled to make the acceptance of an order contingent upon providing collateral or advance payment (e.g., deposit, down payment, bank guarantee).
3.5 TROTEC further shall have the right, at any time after acceptance of the order, to refuse the agreed service or delivery or to make it contingent upon providing collateral or advance payment if the Customer is getting into default with its payment or if TROTEC becomes aware of circumstances regarding the financial situation of the Customer, through which fulfillment of its claims appear not to be secure or are insufficiently secure.
4 Registration on the Website, Website Access
4.1 The Customer may register in the Online Shop or use the possibility of ordering for unregistered Customers.
4.2 Regardless of whether the Customer registers or not, he shall be obligated to provide his information completely and correctly and to keep it current at all times. The Customer shall be liable to TROTEC for all damages caused by false information or neglect of its updating.
4.3 Unless otherwise agreed, communication with the Customer shall occur using the last email address provided by the Customer. Emails to this address therefore - independent of actual knowledge by the Customer - are always deemed to have been received and are thus effective.
4.4 After TROTEC receives the registration, the Customer is sent a password to the email address provided by him at the time of registration. With the password, the Customer can log in on the website and place orders. TROTEC reserves the right to refuse or revoke an application to register or to refuse or revoke an existing registration without stating a reason. However, in the event of revocation, it has no effect on contracts already entered into but not yet completely settled. These must be fulfilled by both parties.
4.5 The Customer shall be responsible for maintaining the confidentiality of the password. TROTEC can only check whether a password matches a properly activated Customer authorization. Any further obligation to check does not exist for TROTEC. Any person who logs in with an activated client authorization that is on the website, and who logs in with the matching password, is considered to be authorized to place legally valid orders for the registered Customer. The Customer shall hold TROTEC harmless regarding all damages arising from failure to keep the password confidential.
4.6 TROTEC shall not be liable for uninterrupted function of the website. TROTAC has the right, even without prior announcement, to conduct work on the website which requires shutting down/interruption. TROTEC shall also not be obligated to provide a certain server capacity, so congestion and longer response times must be expected.
4.7 TROTEC may provide other information which does not concern the concrete contractual content of the order in the Online Shop (e.g., news articles, product instructions, etc.) - until further notice - free of charge. TROTEC has created the content of the website with utmost care. However, with regard to the free provision of information, the abundance of the data, as well as the existing security risks on the Internet, it is impossible to entirely avoid errors, violations of the law by third parties or mistakes. It therefore cannot be excluded that individual information is not up-to-date, complete or correct. TROTEC can therefore not assume liability – also with regard to providing the website free of charge - for its being up-to-date, or for the completeness and accuracy of its content provided online. If the client encounters an error, he can report it to firstname.lastname@example.org. TROTEC will endeavor to rectify it as soon as possible.
4.8 TROTEC cannot guarantee trouble-free availability of the Online Shop or specific server capacities. Temporary connection interruptions are therefore to be expected. TROTEC reserves the right to carry out maintenance work at any time. TROTEC may at any time also temporarily or indefinitely expand the information and services offered on the website - also without prior notice - as well as completely or partially cease providing these.
4.9 TROTEC points out that it has no influence on the content and design of any linked internet offers. Regarding the content of any linked website, the respective provider or operator of that website is liable. TROTEC does not adopt the content of linked websites. Accordingly, TROTEC does not assume liability for the content, accuracy, completeness and topicality of the linked internet offers on the website.
5.1 Prices are net prices from the main office of TROTEC at Linzer Strasse 156, A-4600 Wels, Austria. The Online Shop prices are applicable. The prices include packing and shipping unless otherwise designated. Other costs, such as costs for special packaging, additional costs for individual shipments, freight, etc., shall be borne by the Customer. The Customer shall also be responsible for any duties, sales taxes, border taxes, etc., namely also when the order for shipping is made in some cases by TROTEC.
6 On-call Orders
6.1 For on-call orders, TROTEC shall have the right to acquire the material for the entire order and to immediately manufacture the entire order quantity. Any changes requested by the Customer can therefore not be considered after placement of the order, unless this is still logistically possible on a case-by-case basis. In addition, TROTEC shall have the right to set on-call placed orders which have not been requested in a timely manner as immediately due and payable after setting a final deadline of 14 days. On-call orders are deemed as requested not later than one year after the date of the order confirmation.
7.1 All payments shall be made using bank transfer or - if provided for certain products - with credit card. Any expenses shall be borne by the Customer. If no advance payment has been agreed, or the parties have agreed to other terms of payment in writing, a payment term of seven days from the invoice date without deduction shall be deemed to be agreed.
7.2 The right to assert counterclaims by set-off or through the exercise of rights of retention by the Customer shall be excluded, unless the counterclaim is legally established or expressly acknowledged by TROTEC in writing.
7.3 Payments can only be made with discharging effect to the bank account of TROTEC.
7.4 Payments shall always be applied first to the costs (reminder costs, process costs, etc.), then to interest and lastly to the principal and to the oldest debt. Instructions by the Customer to the contrary shall be invalid. If installment payments are agreed to, in the event of non-payment of only one installment, the entire amount still open shall be due and payable (default). Checks and bills of exchange shall only be accepted after special written agreement and only pending full discharge of the debt, though not in lieu of payment. Checks and bills of exchange are deemed as payment only after final and irrevocable redemption, namely for the value under which they were credited for TROTEC by the bank. TROTEC may refuse payment offered in checks or bills of exchange without stating reasons.
7.5 In the event of exceeding a deadline for payment, the Customer shall be in default without the need for a special notification by TROTEC. In this case, TROTEC shall have the right at any time to suspend all agreed payment deadlines - also for any ongoing acceptances - and to set the claim as immediately due and payable (default).
7.6 If not expressly otherwise agreed to in writing, the Customer shall pay default interest on amounts due at the rate of 9.2% above the base interest rate, but not less than 12% p.a..
7.7 The Customer shall be obligated to pay TROTEC all actually incurred necessary reminder and collection fees for appropriate legal action, in particular costs of any collection agency services used that are based on the respectively valid regulations for maximum fees in collections, as well as attorney’s fees pursuant to the Law on Attorney’s Fees.
8 Delivery Period, Acceptance Default
8.1 Delivery periods and delivery dates shall always be subject to change due to possible bottlenecks of production capacities or by suppliers, except in the event of written agreement. Fixed delivery dates or deadlines shall require written form to be binding.
8.2 A delivery deadline agreed to in writing commences with the date of the order confirmation by TROTEC. If such does not occur, then the date on which TROTEC accepts the order applies. The obligation to comply with the delivery date by TROTEC presupposes that all commercial and technical questions between TROTEC and the Customer have been clarified and the Customer has fulfilled all obligations, such as, for example, providing the necessary official certificates or permits or making a down payment. If this is not the case, the delivery time shall reasonably be extended to include a reasonable start-time for the resumption of activities by TROTEC. This does not apply if TROTEC is responsible for the delay.
8.3 The delivery time shall be suspended at least until clarification of all details of the execution or until the receipt of the correct primary materials in the event of processing measures to be carried out by TROTEC.
8.4 The delivery time shall be considered as fulfilled with timely notification of readiness for dispatch. Dispatch-ready goods must be picked up immediately. If the goods cannot be shipped on a timely basis in the event of agreed shipping without culpability of TROTEC, the delivery times shall be deemed to be fulfilled with notification of shipping readiness. If an acceptance of delivery was separately agreed to, the delivery acceptance date shall be decisive - except in the case of justified refusal to accept.
8.5 TROTEC shall be entitled to partial and advance deliveries. An apparently justified declaration of cancellation on the part of the Customer, after imposing a grace period, remains without effect on partial and advance deliveries already carried out.
8.6 If shipment or acceptance of the delivery item is delayed for reasons for which the Customer is culpable, costs resulting from the delay shall be billed starting with notification of readiness to ship or accept delivery.
8.7 Unforeseen obstacles such as force majeure, labor disputes, or other events which are beyond the control of TROTEC or its suppliers and which render it impossible to implement the assumed orders in a timely manner, authorize TROTEC, under exclusion of all claims for damages for compensation (also for consequential damages) of the Customer, to wholly or partially withdraw from the contract or to postpone the delivery for the duration of the hindrance to include a reasonable time to start up. TROTEC shall inform the Customer of the beginning and end of such circumstances.
8.8 In the event of delay in delivery, the buyer may also withdraw from the contract after a fruitlessly expired extension deadline within the scope of the statutory provisions.
8.9 If the buyer is in default of acceptance or it violates its duties to cooperate, TROTEC shall be entitled to demand compensation for damages incurred by TROTEC, including possible additional expenses and possible loss of profit.
9 Place of Performance and Passing of Risk
9.1 Place of performance for all deliveries shall be the production facility of TROTEC at Linzer Straße 156, A-4600 Wels, Austria.
9.2 The risk of accidental loss and accidental deterioration transfers to the buyer upon surrender to the transport company or freight carrier. This shall also apply when sending by mail was agreed to as well as in the event of partial deliveries. The incoterms 2010 clause “ex works” applies.
9.3 In the event of delivery or acceptance delays that occur due to circumstances for which the Customer is culpable, all risks, including those of accidental loss, transfer to the Customer, in deviation from Point 9.2, at the time of notification of shipping or delivery acceptance readiness by TROTEC.
9.4 Insuring the deliveries shall only occur upon written request of the Customer and in his name and on his account.
10 Shipment to a Third Party
10.1 If the Customer desires that the concerned delivery or parts thereof be delivered and invoiced to a third party (such as subsidiaries of the Customer, distributors, etc.) as part of an order placed by him, the Customer shall be jointly liable along with the third party, or jointly and severally, and nevertheless furthermore as party to the contract. TROTEC shall also be entitled to separately bill additional costs incurred by this, e.g., for packing and shipping.
11.1 The Customer shall be obligated to check the delivered merchandise after receipt for completeness, correctness and other lack of defects, in particular the intactness of the packaging. In the event of defects, he must submit his complaint per email to email@example.com within a reasonable period of time, at the latest however seven calendar days after receipt of the merchandise. If the entrepreneur did not submit his complaint within the complaint time period, the delivery shall be deemed accepted and thus all claims, e.g., warranty, avoidance on account of mistake or compensation for damages due to a later alleged error or defect (§377 of the Austrian Corporate Code [UGB = Unternehmensgesetzbuch]) shall be eliminated. This shall also apply regarding any wrong deliveries or deviations in the delivery quantity.
11.2 In the event of a complaint submission, the Customer shall be obligated to properly store the faulty delivery items and keep them available until clarification of the matter. A return delivery of the faulty delivery goods may only be implemented after consultation with TROTEC at the cost and risk of the Customer. If the complaint is justified, the costs shall be reimbursed by TROTEC.
11.3 TROTEC shall have the obligation of the exclusive choice of legal relief for the removal of a timely contested defect.
11.4 Defects of a part of the delivery (order) shall not create a right to claims of defect-free parts of the shipment.
11.5 TROTEC shall not be liable for defects and the absence of warranted qualities if the cause for this lies in the material provided to TROTEC by the one placing the order. Likewise, and this is always the case in this instance, when no original parts were used by TROTEC, compensation for damages of any kind shall be excluded.
11.6 The warranty period ends - also in case of hidden defects - beginning with the handling process or processing. For every type of delivery, claims are statute-barred by time limitation for defects - independent of the legal ground on which it is based (in particular warranty, compensation for damages, special right to recourse) - however no later than three months after receipt of the goods. The statutory presumption of defectiveness of §924 of the General Austrian Civil Code (ABGB = Allgemeines Buergerliches Gesetzbuch) shall be barred.
11.7 Remedy of a defect shall not lead to an extension of the original, or start of a new, warranty period.
11.8 Product images on the website may differ due to resolution and size and especially due to the appearance and qualities of the Customer’s monitor with regard to color and size of the appearance of the delivered products. The delivered goods shall be considered to be in accordance with the contract if the delivered items meet the other product specifications.
11.9 Justified complaints shall not entitle Customers to withhold the entire invoice amount, but only a reasonable part thereof.
12 Retention of Title
12.1 All delivered goods shall remain property of TROTEC (goods subject to retention of title) until full payment of the claims corresponding to this delivery, as well as all other claims including interest and costs from the business relationship between the Customer and TROTEC. The claims of the Customer from the resale of goods subject to retention of title shall be hereby assigned to TROTEC in lieu of payment up to the amount of the purchase price claim to which TROTEC is entitled, including interest and costs. The Customer shall note this assignment in his books in a way which fulfills all legal requirements, though he shall remain entitled to collect as long as he is not in arrears with TROTEC. TROTEC shall be entitled to inform the buyers of the Customer about the assignment. The Customer must give TROTEC all documents and information required to assert TROTEC’s claims. If such an assigned invoice amount reaches a third party, the Customer shall be obligated to demand return of this amount form the third party and to pay it to TROTEC. In the event of accesses by a third party to goods subject to retention of title, the Customer shall also point out that this concerns property of TROTEC and notify TROTEC immediately. Pledging or transferring of goods as security regarding merchandise delivered by TROTEC or an assignment of the receivables from the resale of this merchandise shall not be permitted.
12.2 There shall be consensus that TROTEC acquires a contractual lien on the material provided by the Customer for the handling process and processing and thus that TROTEC attains direct or indirect possession. This lien shall apply to all of TROTEC’s claims against the Customer. The lien shall also extend to future and conditional claims and lapses as soon as the material moves from direct or indirect possession of TROTEC through its actions. For use of the lien, the statutory provisions shall apply with the stipulation that the value of the lien shall be established with binding effect by an expert appraiser to be assigned by TROTEC.
12.3 In the event of processing, combining or mixing of TROTEC goods with other material, TROTEC shall acquire co-ownership of the resulting product in relation to the value of the TROTEC goods to the other material. Retention of title shall extend to the new product. The Customer shall in this case be deemed to be depositary. All claims arising from the sale of goods where TROTEC shall be entitled to property rights are now assigned by the Customer - where appropriate, in the amount of the co-ownership share of TROTEC - to provide security for TROTEC and the Customer shall note this assignment in accordance with case law in his records.
12.4 The Customer shall be obligated to handle the goods with care for the duration of the retention of title. He shall immediately inform TROTEC of all access by third parties to the goods, in particular regarding enforcement measures, as well as damages or destruction of the goods. The Customer shall compensate TROTEC for all damages and costs, in the event of culpability, resulting from a violation of these obligations and by necessary intervention measures against access by third parties to the goods.
13 Compensation Claims for Damages
13.1 Compensation claims for damages by the Customer, for whatever legal reason, in particular due to production losses, downtimes, delay, impossibility of performance, breach of an obligation, violation of any precontractual obligations (culpa in contrahendo), consequential damages or defects, or due to tortious acts shall be excluded, unless the Customer proves at least gross negligent damage causation by TROTEC. TROTEC shall not be liable to third parties as well as for consequential damages. This limitation of liability shall not apply to damages resulting from the loss of life, bodily injury or damage to the health of people or to claims under the Product Liability Law (Produkthaftungsgesetz).
13.2 Customers must assert claims for damages within one year from the transfer of risk. The provisions contained in these Terms, or other provisions agreed to, regarding compensation for damages also apply when the compensation claim for damages is asserted along with or instead of a warranty claim.
13.3 TROTEC’s products are not suitable for application in the medical field. TROTEC shall not assume liability for any damages incurred due to an application of the products in the medical field.
13.4 Should products from TROTEC expressly be provided for the manufacture or processing of medical products (stent laser cutting SCS for the manufacture of stents), the Customer shall then be obligated to take these products through an extensive quality control and check in particular to also check and validate markings on devices and implants prior to their use in the medical field, and to exclude any long-term damage due to corrosion, breaking points, etc. TROTEC shall not assume liability for these long term damages, as well as for any damages that occur due to defectiveness of the products.
14 Privacy Protection
14.1 Personal data provided to TROTEC by the Customer within the context of the business relationship, such as name, address, e-mail, telephone number and shipping address, shall be stored and processed by TROTEC. TROTEC shall use the information within the framework of the statutory authorization to execute the order. The Customer expressly consents to storage and processing by TROTEC of his personal information (such as name, address, e-mail, telephone number and shipping address) revealed by him in the course of concluding the contract for TROTEC’s own marketing purposes and therefore in particular to receiving electronic messages by SMS and e-mail in accordance with § 107 of the Austrian Telecommunications Act (TKG = Telekommikationsgesetz) for promotional purposes. Further transfer of personal information to third parties shall not take place. Both consents may be revoked at any time - also separate from one another - (e.g., by a mail to firstname.lastname@example.org). The right to process data for the performance of the contract shall remain unaffected.
15.1 All primary materials supplied to TROTEC by the Customer or on his behalf for processing and handling or for finishing shall be made available pursuant to Incoterms 2000 “DDP Wels” (free domicile TROTEC, duty paid, taxed).
15.2 In the event of the delivery or sale to third parties of the goods provided by TROTEC, the Customer shall be obligated to inform the purchaser about the proper use or handling of the goods.
15.3 The Customer shall not be entitled to use the company name or a part of the company name of TROTEC or any other reference to the company name of TROTEC on his products, announcements, advertising and business material, etc., without the express written authorization of TROTEC.
15.4 The Customer shall on no account be entitled to assign to third parties any claim to which the Customer is entitled against TROTEC.
15.5 Austrian law shall apply under exclusion of the UN Law on the Sale of Goods and under exclusion of the conflict of law rules of Austrian private international law. In the event of disputes, the Customer and TROTEC shall submit only to the venue of the court in Wels having jurisdiction over the subject matter and waive the right, if need be, to another competent jurisdiction.
15.6 Any additional agreements or information and complaints - unless governed to the contrary - shall be made in writing and can only be accepted as proper by TROTEC if they are sent to TROTEC Produktions und Vertriebs GmbH, Linzer Strasse 156, A-4600 Wels, Austria, Attn: “Customer Service”. This alone shall be deemed to be the address for service for TROTEC with a corresponding legal effect.
15.7 The above provisions shall also apply to deliveries and services other than the goods pursuant to the contract.
15.8 TROTEC’s previous General Terms and Conditions of Sale and Delivery are hereby rescinded.
15.9 If any provision of these General Terms and Conditions is void, in whole or in part, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The wholly or partly ineffective regulation shall be replaced exclusively for contracts with entrepreneurs by a regulation which comes closest to the meaning and purpose of the void provision.