5. Warranty and liability
5.1 The warranty period shall be (concerning the use of the App, as well as all contracts regarding the use or purchase of the stamp) twelve months from the delivery (performance). The previously mentioned period does also apply with respect to non-obvious defects, based on the assurance of special properties. This clause only applies to Entrepreneur-Customers.
5.2 With respect to any alleged defect (concerning the use of the App, as well as all contracts regarding the use or purchase of the stamp), the customer has to proof that the defect existed at the time of conveyance. Section 924 of the Austrian Civil Law Code shall be excluded. This clause only applies to Entrepreneur-Customers.
5.3 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. If a complaint of defect proved unjustified, COLOP is entitled to demand compensation from the customer for the expenses incurred. This clause only applies to Entrepreneur-Customers, but also for the delivery of intangible objects.
5.4 If a defect appears (or is discovered) within the warranty period, COLOP may choose to either deliver a substitute or correct the defect. If the delivery of the substitute or the correction of the defect fails within a reasonable period of time or is unacceptable, the contractual partner shall – in accordance with the statutory provisions – be entitled to lessen the purchase or to rescind from the contract. This clause only applies to Entrepreneur-Customers, but also for the delivery of intangible objects.
5.5 In the case of a merely insignificant reduction in the suitability for contractual use, there are no claims for defects in the contractual service. This clause only applies to Entrepreneur-Customers, but also concerning to all contracts regarding to the use or purchase of the stamp.
5.6 All and any warranty claims are (with regard to the use of the App, but also with regard to all contracts concerning the use or purchase of the stamp) excluded, if and insofar the defect is based on improper use, in particular the use of unauthorised consumable materials or wear- or spare parts, use of consumable materials after the expiry date has been reached, improper operation or handling with the hard- or software or an unauthorised change or handling of the hard- or software or lack of compatibility or performance of non-authorised third party hard- and/or software. In order to maintain warranty claims on consumable materials purchased from COLOP, the customer shall not to mix, blend, process or otherwise change them with materials of any other kind.
5.7 We accept no responsibility for defects caused by errors, failures or damages that are due to improper use or that could have been avoided by duly studying and observing the operating instructions, that are supplied with the stamp or that occur by an application outside of the application limits.
5.8 Entrepreneur-Customers must prove the fault of COLOP or her subsidiaries. Section 1298 of the Austrian General Civil Code is expressly excluded.
5.9 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.
5.10 The limitation periods of Section 1489 of the Austrian General Civil Code with respect to the use of the App, but also with respect to all contracts regarding the use or purchase of the stamp 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 three years running from the date the contract has been concluded.
5.11 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.
5.12 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) for a standstill in production, lost profits, loss of use, loss of contract or any other consequential damage shall be excluded.
5.13 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).
5.14 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).