GENERAL TERMS AND CONDITIONS OF SERVICE (GTC) for the “PEZ MyHEAD” app

of PEZ International GmbH, Eduard-Haas-Strasse 25, 4050 Traun, Austria, Phone: +43/732/38999-0, Fax: +43/732/389990, Email: MyHEAD-support@pez.at Web: www.pez.at UID ATU63753968,

Domicile: Traun, Commercial Register No. 297904 w/Linz Regional Court

The services offered on the PEZ MyHEAD app are provided in exclusive cooperation with INFABITY Innovation GmbH (hereinafter: “Infabity”), Peter-Behrens-Platz 7, Bau 1 Stiege D, 3rd Floor, 4020 Linz , Phone: +43/732/287070, Email: office@infabity.at, Web: www.infabity.at; Commercial Register No. 515383 t (Linz Regional Court), VAT number: ATU74680525; INFABITY uses 3-D printing to produce personalised PEZ heads ordered in the PEZ MyHEAD app and handles the associated ordering process in the app, product assembly and packaging, invoicing and delivery of the product.

 

1. General

Any and all of our distance sale transactions between the online store operated by PEZ (hereinafter: “PEZ”) in cooperation with INFABITY Innovation GmbH (hereinafter: “INFABITY”) conducted in the app PEZ MyHEAD (available from the Apple App Store) as the first party and the purchaser(s) of products (hereinafter: “Customer(s)”) as the second party and the full scope of any and all present and future legal relationships between us and our customers (parties placing orders within the PEZ MyHEAD app) are governed solely and exclusively by these General Terms and Conditions of Service for Distance Selling (GTC) as most recently revised and by the terms and conditions for delivery and shipping costs that represent an integral part of these GTC and can be viewed daily in the PEZ MyHEAD app (hereinafter also referred to as the “App”) under the menu item “Shipping”. Any and all deviating agreements concluded for a specific case are binding solely if and when we have expressly confirmed said agreements in writing. Deviating terms and conditions of our partners are not binding even if and when we do not expressly object to their application in specific cases. The Customer’s placement of an order represents simultaneously the acceptance of the exclusive applicability of our GTC.

Customers are consumers within the sense of the Consumer Protection Act [Konsumentenschutzgesetz; KSchG].

If you have any questions or complaints, please contact: MyHEAD-support@pez.at

 

2. Conclusion of contract

2.1. Our PEZ MyHEAD app and the opportunity to submit purchase offers contained therein are directed at Customers in the countries listed in the web shop. The contract languages are German and English.

2.2. The presentation of the products in the PEZ MyHEAD app does not represent a legally binding offer; it is solely a non-binding online catalogue. Any and all of our offers, price lists, cost estimates and delivery dates as well as descriptions of the products or services that we will deliver, including in particular technical information, are non-binding. We are entitled to make partial deliveries if doing so is reasonable for the Customer, in which case we will bear any and all additional shipping costs incurred as a consequence.

2.3. The Customer's order — possible solely from the PEZ MyHEAD app — is a binding offer to conclude a purchase contract subject to the prices and terms and conditions most recently announced in the PEZ MyHEAD app.

The ordering process can be completed online using the shopping cart system. You, the Customer, can first place our products into the cart without incurring any obligation and correct your entries at any time using the correction tools provided and explained during the ordering process before submitting your binding order. Clicking the order button and submitting an advance payment constitutes a binding order of the products contained in the cart.

2.5. We save the contract text (order and order confirmation) on our systems, but this information is not accessible to you. However, you have the option of viewing your recent orders in your app user account (non-anonymised). If you have set up an app user account before submitting your order, the order data will be stored in these account screens and can be accessed via the password-protected app user account by entering your login data. The full contract text is not available in the customer account, but these GTC are.

Using this function requires the creation of an app user account that has been created with the same email address with which the purchase was made. App user account details: See: Privacy policy

You covenant to treat the personal login data confidentially and not to make them accessible to any unauthorised third party. We cannot accept any liability for misused passwords unless we are accountable for the misuse. Please note that you will automatically remain logged in until you log out.

2.6. No binding contract has been concluded until we have accepted your offer, i.e. by issuing the order confirmation. This order confirmation is automatically generated and transmitted after successful payment of the purchase price. Sending a confirmation of order receipt does not constitute a declaration of acceptance and is provided solely for the Customer’s information.

The transaction is generally conducted as an invoice-only process — the fulfilment of the order commences when payment has been received. Shipping and any and all customs duties will be billed separately.

2.7. We are entitled to withdraw from the contract for good cause at any time. This applies in particular if the Customer is in breach of our GTC, if products are not deliverable or in the event of price changes by our suppliers. Good cause for withdrawal from the contract includes as well the suspicion that orders are not in compliance with applicable law, are infringements of third-party rights, are not suitable for minors, are racist, sexist, defamatory, discriminatory or politically extreme or are otherwise counter to the sense and purpose of PEZ or the PEZ MyHEAD app.

2.8. Special requirements:

— Review and protection of personal rights and the protection of minors if and when Customers are not ordering their “own head” (PEZ MyHEAD); subsection 2.10. must be observed!

— Reservation of quantity restrictions for orders per person: for the person’s own head, for heads of other persons and in general, sales or services will be performed solely in quantities customary in a household; no duplication of the products.

— Protection of minors and age requirement for orders: minimum age 16.

— Limitation of orders to the territories of Austria and Germany.

2.9. Order processing and the establishment of contact usually take place via email and automated order processing. Customers shall ensure that the email addresses they have provided for order processing are correct so that any emails sent by the seller can be received at these addresses. In particular, when using SPAM filters, Customers must ensure that any and all emails sent by the seller or by third parties engaged by the seller to process the order can be delivered.

2.10. Manufacture of products according to Customer’s specifications:

• If and when contract provisions obligate the seller to manufacture and deliver the products according to the Customer’s specifications, the Customer shall provide to the seller any and all content required for the manufacture (texts, images or graphics) in the file formats, formatting, image and file sizes specified by the seller and grant to the seller the rights of use required for this purpose. The Customer is solely and exclusively responsible for the procurement and acquisition of rights to any such content. The Customer declares that it is the owner of the right to use the content provided to the seller and accepts responsibility for the correctness of this declaration. In particular, it will ensure that there is no infringement of any third-party rights, in particular, but not limited to, copyrights, trademark rights and personal rights.
• The Customer will indemnify and hold harmless the seller from and against any and all third-party claims that may be asserted against the seller owing to an infringement of such rights arising from the seller’s contractual use of the Customer’s content. The Customer will also assume any and all expenses incurred for any legal defence, including any and all court costs and lawyers’ fees in the statutory amount. The above provision does not apply insofar as the Customer is not accountable for the infringement. If and when third-party claims are asserted, the Customer is obligated to provide to the seller without delay, truthfully and completely any and all information required to review and defend against the claims.
• The seller reserves the right within the sense of subsection 7. to refuse to process any orders if and when the content provided by the Customer for this purpose violates statutory or official prohibitions or is contrary to public morals. The above provision applies in particular to the provision of any and all content that is anti-constitutional, racist, xenophobic, discriminatory or defamatory in nature, harmful to young people and/or that glorifies violence.

 

3. Price, terms and conditions of payment

3.1. The prices stated on the day of order placement in our online shop, including VAT at the rate officially applicable in Austria, will be charged; shipping costs will be billed separately. In accordance with the MOSS regulations, the tax rate applicable in the purchaser’s country will be applied.

3.2. Payment is effected by credit card in accordance with the payment method selected during the ordering process. In the absence of an agreement concerning a different payment method (such as purchase on account), the Customer covenants to pay the purchase price in full upon contract conclusion. Invoices are due and payable immediately in full, precluding the deduction of any expenses or charges. Products are delivered solely after receipt of payment. Payment will not be deemed rendered until we have final, unrestricted right of disposal to the funds. The invoice is sent together with the shipping confirmation as soon as the products have been shipped.

3.3. We are entitled to offset at any time any current and future claims, even if and when said claims are not yet due and payable. The above provision applies in particular, but not exclusively, if and when the Customer is in default of payment.

3.4. If and when multiple payments are due from the Customer, we are entitled to apply any received payments, in whole or in part, to the settlement of specific liabilities.

3.5. The Customer does not have the right to offset or withhold payment (except in the event of our having become insolvent) unless the claim is legally related to our claim or we have recognised the claim or the claim has been finally adjudicated. The Customer is not authorised to assign claims against us to third parties without our express written consent.

 

4. Retention of title, retention rights

4.1. Delivered products remain our property until all of our claims relating to the transaction have been paid (invoice amount plus any interest, charges and expenses) and until all claims arising from the business relationship with the Customer have been paid. It is hereby agreed that if we replace products under warranty, the replaced products become our property without restriction.

4.2. The Customer is not permitted to resell commercially and/or to process further the delivered products.

4.3. If and when the Customer is in default of payment obligations towards us or in breach of any obligation pursuant to contractual provisions regarding the retention of title, any and all outstanding claims will immediately become due and payable in full. In this case, we are entitled to demand surrender of any and all products that are our property without being required to declare withdrawal from the contract; we will collect the products from the Customer’s premises or third-party premises. The Customer in this case waives the right to assert any rights of retention on any grounds. The Customer is obligated to bear any and all costs for repossession of products subject to retention of title or to reimburse any such costs to us. The assertion of retention of title does not in itself constitute withdrawal from the contract.

 

5. Quality of the personalised PEZ heads produced by 3-D printing

Material: Acrylates for printhead light-curing process or multicolour 3-D printing process. This is a UV cross-linking acrylate that is not food-safe so the dispenser head should not come into direct contact with the PEZ sweets.

Caution! The product is a collector’s item not intended for regular food use. The product is fragile and is NOT suitable as a toy for children under the age of 14. Do not expose the product to direct sunlight, moisture or cold as the material is neither UV- nor moisture-resistant. Storage at room temperature is recommended.

 

6. Right of withdrawal and purchase cancellation rights of consumers in distance selling transactions

6.1. Information and form for cancellation of contract: Consumers have the rights to cancel a contract as outlined below. A consumer is any natural person who concludes a transaction for purposes that are not primarily associated with their commercial or self-employed activity: for more information see: Information and form for cancellation of contract.

6.2. NOTE: Preclusion or premature expiration of the right of cancellation and of a right of rescission:

The right of cancellation of a contract cannot be exercised for contracts for the delivery of products that have not been prefabricated and for which the production of the products is dependent on a specific choice or instruction from the consumer or for products that have unambiguously been tailored to meet the consumer’s specific needs. The right of cancellation does not apply to consumers who do not belong to a member state of the European Union at the time of conclusion of the contract and whose sole place of residence and delivery address are outside the European Union at the time of conclusion of the contract.

 

Pursuant to Section 5f KSchG, a right of cancellation does not apply to services whose performance on behalf of the consumer commenced as agreed within the cancellation period nor to products that have been manufactured according to customer specifications, that are clearly tailored to personal needs and that by their nature are not suitable for return.

 

7. Delivery periods and minor changes in performance

7.1. Any delivery dates that we specify or accept do not represent fixed dates. Dates designated as “presumed” are merely estimated dates that are non-binding.

Production and delivery time: approximately three weeks for the Standard version and a maximum of five weeks for the Premium version as orders must be bundled according to order volume for 3-D printing.

Delays may occur if the order volume for the Premium version is high.

If we are unable to deliver within 35 days of the order date, the Customer is entitled to withdraw from the contract. In the event of withdrawal, payments previously effected will be refunded within 30 days, but not before we can dispose of the payment amount.

7.2. Modifications of and deviations from the agreed performance that are minor in nature and objectively justified will be deemed reasonable for the Customer. This applies in particular to deviations related to the product (dimensions, colours, structure etc.).

 

8. Fulfilment, shipping and acceptance

8.1. We ship the products or transfer data solely and exclusively at the Customer’s expense and risk. We deliver to the countries listed in the web shop and bill the shipping costs stated on the PEZ.at website under “Shipping”. Risk passes to the Customer upon delivery of the products to the shipping agent or freight carrier or upon readiness of data for downloading and (in the event of delayed acceptance by our Customer) upon segregation of the products for separate storage.

8.2. Unless otherwise agreed, delivery will be made to the stated Customer address. If a precise shipping address has not been given, the Customer’s address is the valid shipping address. The Customer bears any and all costs resulting from incorrect, incomplete or unclear information it has provided. If the delivery of the products fails for reasons for which the Customer is accountable, the Customer bears any reasonable costs incurred by the seller as a result

8.3. If the Customer is in default of acceptance, we are entitled to store the products and bill the Customer for any storage costs actually incurred. We retain the right to insist on fulfilment of the contract. We are also entitled, however, to withdraw from the contract and/or to claim damages for non-fulfilment if and when a 14-day grace period we have set elapses fruitlessly. If and when we should withdraw from the contract owing to circumstances within the Customer’s sphere of influence, we are entitled to claim either 30 percent of the contractual order value without providing documentation of actual damages incurred or the amount of damages actually incurred. Any purchase price amounts previously transferred will be refunded less costs and damages we have incurred.

8.4. When deliveries are made to countries outside the European Union, additional costs for which the seller is not accountable may be incurred in individual cases; any such costs must be borne by the Customer. Such costs may include (for example) costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Costs of this nature may also be incurred for the transfer of funds if the delivery is not made to a country outside the European Union, but the Customer effects payment from a country outside the European Union.

 

9. COMPLAINTS and returns

Possible complaints about figure printing because of damage (e.g. broken figures, missing parts) occur in practise. In such instances, defective products will be replaced within three weeks or the purchase price will be reimbursed, but a photo of the damaged product must be sent. A complaint based on a representation that is subjectively perceived as not true to detail, but that falls within the scope of artistic freedom, is not possible. The Customer is aware (and we point this out before the conclusion of the contract) that this is a personalised product and that it is made specifically for the Customer. If the Customer is not satisfied with the result (e.g. facial representation does not correspond to reality in the Customer’s view), the only available option is a renewed preparation of the data and production of a new product, whereby a new order must be placed and the costs must be borne by the Customer. The Customer always receives in advance a 3-D preview in the MyHEAD app, which is deemed approved upon conclusion of the purchase. Please note: the reference examples additionally point out the quality differences between the Standard and Premium versions.

 

If the products have been damaged, the Customer may return them to us free of charge within 14 days. You will be deemed in compliance with the deadline if the products are dispatched before expiration of the fourteen-day period. If possible, return the products to us in their original packaging along with all accessories and packaging components. Use protective outer packaging whenever expedient to prevent damage.

 

The products will then either be replaced by new products or the purchase price will be refunded (according to the Customer's request) within fourteen days of the day on which we receive notification of the damage or within seven days of receipt of the returned products.

 

We will use the same method of payment for the reimbursement that you used for the original transaction unless otherwise expressly agreed with you.

 

We may refuse to reimburse the price until we have received the returned products or you have submitted proof that you have dispatched the products, whichever is earlier.

 

We request that you submit any complaints about delivered products with obvious transport damage to the carrier and notify us immediately. The Customer’s failure to do so is without prejudice to the statutory or contractual claims for defects. If the Customer returns the products freight collect because of a complaint, we will bear the freight costs incurred within the 14 days and/or also the costs for the second delivery.

 

10. Warranty and liability

10.1. Any and all advisories/instructions appearing on packaging and inserts must be observed. No liability is assumed for use and/or handling contrary to this information.

10.2. A warranty is given in accordance with statutory regulations. Any such regulations notwithstanding, our liability for slight negligence is precluded. The above provision does not apply to personal injury.

10.3. Compensation for subsequent loss or harm caused by a defect as well as any other loss or harm such as in particular pecuniary loss and loss of profit is precluded insofar as legally permissible.

10.4. Any and all recourse claims within the scope of section 12 Product Liability Act [Produkthaftungsgesetz; PHG] are precluded unless the person entitled to recourse demonstrates that the defect occurred within our sphere of influence and is therefore a consequence of gross negligence.

10.5. We are liable for data loss solely if and when the Customer has verifiably backed up the data regularly (at least once daily). Liability is otherwise precluded with the exception of cases of wilful intent and gross negligence.

 

11. Proper law, venue, place of performance, miscellaneous

11.1. The contractual relationship is governed solely and exclusively by the laws of Austria, precluding the application of any conflict of laws conventions and the UN Convention on the International Sale of Goods (CISG). For consumers, this determination of proper law applies solely insofar as it is not contravened by mandatory provisions of the laws of the state in which the consumer has his/her habitual residence.

11.2. Any legal disputes arising directly or indirectly between us and a business customer will be adjudicated solely by the competent court for the venue A-4020 Linz.

11.3. Should one or more provisions of these General Terms and Conditions be or become invalid and/or incomplete, they will be replaced by legally valid provisions that come closest to fulfilling the commercial intent of the invalid provisions. The invalidity or incompleteness of a provision is without prejudice to the validity of the remaining provisions or of the contract as a whole.

11.4. The Customer is in agreement that we may at our discretion serve documents, including legally relevant declarations and invoices, by electronic means (e.g. via our website or email). The Customer expressly waives the right to service in paper form. The service of documents in paper form in specific cases (whether once or multiple times) is without prejudice to the above agreement. We attach electronic signatures to such notifications solely when expressly obligated by law to do so.

11.5. We may in any case send legally significant declarations to the Customer at the address most recently provided by the Customer; they will be deemed received by the Customer unless the Customer has notified us of a change of address. The above provision also applies in particular to the provided email addresses.

11.6. Dispute resolution: The European Commission provides a platform for online dispute resolution that you can access at this site: ec.europa.eu/consumers/odr/. This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts involving a consumer. We are neither obligated nor willing to participate in a dispute resolution procedure involving a consumer arbitration board.

 

12. Privacy

12.1. The Customer consents to the processing and use of his/her personal data, in particular name, photograph, date of birth, address, email address, telephone number and the data of the business relationship for the purposes of contract processing and marketing.

12.2. You can view our Privacy Policy by clicking on  the following link: PEZ MyHEAD App Data Protection

12.3. The Customer is not authorised to use the content, graphics, source texts, offers, price information, logos, corporate logotypes, trademarks, intellectual property rights or any other content of the PEZ MyHEAD app. Use of the PEZ website is at the visitor’s own risk.

 

13. Deviation from international standards:

Please note that a manufacturer’s warranty may not cover products shipped internationally, that instructions for use, safety warnings and product declarations may possibly not be printed in the language of the country of destination and that the products (and their accessories) have not been designed to meet the applicable standards, specifications or labelling requirements in the country of destination.

 

You are solely responsible for ensuring that the product can be legally imported into the country of destination. Any party placing and receiving an order is deemed the importer and must ensure compliance with all laws and regulations of the country of destination.

 

 

                                                                                                                               Last revised: February 2023