General terms and conditions (GTC) of the sole proprietor Christian Mario Brand for the online shop www.cmv-werkzeuge.com
(valid from 24.11.2017)
1. Area of application
1.1. The existing general terms and conditions of the sole proprietor Christian Mario Brand, Trattenstr. 42a, A-9470 St. Paul (subsequently called “seller”) apply to all contracts concluded by the distant selling method, between the customer and the seller, concerning the represented products of the seller in the online shop. The inclusion of opposed or additional terms of the customer will not be accepted. Such terms are only valid if the single case is explicitly acknowledged in written form. Contract fulfilment of the seller does not count as approval to the deviated terms of these GTC.
1.2. Deviated informal agreements of these GTC before conclusion of a contract and modification or amendment of single regulations, as well as side agreements or special agreements after conclusion of a contract require written text for validity and are only valid for the single case. This also applies to a possible cancellation of this clause.
1.3. Customers as defined by numeral 1.1. are consumers subject to the Consumer Protection Act. A consumer is therefore any natural person, who concludes legal transaction for a purpose which can neither be attributed to his/her commercial nor self-employed occupational activity, or which serves as affiliation of his/her business for the establishment of conditions. Legal persons of private law who do not perform economic activity, are also subject to the definition of consumers.
2. Contracting partner
The purchase contract is concluded with Christian Mario Brand, Trattenstr. 42a, A-9470 St. Paul.
3. Products, offers and contract conclusion, minimum order value
3.1. The seller trades with nutrition for the outdoor area, as well as for long-term storage.
3.2. The seller points out that the pictured products in the catalogues or online shop may differ from the actual appearance of the products (symbolic pictures)
3.3. The minimum order value is € 0.00 worth of goods (including VAT)
3.4. Contract conclusion
The product presentation contained in the seller’s online shop does not represent a legal obligatory contract offer on the part of the seller, but rather a non-committal demand to the customer to emit a legal binding sale offer. The seller will immediately electronically confirm the receipt of the customer’s order. This does not represent the acceptance of the customer’s offer to buy.
If the seller can not process the order because the goods are not available, or if he does not accept the customer’s offer, he must notify the customer immediately per email, at the longest within 4 workdays after receiving the order. The seller has the right to refuse the acceptance of an order – also regarding individual not associated products.
After this deadline has elapsed or if the ordered goods are transmitted within this deadline the offer of contract is accepted and the purchase contract in bindingly concluded. Separate confirmation of the order before delivery of the goods in not intended.
3.5. Order transaction
3.5.1. The customer can emit a purchase order regarding the offered products in the seller’s online shop by using the integrated online order form in the online shop.
3.5.2. By clicking on the product category, the customer is transferred to the presentation of the products of the chosen category. The product choice is made by clicking on the button “Add to cart” at the chosen product. The customer then has the possibility to continue the ordering process by clicking on the button “Return to shop”, respectively by clicking on the button “Check out”. By clicking on the cart symbol in the upper right hand corner of the order page, the customer has access at all times to the choice of products and can delete any of the chosen products, or change the chosen amount.
After registration or logging into an existing registered account, or by submitting the billing and delivery data by a guest purchaser, choosing the desired mode of payment al well as a declaration to accept the GTC, the customer is transferred to an order summary. Here, once again the customer has the possibility to change the amount of the products, or to remove a certain product from the cart. In the last step of the ordering process the customer clicks on the button “Commit to buy” to send a legal binding contract offer regarding the goods contained in the cart. As soon as the ordering process is completed, the customer will be notified by an information window. This does not represent the acceptance of the customer’s offer by the seller.
3.6. The order processing and contacting are predominantly made by email and automated order processing. The customer must ensure that the submitted email address is correct, so that he can receive emails from the seller referring to the order processing at this address. Particularly when using SPAM filters, the customer has to make sure that emails sent by the seller can be forwarded.
3.8. Conclusion of contract for delivery of distant selling goods without involvement of the online shop.
3.8.1. The customer can make a legal binding offer by telephone or in writing by email or letter.
3.8.2. If the seller can not process the order because the goods are not available, or if he does not accept the customer’s offer, he must notify the customer immediately per email, at the longest within 4 workdays after receiving the order. The seller has the right to refuse the acceptance of an order – also regarding individual not associated products. After this deadline has elapsed or if the ordered goods are transmitted within this deadline the offer of contract is accepted and the purchase contract in bindingly concluded. Separate confirmation of the order before delivery of the goods in not intended.
3.8.3. The customer must ensure that the consequentially submitted email address is correct, so that he can receive emails from the seller referring to the order processing at this address. Particularly when using SPAM filters, the customer has to make sure that emails sent by the seller can be forwarded.
Right of withdrawal / Right of Rescission
You have the right to cancel this contract within fourteen days, without any declaration of reasons.
The revocation period is fourteen days from the day on, on which you or a person of your choice who is not the carrier of the goods have taken the goods over.
To carry out your right of rescission it is necessary to inform
Christian Mario Brand
A-9470 St. Paul
Tel.: +43 4357 3988
Fax: +43 4357 3989
by making a clear statement (e.g. a letter sent by post or an email) to your decision to cancel this contract. For this you may optionally use the attached revocation form.
For adherence of the revocation period it is sufficient to give written notice about the exertion of your right of rescission, which must be sent off before expiration of the right of rescission.
Consequences of revocation
If you cancel the contract, we are immediately to refund all payments we have received from you, including delivery costs (with the exception of additional costs arising from your choice for a different form of delivery than we offer, which is the lowest priced standard delivery), within fourteen days at the latest from the day on which we receive your notification about the revocation of the contract. For this refund we will use the same means of payment as you used for the original transaction, unless another explicit agreement has been met with you; in no case will we charge a refunding fee. We can refuse a refund until we have received the goods back or until you prove the goods have been returned, depending on which incident happens first.
The goods must be returned immediately (personally or by post), at the latest within fourteen days from the day on, on which you inform us of your revocation of the contract. The deadline is warranted if you send the goods back within fourteen days. You bear the direct costs for the returning of the goods. If the goods are not sent back prepaid we are entitled to deduct the equivalent sum or respectively to invoice the sum.
You only have to pay for a possible loss in value of the goods when this loss of value results from unnecessary handling when checking quality, characteristics and functionality of the goods.
Exclusion from right of withdrawal / right of rescission
There is no right of withdrawal/right of rescission for contracts referring to goods which are delivered sealed up and are not returnable for reasons of health protection or for hygienic reasons, providing the seal was removed after delivery.
Please note that the following information is not prior condition for the effective practice of right of withdrawal / right of rescission:
Kindly avoid damaging and contamination of the goods. If possible please return the goods in the original packing with all accessories and all packing components. If you are no longer in possession of the original packing please ensure that the packing offers adequate protection against damage in transit. Loss, abrasion, damaging or contamination of the packing can lead to compensation liability, when loss of value results from unnecessary handling when checking quality, characteristics and functionality of the goods.
5. Prices and payment conditions
5.1. The listed prices in the online shop include all price components including the legal Austrian VAT, understandingly however with an additional post and packaging flat rate as listed in the menu item “Shipping and payment conditions”. Relevant for the billing are the valid prices at the time of order.
5.2. The seller accepts following payment options:
- Prepayment (bank transfer)
5.3. Providing there is no written confirmation of a different form, the payment is immediately to be credited to the seller’s account after contract conclusion. The shipping of the goods will be carried out after receipt of payment.
5.4. In the case of delayed payment – independent of the fault – interest on late payments will be charged amounting to 4 % per annum, as well as compound interest in the legal amount. Furthermore if the customer causes the delayed payment, he is committed to compensate for any further damage to the seller, especially damage resulting from the non-payment, if higher relevant interest to possible credit accounts of the seller are incurred, as well as refunding any necessary costs arising from encashment of the debt claim, for example legal fees and debt collecting agency fees.
5.5. The customer is only entitled to charge for own claims from the seller when the seller’s inability to pay exists or the customer’s claim is connected to the obligation in legal context, or the customer’s claim is indisputably legally asserted or acknowledged by the seller.
5.6. The customer only has the right of retention, as far as the claim is from the same contractual relationship.
5.7. Charging will be carried out in Euro.
6. Delivery and shipping conditions, default of acceptance, transfer of risk
6.1. The delivery of the goods is dispatched by the Österreichische Post AG to the customer’s stated delivery address, providing no other agreement is made. In the transaction of online orders the delivery address provided by the customer in the order processing is relevant.
6.2. The delivery time within Austria is 2 – 5 workdays, and to Germany 2 – 7 days after receipt of payment. If an item is not in stock or not deliverable and the delivery time is respectively extended, the customer will be informed separately.
6.3. If the delivery to the customer is not possible, the assigned transport company will return the goods to the seller, in which case the customer bears the costs of the unsuccessful delivery and return, as well as an appropriate storage charge. This does not apply if the customer is not responsible for the unsuccessful attempt to deliver.
6.4. If the customer is in default of acceptance, after setting an adequate deadline the seller is entitled to withdraw from the contract and to use the goods otherwise or may insist on fulfilment of the contract. If the customer is responsible for the default of acceptance, he is committed to compensate for damage caused by the delay. After withdrawal of the contract by the seller, an already paid purchasing price less transport costs, as well as a possible seller’s sum of indemnity will be paid back.
6.5. Transmission of the goods is carried out at the seller’s risk, i.e. the risk of loss or damage to the goods is transferred to the customer as soon as the goods have been delivered to the customer or a person of his choice, but not the carrier of the goods.
6.6. The customer can pick up the ordered goods directly from the seller at a formerly agreed date and time at A-9470 St. Paul, Trattenstr. 42a. In this case mailing expenses will not be charged. If the customer collects the goods himself, the seller must point circumstance out at the time of order.
7. Reservation of proprietary rights
7.1. The delivered goods remain property of the seller until they are fully paid. The customer bears the whole risk for the conditional goods, especially the risk of theft or loss or deterioration.
7.2. It is agreed, that the enforcement withdrawal from the reservation of proprietary rights is not existent, unless the seller explicitly declares the withdrawal from the contract.
7.3. If the seller makes use of his reservation of proprietary rights and redeems the goods, a credit note is carried out for the redeemed goods according to the reservation of proprietary rights, under consideration a price reduction due to storage time, as well as wearing of the goods. The return transport of the goods to the seller is carried out at the customer’s expense and risk.
8. Liability for defects
8.1. Statutory provisions apply for a defect of the sales item at the time of delivery. The limitation period for guarantee claims is two years from the time of delivery of the goods to the customer. If the seller has caused the defect, the customer can demand compensation within three years of acknowledgement of defect and author of damage, in compliance with §933a ABGB, instead of enforcing guarantee claims.
8.2. If there are no defects at the time of delivery of the goods, guarantee is excluded for defects caused by the customer, particularly in the case of incorrect storage.
8.3. The customer is requested to immediately claim for obvious transport damage from the deliverer, and to inform the seller, respectively to inform the seller after detection of unobvious transport damage, so that the seller can claim from the insurance. If the customer does not meet this obligation, in no way does this affect his claims for faulty service.
8.4. When the supplementary delivery has been carried out, the customer is committed to return the originally delivered goods to the seller within 14 days at the seller’s expense. The defect goods must be returned according to statutory provisions.
8.5. Claims based on warranty can be asserted to the following address:
Christian Mario Brand
A-9470 St. Paul
Tel.: +43 4357 3988
Fax: +43 4357 3989
9. Liability for damage
The seller is liable without limitation for damages to life, body or health, through intent or gross negligence, deceitfulness and promise of guarantee and when the liability underlies the mandatory legal regulations, such as the Product Liability Act.
10. Data protection
The use of personal data in the online shop is performed in compliance to the data privacy statement, listed separately on the homepage.
11. Applicable law, place of jurisdiction, contractual language
11.1. For all disputes between the seller and the customer arising from the contract, including disputes over the conclusion and/or the validity of the contract, Austrian Law will be appointed under exclusion of the UN Sales Convention and the reference provisions of international private law.
For consumers this choice of applicable law applies only insofar as the granted protection by mandatory clauses of this state, in which the consumer’s place of residence is, is not withdrawn.
11.2. For legal disputes between the seller and the customer, the court of law in which the administrative district or the workplace lies, has jurisdiction.
11.3. The contractual language is solely in German.
12. Extrajudicial settlement
12.1. In the case of contract disagreement the seller accepts the ombudsman and the Verein Österreichisches E-Commerce-Gütezeichen as the extrajudicial conciliation committee, however without abandonment of legal recourse.
Under the following requirements the Internet ombudsman can be contacted for ascertained complaints about a business company, for the purpose of extrajudicial mediation:
- The complaint forms the basis of a concluded contract for valuable consideration, or the complaint concerns questions of e-commerce law, cyber law, data protection law, copyright or trade mark law (a distinct use of the Internet must be existent).
- The complainant is a consumer and his seat of residence is in Austria.
- The respondent (seller) is seated in a Member State of the EU.
- A lawsuit pending with a court does not exist.
- Unsuccessful attempts have been made to contact the causer of complaint to solve the problem.
- The complainant asserts precise legal claims against the respondent or denies legal claims from the respondent.
Details about the procedure for complaints, as well as for mediation can be found on the Internet ombudsman’s website www.ombudsmann.at/schlichtung.php
12.2. The European Commission provides a platform for online settlement of disputes (OS). Consumers have the possibility to use this platform to settle their disputes.
13. Any other business (AOB)
Should single terms of the existent General Terms and Conditions become ineffective, invalid and/or void in the course of duration, this does not affect the legal force and the validity of the other terms. This does not apply if the invalid term regulates one of the main liabilities. Instead of the invalid or missing terms, respective legal terms will be asserted. Waiving of rights can not be derived from the circumstance that the seller does not make use of one or all of his entitled rights.
Sample Revocation form
(If you wish to cancel the contract, please fill in this form and return it to us)
Christian Mario Brand
A-9470 St. Paul
I/We (*) cancel my/our (*) concluded contract for the purchase of the following goods (*)/the provision of the following services (*)
Ordered on (*)/received on (*)
Consumer’s signature (only for notification in paper form)
(*) Please delete where inapplicable