General terms and conditions
(Austria)
1. Scope of these terms and conditions
1. The present General Terms and Conditions ("GTC") shall apply to all legal transactions or offers concerning the delivery of goods and/or other services of HEAVENSEVEN GmbH (hereinafter referred to as HEAVENSEVEN) or the responsible sales partner. HEAVENSEVEN thus concludes all legal transactions exclusively based on these GTC. This does not apply exceptionally if the validity of the GTC has been expressly waived in writing for individual transactions.
2. These GTC contain provisions that are only valid towards entrepreneurs and others that are only valid towards consumers in the sense of the Austrian Consumer Protection Act (KSchG). These provisions are marked accordingly in each case. Consumer in the sense of this law is anyone who is not an entrepreneur. An entrepreneur is anyone for whom the legal transaction is part of the operation of his business. Enterprise in this sense is every organization of independent, economic activity, which is laid out on a long-term basis, even if it is not aimed at profit (in particular associations according to the association law 2002).
3. As long as HEAVENSEVEN enters into an ongoing business relationship with a customer, these GTC shall apply as a framework agreement for this business relationship. If a condition agreed in a legal transaction contradicts these GTC, this contradictory provision is only effective if a departure from these GTC is expressly agreed upon. GTC of the customers do not apply, if they were not expressly recognized in writing by HEAVENSEVEN.
2. Definitions
The terms used in these GTC are defined in more detail below. If the same terms are used in individual legal transactions, the following definitions shall also be used for the interpretation of terms in all legal transactions concluded by HEAVENSEVEN, unless a term is exceptionally defined independently in a legal transaction:
1. "Customer" shall mean any contractual and/or negotiating partner of HEAVENSEVEN, in particular any buyer (or purchaser) of goods. This applies irrespective of whether a contract has already been concluded or not.
2. "Performance" shall be any (tangible and/or intangible) product, any (tangible and/or intangible) delivery, and/or any (tangible and/or intangible) other performance of HEAVENSEVEN, irrespective of its nature.
3. "Goods" shall mean any product (thing) offered or distributed by HEAVENSEVEN or any product purchased by HEAVENSEVEN or negotiated with a customer.
4. "Order" shall mean the binding request of the Customer for the provision of a service by HEAVENSEVEN, especially the request for the delivery of a good.
5. "Order" ("Contract") is the legal transaction concluded between HEAVENSEVEN and the customer.
3. Order, contract, delivery/service
1. Offers, advertising mailings, or other tenders of HEAVENSEVEN are only invitations to place orders to customers and are subject to change and non-binding.
2. Orders sent by customers to HEAVENSEVEN shall constitute binding offers of a customer to conclude a contract. They are binding and cannot be revoked by the customer - subject to special legal regulations and the right of withdrawal regulated below. After examination of the received order, HEAVENSEVEN will send to the customer within a reasonable period either an order confirmation or deliver the ordered goods. Silence of the customer or HEAVENSEVEN shall in no case be considered as consent or acceptance of an offer or an order.
3. HEAVENSEVEN expressly reserves the right to refuse orders of customers. A refusal to accept an order may be due, for example, to delivery difficulties or other market-dependent circumstances beyond HEAVENSEVEN's control. Generally, however, HEAVENSEVEN is free to refuse an order without giving reasons. An explicit notice to the customer may be omitted. Apart from a possible claim for the return of an already paid fee, the customer is not entitled to any claims whatsoever due to the non-execution.
4. Claims of a customer arising from the contractual relationship with HEAVENSEVEN can only be transferred to a third party with the prior consent of HEAVENSEVEN.
5. The customer acknowledges that illustrations of products and goods do not have to correspond completely with the actually delivered goods. In particular deviations due to further development of a product (e.g. material changes) are accepted by the customer, provided that the changed characteristic was not expressly required by the customer and the change is not objectively to the disadvantage of the customer. HEAVENSEVEN does not take over guarantee for the correctness, completeness, and topicality of the information made available in print media, picture, and sound-supported advertising, or other media and reserves itself errors, in particular regarding price markings expressly. HEAVENSEVEN does not take over guarantee for the agreement of the colors indicated on the web pages with the actual colors, because the color reproduction depends among other things on the quality of the computer used by the customer or also on the pictorial material made available by the manufacturer of a product.
6. If a customer wishes a contract performance (additional service) deviating from or going beyond the original offer of HEAVENSEVEN, then HEAVENSEVEN shall owe such special or additional services only after separate explicit and written agreement. HEAVENSEVEN shall be entitled to charge an additional reasonable fee for any performance deviating from the original offer.
7. HEAVENSEVEN reserves the right to choose the mode and route of dispatch. There is no obligation in particular to choose the cheapest mode of transport. The packaging is carried out customarily. Any additional packaging shall only be carried out on the express instruction of the customer and shall be at the expense of the customer. The customer shall arrange for the disposal of the packaging at his own expense. Express and air freight surcharges will be charged separately. Transport insurances are only taken out on explicit instruction of the customer and only on the order and account of the customer. HEAVENSEVEN shall not be liable in this connection.
4. Delivery
1. In accordance with these conditions HEAVENSEVEN is free to accept the order of a customer by written declaration or by delivery of the ordered goods.
2. The delivery time is considered to be only approximately agreed. It shall commence on the date of dispatch of the order confirmation to the customer.
3. HEAVENSEVEN shall endeavor to comply with the delivery dates and deadlines indicated to the customer. The agreement of the delivery dates and periods requires in each case the written form. Subsequent requests for changes or additions by the customer shall extend the delivery period appropriately. However, if the delivery is delayed due to circumstances attributable to the sphere of the customer (e.g. delayed sending of the necessary information, delay in payment), the agreed delivery date shall also be postponed by the same period.
4. To meet the delivery deadlines, it is sufficient to hand over the goods to the shipping company on time or, if shipping is not possible, to notify the customer that the goods are ready for shipment. If self-collection of the commodity by the customer was expressly agreed upon, it is sufficient, if HEAVENSEVEN holds the commodity ready on the last day of the period at the last possible collection time at the collection place.
5. The delivery obligation of HEAVENSEVEN can only be fulfilled if the customer complies with his obligations in due time and in due form and if the customer fulfills his contractual and possibly agreed payment obligations which are essential for the order. HEAVENSEVEN reserves the right to plead non-performance of the contract.
6. Operational disturbances and events of force majeure as well as other events beyond the sphere of influence of HEAVENSEVEN, in particular also delays in delivery on the part of the pre-suppliers, entitle HEAVENSEVEN to withdraw completely from the contract or to withdraw from the contract in case of partial deliveries already effected because of the part not yet fulfilled. HEAVENSEVEN shall only be liable for damages resulting from such interruptions of operations and events of force majeure towards consumers in case of gross negligence. Any liability towards entrepreneurs is excluded.
5.Risk Transfer, Default of Acceptance
1. In any case, the customer shall bear the transport risk. With the departure of the delivery from our factory/warehouse, in case of direct delivery from departure from the factory/warehouse of our supplier, the risk of the price shall pass to the customer; this is irrespective of any separately agreed price regulation for the delivery. The transfer of the price risk means: If the goods are lost after the time of the transfer of the price risk without fault or only due to slight negligence of HEAVENSEVEN, the customer is therefore not entitled to withdraw from the contract or to claim damages.
2. If the customer is in default of acceptance, HEAVENSEVEN shall be free to either withdraw from the contract by granting a 14-day grace period, to store the goods itself against payment of an appropriate and customary fee, or to have the goods stored by a third party at the customer's expense.
3. In case of self-collection, the price and performance risk shall pass to the customer from the time of handover, in case of default of acceptance from the time of default.
6. Prices and terms of payment
1. The prices shown by HEAVENSEVEN on the Internet or in brochures etc. are in Euro including the legal value-added tax ex-works or ex-delivery warehouse of HEAVENSEVEN.
2. Invoices of HEAVENSEVEN - also partial invoices - are due for payment without charges and deductions, especially without cash discount. Bills of exchange or cheques shall not be accepted. HEAVENSEVEN reserves the right to dedicate incoming payments to possible multiple claims at HEAVENSEVEN's discretion.
3. If the customer delays the payment of a fee by more than a five-day respiro, HEAVENSEVEN is entitled to withdraw from the contract under the setting of a 14-day respiro. In addition, in case of default of the customer, default interest in the amount of the legal interest rate (4 % p.a. towards consumers, 8 % p.a. above the respectively announced base interest rate towards entrepreneurs) shall accrue immediately after the due date. Any usual dunning and collection costs or attorney's fees according to the tariff shall also be paid by the customer.
4. In case the customer is granted a longer term of payment or a separate agreement on payment by installments, this shall not constitute a postponement of the due date. It is merely waived for the agreed duration on the further collection of the already due claim. If the customer is in arrears even with the payment of only one installment, or if he does not respect the deferred payment date, the entire claim shall be due for payment immediately plus interest on arrears from the due date (loss of due date).
The following shall also apply to entrepreneurs:
5. HEAVENSEVEN does not warrant for the correctness and completeness of cost estimates.
7. Delivery and shipping costs
1. HEAVENSEVEN will send the goods ordered by the customer in the event of the establishment of an effective contractual relationship subject to deviating agreements to the customer. The resulting shipping costs are to be borne by the customer.
2. If the transport company sends the dispatched goods back to HEAVENSEVEN, because a delivery to the customer was not possible, the customer bears the costs for the unsuccessful dispatch. The customer has to compensate HEAVENSEVEN for all those damages which HEAVENSEVEN has incurred due to the unsuccessful shipment. Liability on the part of HEAVENSEVEN for any damages incurred by the customer due to the unsuccessful shipment is excluded.
3. Especially in case of a delayed delivery to the customer, the customer has no claims for damages against HEAVENSEVEN.
4. Orders that are shipped to Switzerland are tax-free deliveries. All duties for the import (e.g. import sales tax etc.) must be collected directly at the customs in Switzerland. It is the responsibility of the buyer to ensure that this is done properly.
8. Reservation of ownership
1. Goods shall remain the sole property of HEAVENSEVEN (goods under reservation of ownership) until all claims of HEAVENSEVEN against the customer arising from the respective order have been fulfilled, particularly until all payments (including interest and ancillary costs) have been made, even if individual parts have already been paid.
2. The customer may not dispose of the goods subject to retention of title until settlement of the claim of HEAVENSEVEN and bears the full risk for the goods entrusted to him, particularly for the risk of destruction, loss, or deterioration.
3. For the duration of the retention of title the customer has to treat the delivered goods with care and not to use or sell the goods.
4. If reserved goods are processed by the customer to a new movable item, then this is done for HEAVENSEVEN, without HEAVENSEVEN being obligated thereby. The new item shall become the property of HEAVENSEVEN. In case of combination, processing, or mixing of the goods subject to reservation of ownership with goods not belonging to HEAVENSEVEN, HEAVENSEVEN shall acquire co-ownership proportionally to the invoice value of the goods subject to reservation of ownership to the remaining goods. In case of sale of goods subject to retention of title by the customer to a third party, the customer's purchase price claim against the third party shall be transferred to HEAVENSEVEN up to the amount of HEAVENSEVEN's claim against the customer (extended reservation of ownership).
5. In case of seizure by third parties or other access of third parties to the goods subject to reservation of ownership, the customer has to refer to the ownership of HEAVENSEVEN and the customer has to inform HEAVENSEVEN immediately in writing about the seizure or other access of the third party.
6. In case of breach of contract by the customer, especially in case of default of payment, HEAVENSEVEN shall be entitled to reclaim the goods subject to retention of title or, at the customer's option, to demand the assignment of the purchaser's claims for return against third parties, if applicable.
7. In case of violation of the agreements about the retention of title by the customer, the customer is obliged to pay a contractual penalty in the amount of twice the net value of the goods subject to retention of title. The assertion of claims exceeding this amount, in particular of claims for damages and in particular of costs of excision in execution proceedings, shall not be excluded by the agreed contractual penalty. If the customer is not a consumer, the contractual penalty shall not be subject to judicial moderation. If the customer does not fulfill his obligations or stops his payments, the whole remaining debt becomes due immediately. HEAVENSEVEN is entitled in this case to immediately demand the return of the goods under the exclusion of any right of retention. After taking back the goods it is at the discretion of HEAVENSEVEN either to sell the object of purchase and to credit, the proceeds obtained less 20 % resale expenses to the customer on his still existing obligations or to take back the goods at the invoice price under deduction of possible reductions in value and to charge the customer an appropriate user fee for the time of his possession for the delivered goods.
9. Warranty, Damages, Prohibition of Assignment, Extended Retention of Title
1. HEAVENSEVEN does not assume any warranty for the usual wear and tear of the goods as well as for defects caused by improper handling.
2. HEAVENSEVEN shall only be liable for damages caused to the customer within the scope of the business transaction ( particularly due to delay, failure of performance, positive violation of claims, fault upon conclusion of the contract, defective or incomplete performance, consequential harm caused by a defect or due to tortious acts) in case of deliberate intent or gross negligence of HEAVENSEVEN or in case of deliberate intent and gross negligence of vicarious agents acting on behalf of HEAVENSEVEN. Excluded from this are personal injuries, for which HEAVENSEVEN is already liable without limitation in case of slight negligence. The regulations of the product liability law remain unaffected.
3. Liability for consequential damages, loss of profit, claims of third parties is in any case excluded. This shall also apply to damages caused by failure to complete the work on time (damage caused by delay, in particular, if the delay is due to serious and unforeseeable operational disruptions, supply problems, or lack of manpower).
4. Claims for damages shall become statute-barred within six months of knowledge of the damage and the damaging party. Claims for damages that are established later than one year from the date of handover shall, in any case, be time-barred.
5. The assignment of warranty claims and claims for damages or the like shall not be permitted without the prior written consent of HEAVENSEVEN.
6. The reversal of the burden of proof according to § 924 ABGB at the expense of the seller is excluded. The existence of a defect at the time of handover, the time of detection of the defect, and the timeliness of the notice of defect shall be proved by the customer.
7. Where HEAVENSEVEN has expressly promised guarantees, these shall only apply in case of proper use of the goods, especially professional installation, assembly, and proper care. The content of the brochures, technical descriptions, etc. used by HEAVENSEVEN as well as public statements, e.g. in advertising, shall not become part of the contract, unless a certain property of the goods is expressly granted by HEAVENSEVEN. Wear and tear of any kind as well as damages caused by the customer or third parties are not covered by the guarantee promise.
8. Instructions given in brochures, instructions for use or other product or goods information as well as maintenance or assembly instructions are to be strictly followed by the customer to avoid possible damage.
9. It is expressly stated that HEAVENSEVEN does not guarantee any specific function, mode of operation, or specific properties of the products. There are several studies and measurements about the properties of the products distributed by HEAVENSEVEN, which have not been carried out by HEAVENSEVEN but by independent organizations, as well as testimonials of customers. The correctness of these studies/measurements, as well as experience reports and the mode of application of the products derived from these studies/measurements and experience reports, shall in no case become the subject matter of the contract and therefore HEAVENSEVEN shall not assume any warranty or liability for this.
The following additional points (point 9.10. - 9.13.)applies to entrepreneurs:
10. Except for the following cases HEAVENSEVEN excludes the assertion of any warranty claims, claims because of shortening over the half, and mistake contestation opposite entrepreneurs. Liability for claims for damages due to slight negligence (except personal injury) is also excluded.
11. Deviations of the ordered goods from the delivered goods, such as wrong dimensions or wrong goods (faulty delivery) must be claimed within 3 days from delivery and still before any treatment or processing, even if the goods are not delivered directly to the customer. Otherwise, the goods are considered as approved and cannot be taken back or exchanged by HEAVENSEVEN. Notices of defects and complaints, which are not made within the 3 days after delivery, are in any case late. All warranty claims are void if the notification of defects is not made in time.
12. In case of resale of the delivered goods by the customer all claims against HEAVENSEVEN from the title of warranty are void, the right of recourse according to § 933 b ABGB is excluded.
13. Should the customer himself be held liable due to the Austrian Product Liability Act or similar foreign provisions, he expressly waives any recourse against HEAVENSEVEN, in particular in the sense of § 12 of the Austrian Product Liability Act or similar foreign provisions.
10. Information about the right of withdrawal according to FAGG
1. If the customer is a consumer, he has a right of withdrawal regarding contracts concluded with the contractor HEAVENSEVEN outside of his business premises or using a means of distance communication such as telephone, fax, or e-mail (Distance and Outbound Transactions Act, FAGG).
2. In the event that custom-made products at the request of the customer are the subject of the contract, then the customer has no right of withdrawal.
Otherwise, the customer has the right to revoke the contract concluded with HEAVENSEVEN without giving reasons. The withdrawal period is 30 days; this period begins with the receipt of the goods in the case of orders for goods and with the conclusion of the contract in the case of services. To exercise the right of withdrawal, the customer has to inform HEAVENSEVEN,
HEAVENSEVEN GmbH
Linzerstrasse 76
4600 Wels
Austria
in the form of a clear declaration (for example, by letter, e-mail, or fax) about their decision to revoke the contract. To comply with the withdrawal period, it is sufficient that the notification of the exercise of the right of withdrawal is sent before the expiry of the withdrawal period.
Consequences of the revocation
If the customer revokes the contract concluded with HEAVENSEVEN, then HEAVENSEVEN shall repay to the customer all payments received from the customer without undue delay and at the latest within 14 days from the day on which the notification of the revocation of the contract was received by HEAVENSEVEN. For this repayment, HEAVENSEVEN shall use the same means of payment that the customer used for the original transaction, unless expressly agreed otherwise with the customer; in no case shall the customer be charged any fees due to this repayment. If the customer is not able to return the received services as well as benefits (e.g. advantages of use) to HEAVENSEVEN or only partially or in a deteriorated condition, the customer has to compensate HEAVENSEVEN insofar as the deterioration is due to the handling of the goods which goes beyond the examination of the characteristics and the functionality. Checking the properties and functionality" means testing and trying out the respective goods, as it is possible and usual for example in retail stores.
Goods that can be shipped by parcel are to be returned at the expense of the customer but at the risk of HEAVENSEVEN. Goods that cannot be sent by parcel will be picked up by HEAVENSEVEN. For a possible loss of value of the goods, the customer must pay only if this loss of value is connected to the handling and not as a result of the condition, characteristics, and function mode of the goods.
If it was expressly requested on the part of the customer that HEAVENSEVEN should start its services during the revocation period, the customer shall pay an appropriate amount corresponding to the proportion of the services already provided up to the point in time at which the customer exercises its right of revocation in comparison to the total scope of the services provided for in the contract.
11. Information about the right of withdrawal according to § 3 KSchG
1. In the event that the customer has not made his contractual declaration either in the facilities permanently used by HEAVENSEVEN for its business purposes or at a stand used by HEAVENSEVEN for this purpose at a trade fair or market, he may withdraw from his application for a contract or from the contract. This withdrawal can be declared until the conclusion of the contract or thereafter within 30 days. The withdrawal period shall be deemed to have been observed if the declaration of withdrawal is sent within the period.
This right of resignation is not entitled to the customer in particular if he has initiated the business connection with HEAVENSEVEN or its representatives for the conclusion of the contract, or if no discussions between the involved ones or their representatives have preceded the realization of the contract.
12. Information about the right of withdrawal according to § 3a KSchG.
1. The customer can withdraw from his contract application or the contract furthermore, if without his cause for his consent relevant circumstances, which HEAVENSEVEN has presented in the course of the contract negotiations as probable, do not occur or occur only to a considerably lesser extent. Relevant circumstances are the expectation of the cooperation or consent of a third party, which is necessary so that the performance of the entrepreneur or can be used by the consumer, the prospect of tax benefits, the prospect of public funding, and the prospect of a loan. The withdrawal may be declared within one week. The period shall commence as soon as it is apparent to the customer that the circumstances referred to in Clause 16.1 do not occur or occur only to a significantly lesser extent and the customer has received written notification of this right of withdrawal. However, the right of withdrawal shall expire no later than one month after the complete fulfillment of the contract by both parties. The declaration of withdrawal is not bound to any particular form. The withdrawal deadline is met if the declaration of withdrawal is sent within the deadline. The consumer is not entitled to the right of withdrawal if he already knew or should have known during the contract negotiations that the relevant circumstances will not occur or only to a considerably lesser extent, the exclusion of the right of withdrawal has been negotiated in detail or HEAVENSEVEN agrees to a reasonable adjustment of the contract.
13. Data protection and advertising
1. HEAVENSEVEN is entitled to process personal data of the customers such as first name(s), surname, address, gender, academic degree, date and place of birth, telephone number, fax number, e-mail address, and account details within the limits of the Data Protection Act or Telecommunications Act for order processing, in particular, to store and transmit them during the term of the contract.
2. The customer expressly agrees to a transmission of his data to a commissioned shipping company, advertising company, and/or a credit institution (for payment processing).
3. By accepting these general terms and conditions, the customer declares his express consent to the use, processing, and transmission of his data within the meaning of § 4 Zi. 14 DSG 2000 (Data Protection Act 2000). This consent can be revoked at any time. A revocation may under certain circumstances (e.g. during an order which has not yet been fully completed) lead to the fact that HEAVENSEVEN is no longer able to provide its services.
4. HEAVENSEVEN and the companies assigned by HEAVENSEVEN will protect the personal data of the customer provided by the customer with the greatest possible care against unauthorized access by third parties. HEAVENSEVEN shall furthermore take all reasonable measures to ensure the security of personal data. However, it is pointed out to the customer that the Internet is accessible worldwide for everyone, and in particular misuse cannot be excluded, so the unauthorized access of third parties to such data and information cannot be excluded. For such unauthorized accesses of third parties and resulting damages HEAVENSEVEN is liable to consumers only in case of gross negligence, which results in the intervention of third parties.
5. Right of revocation: The customer is entitled at any time to revoke his given consents for the storage, processing, and/or forwarding of his data. However, if thereby the observance of the obligations of HEAVENSEVEN from the contractual relationship is no longer possible (e.g. during a not yet completely completed order) HEAVENSEVEN becomes free of achievement.
6. The customer agrees to the sending of advertising material to the contact data (e-mail address, postal address) provided by him by HEAVENSEVEN or a company commissioned by HEAVENSEVEN to send advertising material for HEAVENSEVEN.
14. Choice of law, place of jurisdiction, place of performance
1. For all legal disputes arising from or in connection with these GTC and/or from a contractual relationship between HEAVENSEVEN and a customer, Austrian substantive law shall apply under exclusion of the conflict of laws rules of international private law and exclusion of the UN Convention on Contracts for the International Sale of Goods as agreed. This also applies to questions about the conclusion or about the interpretation of the GTC and the contract.
2. For all legal disputes arising from or in connection with these GTC and/or from a contractual relationship between HEAVENSEVEN and a customer who is an entrepreneur, the court is locally and factually responsible for the registered office of HEAVENSEVEN is agreed upon.
3. Place of performance for all claims and obligations is the registered office of HEAVENSEVEN GmbH.
15. Change of address
The customer is obliged to inform HEAVENSEVEN about changes of their residential or business address demonstrably, unsolicited, and without delay as long as the legal transaction subject to the contract has not been completely fulfilled by both parties. In case of failure to notify, declarations and goods to the customer shall be deemed received even if they have been sent to the address last notified to HEAVENSEVEN. It is the customer's responsibility to prove the receipt of his change notification in individual cases. The customer is liable for all damages resulting from an omitted notification of a change of address.
16. Miscellaneous
The customer is strictly forbidden to pass off intellectual property of HEAVENSEVEN as his own, to use it, to advertise with it, or to duplicate it. This applies in particular to all publications (including pictures, texts, sound or video recordings, etc.) of HEAVENSEVEN in the World Wide Web, in print media, on billboards in cinemas, in radio/TV, etc.
HEAVENSEVEN GmbH
Place of jurisdiction: Wels / Austria