Terms and conditions of Konditorei-Kaffee Zauner GmbH valid 25.05.2018
Konditorei-Kaffee Zauner GmbH
valid from 25.05.2018
All deliveries, services and offers originating from Konditorei-Kaffee Zauner GmbH (henceforth “ZAUNER”) are carried out solely under the terms and conditions stated here; any customer conditions that conflict with or deviate from the said terms and conditions will not be recognised by ZAUNER. The sole exception is when ZAUNER has expressly agreed to their validity. Any actions taken by ZAUNER to fulfill a contract do not mean that ZAUNER consents to agreements that deviate from these conditions.
2. Order and Contractual Agreements
- Product presentation in our Internet shop does not constitute a binding offer on conclusion of a sales contract by ZAUNER. The customer is merely being requested to submit an offer by placing an order.
- The order is processed as follows:
- Choice of product, number/quantity
- Customer registration either as a guest (single order) or as a user of the Internet shop (first name, second name, firm (as applicable), street and house number, postcode, town, county, email address, telephone number, VAT ID (as applicable)). Following successful registration any further sign-ins require only email address and password.
- Choice of delivery option and method of payment
- On-screen display of pre-contractual consumer information as set out in § 5a of the Consumer Protection Act (KSchG) and § 4 of the Distance and Foreign Trade Act (FAGG).
- Verification of contents of shopping basket
- Confirmation by clicking on the Button “Place binding order”.
- By sending an order via the Internet shop the customer places a binding offer to enter into a purchasing contract for the products contained in the shopping basket. Through this action the customer acknowledges the pre-contractual information for the consumer and agrees to abide solely by the terms and conditions stated here as the basis for the legal relationship with ZAUNER.
- ZAUNER confirms placement of order via confirmation email. This confirmation does not yet constitute acceptance of the offer by ZAUNER. It is merely to inform the customer that the order has been received by ZAUNER. The declaration of acceptance of the offer takes place upon delivery of the goods or through an explicit declaration of acceptance.
3. Right of Cancellation by the Customer according to §11 of the Distance and Foreign Trade Act (FAGG)
- The customer, referred to in Consumer Protection Act (KSchG) as the consumer, can withdraw his offer from a contract entered into outside the business premises of ZAUNER or from a distance contract within 14 calendar days so long as no legal exemption applies.
- The cancellation period is 14 calendar days For delivery contracts the period starts on the day, when the consumer (customer) or any third party specified by them, with the exception of the carrier, takes possession of the goods. For contracts relating to more than one product, that comprised a single order but were delivered separately, the period begins when the consumer (customer) or a third party specified by them, with the exception of the carrier, takes possession of the final part of the order. It suffices when the consumer (customer) submits their withdrawal within the cancellation period.
- The declaration of cancellation can also be submitted electronically by using the cancellation form provided on www.zauner.at
- The right to withdraw is not available for products that have been expressly made according to a customer’s specifications, that are clearly tailored to personal needs, that are not suitable for return due to their nature, that are liable to spoil quickly or have passed their use-by date. (§18 Para 1 FAGG)
Products liable to spoil quickly that are available via the internet shop are: Sacherigel Zaunertorte Nougat-Chocolat, Zaunertorte Trüffel, Linzertorte, Ischler Schokokuchen, Plumcake, Bischofsbrot, Amarenakuchen.
Orders for these products may not be canceled.
- Should the consumer (customer) withdraw from the contract then, in the following order
- ZAUNER is obliged to reimburse all payments made by the consumer (customer) including delivery costs (with the exception of additional costs incurred, should the consumer have opted for a form of delivery other than the standard cheapest form offered by ZAUNER) and to compensate the consumer (customer) for all necessary and appropriate expenses in this matter.
- The consumer (customer) is obliged to return the goods received and to pay ZAUNER accordingly for the use, including compensation for any resulting reduction in the fair value of the goods.
- The consumer is obliged to bear the direct costs of returning the products alone.
4. Prices, Delivery Charges
- The prices are listed on the homepage of the internet shop under the individual articles. All prices listed by ZAUNER include VAT unless expressly stated otherwise.
- The prices listed by ZAUNER do not include delivery charges. Delivery costs are charged to the customer. Delivery charges comprise the actual costs incurred for dispatch, including an appropriate handling charge, and will reflect the freight and carrier charges of the selected delivery option that are valid on the day of delivery.
Delivery costs will be displayed to the customer before the order for items in the shopping basket is submitted.
5. Terms of Payment, Interest on Arrears
- Invoices issued by ZAUNER are for immediate payment through one of the following methods:
- Advance payment
- One of the following credit cards: JCB, EPS, Diners Club, American Express, MasterCard, Visa
- Via Pay-Box mobile phone payment
- On account (only available from the second order following successful registration by the customer)
- On delivery
The above listed credit cards will be charged when the order is dispatched. No credit card data of any form will be saved. No credit card data of any form will be saved.
- In cases of default of payment ZAUNER is entitled at their discretion to claim compensation for any actual damage incurred or for interest on the arrears at the statutory rate. These are: for private customers 4% pa, for business customers 9.2% pa above the base rate.
- ZAUNER is entitled to demand compound interest starting from the day of delivery of the goods in the event of default of payment by the customer.
6. Reminders and Debt Collection Costs
In the event of default of payment the customer is obliged to compensate ZAUNER for costs incurred for reminders and debt collection as long as these are necessary for appropriate legal action. These include in all cases a charge of 40 € for business customers as compensation for operating costs in accordance with §458 Company Law Code (UGB). We reserve the right to the assertion of further rights and claims in excess of this.
7. Transfer of Risk and Default in Acceptance
The risk of accidental loss and accidental deterioration shall pass to the customer upon handover to the transport/delivery company which is commissioned with the delivery.
If the customer has not accepted the goods as agreed (default of acceptance), ZAUNER is entitled, after failure to meet an extended time limit, to store the goods on their premises and to charge a storage fee of 0.1% of the gross amount invoiced per calendar day or part thereof, or to store the goods at the expense and risk of the customer with an authorised tradesman. ZAUNER is likewise entitled either to insist on fulfillment of the contract or to withdraw from the contract after setting a reasonable period of grace of at least 2 weeks and to sell the goods elsewhere. In the event of ZAUNER insisting on fulfillment of the contract then the customer shall reimburse all costs and damages associated with the default (all return delivery costs, further shipping costs, and the associated handling charges). In the event of ZAUNER withdrawing from the contract the customer shall be liable for the damage caused by non-fulfillment (see Point 12 below).
8. Terms of Delivery
- ZAUNER is only obliged to carry out the services after the customer has fulfilled all his obligations, necessary for the execution of the contract.
- Unless explicitly stated otherwise in the order confirmation ZAUNER will dispatch the goods within 2 working days of receipt of payment.
Any indication of delivery dates is non-binding. Non-compliance with the delivery dates shall in any case only entitle the customer to assert the right of withdrawal if ZAUNER does not carry out the delivery despite setting a grace period of at least 2 weeks in writing.
The delivery period shall be extended by the duration of the hindrance due to all circumstances beyond the control of the party, e.g. cases of force majeure (superior force), unforeseeable operational disruptions, official intervention, delay in transport and customs clearance, transport damage, rejects of important production parts and labour disputes.
Insofar as partial deliveries are possible, they are also legally permissible. Each partial delivery is considered a separate transaction and can be invoiced separately by ZAUNER
Any defects are to be reported as soon as possible on delivery or after they become visible – without disadvantageous legal consequences for the customer (who is a consumer within the meaning of the Consumer Protection Act (KSchG)), should the customer fail to do so. If the customer is an entrepreneur within the meaning of the Consumer Protection Act (KSchG), he must check the delivered goods or the service provided immediately upon receipt for completeness, correctness and other freedom from defects. Any defects must be notified in writing immediately, in any case no later than 5 working days (Monday-Friday) after receipt of the goods or service, otherwise all claims due to him from a proper examination of recognizable defects will be lost.
Claims for defects for any type of delivery will lapse within the statutory warranty period of 2 years from delivery or carrying out of service – regardless of their legal base (in particular warranty, compensation, special right of recourse). For consumers, in the case of defects, this period does not begin until the defect is recognisable.
In the event of defectiveness of the item, the customer can choose between rectification and replacement Only when neither of these are available can the customer – in accordance with the statutory provisions – request an appropriate price reduction or cancellation of the contract. Should ZAUNER rectify a defective item then this is free of cost and expenses, whereby ZAUNER can demand that the customer sends the goods – as far as this is possible – at the risk of ZAUNER and its costs to ZAUNER. The customer is obliged to give ZAUNER the possibility for rectification.
10. Claims for Damages
All claims for damages are excluded in cases of minor negligence. This does not apply to personal injury or – in the case of consumer business – to damage to goods that have been accepted for processing. The evidence of slight or gross negligence must be proven by the injured party, unless it is a consumer transaction. The provisions on compensation contained in these terms and conditions or otherwise agreed upon shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
11. Retention of Title
All goods are delivered by ZAUNER under retention of title and remain ZAUNER’s property until full payment has been received. The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared. If goods are returned, ZAUNER is entitled to charge transport and handling expenses incurred. In the event of access by third parties to the goods subject to retention of title – in particular through seizures – the customer undertakes to point out ZAUNER’s ownership rights and to inform ZAUNER immediately. If the customer is a consumer or a business whose ordinary course of business does not include trading in the goods acquired from ZAUNER, he may not dispose of the goods subject to retention of title, in particular not sell them, pawn them, give them away or lend them until full payment of the outstanding purchase price has been made. The customer bears the full risk for the goods subject to retention of title, in particular for the risk of destruction, loss or deterioration.
12. Right of withdrawal of ZAUNER/unjustified withdrawal of the customer
- In the event of default in acceptance (item 7.) or other important reasons, such as default in payment by the customer, ZAUNER is entitled to withdraw from the contract if it has not yet been completely fulfilled by both parties. In the event of withdrawal, ZAUNER has the choice, if the customer is at fault, of claiming a lump-sum compensation of 15% of the gross invoice amount or compensation for the actual damage incurred. In the event of default in payment by the customer, ZAUNER is released from all further performance and delivery obligations and is entitled to withhold outstanding deliveries or services and to demand advance payments or securities or to withdraw from the contract after setting a reasonable period of grace.
- If the customer – without being entitled to do so – withdraws from the contract or requests its cancellation, ZAUNER has the choice of insisting on the fulfillment of the contract or agreeing to the cancellation of the contract; in the latter case, the customer is obliged, at ZAUNER’s discretion, to pay lump-sum compensation amounting to 15% of the gross invoice amount or the actual damage incurred.
13. Data protection, change of address and copyright
- The customer gives his consent that the personal data contained in the purchase contract may be stored and processed by ZAUNER with the aid of automation in fulfillment of this contract.
- The customer is obliged to notify ZAUNER of changes to his residential or business address as long as the contractual legal transaction has not been completely fulfilled by both parties. If the notification is not made, declarations shall be deemed to have been received even if they are sent to the last known address.
14. Right of Retention
If the transaction is not a consumer transaction, the customer is not entitled in the event of a justified reclamation to withhold the entire gross invoice amount, but only an appropriate part thereof – except in cases of cancellation.
15. Place of fulfillment, Contractual language, Applicable law, Place of jurisdiction
- Place of fulfillment is the registered office of ZAUNER
- Contractual language is German
- The contracting parties agree on Austrian domestic jurisdiction. If it is not a consumer transaction, the local competent court at ZAUNER’s registered office has exclusive jurisdiction to decide all disputes arising from this contract.
- This contract shall be governed by Austrian law to the exclusion of the conflict of law provisions of international private law (e.g. EPC, Rome I-VO) and the UN Convention on Contracts for the International Sale of Goods. This choice of law applies to a consumer only insofar as it does not restrict any mandatory legal provisions of the state in which he has his place of residence or habitual abode.
16. Partial Invalidity
Should provisions of this contract be legally invalid, void and/or void or become so in the course of its duration, this shall not affect the legal validity and the validity of the remaining provisions. In this case, the contracting parties undertake to replace the invalid and/or void (legally ineffective, invalid and/or void) provision with a legally effective and valid provision that corresponds in its economic effect to the replaced provision – as far as possible and legally permissible.
17. Final Provisions
- All legally binding declarations on the basis of this contract must be made in writing to the last address of the other contractual partner given in writing. If a declaration is sent to the last address given in writing, it shall be deemed to have been received by the respective contractual partner.
- The names of the headings chosen for the individual chapters are for the sole purpose of clarity and should therefore not be used for the interpretation of this contract.
- The relinquishment of individual rights and obligations from these terms and conditions are only permitted with the express written consent of the other contractual partner.