General Terms and Conditions of Zotter Schokoladen Manufaktur GmbH ("Zotter")

Transcription

1 General Terms and Conditions of Zotter Schokoladen Manufaktur GmbH ("Zotter") 1. Scope of application a) All deliveries of goods by Zotter made on the basis of distance selling orders shall be governed by these general terms and conditions in the version which is valid at the time of the respective order. With the placement of the order the customer accepts these general terms and conditions as well as the terms of delivery and payment which apply as an integral part of these general terms and conditions and which can be found on the homepage on a daily basis. b) Amendments or additional agreements shall not be valid unless confirmed in writing by persons authorized to represent Zotter whose names have been entered in the commercial register and shall apply solely to the individual business transaction. Any other employees of Zotter shall not be authorized to make amendments or additional agreements in addition to these general terms and conditions. c) Contractual terms as well as general terms and conditions of the customer are expressly rejected in their entirety. d) Should individual provisions of these general terms and conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The parties shall agree to replace the invalid provision with a valid provision that comes closest to fulfilling the sense and purpose originally intended. 2. Conclusion of a contract a) Zotter s offers in their entirety are subject to change without notice. The orders of the customer are in the legal sense the offer to which the customer is bound for 10 days. The contract shall be concluded either upon Zotter s confirmation of the order (by telephone or in person) or upon delivery or performance. A separate notification of the customer about the acceptance is not required. b) Zotter reserves the right to accept orders only in part. c) Online orders are possible only if all compulsory fields (fields marked with an asterisk) are filled in. Prior to sending the order the customer receives a summary of the contents of the order including prices, which he can then correct or confirm. We will automatically confirm the receipt of the order at Zotter by means of an , which, however, does not yet constitute an acceptance of the order. Messages are received at Zotter only during the normal business hours (Monday to Friday from 9

2 a.m. until 4 p.m. with the exception of Austrian public holidays). Messages which are received on the server of Zotter outside the normal business hours are considered as having been received only on the following working day. d) The customer is aware that the Internet is not a secure communication medium and that data transmitted via the Internet can on the one hand become known and on the other hand be altered by third parties. The risk that data do not arrive at Zotter in the form the customer has transmitted them is borne by the customer. Zotter assumes that the data, as received by Zotter, were sent by the customer in this form. 3. Prices Depending on the type of customer (reseller or consumer) or in the event of a possible international connection the prices are to be understood according to the current price lists and inclusive of the statutory Austrian sales tax, excluding delivery charges and all other ancillary services, unless other delivery conditions are specified in the respective valid price list. The respective valid export and import duties apply additionally to deliveries outside Austria. 4. Delivery and delivery time a) The dispatch of the goods by Zotter to the delivery address provided by the customer at the time of ordering is carried out at the expense of the customer. With the handover of the goods at the customer s or at a third party appointed by the customer, the risk of loss or damage / deterioration of the goods transfers to the customer (this only applies for consumers). The dispatch of the goods by post or private delivery services is regarded as approved. If the customer enters into a delivery contract on his own, then the danger of loss or deterioration of goods transfers to the customer already with the handing over of the goods to the dispatch service. b) Delivery dates stated by Zotter are non-binding. If delivery dates are not met, this shall only entitle the customer to make use of his right of withdrawal if Zotter, even after a minimum of two weeks grace period has been set in writing, still does not carry out the delivery c) The delivery period is extended for the duration of hindrances that are due to circumstances beyond the control of the parties, such as force majeure, unforeseeable operational breakdowns, official interventions, transport and customs clearance delays, transport damages, breakdown of important production components and industrial disputes.

3 d) To the extent that partial deliveries are possible, they are also legally permissible. Each partial delivery is regarded as a separate business transaction and can be invoiced separately by Zotter. 5. Warranty a) Arising defects are o be reported by consumers immediately whereby no disadvantageous consequences will arise in case of an omission to do so -, however, at the latest within one week after delivery of the goods, respectively after the detection of the defects in writing, by fax (fax number ++43(0)3152/ ) or e- mail (schokolade@zotter.at). If the product has been damaged during the shipping, the deliverer (post, DPD etc.) must immediately, at the latest within four days after receipt of the shipment, be instructed to assess the damages; otherwise Zotter shall reject any claim settlement. Generally, the customer shall make any damage notifications. Depending on the varying national provisions at the delivery locations, either the customer himself or also Zotter shall make damage notifications within the EU.. b) If the customer is an entrepreneur within the meaning of the UGB (Austrian Commercial Code) he is obliged to inspect the delivered goods or rendered services immediately upon receipt for completeness, correctness and other faultlessness and send a written complaint about any possible defects including subsequent damages from defects immediately, at the latest, however, eight working days after the receipt of goods or rendered services and prior to a resale or use in writing, by fax (fax number ++43(0)3152/ ) or (schokolade@zotter.at); failure to do so will result in forfeiture of all claims he is entitled to (in the course of a proper examination for identifiable defects). c) Warranty claims arising from defects expire within the statutory warranty period of 2 years from the delivery or performance. In case of defects of title this period commences with the detectability of the defect. d) If the goods are defective, the customer may choose between correction and replacement. Only if these two services are impossible or impracticable the customer can claim - in accordance with the legal regulations - commensurate reduction in price or rescission. The customer is obliged to give Zotter the opportunity to rectify a defect. If Zotter corrects a defect, this is done without cost and expense to the customer; however, Zotter can require the customer to return the goods - as far as this is practicable - at Zotter s risk and cost.

4 e) Warranted characteristics of the goods are only those characteristics which Zotter explicitly guaranteed in writing. Zotter reserves the right to change its assortment, which does not represent a defect. 6. Rights of withdrawal of consumers a) The customer, who is consumer within the meaning of the KSchG, can withdraw in writing from a distance sales contract, or from a contractual declaration made in connection with distance sales, up until the expiry of the deadlines stated hereinafter without cause in writing. It shall suffice to send the declaration of withdrawal within the withdrawal period. The period for withdrawal is 14 working days. The deadline for withdrawal commences with the day, on which the consumer or a third party appointed by the consumer (other than the deliverer) acquires possession of the goods; in case the consumer ordered multiple goods in one order and the goods were delivered separately, the day on which the last good was delivered;; in the case of delivery of a good in multiple partial deliveries, the day on which the consumer gains possession of the last partial delivery; in the case of service contracts, the deadline commences with the day of the conclusion of the contract. A model form of withdrawal is permanently available for download at this model form must not necessarily be used. A corresponding declaration with the same meaning will suffice. b) According to 18 FAGG the customer has no right of withdrawal (besides further exemptions) for 1. goods made to the consumer s specifications or were clearly personalized; 2. goods that are liable to deteriorate or expire rapidly 3. sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery 4. goods which are, after delivery, according to their nature, inseparably mixed with other items. c) If the right to withdraw from the contract is exercised according to Section 6 par. a, Zotter must reimburse the customer for his payments made as well as for all necessary and beneficial expenses on the part of the customer, and the customer must return the received services (direct costs of return must be borne by the customer as agreed) and pay to Zotter an appropriate compensation for their use, in

5 particular for an unnecessary use of the goods, including a compensation for the general reduction in value of the goods, if the customer has consumed or made use of the goods in a manner incompatible with the principles of good faith or unjust enrichment; the fact that the customer has taken possession of the goods shall not be regarded in itself as reducing their value. The return of the goods by mail or in person to Zotter [Bergl 56, A 8333 Riegersburg] has to be carried out immediately, however at the latest within 14 days from the day, on which the customer has notified Zotter about his withdrawal. This deadline shall be deemed met, when the customer mails the goods prior to the expiration of the deadline. For refunding of payments made by the customer, Zotter will use the same monetary transaction that was used by the customer in his original transaction, unless otherwise agreed upon with the customer. d) If the customer withdraws from the contract, the goods need to be returned to Zotter in an unused, unopened, undamaged and uncontaminated state. The costs of return shall be borne by the customer. In the event of signs of wear, damaged packaging, missing of parts of the delivered goods as well as costs of return which have not been paid, Zotter will impose an appropriate fee for the usage including a compensation for the related general reduction in value of the service rendered within the meaning of Section 6. c). 7. Chocolate Theatre a) With the purchase of an online-ticket the customer acknowledges that he signed up for a particular scheduled appointment for a performance in the Chocolate Theatre. The ticket is only valid for the reserved appointment. In case the customer should, for whatever reason, not be able to attend at the scheduled appointment, the ticket will not be refunded. The same applies for lost tickets. b) Tickets purchased in the online shop have to be picked up at the cash register by presenting the reservation number at least 15 minutes before the beginning of the performance. In case of an untimely pick up of tickets the customer forfeits his right to attend the reserved performance. Subject to availability it is however possible to attend the performance at a new appointment with this paid ticket; reservations must be made for such new appointment. c) If the customer cannot present the reservation number, then no ticket will be issued, because the verification of payment of the tickets is linked to the

6 corresponding reservation number. A verification on the basis of the customer s name is, due to technical circumstances, not possible. 8. Returns a) Returns shall only be accepted if they have been expressly agreed in advance with Zotter and if they are effected within the statutory period for withdrawal and after a timely notification of withdrawal. For this purpose a complaint must be made in writing according to Section 5. a) or b) of the general terms and conditions, by fax (fax number ++43(0)3152/ ) or (online-shop@zotter.at). The risk of accidental loss and damage to goods during transport shall pass to the customer upon dispatch of the goods. The costs of the return transport of the goods are borne by Zotter only in the case of a warranty according to Section 5. of these general terms and conditions but not in the case of a withdrawal of the customer according to Section 6. of these general terms and conditions. b) For entrepreneurs the following shall apply in addition to Section 8. a) that a deduction of 10% off the price of the goods is regarded as agreed for handling and processing of returns. 9. Compensation for damages a) Zotter is not liable for property damages and financial damages for whatever legal reason, especially due to delay, impossibility of performance, positive violation of a contractual duty, culpa in contrahendo, consequential damages, defects or tortious acts, that have been caused by Zotter or persons for whom Zotter is responsible, due to minor negligence. In case of contracts with consumers, personal injuries and damages caused to goods that were accepted with the purpose of processing these are excluded from this liability exclusion. Customers who are entrepreneurs within the meaning of the Austrian Commercial Code are obliged to prove gross negligence or wilful intent. b) Zotter shall not be liable for damages in excess of twice the order amount. 10. Terms of payment a) Payment date: Invoices are due immediately and are payable without deductions. For resellers the payment within 8 days from the receipt of invoice less 2% discount or within 30 days without any deduction is deemed made on time. The payment shall be deemed made once the payment was received at Zotter; this shall not apply for consumers making payments by wire transfer. The verifiable instructions for the wire transfer shall be

7 deemed on time for consumers. The current terms of delivery and payment can be found on the homepage on a daily basis. b) Payment by credit card (only in the case of web shop orders): The following credit cards are accepted for the settlement of the invoices: American Express, Diners Club, Mastercard, and Visa. The stated credit card will be debited immediately after the sending of the order. The data of the credit card are not stored in any way. Additional methods of payment are payment by EPS-Onlinebanking, SafetyPay and cash on delivery. Cash on delivery is only possible in Austrian and Germany, if the billing and delivery addresses are identical. c) Default: In case of default of payment or other services on the part of the customer, Zotter is entitled - irrespective of other rights - to withhold all deliveries pending under the current delivery period until the agreed counter performance is rendered or to withdraw from the contract after expiry of a reasonable period of grace and/or to demand compensation for non-fulfilment. In this case the customer is obliged to immediately return the supplied goods to Zotter at the customer s cost. Zotter reserves the right to assert compensation claims for depreciation, wear and tear, reimbursement of its own transport costs and other costs, while Zottter is entitled upon rescission of contract to claim or retain 20 % of the price of the goods as minimum contractual penalty. In the event that the customer is in default of acceptance, Zotter is entitled to invoice any costs arising from this. d) Default interest / collection fees: In the event of delayed payment Zotter will charge consumers default interest of 4% p.a. on the due invoice amount as of the day on which the invoice was due. In the case of entrepreneurs, default interest of 9,2 % p.a. above the applicable base interest rate of the European Central Bank will be charged. Collection fees and default interest at the statutory rate will be charged starting with the first reminder. Should a second reminder become necessary, all future deliveries will be carried out only against advance payment or cash on delivery. After an unsuccessful second reminder the claim will be assigned to a debt collection agency or a lawyer. In case of breach of his contractual obligations the customer undertakes to reimburse Zotter for the necessary costs for the appropriate pursuance of the claims. The customer has to reimburse 5.00 for each reminder and a further for

8 maintaining evidence of the contractual obligations in the debt collection process. In addition, the costs of the debt collection agency are to be reimbursed up to the maximum collection fee specified in the respective ordinance for fee ceilings and the cost of lawyers in accordance with the Lawyers Fees Act. Zotter will request the statutory flat rate fee in the amount of 40,00 from entrepreneurs for the compensation of any potential claim assessment; Zotter reserves the right to make any additional claims based on the individual case. e) Offsetting: The prohibition of offsetting generally applies. The customer may offset any claims only in the case of payment default on the part of Zotter, or against connected, undisputed or legally established claims. Entrepreneurs within the meaning of the Austrian Commercial Code may assert rights of retention only with regard to claims based on connected, undisputed or legally established claims.. f) Unauthorized deduction: In the event of the customer s unauthorized deduction of discounts, shipping costs or other amounts, the outstanding amount will be collected by Zotter at the expense of the customer. g) Consumers: The terms of delivery and payment, which apply at the time of ordering in accordance with the price list for consumers, are applicable for consumers. h) Resellers: The terms of delivery and payment, which apply at the time of ordering in accordance with the price list for resellers, which can be found on a daily basis on the online portal for dealers, are applicable for resellers. i) Individual packaging / wrappers: The price lists for chocolates with your individual wrappers, which apply at the time of ordering and which can be requested directly from Zotter, or can be found on the homepage a daily basis, apply as terms of delivery and payment for chocolates with individual packaging. 11. Reservation of title a) Consumers:

9 Up to the full payment of the purchase price including all additional charges the supplied objects and goods remain the sole and unrestricted properties of Zotter. Until then they are merely goods the customer has been entrusted with and are not to be sold, pledged, given away or loaned. The customer is not entitled to dispose of these objects or goods without having obtained the prior express approval of Zotter and in all respects bears the full risk for the goods entrusted to him, especially with regard to the risk of their destruction, loss and deterioration. Zotter is entitled to demand the return of the goods which are in his property and to pick them up. In this case the customer waives his right to assert a right of retention. b) As an amendment to point 11. a) the following applies for resellers: The reseller is entitled to resell the reserved goods of Zotter within the meaning of 11.a) in the course of regular business operations. The reseller hereby assigns all claims against third parties resulting therefrom to Zotter in advance, specifically to the amount of the respective invoice value including value added tax. Notwithstanding this assignment, the reseller shall remain entitled to collect the claim. 12. Resellers a) The resale conditions are valid only under the condition that any products delivered by Zotter will be resold from the reseller to final customers. b) The minimum net purchasing quantity shall be per consignment, furthermore the customer is obliged to place orders for at least 1, per year. Delivery can only be made in sales units as they apply to resellers, based on the price list for resellers which can be found on the online dealer portal on a daily basis. c) The resale prices according to the applicable price list will only be granted upon presentation of a trading licence for food retailing. d) The VAT identification number has to be disclosed already during the placing of order. VAT identification numbers which are received after the issuance of the invoice can no longer be taken into consideration. e) Zotter grants its resellers the right to use the registered trademark ZOTTER and any other trademarks owned by Zotter only for the advertising of the ordered, originall goods. This permission to use can be withdrawn at any time and ends in any case with the termination of the business relationship. Furthermore, the customer is not entitled to file or have filed the trademark ZOTTER or any other Zotter trademarks, or to change them in any way or form, for example by using them with annexes.

10 f) With the placement of an order, the reseller acknowledges that all rights remain by Zotter and that any use exceeding the above stated extend requires Zotter s explicit written consent. All picture data, text and graphics provided by Zotter to the customer are subject to Zotter s copyright and rights to use. Any changes to the provided documents, their sale or the granting of rights to third parties is not permitted and is subject to compensation claims by Zotter. g) In particular, the delivery of ordered goods shall not transfer the right to the reseller to in any way or form give the impression that a particular commercial connection exists with Zotter, respectively to give the impression that his shop is a sales shop operated or certified by Zotter. h) Informations to fulfill the REGULATION (EU) No 1169/2011: Zotter provides the resellers/customers with all required informations. The urrently valid informations are given at our internet access for our resellers/customers. The reseller/customer himself is responsible for collecting these informations and for updating his own informations. 13. Individual packaging / wrappers a) On the homepage the wrappers for the creation of an individual packaging are provided in a way that the released fields may be designed by the customer according to his requests. b) After the creation of his template the customer will return the template in a printable pdf format to Zotter. c) Zotter organises the conversion of the data transmitted by the customer into a corresponding format which will be handed over to the customer for control and release. The wrapper shall be released for printing only after the customer's written approval (by fax or ) has been obtained. Furthermore, Zotter provides his customers with the possibility to create and save wrappers themselves online (up to 50 pieces). Without any further examination these drafts will then be printed by Zotter on special wrapper-paper and send to the customer. It is then the customer who wraps the wrappers around the particular product. In this case no release for printing is given by the customer. d) Zotter is not liable neither for any spelling and/or colour errors or other errors contained in the texts or designs used by the customer nor for the correctness of its

11 contents. Also, any liability for the correctness of the statutory labelling requirements is excluded. e) The customer affirms that the provided files and templates are legally permissible and do not interfere with the rights of third parties and declares to indemnify and hold Zotter harmless of any and all claims. f) The right of withdrawal for goods made according to customers specifications is excluded according to 18 FAGG (compare also Section 5). 14. Copyright, industrial property rights, secrecy a) The use of texts, images, photos, layouts and other representations of the homepage as well as parts thereof requires the prior written express approval of Zotter. In particular documents such as leaflets, catalogues, samples, presentations and the like remain the intellectual property of Zotter. Any use, in particular the disclosure, reproduction, publication and making available including only partial copying, requires the express and prior written express approval of Zotter. b) In particular the provision of the customers with the basic wrapper as a file template does not assign the right to use, process or pass on the contained elements in any form whatsoever. c) All rights are reserved to Zotter. d) The contracting parties of Zotter undertake to keep absolutely confidential vis-à-vis third parties any knowledge obtained in the course of their business relationship. 15. Data protection Personal data of customers are only processed within the context of the legal provisions concerning data protection. The customer agrees that the data which are disclosed in connection with the order and the processing of the order will be collected, processed, stored and used for accounting purposes of Zotter as well as used for our internal market research and marketing purposes. The data will be used by Zotter for the fulfilment of statutory requirements, for the processing of payment transactions and for advertising purposes but are not passed on the third parties. Data of consumers are upon request at any time deleted, corrected and blocked for advertising and marketing purposes. 16. Miscellaneous a) Shipments and declarations of intent shall be made to the address provided by the customer on the order form with legal effect. The customer undertakes to provide

12 complete and accurate information requested in the appropriate form during the conclusion of contract. In the event that the customer provides incorrect, incomplete and ambiguous information, the customer is liable for all costs and damages arising for Zotter therefrom. The customer is obligated to notify Zotter immediately and in writing, of changes of name, address or domicile, otherwise compensation for damages will be claimed. In case of omission, each written notification sent to the last address supplied by the customer shall be sufficient for the requirements of an effective notification. b) The transfer of rights from the contract concluded with Zotter to third parties requires the written approval of Zotter. 17. Applicable law, place of performance, jurisdiction a) Austrian law applies exclusively to the legal relationships between Zotter and its customers under exclusion of its reference provisions and the UN sales law. b) The place of payment and performance for all obligations arising from this contract is Riegersburg. c) The competent court in Graz is considered to be agreed as the exclusive place of jurisdiction for all disputes arising indirectly or directly from this contractual relationship with Zotter zotter