GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
with customer information
(Long-distance and outward business)
of the company
Gaisbauer Furniture Workshops GmbH
In accordance with the model issued by the Federal Guild of
carpenters and woodworkers in Austria, the model for the
General Terms and Conditions of Business, as at 18.9.2019.
- These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all contracts concluded between the work orderer, buyer or client (hereinafter referred to as “Customer”) and us [Gaisbauer Möbelwerkstätten GmbH] (hereinafter referred to as “Supplier”) with regard to our goods and/or services, in particular purchase contracts, contracts for work and services or other commissioned services (commissioning, assembly, etc.). The inclusion of the customer’s own terms and conditions is hereby objected to, unless otherwise agreed. If the supplier has a long-term business relationship with the customer, these GTC shall apply even if no special reference is made to their validity. The GTC shall also apply to subsequent orders, even if they are not separately agreed orally or in writing.
- A consumer is any natural person who carries out a transaction that is not part of the operation of his or her business. An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity. Stock corporations, limited liability companies, commercial cooperatives, mutual insurance associations, savings banks, European Economic Interest Groupings (EEIG), European Companies (SE) and European Cooperatives (SCE) are entrepreneurs by virtue of their legal form.
- Employees of our company are prohibited from making any promises that deviate from these terms and conditions. Verbal agreements shall only be effective if they are confirmed in writing by the supplier.
2) Conclusion of contract in the web shop/distance selling
- The product descriptions contained in the Supplier’s online shop do not constitute binding offers, but serve for the submission of a binding offer by the customer.
- The customer can submit the offer via the online order form integrated in our online shop. In doing so, after placing the selected goods and/or services in the virtual shopping basket and going through the electronic ordering process, the customer submits a legally binding contractual offer with regard to the goods and/or services contained in the shopping basket by clicking the button that concludes the ordering process. Furthermore, the customer may also submit the offer to the supplier by post, e-mail or telephone.
- The Supplier may accept the Customer’s offer within five days,
- by sending the customer a written order confirmation or an order confirmation in text form (e-mail), whereby the receipt of the order confirmation by the customer is decisive, or
- by delivering the ordered goods to the customer, in which case the receipt of the goods by the customer is decisive, or
- by requesting payment from the customer after the customer has placed the order.
If several of the aforementioned alternatives exist, the contract shall be concluded at the time when one of the aforementioned alternatives occurs first. If the Supplier does not accept the Customer’s offer within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the Customer shall no longer be bound by its declaration of intent.
- If the customer selects a payment method during the online ordering process by clicking on the button that concludes the ordering process and at the same time also gives a payment order to his payment service provider to transfer the money directly to the account of the seller, the seller, in deviation from section 2.3, already declares acceptance of the customer’s offer at the time the money arrives in the seller’s account.
- The period for acceptance of the offer begins on the day after the customer sends the offer and ends at the end of the fifth day following the sending of the offer.
- When an offer is made via the Supplier’s online order form, the text of the contract shall be stored by the Supplier and sent to the Customer in text form (e.g. e-mail, letter) together with these General Terms and Conditions after the order has been sent. In addition, the text of the contract is archived on the Supplier’s website and can be accessed free of charge by the Customer via his password-protected customer account by providing the relevant login data, provided that the Customer has created a customer account in the Supplier’s online shop before submitting his order.
Or: The text of the contract is not saved. We recommend that you archive the order confirmation and the General Terms and Conditions attached to it.
- Before bindingly submitting the order via the supplier’s online order form, the customer can continuously correct his entries via the usual user functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual user functions.
- Only the German language is available for the conclusion of the contract.
- The order processing and contacting usually take place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct, so that e-mails sent by the supplier can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the supplier or by third parties commissioned by the supplier to process the order can be delivered.
3) Conclusion of contract outside distance selling/cost estimates/general information on conclusion of contract
- Verbal communications of the supplier – also at the request of the customer – are subject to confirmation, even if prices, dates and other technical specifications are communicated therein.
- The contract is concluded with the order confirmation of the supplier sent to the customer or, in the absence thereof, with the execution of the delivery to the customer. In any case, the contract shall also be concluded without the transmission of an order confirmation if the customer accepts the supplier’s offer in writing or signs the supplier’s written order template.
- If the order confirmation signed by the customer differs from his order, the order confirmation shall apply in case of doubt, unless the customer is a consumer. No contract shall be concluded with a consumer in this case.
- Our cost estimates are only binding if they have been prepared specifically for a customer and have been submitted in writing. Furthermore, all our written cost estimates are subject to payment, in particular if they include detailed planning requested by the customer. This fee will be deducted from the order amount when the order is placed. We are bound by these cost estimates for 30 days from the date of submission.
- Quotations and cost estimates are provided to the best of our knowledge; no consideration can be given to order-specific circumstances that are beyond our company’s control. Should the need for further work or cost increases arise during the execution of the order, our company will inform the customer immediately. If the customer does not make a decision within one week regarding the continuation of the interrupted work or does not accept the cost increases, our company reserves the right to invoice the partial performance rendered and to withdraw from the contract.
- Insignificant, reasonable deviations in the dimensions and finishes (colour and structure), in particular in the case of repeat orders, shall remain reserved – irrespective of the type of contract concluded – insofar as these are in the nature of the materials used and are customary. Changes due to the material, e.g. in dimensions, colours, wood and veneer appearance, grain and structure, etc., shall be deemed objectively justified in particular.
4) Right of withdrawal
- Consumers residing in the EU have a right to withdraw from contracts if
- the contract is concluded with the simultaneous physical presence of the trader and the consumer at a place which is not the trader’s business premises,
- for which the consumer has made an offer in the circumstances referred to in subparagraph 2,
- concluded on the business premises of the trader or by means of distance communication immediately after the consumer has been personally and individually approached at a place other than the business premises of the trader with the simultaneous physical presence of the trader or his agent and the consumer, or
- concluded on an excursion organised by a trader or his agent with the intention or the result that the trader advertises or causes to be advertised the sale of goods or the provision of services to the consumer and concludes contracts to that effect with the consumer
- the contract is concluded between a trader and a consumer without the simultaneous physical presence of the trader and the consumer in the context of a distribution or service system organised for distance selling, using exclusively means of distance communication up to and including the moment of the conclusion of the contract;
- the consumer has not made his contractual declaration either on the premises permanently used by the trader for his business purposes or at a stand used by the trader for this purpose at a trade fair or market, or the trader or a third party cooperating with him has brought the consumer to the premises used by the trader for his business purposes in the course of a promotional trip, an excursion or a similar event or by personally addressing him individually on the street, and the contract does not fall within the scope of paras. 1 – 5 above.
The consumer is not entitled to the right of withdrawal under Z.6,
- if he himself has initiated the business relationship with the trader or his agent for the purpose of concluding this contract,
- if the conclusion of the contract was not preceded by discussions between the parties or their representatives, or
- in the case of contracts where the performance of both parties is to be effected immediately, if they are usually concluded by traders away from their business premises and the agreed remuneration does not exceed EUR 25, or if the business is not operated on permanent business premises by its nature and the remuneration does not exceed EUR 50
- in the case of contractual declarations made by the consumer in the physical absence of the trader, unless the consumer has been urged to do so by the trader.
The consumer has no right of withdrawal in the case of distance or off-premises contracts pursuant to points 1. – 5. concerning
- Services, if the trader – on the basis of an express request by the consumer as well as a confirmation by the consumer of his knowledge of the loss of the right of withdrawal in the case of complete fulfilment of the contract – had started the performance of the service before the expiry of the withdrawal period and the service was then completely performed,
- goods that are manufactured according to customer specifications or are clearly tailored to personal needs.
The consumer also has no right of withdrawal in the case of contracts concluded outside business premises (lines 1-4) and where the consideration to be paid by the consumer does not exceed the amount of 50 euros.
- Further exceptions and more detailed information on the right of withdrawal can be found in our withdrawal instructions.
5) Prices and terms of payment
- Our offers are open to all customers with a residence or registered office in a member state of the European Union.
- Unless otherwise stated in our product description, the prices quoted are total prices which include the statutory value added tax. Any additional delivery and shipping costs will be indicated separately in the respective product description.
- In principle, all goods shall be deemed to have been ordered without assembly. Unless otherwise agreed, any assembly ordered shall be invoiced on a time-and-materials basis. Requested overtime, overtime, night hours and other additional operational costs are to be paid separately according to the collective agreement or statutory surcharge. For other possible costs in connection with an installation, see point 12 Duty to cooperate.
- In the case of deliveries to countries outside the European Union, further costs may be incurred in individual cases for which we are not responsible and which are to be borne by the customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of money if the delivery is not made to a country outside the European Union, but the customer makes the payment from a country outside the European Union.
- Various payment options are available to the customer for distance orders, which are indicated in our online shop.
- If payment in advance has been agreed for purchases via the online shop, payment shall be due immediately after conclusion of the contract.
- If the payment method purchase on account is selected, the purchase price is due after the goods have been delivered and invoiced. In this case, the purchase price shall be paid within 14 (fourteen) days of receipt of the invoice without deduction, unless otherwise agreed. The Supplier reserves the right to offer the payment method purchase on account only up to a certain order volume and to reject this payment method if the specified order volume is exceeded. In this case, the supplier will inform the customer of a corresponding payment restriction in his payment information in the online shop.
- In the case of contracts not concluded via the online shop, 30 % of the order amount shall be due upon receipt of the order confirmation, unless otherwise agreed; any promised delivery period shall not commence until the payment date. A further 30 % of the order sum is due on delivery. If the customer fails to comply with this obligation, the supplier shall be entitled to withhold delivery. The remainder is due on completion and invoicing. Invoices are due within 14 days.
- In the event of default, the customer undertakes to reimburse the reminder and collection expenses necessary for appropriate legal action, insofar as these are in reasonable proportion to the claim pursued, and to pay interest on arrears at a rate of 9% per annum. The statutory default interest for entrepreneurs shall remain unaffected.
- If the customer does not meet his payments, stops his payments or if bankruptcy or composition proceedings are instituted against his assets, the entire remaining debt shall become due.
- In the case of consumer transactions, this shall only apply if the supplier itself has already rendered its services, at least one outstanding service of the customer has been due for at least six weeks and the supplier has unsuccessfully reminded the customer under threat of losing the deadline and setting a grace period of at least two weeks.
- The supplier shall draw the customer’s attention to the uneconomical nature of a repair if the customer does not expressly insist on restoration at any price. If it only becomes apparent in the course of the repair work that the item is unsuitable for repair, without this being apparent to the supplier on the basis of his specialist knowledge at the time the contract was concluded, the supplier must inform the customer of this without delay. In this case, the customer shall pay the costs incurred up to that point or, if the customer insists and this is still technically possible, the costs for the assembly of dismantled items.
7) Delivery and shipping conditions
- The delivery of goods shall be made by dispatch to the delivery address indicated by the customer, unless otherwise agreed. The delivery address specified in the supplier’s order processing shall be decisive in the processing of the transaction.
- If the transport company returns the dispatched goods to the supplier because delivery to the customer was not possible, the customer shall bear the costs for the unsuccessful dispatch. This does not apply if the customer effectively exercises his right of withdrawal, if he is not responsible for the circumstance that led to the impossibility of delivery, or if he was temporarily prevented from accepting the service offered, unless the supplier had given him reasonable advance notice of the service.
- If the customer is acting as an entrepreneur, the risk of accidental loss and accidental deterioration of the sold goods shall pass to the customer as soon as the supplier has delivered the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If the customer is acting as a consumer, the risk of loss of or damage to the goods shall pass to the consumer only as soon as the goods are delivered to the consumer or to a third party designated by the consumer and different from the carrier. If, however, the consumer has concluded the contract of carriage himself without making use of a choice proposed by the trader, the risk shall pass as soon as the goods are handed over to the carrier. In the absence of any other agreement, the consumer acquires ownership of the goods at the same time as the risk is transferred.
- In the case of self-collection, the supplier shall first inform the customer by e-mail that the goods ordered by him are ready for collection. After receipt of this e-mail, the customer may collect the goods from the supplier’s registered office by arrangement with the supplier. In this case, no shipping costs will be charged.
8) Retention of title
- With respect to consumers, the supplier retains title to the delivered goods until the purchase price owed has been paid in full.
- With respect to entrepreneurs, the supplier retains ownership of the delivered goods until all claims arising from an ongoing business relationship have been settled in full.
- If the customer is acting as an entrepreneur, he is entitled to resell the reserved goods in the ordinary course of business. The customer shall assign to the supplier in advance all claims against third parties arising therefrom in the amount of the respective invoice value (including value added tax). This assignment shall apply irrespective of whether the reserved goods have been resold without or after processing. The customer remains authorised to collect the claims even after the assignment. The authority of the supplier to collect the claims himself remains unaffected. However, the supplier shall not collect the claims as long as the customer meets his payment obligations towards the supplier, is not in default of payment and no application for the opening of insolvency proceedings has been filed.
In the event of defects, the provisions of the statutory warranty shall apply. The following shall apply in derogation hereof
- For entrepreneurs
- an insignificant defect shall in principle not give rise to any warranty claims;
- the supplier has the choice of the type of remedy;
- the limitation period does not start again if a replacement delivery is made within the scope of liability for defects.
- If the customer is acting as a consumer, he is requested to complain about delivered goods with obvious transport damage to the deliverer and to inform the supplier of this. If the customer does not comply with this, this shall have no effect on his statutory or contractual warranty claims.
- The customer is advised that maintenance work may have to be carried out on his part, in particular fittings and common components are to be checked and possibly oiled or greased, sealing joints are to be checked regularly, exterior paintwork (e.g. windows) is to be retreated in each case according to the type of varnish or glaze and the influence of the weather. This work is not included in the scope of the order unless expressly agreed otherwise. Failure to carry out maintenance work can impair the service life and functionality of the components without this giving rise to claims for defects against the contractor.
- The professional installation of modern windows and exterior doors improves the energy quality of the building and makes the building envelope tighter. In order to maintain the indoor air quality and prevent the formation of mould, additional requirements for the ventilation of the building according to Ö-Norm must be met. A ventilation concept that may be necessary in this respect is a planning task that is not part of the contract awarded to our company. This task is to be arranged by the client/customer in any case. During the heating period, sufficient humidity must be ensured, as otherwise there is a risk of excessive joint formation and damage. Lack of maintenance or upkeep by the client will result in the loss of warranty claims.
The Supplier shall be liable to the Customer for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:
- The supplier shall be liable without limitation for any legal reason
- in the event of intent or gross negligence,
- in the event of intentional or negligent injury to life, limb or health.
- If the supplier negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited in accordance with the preceding clause.
- In all other respects, liability on the part of the supplier is excluded.
- If plans are provided by the customer or measurements are given, the customer shall be liable for their correctness, unless their incorrectness is obvious or unless natural measurements have been agreed. If a plan, a dimension or an instruction of the customer proves to be incorrect, the supplier shall notify the customer thereof immediately and request the customer to give appropriate instructions within a reasonable period of time. The costs incurred until then shall be borne by the customer. If the instruction is not received within a reasonable period of time, the customer shall be liable for the consequences of default.
11) Indemnification in case of infringement of third party rights and industrial property rights
- If, according to the content of the contract, the supplier is obliged not only to deliver the goods but also to process the goods in accordance with certain specifications of the customer, the customer shall ensure that the contents provided to the supplier by the customer for the purpose of processing do not infringe the rights of third parties (e.g. copyrights or trademark rights). The customer shall indemnify the supplier against claims of third parties which the latter may assert against the supplier in connection with an infringement of their rights by the contractual use of the customer’s content by the supplier. In this context, the customer shall also bear the reasonable costs of the necessary legal defence, including all court costs and lawyers’ fees in the statutory amount. This shall not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obliged to provide the supplier immediately, truthfully and completely with all information required for the examination of the claims and a defence.
- If, according to the content of the contract, the Seller is also responsible for the manufacture and planning and/or design of the goods in addition to the delivery of the goods, both plans, drawings, etc. and the manufactured goods themselves shall be subject to the protection of the Copyright Act and all provisions of industrial property law. Any exploitation, use and processing of the plans and drawings as well as any reproduction or illustration of the goods without the consent of the seller is not permitted to the (potential) customer already on the basis of the copyright law. The seller shall of course also remain entitled to publish photos of the goods designed by him.
12) Duty to cooperate
- The customer (principal) shall arrange for any necessary approvals by third parties, notifications to authorities, obtaining of permits in due time and on his own responsibility as well as at his own expense. Furthermore, the customer shall check whether the goods to be delivered or the service to be performed conform to the respective applicable legal provisions.
- If the customer fails to carry out such a check or to obtain the necessary permits, the supplier shall not be liable for any resulting damage or delays in performance and shall furthermore be entitled to claim from the customer any additional expenses and costs arising from the delay for which the customer is responsible. If the customer is a consumer, the applicability of the provision of § 1168a ABGB remains unaffected.
- In the case of commissioned assembly, the customer must ensure that the respective assembly site is accessible, free of all obstacles and ready for the installation of the sold product on the agreed delivery or assembly day, otherwise the supplier is entitled to claim any additional expenses and costs from the customer.
- When delivering the goods, it is assumed that the vehicle can drive directly to the building and unload. Additional costs caused by further transport routes or due to difficult access from the vehicle to the building will be charged separately. For transports beyond the 2nd floor, mechanical means of transport must be provided by the client. Stairs must be passable. If the execution of the work by the supplier or the persons commissioned by him is hindered by circumstances for which the client is responsible, the corresponding costs (e.g. working time and travel expenses) shall be invoiced.
- Any additional masonry, carpentry, blacksmith, electrician and painting work that may be required must always be carried out by the customer on his own responsibility and at his own expense. The carpenter is not entitled to carry out work that goes beyond the scope of his trade. If this possible additional work is not completed by the agreed delivery or service date in such a way that the supplier can start assembly immediately, the supplier is entitled to claim any additional expenses and costs from the customer.
- If anchoring to walls and ceilings is necessary, the customer must ensure that the substrates are suitable for drilling or fastening, otherwise our liability for any resulting damage shall lapse completely.
- The customer shall provide or erect the necessary scaffolding, if any, for the installation and relocation of door and window frames, etc., any masonry work, if not expressly stated as being included in the price. Likewise, the necessary lighting and power supply shall be provided by the customer.
- The customer is obliged – if necessary also with the involvement of a third party authorised for this purpose – to confirm the delivery or service after it has been provided in accordance with the contract by signing a worksheet.
If the customer is not a consumer, he thereby confirms the defect-free fulfilment of the contract.
13) Applicable law/court of jurisdiction
All legal relations between the parties shall be governed by the law of the Republic of Austria to the exclusion of the UN Convention on Contracts for the International Sale of Goods. In the case of consumers, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer is domiciled.
If the customer is an entrepreneur within the meaning of section 1.2, the exclusive place of jurisdiction shall be the place of the supplier’s registered office.