TERMS AND CONDITIONS („T&C“) OF EPARELLA GMBH („EPARELLA“)
- Scope of application
a) All deliveries of goods by Eparella GmbH (hereinafter referred to as EPARELLA) 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 www.ecoduna.com on a daily basis.
b) Amendments or additional agreements shall not be valid unless confirmed in writing by persons authorized to represent EPARELLA whose names have been entered in the commercial register and shall apply solely to the individual business transaction. Any other employees of EPARELLA 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) Contractor of placed orders is:
FN 425276 g
8 2460 Gemeinde Bruck an der Leitha
phone: +43 2162 631990
- Conclusion of a contract
a) EPARELLA’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 EPARELLA’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) EPARELLA 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 EPARELLA by means of an e-mail, which, however, does not yet constitute an acceptance of the order. Messages are received at EPARELLA only during the normal business hours (Monday to Friday from 9 a.m. until 4 p.m. with the exception of Austrian public holidays). Messages which are received on the server of EPARELLA outside the normal business hours are considered 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 does not arrive at EPARELLA in the form transmitted by the customer is borne by the customer. EPARELLA assumes that the data, as received by EPARELLA, was sent by the customer in this form.
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. If not otherwise declared, the standard prices are quoted in euros. The respective valid export and import duties apply additionally to deliveries outside Austria.
- Delivery and delivery time
a) The dispatch of the goods by EPARELLA to the delivery address provided by the customer at the time of ordering is carried out at the expense of the customer. The shipping method by post is considered as standard shipping. If the customer requests, the use of a private delivery service will be approved. If the customer is a consumer within the meaning of the consumer protection law, he carries the risk of loss or damage for delivered goods. If the customer is an entrepreneur within the meaning of the Austrian Commercial Code, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer upon dispatch of the goods to the customer, but at the latest upon leaving EPARELLA.
b) EPARELLA’s delivery dates are non-binding. If delivery dates are not met, this shall only entitle the customer to make use of his right of withdrawal/revocation if EPARELLA, 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.
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 EPARELLA.
e) Applies only within Austria: If the customer desires the dispatch with EMS, pickup, Post24 or other dispatch offerers, the delivery times and shipping costs specified with the selection of the dispatch option apply independently of the order value.
a) Arising defects are to 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 or e-mail (email@example.com). 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 EPARELLA 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 EPARELLA 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 or e-mail (firstname.lastname@example.org); 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. For entrepreneurs within 1 year from delivery or service.
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 EPARELLA the opportunity to rectify a defect. If EPARELLA corrects a defect, this is done without cost and expense to the customer; however, EPARELLA can require the customer to return the goods – as far as this is practicable – at Zotter’s risk and cost.
e) Warranted characteristics of the goods are only those characteristics which EPARELLA explicitly guaranteed in writing. EPARELLA reserves the right to change its assortment, which does not represent a defect.
- Rights of withdrawal/revocation for consumers
a) When a customer, who is a consumer within the meaning of the consumer protection law, has placed his order via email, telephone or online, he has the right to withdraw from the contract within fourteen days without stating reasons. The deadline is met if the customer clearly declares his revocation by letter, email or telephone to EPARELLA before the deadline expires. The period begins with the day the product is received by the customer or after a contract conclusion for the provision of services.
b) The customer has no right of withdrawal for services or goods that (i) are made to customer specifications, (ii) clearly tailored to personal needs, (iii) are not suitable for return due to their condition, (iv) spoil quickly (v) whose expiration date has been exceeded and pursuant to § 5a Abs 2 Z 11 of the consumer protection law for household items supplied by the entrepreneur in the course of frequent and regular trips at the domicile, whereabouts or workplace of the consumer.
c) When complying with the proper rights of withdrawal on time according to point 6 a) EPARELLA will reimburse all payments to the customer after receiving the returned goods. There will be no cost replacement. The costs for an extraordinary shipping (desired by the customer and different from standard shipping according to point 4) and the costs for the return shipment shall be borne by the customer. The customer must return the goods in an unused, undamaged and originally packed condition. In the case of returned goods which packaging is damaged or which are affected by signs of use, EPARELLA may withhold an appropriate fee for the impairment. If the goods are completely unusable, EPARELLA has the right to retain the entire purchase price.
a) Returns shall only be accepted if they have been expressly agreed in advance with EPARELLA unless the customer exercises his withdrawal / revocation right according to Section 6 of these terms and conditions. For this purpose a complaint must be made in writing according to Section 5. a) or b) of the general terms and conditions or e-mail (email@example.com). The risk of accidental loss and damage to goods during transport shall pass to the customer upon dispatch of the goods, unless the customer exercises his withdrawal / revocation right according to Section 6 of these 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.
- Compensation for damages
a) EPARELLA 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 EPARELLA or persons for whom EPARELLA is responsible, due to minor negligence. In case of contracts with consumers, personal injuries and damages caused to goods that were accepted for the purpose of processing 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) Regardless of the limitation of liability according to point 8 a) the liability of EPARELLA for consequential damages, loss of profit, data loss and property damage is excluded.
- 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 EPARELLA; this shall not apply for consumers making payments by wire transfer. The verifiable instructions for the wire transfer shall be deemed on time for consumers. The current terms of delivery and payment can be found on the homepage www.ecoduna.at on a daily basis.
b) Payment by credit card (webshop orders only): The following credit cards are accepted for the settlement of the invoices: Mastercard & 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.
c) Default: In case of default of payment or other services on the part of the customer, EPARELLA 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 EPARELLA at the customer’s cost. EPARELLA reserves the right to assert compensation claims for depreciation, wear and tear, reimbursement of its own transport costs and other costs, while EPARELLA 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 EPARELLA 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 EPARELLA for the necessary costs for the appropriate pursuance of the claims. The customer has to reimburse € 50.00 for each reminder and a further € 25.00 for 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.
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 EPARELLA, 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 EPARELLA at the expense of the customer.
- Reservation of title
a) 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 EPARELLA. 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 EPARELLA 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. EPARELLA 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 EPARELLA 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 EPARELLA 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.
a) The resale conditions are valid only under the condition that any products delivered by EPARELLA will be resold from the reseller to final customers.
b) The minimum net purchasing quantity shall be €1,000.00 per consignment. Delivery can only be made in sales units as they apply to resellers, based on the price list for resellers.
c) 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.
- Copyright and industrial property rights, confidentiality
a) The use of texts, images, photos, layouts and other representations of the homepage www.ecoduna.com as well as parts thereof requires the prior written express approval of EPARELLA. In particular, documents such as leaflets, catalogues, samples, presentations and the like remain the intellectual property of EPARELLA. Any use, in particular the disclosure, reproduction, publication and making available including only partial copying, requires the express and prior written approval of EPARELLA.
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 EPARELLA.
d) The contracting parties of EPARELLA undertake to keep the data, information and documents they receive absolutely confidential in the course of their business relationship and to make them neither directly nor indirectly accessible to third parties without the prior express written consent of EPARELLA. This also applies after termination of the business relationship.
- Data protection
Personal data of the customers are only treated within the framework of the legal provisions on data protection. By submitting an offer, the customer expressly agrees that the data disclosed in the context of the order and order processing are collected, processed, stored and used for EPARELLA’s accounting purposes and for internal market research and marketing purposes. The data is used by EPARELLA in connection with the order and delivery for the fulfillment of legal regulations and for the handling of the payment transactions, but not passed on to third parties. The customer has the right to be informed about the personal data processed and the right to rectification, cancellation and ram call. These rights can be exercised by the customer in writing via letter or email.
a) Deliveries 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 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 EPARELLA therefrom. The customer is obligated to notify EPARELLA 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 EPARELLA to third parties requires the written approval of EPARELLA.
- Applicable law, place of performance, jurisdiction
a)Austrian law applies exclusively to the legal relationships between EPARELLA and its customers under exclusion of its reference provisions and the UN sales law. The contract and interpretation language is German.
b)The place of payment and performance for all obligations arising from this contract is Bruck an der Leitha, Austria.
c) EPARELLA reserves the right to change these GTC at any time without prior notice.
d) With respect to entrepreneurs, the competent court at EPARELLA’s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with EPARELLA or related to it.
e) Should individual points of these terms and conditions be ineffective, this does not affect the validity of the remaining provisions and the contracts based on them. In lieu of the ineffective provision, the parties will agree on an effective one that comes closest to their purpose. This also applies to gaps in the contractual relationship with EPARELLA.