General Terms and Conditions (“TERMS”)
The Finest Only GmbH, A-1190 Vienna, Hardtgasse 6 Top 14, Commercial register no. FN 471482g
Last revised: August 2017
These TERMS regulate the sale of goods in distance sales via the internet to consumers and contractors (“customers”). They apply for services in the “B2C” as well as in the “B2B” sector. For consumer business, the mandatory provisions under Austria consumer protection law, in particular those under the Austrian Consumer Protection Act [Konsumentenschutzgesetz (“KSchG“)] apply.
A consumer is considered to be that within the meaning of KSchG who is not a contractor. A contractor within the meaning of Section 1 (1) KSchG is somebody for whom the business transaction here appertains to his enterprise’s operation. An enterprise pursuant to Section 1 (2) KSchG is each long-term independent economic activity, even if it is not profit-oriented.
Bachna & Staindl GmbH engages in a national and international trade in high-quality, rare foods (“goods”) through the online shop www.finestfoodage.com. The TERMS apply for each use of the website www.finestfoodage.com as well as all associated domains and regulate in particular the legal relationships between Bachna & Staindl GmbH and the customers which source goods through www.finestfoodage.com.
The Finest Only GmbH’s deliveries, services and offers are effected exclusively based on these TERMS in their valid wording at the time of the purchase order. The TERMS may be amended by The Finest Only GmbH at any time. The customer’s contrary terms and conditions or terms and conditions deviating from these TERMS will not be recognised by The Finest Only GmbH, unless it has expressly consented to their application. For the avoidance of doubt, it is stated clearly that acts in the performance of the Agreement by The Finest Only GmbH are not considered as consent to terms and conditions of the Agreement deviating from these TERMS.
The presentation of the goods on the website www.finestfoodage.com does not constitute any binding offer to conclude a purchase agreement by The Finest Only GmbH. The customer is thereby merely requested to make an offer through a purchase order.
The purchase order essentially is placed in the following steps:
By sending the purchase order in the online shop, the customer places a binding offer, aimed at the conclusion of a purchase agreement regarding the goods contained in the shopping cart. By sending the purchase order, the customer recognises the precontractual information for consumers and these TERMS alone as authoritative for the legal relationship with Bachna & Staindl GmbH.
The Finest Only GmbH confirms the receipt of the customer’s purchase order by forwarding the confirmation e-mail. This order confirmation does not yet constitute the acceptance of the offer by The Finest Only GmbH. It serves merely to provide information to the customer that the purchase order has been received by The Finest Only GmbH. The declaration of acceptance of the offer is effected through the delivery of the goods or an express declaration of acceptance.
Consumers within the meaning of KSchG may withdraw from an Agreement concluded outside of the contractor’s premises or from a distance selling agreement – unless a statutory exception provision is effective – within fourteen working days.
The withdrawal period is fourteen calendar days. In the case of agreements on a delivery of goods, it commences on the day on which the consumer or a third party appointed by them, which is not the carrier, has taken possession of the goods. In the case of an agreement on several goods, which are ordered in a single standard purchase order or delivered separately, as from the day on which the consumer or a third party appointed by them, which is not the carrier, has taken possession of the goods. It is sufficient when the consumer has sent the declaration of withdrawal within the period.
The declaration of withdrawal may also be forwarded electronically using a model withdrawal form, which is available on our website www.finestfoodage.com.
It is expressly pointed out that the right of withdrawal within the meaning of Section 18 (1) FAGG does not exist in the case of goods
If the consumer withdraws from the Agreement, the following acts must occur concurrently (“Zug um Zug”):
The prices are indicated at www.finestfoodage.com. All prices indicated by The Finest Only GmbH are indicated in euros, including the currently legally prescribed VAT and apply to the goods illustrated and/or described on the website www.finestfoodage.com. The prices indicated at www.finestfoodage.com apply exclusively at the time of the purchase order.
The Finest Only GmbH’s sales prices do not include any costs for the shipment. The shipment occurs at the customer’s expense – the costs are shown explicitly and indicated separately before placing the binding purchase order in the ordering process. All details are subject to change and non-binding; Bachna & Staindl GmbH reserves the right to make printing errors and carry out price changes. For the shipment, the costs actually incurred plus a reasonable administration surcharge, however at least the freight and transport fees valid or usual on the day of the dispatch, are invoiced.
After the purchase order has been completed and the order confirmation has been sent, the customer is debited with the purchase price (plus ancillary costs). The payment is made in principle before delivery of the goods. The Finest Only GmbH confirms the receipt of the customer’s purchase order by e-mail after payment in full beforehand transmitted by means of credit card, Maestro or PayPal – the payment settlement is done by Six Payment Services GmbH. The customer receives a detailed invoice by e-mail.
The customer’s right of set-off against The Finest Only GmbH’s claims is excluded, unless this counterclaim has been recognised by a court or acknowledged in writing by The Finest Only GmbH. Moreover, the right of set-off vis-à-vis consumers in the case of the contractor’s insolvency or for the consumer’s counterclaims which are legally associated with their liability is excluded.
In the event of default of payment by the customer, The Finest Only GmbH is entitled to request, at its choice, the reimbursement of the damage actually incurred or default interest in the statutory amount. In the case of consumers, this is: 4% p.a.; in the case of contractors, this is: 9.2% p.a. above the basic interest rate.
The Finest Only GmbH is entitled also to request compound interest in the case of default of payment by the customer as from the time of the delivery of the goods.
The customer undertakes to reimburse the dunning and debt collection expenses incurred by The Finest Only GmbH, insofar as they are necessary for appropriate prosecution in the case of default of payment. In the case of contractor business, this includes in any case a lump-sum amount of EUR 40 as compensation for the debt collection costs pursuant to Section 458 Austrian Commercial Code [UGB]. The assertion of further rights and claims are unaffected.
If the customer has not accepted the goods as agreed (default of acceptance) and after their failure to meet an extended time limit, Bachna & Staindl GmbH is entitled either to stock the goods at its premises, for whichThe Finest Only GmbH may invoice a storage fee of 0.1% of the gross invoice amount per commenced calendar day, or stock these at an authorised commercial warehouse, at the customer’s expense and risk. At the same time, The Finest Only GmbH is entitled either to insist on the performance of the Agreement or, after setting a reasonable extended time limit comprising at least two weeks, withdraw from the Agreement and utilize the goods otherwise.
Unless consumer business is concerned, minimal changes or other changes of the service and delivery obligations reasonably acceptable to customers are considered to have been approved beforehand. This applies in particular for goods-related deviations (e.g. in dimensions, colours, structures, etc).
Photos and other illustrations serve to illustrate the goods at www.finestfoodage.com. Consequently, these do not represent the goods absolutely accurately in any case, but primarily serve as an example. Due to different screens, in particular colours and depictions can possibly be reproduced differently. In any case, the details of the respective product are authoritative.
All claims for damages in cases of slight negligence are excluded. This does not apply for personal injuries or – in the case of consumer business – for damage to items acquired for handling. If no consumer business exists, claims for damages in cases of simply gross negligence are also excluded. Unless consumer business is concerned here, the existence of slight or gross negligence must be proved to the injured party. The provisions on damages contained in these TERMS or agreed otherwise also apply, if the claim for damages is asserted in addition to or instead of a warranty claim.
All goods are delivered by The Finest Only GmbH subject to retention of title and remain its property up until the complete payment. The assertion of the retention of title only comprises a withdrawal from the Agreement, if this is expressly declared. If the goods are taken back, The Finest Only GmbH is entitled to set off transport or handling expenses. In the event of third-party access to the goods subject to retention of title – in particular through attachments – the customer undertakes to point out this retention of title and notify The Finest Only GmbH without undue delay. If the customer is a consumer or not a contractor whose ordinary course of business includes the trade in the goods acquired from The Finest Only GmbH, it may not dispose of the goods subject to retention of title up until the complete settlement of the outstanding purchase price claim, in particular not sell, pledge, gift or lend out these goods. The customer bears the full risk for the goods subject to retention of title, in particular for the risk of their decay, loss or deterioration.
For online Agreements, the Online Dispute Resolution Regulation shall apply. An alternative dispute resolution between consumers and online traders is possible through the ODR platform. In this way, customers have the possibility to clarify disputes in connection with an online purchase order without the involvement of a court. The ODR platform may be contacted using the following link: http://ec.europa.eu/consumers/odr
Unless a consumer business is concerned here, in the event of a justified complaint – apart from in cases of a rescinded underlying transaction – the customer is entitled to retain not the entire, but only a reasonable part of the gross invoice amount.
Should parts of provisions of this Agreement be legally ineffective, invalid and/or null and void or become so in the course of its duration, this shall not affect the legal effectiveness and the validity of the other provisions. The contractual partners undertake in this case to replace the legally ineffective, invalid and/or null and void provision (or provision which has become legally ineffective, invalid and/or null and void) by a provision that is legally effective and valid and conforms in terms of its economic impact to the replaced provision – insofar as possible and permitted by law.
The customer consents to receiving messages within the meaning of Section 107 Austrian Telecommunications Act (TKG) for advertising purposes from The Finest Only GmbH or from enterprises which are commissioned for this purpose by The Finest Only GmbH. This consent may be revoked by the customer at any time under email@example.com.