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General Terms and Conditions

 

1 Scope of application

2 Offer and conclusion of agreement

3 Prices and conditions of payment

4 Delay in payment

5 Delivery and shipping charges

6 Default in acceptance

7 Warranty

8 Limitation of liability

9 Product liability

10 Right of rescission

11 Retention of title

12 No granting of rights

13 Data protection

14 Severability

15 Governing law, place of performance, place of jurisdiction

 

1 Scope of application

 

These general terms and conditions apply for all agreements between Mag. Felix Muhrhofer (the "Seller") and the customers, as valid at the time of placing the order. If these general terms and conditions are taken as a basis for an agreement with consumers for the purpose of the Austrian Consumer Protection Act ("KSchG") (each a "Consumer Business"), they only apply to the extent they do not contradict mandatory provisions.

 

All deliveries, services, sales and offers are solely effected pursuant to these general terms and conditions. These general terms and conditions are also deemed as a general agreement for all future legal transactions between the contracting parties.

 

The contracting party agrees that in case of doubt the general terms and conditions of the Seller are to be applied, even if the contracting party applies its general terms and conditions and such general terms and conditions remain unobjected. Acts of the Seller in course of the performance of an agreement are not deemed to be an approval of any contractual terms deviating from the Seller's general terms and conditions. If any uncertainties still remain open in course of the interpretation of the agreement, these uncertainties should be eliminated with the result that such provisions shall apply which are usually used in similar cases.

 

Provided that the underlying business is not a Consumer Business, all provisions deviating from the written content of the contract (components of the contract) must exist in written form – at least documented in written order confirmations – to be legally effective.

 

With the order, the customer explicitly agrees with the application of the Seller's general terms and conditions.

 

2 Offer and conclusion of agreement

 

The conclusion of agreement in the Seller's online shop (http://www.magicwall.at/english_shop.html) shall be solely effected in the English language. The customer's order is deemed to be an offer to the Seller to conclude a purchase agreement. The customer submits a binding order,

 

(1)  once she/he completes the online order process giving all the information required there and clicking on the "order now" button in the last step of the order; or

 

(2)  once she/he sends an e-mail to mail@magicwall.at, in which she/he specifies at least the following parameters: quantity, size, material, colour, rounded or sharp angles (for terrazzo/wood).

 

After the customer submitted her/his order, the Seller will send an e-mail to the customer which confirms the receipt of the order. Within 24 hours her/his order is processed and the customer receives, if the Seller decides to do so, an e-mail offer from the Seller, including a detailed statement of costs for the customer's order (including delivery charges) and information about the delivery period and the payment terms (the "E-mail Offer"). The Seller is not obliged to send an E-mail Offer. The E-mail Offer is not deemed to be an acceptance of the customer's order. With the receipt of payment, which the Seller confirms via e-mail, the customer's order is accepted and the production of goods starts immediately. The purchase agreement is concluded upon receipt of payment at the Seller's account.

 

Due to the high range of variations, the Seller asks for the understanding that the Magic Walls are specifically produced at the customer's order and that the accessories may not always be available in the required quantity. The customer has to consider that the Seller sells all goods only in small retail amounts.

 

With respect to electronic orders, the Seller notes that the text of the contract will not be saved and is no longer accessible afterwards (sec 9 of the Austrian E-Commerce Act (ECG)).

 

3 Prices and conditions of payment

 

The price indicated for the object of purchase is stated as the final price in EURO including any relevant VAT that might apply and other price components, provided that the information or the E-mail Offer is addressed to a consumer within the meaning of the KSchG. In addition, there may be packaging and delivery charges as mentioned in the E-mail Offer.

 

The prices mentioned in the Seller's E-mail Offer are not binding and are subject to the proviso that the information underlying the placed order remains unchanged. Subsequent changes that are caused by the customer after the Seller's order acceptance are charged at reasonable prices.

 

The purchase price including delivery charges is due upon receipt of the Seller's E-mail Offer and has to be paid 100% in advance. Payment can be made either by bank transfer to the Seller's account, via PayPal or by any other method by mutual agreement.

 

Details for the bank transfer:

 

Recipient name: GF Mag. Felix Muhrhofer

IBAN: AT98 1200 0009 0507 4563

Swift: BKAUATWW

 

Please note: The offer number must always be indicated on the customer's payment in order to allocate the payment to the respective customer.

 

If an entrepreneur places an order, the Seller reserves the right to reduce the prepayment by a separate agreement in individual cases (starting with the third proper business transaction) to 50%. The remainder is due on the day of delivery.

 

As long as the agreed prepayment is not received, the Seller is not obliged to carry out the order. Any resulting consequences (eg non-compliance with the terms of delivery) are charged to the customer.

 

The customer may only set off undisputed or finally legally determined claims. A customer who is an entrepreneur within the meaning of the Austrian Commercial Code ("UGB") has no rights of retention and no set-off rights.

 

4 Delay in payment

 

If a significant deterioration in the customer's financial circumstances becomes apparent or if the customer is in delay of payment, the Seller is entitled to demand the immediate payment of all invoices, including invoices that have not yet been due. Moreover, the Seller is entitled to make the further processing of current orders dependent on proportionate prepayments.

 

Furthermore, the Seller is entitled to retain any goods that have not been delivered and to discontinue further processing of current orders if the proportionate prepayments are not paid. The Seller shall also be entitled to these rights if the customer does not make full payment despite of a reminder.

 

In case of a delayed payment, even if it is not due to any fault, default interest in the amount of 8 percentage points above the applicable base interest rate of the European Central Bank is charged. Further claims for damages are not excluded.

 

In case of a delay, the customer commits to compensate the Seller for any costs of reminders and collection expenses incurred by the Seller insofar as these are necessary for adequate enforcement purposes; in particular, the customer commits to compensate the payments for the employed debt collection agency as set out in the regulation of the Austrian Federal Ministry for Economics and Labour (BMwA) regarding the highest rates of debt collection agency payments.

 

As far as the Seller himself issues reminders, the customer is obliged to pay an amount of EUR 15,- per reminder sent and in addition for the administration of the debt an amount of EUR 5.- per quarterly period.

 

In addition, the customer shall compensate the Seller for any further damage, regardless of any fault for the delayed payment, in particular any damage that may occur due to the fact that as a result of non-payment higher interest on credit accounts of the Seller may accrue.

 

5 Delivery and shipping charges

 

The delivery time commences on the day the payment of the purchase price is received by the Seller. The delivery time is usually 25 business days, but if, in exceptional situations, some sizes or formats are not in stock, the delivery of the entire order will be kept back. Delivery dates shall always be deemed to be non-binding, as far as these have not been expressly agreed as fixed dates in written form.

 

In the event of delayed delivery, the customer shall grant the Seller an appropriate grace period of at least two weeks. After the unsuccessful expiry of the grace period the customer is entitled to withdraw from the contract in written form. The Seller may charge deliveries and services that were ordered and accepted by the customer until this point in time unless the customer would be economically unreasonably affected thereby. Damage claims by the customer due to late delivery will only be accepted if the Seller has at least acted with gross negligence. Any damage is limited to the purchase order value. Lost profit cannot be claimed.

 

In the event of force majeure or circumstances that make the fulfilment of accepted orders impossible or cumbersome, the Seller shall be entitled to either rescind the order or to reduce the size of the order or to carry out the order at an accordingly later time, even if the order was accepted and/or has already been commenced. An agreed delivery period shall be extended by the duration of the delay. A termination is only possible at the earliest four weeks after the start of the aforementioned interruption. In these cases the Seller's liability shall be excluded.

 

For deliveries packaging and shipping costs are charged, which will be indicated in detail in the course of the online order process. If the order is made via e-mail, the customer can inspect the packaging and shipping costs on the Seller's website (http://www.magicwall.at/english_lieferbedingungen.html) or these costs are indicated in the seller's E-mail Offer in detail, respectively.

 

Deliveries are made from the Seller’s premises on the account and at the risk of the customer, if not otherwise agreed. Transportation insurances are only drawn up at the express wish of the customer and at the customer’s cost. The risk is transferred to the customer as soon as the consignment has been handed over to the person transporting the goods or has left the Seller's warehouse for the purpose of shipment. If the dispatch is delayed at the customer’s request, the risk is transferred to him upon information that the consignment is ready for shipment.

 

Collection by the customer is possible by arrangement in Vienna, Nußdorf.

 

6 Default in acceptance

 

The customer shall be obliged to immediately accept the goods delivered or available for collection, according to the contract. If she/he does not comply with this obligation, the delivery counts as carried out on the day on which acceptance should have taken place in accordance with the contract. The risk of loss by accident is thereupon transferred to the customer. In case of default of acceptance or if it is impossible to deliver the goods as a result of force majeure, the Seller shall be entitled to store the goods at the cost and risk of the customer or to store the goods at a carrier’s premises.

 

7 Warranty

 

As far as it concerns Consumer Transactions, the mandatory legal provisions shall apply.

 

All sorts of returns of goods must be pre-arranged with the Seller. Returns of goods the costs of which are not prepaid will not be accepted.

 

In case of partial delivery these provisions apply for each delivered part respectively. Defects in one part of the delivered goods do not entitle to complain about the whole delivery.

 

The Seller shall not be liable for any damage caused by inadequate storage of the goods by the customer.

 

If the customer or a third party makes modifications to the delivered goods, the Seller's liability shall be excluded, unless the customer proves that the modifications are not the cause of the defect or damage.

 

In addition, for business transactions of entrepreneurs within the meaning of the UGB the following applies:

 

The warranty period shall be 6 months starting from delivery of the goods. The customer has to prove that the defect had already existed at the time of the delivery.

 

Any warranty claim shall, at the Seller's choice, either be replacement, removal, price reduction or – in case of non-recoverable defects – reversal of the contract.

Furthermore, a warranty claim against the Seller is conditional upon the customer testing the goods immediately after delivery for any quantitative and qualitative defects and that the customer claims any such defect immediately, whereas otherwise warranty claims and any other claims mentioned in sec 377 UGB may not be asserted anymore. In case of so-called "hidden" defects the notice of defect must be declared immediately after the detection of the defect.

 

Contrary to the presumption rule of sec 924 of the Austrian Civil Code ("ABGB"), the existence of a defect at the time of delivery must be proven by the customer.

 

Recourse claims pursuant to sec 933b ABGB (dealer recourse) against the Seller are excluded.

 

8 Limitation of liability

 

Damage claims against the Seller in case of slight negligence shall be excluded. Such limitation of liability does not apply to damages to persons. Moreover, the Seller shall not be liable for consequential damages.

 

The following applies for business transactions that are not subject to KSchG:

 

In case of business transactions of an entrepreneur, the Seller shall not be liable for gross negligence or intent of vicarious or supply agents. In addition, the Seller shall not be liable for any damage that occurs due to simple gross negligence.

Any goods delivered offer only such a level of security that can be expected taking into consideration the material-specific characteristics. Claims for damages against the Seller must be legally asserted within six months from the time at which the damage and the liable party become known.

 

9 Product liability

 

Product liability claims that can be derived from regulations other than the Austrian Product Liability Act ("PHG") are excluded.

 

For business transactions of entrepreneurs within the meaning of UGB the following applies:

 

Any recourse that contracting parties or third parties might derive from the title of "product liability" within the meaning of the PHG against the Seller are excluded.

 

10 Right of withdrawal pursuant to sec 5e KSchG

 

In case of a distance sales contract the Seller grants the customer a withdrawal period of seven business days (Monday until Friday, excluding legal holidays). The withdrawal period commences on the day the goods are received by the customer. It shall be sufficient to mail the statement of withdrawal before expiry of this period without giving reasons. Business transactions of entrepreneurs within the meaning of the UGB are excluded from this right of withdrawal in general. Moreover, there is no such right of withdrawal if goods are custom-made or are made to special specification of the customer and if goods are due to their nature unsuitable to be returned (sec 5f KSchG).

 

Due to the high range of variation (size, colour and material) the Magic Walls offered by the Seller are individually custom-made and thus for these goods the right of withdrawal is explicitly excluded. In case of accessories (Magic Tools) the right of withdrawal described above applies.

 

In case of withdrawal a full or partial refund of the purchase price shall take place against the return of the goods. The costs of the return shall be borne by the customer. If the goods are not returned pre-paid, the Seller is entitled to retain or to invoice an adequate amount.

 

The goods shall be returned in unused und resaleable and condition, in the original packaging. In case of goods that are impaired by traces of use – as far as these traces of use did not arise from normal use – the Seller shall be entitled to retain appropriate charges for the depreciation in value. The same is true if on return of the goods accessories or parts are missing.

 

11 Retention of title

 

The goods delivered remain property of the Seller until receipt of full payment.

 

The following provisions only apply for business transactions with customers that are entrepreneurs within the meaning of the UGB:

 

The goods remain property of the Seller until all the Seller's existing claims against the customer as of the invoice date are completely paid. In case of a running account the retained ownership is deemed as security of the Seller's balance claim. The customer's claims resulting from a resale of the goods under retention of title are assigned to the Seller already at the time the orders are placed to secure all the claims of the Seller under the whole business relationship.

The customer is only entitled to resell the goods under retention of title based on a purchase agreement, a contract for work and services, a contract for work and materials or a similar contract if the claim resulting from the resale is transferred to the Seller. The customer shall not be entitled to dispose of the goods covered by the retention of title in any other way. Upon request of the Seller, the customer shall be obliged to disclose the assignment to the third ordering party for payment to the Seller. If the value of all collateral held by the Seller exceeds the Seller's claim against the customer by more than 20%, the Seller shall, at the request of the customer or any third party adversely affected by the excessive holding of the customer's collateral, release to the extent necessary collateral at the customer's option.

 

12 No granting of rights

 

By purchasing Magic Wall the customer only acquires title in the individual item. No other rights of use are granted. No reproduction (duplication), diffusion, renting, public disclosure or any other analogous or digital exploitation is permitted, except with the specific prior consent of the Seller. However, the customer may resell the goods at any time in a non-commercial manner.

 

13 Data security

 

It is noted to the customer that the personal data necessary in the course of the business transaction are processed by means of an IT system and are stored. Personal data is of course treated confidentially. Excluded are the shipping enterprises that need the conveyance of data for processing the orders.

 

14 Severability

 

In the event that any provision of these general terms and conditions should be completely or partly void or will be void due to legal requirements, this does not affect the validity of the other provisions of these general terms and conditions.

 

Where customers are entrepreneurs within the meaning of the UGB, the contracting parties undertake to substitute the void provision by a valid provision with content that comes commercially as close as possible to the void provision.

 

15 Governing law, place of performance, place of jurisdiction

 

Austrian substantive law shall be applicable. The application of the UN-Convention on the International Sale of Goods shall be excluded.

 

The place of performance for delivery and payment is the seat of the Seller's enterprise (Magic Wall, Jägerstrasse 35, 1200 Vienna, Austria).

 

The exclusive place of jurisdiction for all legal disputes arising out of or in connection with the business relationship shall be the court competent for Vienna, 20th municipal district, Austria. In addition, the Seller shall be entitled to sue at the customer's general place of jurisdiction. This does not apply to consumers.