General Terms and Conditions

VIVAMAYR Marketing GmbH

applicable as of: 01.04.2021

  1. General provisions, contracting party, scope of application

1.1 These General Terms and Conditions (“Terms“) are applicable to all offers, deliveries and services of VIVAMAYR Marketing GmbH (“VIVAMAYR”), including but not limited to the sale of products via the online shop at vivamayr.com/shop (“Online Shop“). VIVAMAYR provides its services solely on the basis of these Terms. VIVAMAYR does not acknowledge or accept any terms and conditions of the customer which conflict with or deviate from these Terms, unless it has expressly consented to their application. No actions VIVAMAYR takes in fulfilment of the contract may be construed as consent to contractual terms which conflict with these Terms.

1.2 Orders can be placed only by customers whose seat, domicile or habitual place of abode is in the European Union, Norway or Switzerland.

1.3 By registering and/or placing an order via our Online Shop, the customer acknowledges these Terms and waives the application of its own terms and conditions, including but not limited to any defence clauses.

1.4 These Terms apply (i) to contracts between VIVAMAYR and customers who enter into the legal relationship with VIVAMAYR in the course of their business pursuant to Section 1 (2) of the Austrian Consumer Protection Act (KSchG) (“Business Undertakings“) and, (ii) in consideration of mandatory provisions of the Consumer Protection Act, to contracts between VIVAMAYR and customers for which the legal relationship executed with VIVAMAYR does not form part of their business pursuant to Section 1 (2) Consumer Protection Act (“Consumers“).

1.5 These Terms are always valid as updated on the respective contract execution date; an updated version is available at our business seat. The customer can inspect and download these Terms at any time online at vivamayr.com/general-terms-and-conditions-online-shop/. At the customer’s request, VIVAMAYR will also send these Terms by post.

 

  1. Offer, order and conclusion of contract

2.1 The offers, price lists, prospectuses and other information given in the Online Shop, particularly regarding prices, availability and delivery periods, are without engagement.

2.2. In transactions with Business Undertakings, the customer shall be deemed to have accepted in advance minor or other changes regarding service and supply obligations which the customer can reasonably be expected to accept. In particular, the same rule shall apply for deviations due to the nature of the goods (e.g., dimensions, colours, wood carvings, veneer patterns, grain and structure etc.).

2.3 The offers always constitute a request for the customer, by placing an order, to make a binding offer to VIVAMAYR for the conclusion of a purchase contract (“Order“).

2.4 The online ordering process involves the following steps:

  • Select the desired goods;
  • Enter details to register in the Online Shop (first name, last name, address, email address, telephone); after initial registration, only the email address or username and password are required to log in;
  • Display and confirmation of pre-contractual information for Consumers and the Terms by the customer;
  • Select payment- and shipment methods;
  • Review details in shopping cart;
  • Click on “Order with obligation to pay” to confirm and submit order;
  • Customer to receive email acknowledging receipt of his order, setting out order details, information on his right of withdrawal and a sample withdrawal form.

2.5 By submitting an online order, the customer makes a binding offer to conclude a purchase contract for the goods in the shopping cart. By submitting the order, the customer acknowledges the pre-contractual information for Consumers and these Terms as solely governing the legal relationship with VIVAMAYR.

2.6 When goods were ordered electronically (e.g., via the Online Shop), the order will be confirmed to the customer by sending an email to the address given in the order. However, this acknowledgment of receipt does not constitute acceptance of the customer’s offer to conclude a contract: it is given for information purposes only to confirm that VIVAMAYR has received the order. VIVAMAYR accepts the customer’s offer to conclude a contract by delivering the goods or making an express declaration of acceptance.

2.7 VIVAMAYR may accept or reject the offer to conclude a contract as expressed by the customer’s order within 30 days of receiving the order.

 

  1. Retention of title

3.1 VIVAMAYR will remain the owner of the goods delivered to the customer until the purchase price and all ancillary charges have been paid in full. The risk of the goods, including their accidental demise, loss or deterioration, transfers to the customer upon the goods in which title has been retained being handed over to the customer.

3.2 The enforcement of retention of title only entails a withdrawal from the contract, if this is expressly declared. If the goods are taken back, VIVAMAYR is entitled to charge any transport- and manipulation fees which may accrue.

3.3 The customer shall treat the goods with care as long as VIVAMAYR retains title in them. The customer shall notify VIVAMAYR without delay if any third party accesses the goods in which VIVAMAYR has retained title as well as of any damage to or demise of those goods. Except with our prior consent, the customer may neither dispose of nor encumber goods in which VIVAMAYR has retained title, including by sale, pledge, gift or lending them.

3.4 Should goods in which VIVAMAYR has retained title be subject to attachment, the customer shall indicate VIVAMAYR’s title and inform VIVAMAYR without delay and take all measures to procure the cessation of attachment proceedings. If insolvency proceedings are applied for or opened in respect of the customer’s assets, VIVAMAYR may demand surrender of and/or collect the goods still owned by VIVAMAYR while, if it so chooses, insisting on maintenance of the contract.

 

  1. Consumer’s right of withdrawal

4.1 Save where legal exceptions apply, Consumers are entitled to withdraw from a contract concluded in the premises of a Business Undertaking or from a distance selling contract within fourteen days.

4.2 The withdrawal period will expire 14 days after the day on which the Consumer, or a third party other than the carrier and indicated by the Consumer, acquires physical possession of the goods, or – in the case of multiple goods ordered by the Consumer in one order and delivered separately – acquires physical possession of the last good.

4.3 To exercise the right of withdrawal, the Consumer must inform VIVAMAYR (VIVAMAYR Marketing GmbH c/o VIVAMAYR Maria Wörth GmbH, Seepromenade 11, 9082 Maria Wörth, Phone:+43 4273 31117, Fax: +43 4273 31117-150, shop@vivamayr.com) of his decision to withdraw from the contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). The Consumer may also use the sample withdrawal form available at vivamayr.com/shop. To meet the withdrawal deadline, it is sufficient for the customer to send his statement on the exercise of the right of withdrawal before the withdrawal period has expired.

4.4 If the Consumer withdraws from the contract, all payments received from the Consumer will be reimbursed to him, including the costs of delivery (with the exception of the supplementary costs resulting from the Consumer’s choice of a type of delivery other than the least expensive type of standard delivery offered by VIVAMAYR) within 14 days of the day on which VIVAMAYR receives the Consumer’s statement of withdrawal from the contract, and compensate the Consumer for necessary and appropriate expenses incurred in this matter. These repayments will be made using the same form of payment the Consumer has chosen for the original transaction, unless expressly agreed otherwise with the Consumer. No fees will be billed to the Consumer for this repayment. Refunds to the Consumer may be refused until VIVAMAYR has received the goods back or until the Consumer has provided evidence that he has sent them back, whichever is earlier.

4.5 The Consumer must send or give the goods back without undue delay, but in any case, within 14 days of informing VIVAMAYR of his wish to withdraw. The deadline shall be met if the Consumer sends back the goods before the period of 14 days has expired. The Consumer shall bear the direct costs of returning the goods.

4.6 The Consumer must pay an appropriate fee for the use of the goods, including compensation for the reduction in the value of the goods which such use entails. This does not apply to use of the goods to establish the nature, characteristics and functioning of the goods.

4.7 No right of withdrawal can be exercised in respect of goods made to the Consumer’s specifications or clearly personalized, goods which, by their nature, cannot be returned, are liable to deteriorate or expire rapidly (Section 18 (1) Distance Selling Act (FAGG)). There is no right to withdraw in respect of goods which are delivered sealed and cannot be returned for reasons of health protection or hygiene, if the goods were unsealed after being delivered. This also applies to books.

 

5. VIVAMAYR’s right of withdrawal/unjustified withdrawal by the Customer

5.1 In the event of a default in acceptance or other compelling reasons, such as a default on payment by the customer, VIVAMAYR is entitled to withdraw from the contract, provided that the contract has not already been completely performed by both parties. In the event of withdrawal and if the customer is at fault, VIVAMAYR may choose whether to claim lump sum damages amounting to 15% of the gross invoiced amount or compensation for the damage actually incurred. In the event of default on payment by the customer, VIVAMAYR is released from all other performance and delivery obligations, is entitled to withhold outstanding deliveries or performance, demand advance payments or security, or to withdraw from the contract after setting a reasonable grace period.

5.2 If the customer withdraws from the contract without justification or if the customer sues for the cancellation of the contract, VIVAMAYR may choose whether to insist upon the performance of the contract or consent to its cancellation; in the latter case, the customer must – according to VIVAMAYR’s choice – pay lump sum damages in the amount of 15% of the gross invoiced amount or compensation for the damage actually incurred.

 

  1. Prices, shipping charges, payment terms, default interest, dunning and debt collection charges

6.1 The prices for the goods are stated in the Online Shop beside the individual goods. All indicated prices are inclusive of statutory value-added tax. Prices will be adjusted accordingly to reflect changes in value added tax.

6.2 The prices do not include shipping charges. The goods are shipped at the customer’s expense. Shipping charges depend on the weight of a shipment and the country of destination. The shipping charges can be viewed at vivamayr.com/en/shipping-terms-of-payment.

6.3 If goods are shipped to a country outside of the EEA, the customer must bear all import and export charges including any customs levies, fees and duties.

6.4 The customer may either pay by credit card, Sofortüberweisung or Paypal. In case of credit card payments, the customer’s account is debited once the order is complete. With all orders, VIVAMAYR reserves the right not to offer certain means of payment and to refer to other methods of payment. Once the invoice amount is debited from the customer’s credit card account, VIVAMAYR will process the order within the delivery period.

6.5 Should the customer be in default with payment, VIVAMAYR is entitled to choose between claiming compensation for damage actually incurred or the statutory default interest. For Consumers, this is 4% p.a. above the base rate and 9.2% p.a. above the base rate for companies. If the customer defaults on payment, VIVAMAYR is entitled to demand compound interest as of the day when the goods were handed over.

6.6 For the event of payment default, the customer hereby undertakes to compensate VIVAMAYR for any dunning or debt collection charges it incurs, provided such fees were necessary for the expedient defence of rights. With respect to transactions by Business Undertakings, this includes a lump sum of EUR 40 as compensation for collection costs pursuant to section 458 Commercial Code (UGB). This does not affect the enforcement of other rights and claims.

 

  1. Shipment

7.1 VIVAMAYR is under no obligation to perform until the customer has fulfilled all his obligations which are necessary for execution.

7.2 Performance/delivery deadlines and schedules shall only become binding upon VIVAMAYR if expressly agreed as such. Unless an acknowledgment of order states otherwise, VIVAMAYR will ship goods on stock within five working days from the day on which it receives the order. VIVAMAYR will inform the customer as soon as possible of the delivery times of goods VIVAMAYR does not have on stock. Delivery deadlines for goods made to order are indicated in the product specifications. VIVAMAYR may exceed agreed schedules and delivery deadlines by up to one week. Only after that deadline has expired may the customer withdraw from the contract subject to setting a reasonable grace period.

7.3 Orders are delivered by Österreichische Post AG and DPD to the address given by the customer when placing the order. Costs resulting from unsuccessful delivery and resulting additional costs due to incorrect, incomplete or unclear details shall be borne by the customer.

7.4 Partial deliveries are permissible.

7.5 If goods are made available to the customer on the incoming means of transport, the risk of loss of or damage to the goods shall pass to the customer. The same rule shall apply if the customer is delay with taking over the goods.

7.6 If the customer fails to accept the goods as agreed (default on acceptance), VIVAMAYR is, after the expiry of a grace period of at least seven days without success, entitled to keep the goods in storage itself (for which VIVAMAYR will charge a storage fee of 0.1% of the gross invoiced amount per calendar day begun) or store them in an authorised commercial warehouse (at the customer’s risk and expense). At the same time, VIVAMAYR is entitled to either insist on the performance of the contract or, after the expiry of a reasonable grace period of at least two weeks, withdraw from the contract and exploit the goods in a different way.

7.7 VIVAMAYR bears all risks associated with the goods’ transport to the designated place, except for bringing the goods to the customer’s designated rooms.

 

  1. Guarantees

8.1 The statutory guarantee provisions apply to Consumers. A guarantee period of six months applies to Business Undertakings. Please address any complaints based on statutory guarantee claims or other complaints to the following address:

VIVAMAYR Maria Wörth GmbH, Seepromenade 11, 9082 Maria Wörth / shop@vivamayr.com / +43 4273 31117

8.2 VIVAMAYR does not provide any warranties in the legal sense to our customers. This shall not affect manufacturer warranties. Information on any manufacturer warranties given can be found in the same place as the goods in the Online Shop.

 

  1. Liability and damages

9.1 No damages can be claimed in cases of slight negligence, except for personal injury or – in Consumer transactions – for damage to items received for processing. Except in Consumer transactions, the burden to prove slight or gross negligence shall be on the injured party.

9.2 Unless mandatory laws provide otherwise, VIVAMAYR will not compensate Business Undertakings for consequential damage and pecuniary damage, lost profit, loss of savings, loss of interest and damage arising from third-party claims. The amount of mandatory compensation to be paid by VIVAMAYR shall not exceed the sum total of payments the customer has made to VIVAMAYR on the basis of the concluded contract.

9.3 The terms which relate to damages contained herein or agreed otherwise apply even damage claims are asserted in addition to or in lieu of a guarantee claim.

 

  1. Right of retention

In case of Consumer transactions, and in the event of a justified complaint, the customer is not entitled to retain the entire, but only a reasonable part of the gross invoiced amount. This does not apply in cases where the contract is rescinded.

 

  1. Data privacy

Data privacy notices can be found in our Data Privacy Information at www.vivamayr.com/data-privacy-onlineshop

 

  1. Copyrights and trademarks

12.1 The product and service names used on our website and Online Shop are protected as trademarks, signs, copyrights and/or pursuant to competition law.

12.2 VIVAMAYR is the sole holder of all copyrights for materials VIVAMAYR has published and independently created on its own website. In particular all texts, graphs and other documents are copyrighted and may be used only with VIVAMAYR’S express written consent.

 

  1. Place of performance, jurisdiction, choice of law, language, alternative dispute resolution

13.1 Place of performance shall be VIVAMAYR’S business seat.

13.2 The parties agree that all disputes directly or indirectly arising from the contract shall be referred exclusively to a domestic Austrian court. If the matter does not concern a Consumer transaction, all disputes arising from this contract will be referred to the court with subject matter jurisdiction and local jurisdiction at the location of VIVAMAYR’s corporate seat.

For complaints of the customers are either the Austrian courts or the courts of the place in which the customer (end customer) has his residence. For complaints by VIVAMAYR the German courts are responsible to German end customers. After the dispute arises, the parties are free to agree on a place of jurisdiction in Austria or Germany.

13.3 These Terms and the contracts concluded between VIVAMAYR and our customers shall be governed by and construed in accordance with Austrian substantive law, to the exclusion of the conflict of law rules of international private law (e.g. Rome Convention, Rome I Regulation) and the UN Sales Convention. A consumer is subject to this choice of law only if it does not qualify mandatory provisions of the state in which he has his residence or habitual place of abode.

The right of the Federal Republic of Germany to the exclusion of the UN Sales Convention applies to German end customers.

13.4 The language of the contract is German.

13.5 An online dispute resolution platform has been set up at the European Commission to resolve disputes arising from online purchase contracts or online service contracts. This can be accessed by following the link

http://ec.europa.eu/odr

It can be used to resolve out-of-court disputes arising from a purchase contract concluded with VIVAMAYR online. The complaint can also be submitted directly to VIVAMAYR at the following email address:

shop@vivamayr.com

 

  1. Final provisions

14.1 Should any term hereof be or become legally ineffective, invalid and/or void, this does not affect the legal effect or validity of the remaining provisions. In such cases, this term shall be replaced by a valid term which (i), in case of Consumers, is prescribed by law, or (ii) in case of Business Undertakings, closest reflects the economic intent of the initial term.

14.2 All legally binding statements to be given hereunder shall be addressed in writing to the other contracting party’s address most recently indicated. A statement sent to the contracting party’s address most recently indicated in writing shall be deemed to have been received by that contracting party.

14.3 Individual rights or obligations may be assigned only with the other party’s written consent.

14.4 VIVAMAYR cannot control the design of links on its website to other pages on the Internet or the content of linked sites. VIVAMAYR expressly distances itself from any content of all linked third-party pages. This statement applies to all displayed links and any content of linked pages.

14.5 The expressions chosen for the headings of individual clauses serves the sole purpose of clarity and may not be used as a guide in the interpretation and construction of this contract.

14.6 The customer agrees to receive messages within the meaning of section 107 of the Telecommunications Act (TKG) from VIVAMAYR or companies engaged by VIVAMAYR. The customer may revoke this consent at any time by sending an email to shop@vivamayr.com.