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General terms and conditions of sale, delivery and payment

 (effective: 04/2021)

I. Jurisdictions

1. These General Terms and Conditions (hereinafter referred to as GTC) shall apply to all legal transactions and services in cooperation with the company Hofer-Kerzen Vertrieb Ges.m.b.H (hereinafter referred to as Seller) that have not been processed through one of the company’s online-shops.
(GTC valid for the online-shops are availabe in the online-shops’ service area)
The GTC are published on the Internet at www.hofer-kerzen.at .
2. We hereby declare that we only perform our legal transactions and orders based on these GTC and any agreement concluded between our contractual partner (hereinafter referred to as „Buyer“) and us for the specific order. The Buyer has been made aware of these circumstances at the time of the initiation of business and at the time of the conclusion of the contract and confirms that he has taken note of and accepted the GTC.
3. The validity of any GTC of the Buyer is expressly excluded.
4. Deviations from these GTC shall only be valid upon written acknowledgment by the Seller.
5. If the Buyer is a consumer within the meaning of the Consumer Protection Act, these GTC shall only apply to the extent that they do not conflict with mandatory law (in particular the Consumer Protection Act).

II. Offers and Acceptances

1. Offers by the Seller are subject to change with regard to price, quantity, delivery period and delivery possibility.
2. The documents belonging to the offer, such as illustrations, drawings, brochures, samples and weight specifications, are provided for illustrative purposes only. They are only relevant if they have been expressly designated as binding. The Seller shall be entitled to make changes in the design and construction as well as in the chemical composition of the products, taking appropriate account of the Buyer's interests.
3. Protection of documents / Confidentiality
Designs, sketches, cost estimates and other documents such as brochures, catalogues, samples, presentations and the like remain our intellectual property. Any use, in particular passing on, duplication, publication and making available, including copying even only of extracts, requires our express consent.

III. Orders, Prices

1. A written order confirmation or, if no such confirmation is issued, the invoice of the Seller shall be decisive for the delivery. Unless otherwise agreed in writing, these terms and conditions shall apply to the contractual relationship, including future transactions, even if no separate reference has been made to them in individual cases. A written agreement between the contracting parties is required to amend these terms and conditions.
2. The prices and conditions of the price list valid on the day of dispatch shall apply, unless other price agreements have been made. When a new price list comes into force, the previous prices and conditions shall be replaced thereby. All prices are quoted in euros and are ex works plus the value-added tax applicable on the day of delivery. The Seller shall be entitled to increase prices compared to the prices valid at the time of contract conclusion, particularly if cost increases (such as in particular material prices, labour costs) have occurred after this time.

IV. Delivery

1. Delivery periods shall commence on the date of the order confirmation.
2. The delivery period shall be deemed to have been complied with, if the delivery item has left the factory by the expiry of the delivery period. It shall also be deemed to have been met if willingness for dispatch has been given by the Seller or if the Buyer does not accept the delivery item.
3. Unpredictable operational disruptions of any kind, failure to meet delivery deadlines or failure to deliver on the part of the Seller's suppliers, shortages of raw materials, energy or labour, difficulties in procuring means of transport, traffic disruptions and other cases of force majeure on the part of the Seller and its sub-suppliers shall extend the delivery period appropriately.
4. Partial deliveries are permissible.
5. Deliveries shall always be made in customary packaging.
6. The Seller's obligation to deliver shall be suspended as long as the Buyer is in arrears with a due payment (this shall also apply to payment obligations from other orders or deliveries).
7. Delivery shall be made at the prices stated in the valid price list within Austria from a goods value of EUR 220.00 net free domicile.
For express goods shipments, additional costs will be charged. For shipments below a net goods value of EUR 220.00, transport and packaging costs will be charged. For orders below EUR 145.00, an additional EUR 5.00 small quantity surcharge will be invoiced. For deliveries outside Austria, a minimum order value of EUR 250.00 ex works applies; transport and packaging costs are charged at cost price.

V. Dispatch and transfer of risk

1. Unless agreed otherwise, the Seller shall choose the dispatch route and the mode of transport. The risk of destruction, loss or damage of the goods shall pass to the Buyer in the case of sale by dispatch when the goods are handed over to the forwarding agent, the carrier or any other person or institution designated to carry out the dispatch; this shall also apply in the case of carriage paid delivery. If the shipment is delayed due to circumstances caused by the Buyer, the risk shall pass to the Buyer on the day the goods are ready for shipment.
2. Delivered goods shall be accepted by the Buyer, even if they have defects, without prejudice to the rights according to point VII.

VI. Payment

1. Invoices are payable within 14 days of the invoice date less 2% discount or 30 days of the invoice date without any deduction.
Payments shall only be deemed as effected when the amount is finally available in an account of the Seller.
2. Retention and set-off due to claims of the Buyer disputed by the Seller are excluded, unless these claims are expressly recognised or have been established by a court.
3. Non-compliance with payment terms and/or conditions or the discovery of circumstances which, when applying customary banking standards, are likely to substantially reduce the creditworthiness of the Buyer, shall result in the immediate maturity of all claims of the Seller.
Even if the Buyer is not at fault, the Seller is entitled to charge interest on arrears for 10% above the base interest rate per annum. This does not affect claims for compensation for proven higher interest.
In addition, the Seller shall be entitled to demand advance payments for outstanding deliveries and to withdraw from the contract after the effectless expiry of a reasonable period of grace.

VII. Warranty

1. The Buyer shall inspect the delivered goods for defects within a reasonable period of time, but no later than 7 days after receipt. Complaints regarding quality or defects must be reported to the Seller in writing immediately, at the latest within a further 7 days of receipt of the goods, stating the invoice and delivery note number, as well as the product designation; hidden defects must be reported at the latest within 7 days of their discovery. Delayed inspection and/or notification of defects shall result in the loss of any claims (in particular claims for damages and warranty claims).
2. The Seller warrants the flawless quality of the goods - to the exclusion of further claims such as reduction, withdrawal from the contract or compensation for direct or indirect damage or futile expenses - exclusively in such a way that the Seller will deliver flawless goods within a reasonable period in accordance with these terms and conditions. The Buyer's warranty claims shall become statute-barred 12 months after delivery.
3. The Seller shall not be liable for the correctness and electronic readability of the bar codes affixed to the goods or packaging.

VIII. Retention of Title

1. The goods shall remain the property of the Seller until the Buyer has settled all his liabilities arising from the business relationship with the Seller.
2. If the goods are processed by the Buyer, the retention of title shall also extend to the new item. In the event of processing, combining or mixing with third-party items, the Seller shall acquire co-ownership of the new item produced in the ratio of the value of the item subject to retention of title to the other processed or mixed items at the time of processing or mixing. The Buyer shall act for the Seller in the processing without acquiring any claims against the Seller due to the processing.
3. The Buyer shall be obliged to carefully store the goods subject to retention of title for the Seller and to properly protect and insure them against loss and damage at his own expense. He hereby resigns his claims in advance from the insurance contracts to the Seller.
4. Until revoked, the Buyer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. The Buyer shall not be permitted to dispose of the goods in any other way, in particular by pledging them or assigning them as security. In the event of non-cash payment, the Buyer shall agree a reservation of title with his customer in accordance with these terms and conditions. The right to resell shall lapse in the event of cessation of payments by the Buyer and in the event of revocation by the Seller.
5. The Buyer hereby assigns to the Seller his claim arising from the resale of the goods subject to retention of title as well as all ancillary and security rights including bills of exchange and cheques. In the event of the sale of goods in which the Seller has co-ownership pursuant to paragraph 2, the assignment shall be limited to the share of the claim corresponding to the co-ownership share. If goods subject to retention of title are sold together with other goods at a total price, the assignment shall be limited to the pro rata amount of the Seller's invoice (including value added tax) for the goods subject to retention of title, which are also sold. In the event of processing within the scope of a contract for work and services, the claim for payment for work and services shall be assigned to the Seller here and now in the amount of the pro rata amount of the Seller's invoice (including value added tax) for the co-processed reserved goods.
6. At the request of the Seller, the Buyer shall be obliged to inform the purchasers of the assignment and to provide the Seller with the information and documents required to assert its rights against the purchasers. The Buyer is prohibited from entering into agreements with his purchaser which may exclude or impair the rights of the Seller in any way. In particular, the Buyer may not enter into any agreement which nullifies or impairs the advance assignment of the claims to the Seller. In the ordinary course of its business, the Buyer shall be entitled to collect the claim assigned to the Seller. This right to collect shall lapse if the Buyer ceases to make payments or if enforcement proceedings are instituted against the Buyer or if an application is made to open judicial or extrajudicial composition or insolvency proceedings.
7. If the Buyer does not fulfil his obligations to the Seller on time, the Seller shall be entitled to demand the return of the goods subject to retention of title and/or to directly assert the rights assigned to him, after setting a reasonable grace period following a reminder - without prejudice to his other rights. The taking back of the reserved goods shall only constitute a withdrawal from the contract if the Seller expressly declares this in writing. The Buyer shall notify the Seller without delay of any seizure of the reserved goods and assigned claims by third parties.

IX. Liability/compensation

1. Claims for damages in cases of slight negligence are excluded.
2. Liability for compensation for consequential damage and financial loss, unrealised profits, loss of interest and damage arising from third party claims against the Buyer is also excluded.

X. Product liability

Any recourse claims made against the Seller by contractual partners or third parties under the title of "product liability" within the meaning of the Austrian Product Liability Act (PHG) shall be excluded unless the party entitled to recourse proves that the defect was caused within the sphere of the Seller and was at least due to gross negligence.
XI. Set-off
Offsetting against claims of the Seller with counterclaims of any kind whatsoever is excluded.

XII. Prohibition to refuse performance and retention of goods

Justified complaints do not entitle the Buyer to withhold the entire invoice amount, but only an appropriate part thereof.

XIII. General

1) The contractual language is German.
2. All agreements, subsequent amendments, supplements, collateral agreements, etc. must be in writing, which may also be in electronic form, in order to be valid.
3. The place of performance for the service or delivery shall be the respective shipping point of the Seller. For payment, the place of performance shall be the Seller's registered office.
4. The place of jurisdiction shall be, at the Seller's discretion, the Seller's registered office or the Buyer's general place of jurisdiction; this shall also apply to proceedings involving documents, bills of exchange and cheques.
5. Austrian law shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
6. Should individual provisions of these terms and conditions of sale and delivery be invalid in whole or in part, the validity of the remaining parts of the GTC shall not be affected. An invalid provision shall be deemed to be replaced by a provision which comes as close as possible to the economic purpose of the invalid provision and which is effective.
7. The Seller indicates that the data from the business relationship with the Buyer will be stored within the scope of permissibility according to the Austrian Data Protection Act. Further information on this can be found in our data protection declaration at www.hofer-kerzen.at.
We are looking forward to a good cooperation!

Hofer-Kerzen Vertrieb Ges.m.b.H. Unterer Markt 42 | 3335 Weyer | Austria/Europe | Tel. +43 (0) 7355 8731-0 | office@hofer-kerzen.at | www.hofer-kerzen.at
Firmenbuch-Nr.: FN250174 d | Landesgericht Steyr | UID-Nr. ATU58028823 | Gerichtsstand ist Steyr
Bankverbindung: Bank Austria | BIC: BKAUATWW | IBAN: AT32 1200 0100 2313 1526
Only our GTC apply, which can be accessed at any time from our homepage www.hofer-kerzen.at.