BarriqueAffairs GmbH, TheCookingSpoon
1- SCOPE OF APPLICATION
- These General Terms and Conditions („AGB“) apply to the sale and delivery of products through Barrique Affairs GmbH (limited liability company according to Austrian law), TheCookingSpoon (referenced as „TheCookingSpoon“ in the following), with address A-1130 Vienna, Auhofstrasse 8/2/4.
- TheCookingSpoon can change these AGB at any given time; they are always valid in the version at the point in time of a Customer’s order.
- Diverging terms and conditions are invalid, unless TheCookingSpoon has agreed to them in writing or via email before accepting the order.
- In placing the order, the Customer declares his/her acceptance of these AGB.
- A Customer’s order constitutes a binding quote. Factual acceptance of the Customer’s order from TheCookingSpoon is declared with delivery of the product. TheCookingSpoon is entitled to reject any order without specifying the reasons.
2- PRICES AND COSTS OF SHIPPING & HANDLING
- The quoted prices for Goods are gross prices in Euro and include all legally obligatory taxes and fees. The quoted prices do not include any costs for shipping and handling.
- For deliveries outside of Austria respectively the EU Single Market, additional tolls and/or fees can be incurred, including possible import or export duties and possible excise duties, which can lead to changes in the quoted gross prices. Such tolls and/or duties are fully payable by the Customer in the legally due amount. Deliveries outside of Austria respectively the EU Single Market can only be carried out if they encounter no excessive legal or logistic barriers.
- The prices quoted on the website and in other catalogues, brochures, price-lists, etc. are always – unless explicitly stated otherwise – non-binding. For repeat orders (of the same product) the prices are also non-binding.
- The binding prices are displayed in the online-shop’s basket after correct selection of the product. When ordering by mail, telephone, fax or email this applies to the prices listed in TheCookingSpoon’s written (this includes via fax and/or email) order confirmation.
- All costs of shipping and handling are payable by the Customer. The delivery costs are shown in the online-shop’s basket after correct selection. When ordering by mail, telephone, fax or email this applies to the prices listed in TheCookingSpoon’s written (this includes via fax and/or email) order confirmation.
- For the other countries in the Schengen zone the actual delivery costs are billed and displayed in the online-shop basket accordingly.
For extra Schengen countries delivery is carried out by express company. An automatic calculation of shipping costs is not possible in this case. Customers can place orders via all regular channels. On receiving the order, TheCookingSpoon will contact the Customer and inform him/her about the exact delivery costs. The sales contract is only concluded when the Customer has accepted the offer including the precise costs for shipping and handling.
3 -PAYMENT AND DEPOSITS
- Sales price is due for payment on conclusion of the sales contract, at the latest with delivery of the product y one of the payment methods listed on the website. Justified complaints do not entitle the Customer to withhold the invoice’s full due, at most a reasonable portion of it.
In contracts with Consumers, these can decline payment if TheCookingSpoon did not deliver according to contractual agreement or if payment is compromised by their poor financial circumstances which either were uncommon nor needed to be known at the time of closing the contract. If TheCookingSpoon offers sufficient guarantees, then the right to decline payment does not apply.
- TheCookingSpoon reserves all rights to ownership of the products until full payment of the sales price including related expenses.
- The Customer acknowledges that special editions listed on TheCookingSpoon’s website (according to No. 10 of these AGBs) can be subject to minimum number of orders for production and delivery. Should one of these special editions not reach the required minimum number of orders, TheCookingSpoon retains the right to withdraw from the sales contract and commits itself to reimbursing the Customer with the sales price.
- If the Customer is in delay or default of payment or any other service, then TheCookingSpoon can:
suspend fulfilling its own obligations until payment or other service is effectuated
• make use of an adequate extension of the delivery time-line
• In case of non-compliance with the adequate extension of the time-line withdraw from the contract as well as
• demand all dulling and collection expenses as long as they are necessary in enforcing its rights and are proportionate to the claim in question. The Customer is only obliged to refund the remuneration of the collection agency as far as it conforms to Austrian law (VO – BMWA – Höchstsätze der Inkassoinstitute).
All damages exceeding this, especially damages resulting from higher interest rates on possible credit costs for TheCookingSpoon, must be refunded irrespective of culpability for payment delays.
Granted discounts or bonuses are conditional upon receipt of the complete payment.
TRANSFER OF RISK
- If the Customer himself collects the products then use and risk are transferred to the Customer on handing them over.
- For deliveries to business Customers, TheCookingSpoon – in absence of special instructions from the Customer – determines means and route of transport as mandated by the Customer. Use and risk are transferred to the Customer on TheCookingSpoon handing over the products to the carrier. Delivery is effected at the cost and risk of the Customer.
- For deliveries to Consumers in the sense of Austrian Consumer protection law, use and risk are transferred to the Customer on the carrier handing over the products to him/her or a designated third party. If the Consumer him/herself has closed the transport contract without using an option suggested by TheCookingSpoon, then risk is transferred on handing over the products to the carrier.
4 - RETURN OF GOODS AND RIGHT OF WITHDRAWAL
- TheCookingSpoon is – until further notice – willing to redeem all Goods purchased with reimbursement of the full sales price under the following conditions: Goods must be returned undamaged and in original packaging within 10 days after date of invoice and presenting the original invoice. Reimbursement of the sales price is carried out as credit note.
- If the Customer is a Consumer in the sense of EU Consumer protection law and if he/she has placed his/her order via mail, telephone, fax, email or online-shop, then he/she is entitled to cancel the order within 14 days of receipt of the Goods. The revocation period begins as soon as the Consumer or a designated third-party has taken over the Goods. In the case of orders over several Goods the revocation period begins, as so soon as the Consumer or a designated third-party has taken over the final partial delivery, or the last good. The day of receipt is not counted in the revocation period. Saturdays, Sundays and public holidays are included in determining the revocation period. Timely canceling of the order or return of the Goods suffices for adhering to the revocation period.
- For exerting your right to cancel the order you must inform TheCookingSpoon in no unclear terms (e.g. via mailed letter, fax or email) about your decision to cancel the order. To conform to the revocation period, it is sufficient to send the cancellation of the order before end of the revocation period.
- Consequences of order cancellation:
If you cancel your order, TheCookingSpoon will refund all your payments, including costs of shipping and handling (with the exception of additional costs incurred because you chose a different means of delivery than the most favorable standard delivery offered by TheCookingSpoon) without undue delay and at the latest within 14 days of TheCookingSpoon receiving the cancellation of your order. TheCookingSpoon will use the same method of payment you used for the original transaction, unless something else is explicitly arranged with you. Under no circumstances will you incur any expenses from this refund.
TheCookingSpoon can refuse a refund as long as the Goods have not been returned to TheCookingSpoon or you have provided evidence that you have sent off the return shipment; depending on which is earlier in time.
You must return the Goods without due delay and at the very latest within 14 days of informing TheCookingSpoon of cancelling your order. The stated period is observed if you send off the Goods before the 14 days period expires. You must only compensate any possible depreciation of the Goods, if this depreciation is caused by handling that is unnecessary for examining the quality, characteristics and functioning of the Goods.
- Consumers ordering special edition products by TheCookingSpoon via mail, telephone, fax, email or the online-shop are excluded from canceling orders according to section 10.
5 - ORDERS, DELIVERY DEADLINE, DELIVERY IMPEDIMENTS, WITHDRAWAL FROM CONTRACT
- TheCookingSpoon accepts orders by telephone, fax, email or via online-ship.
- In case of non-acceptance of ordered Goods, TheCookingSpoon is entitled to demand compensation for incurred additional costs, i.e. further transport costs. This does not apply if TheCookingSpoon fails to meet its contractual obligations.
- The acceptance of orders is under reservations of deliverability. Should delivery or meeting the delivery deadline be impossible due to reasons TheCookingSpoon is not responsible for, then the obligation to deliver until the given deadline expires. Reasons for non-delivery TheCookingSpoon is not responsible for are in particular: Difficulties in procurement of Goods or materials from third parties, operational disruption (also with TheCookingSpoon’s suppliers), traffic disruptions, all events in connection with industrial action as well as force majeure.
- If TheCookingSpoon cannot offer the Customer a new delivery date or a delivery is no longer possible due to reasons named in 6.3., the TheCookingSpoon is entitled to withdraw entirely or partially from the sales contract, without being held liable for damages. In these cases the Customer can also withdraw from the contract.
- In case of separable orders, the Customer is not entitled to withdraw from the contract regarding deliverable parts, as long as these parts can be delivered and are usable for the Customer. Under these circumstances respectively if the remaining parts of the order can be subsequently delivered, the Customer is not entitled to refuse the acceptance of partial deliveries.
- If the Customer cancels the contract unwarranted, and TheCookingSpoon agrees to the cancellation in writing (includes via fax or email), then TheCookingSpoon has claim to 15% of the sales price as generalized damages.
The divergent legal rights of cancellation free from generalized damages for Consumers according to EU Consumer Rights Directive remain unaffected.
- Changes or cancellation of the order by the Customer must always be done in writing (including fax or email). TheCookingSpoon reserves the right to accept such declaration in other forms, which will only come into effect after being confirmed in writing (includes via fax or email) by TheCookingSpoon.
6 – WARRANTY
- All pledges about the use or particular characteristics of the Goods or other explanations by employees of TheCookingSpoon are non-binding and no guarantee for certain characteristics, if they are not expressed in writing (includes fax and email).
- To become valid, all warranty claims must be announced without due delay to TheCookingSpoon; visible defects right after receipt, hidden defects right after their discovery and under presentation of the used Goods and original invoice.
- Any warranty claims are limited to the sales price of the delivered and defective Goods.
- TheCookingSpoon fulfils its warranty obligations by choice through delivering defect-free Goods, improvement of defective Goods, subsequent delivery of missing Goods or reverse transaction of the sales contract (meaning refund of the sales price) within a reasonable period of time.
- For Consumers – in the sense of the EU directive – points 7.1 to 7.4 are replaced with the stipulation that in case of a defect, the Consumer can choose – within the legal framework - whether he/she wants improvement, replacement, adequate price reduction or return of the Goods.
- Reasons of taste, customary or minor, technically unavoidable variations in quality, quantity, color, size, weight, equipment or design of the Goods are neither subject to warranty claims nor do they constitute non-fulfilment of the contract.
- TheCookingSpoon is not liable for exact matches in taste, color, material and pattern or other matching criteria with re-ordered Goods.
- After use or beginning of treatment of the Goods any further warranty is excluded.
- Warranty period extends over 2 years and begins with transfer of risk as under point 4.
- Points 7.6.-7.8 do not apply to Consumers – in the sense of the EU directive.
7 - LIABILITY FOR DAMAGES
- TheCookingSpoon is liable for damages according to provisions stipulated by law. Liability for damages from slight negligence are excluded. Limitation of liability does not extend to damages with reference to injuries of life, body and health of humans or for claims under Austrian Product Liability Law.
- Business associates must provide evidence for malice or gross negligence. Liability for loss of profit or other subsequent damages is excluded. Liability is limited to 10% of the sales price. The replacement for damages following from of defects, other material damages, financial damages and damages of third parties towards the Customer are excluded for business Customers.
- Point 8.1 does not apply to Consumers – in the sense of the EU directive.
8 - DEFAULT IN ACCEPTANCE
If the Customer does not accept the Goods, then TheCookingSpoon is entitled to either store the Goods at the risk of the Customer (and under charging a storage fee of 5% of the invoice sum per started month plus VAT) and demand fulfilment of the sales contract. Or after setting a deferred deadline of 14 days to withdraw from the contract and sell the Goods to another Customer. In this case the Customer must pay a handling fee of 10% of the sales price plus VAT.
9 - PRE-SALES AND SPECIAL EDITIONS
- On occasion, TheCookingSpoon offers Goods in the form of pre-sales or other special editions. In a pre-sale, the orderer subscribes to the purchase of a good with a later delivery. TheCookingSpoon’s pre-sales offers do not oblige TheCookingSpoon to deliver the offered Goods.
- The delivery of the Goods is dependent on meeting a certain order quantity. Should the order quantity not be reached during pre-sales, then the orderer is refunded. There is no claim to surrogate Goods.
- An order is accepted by TheCookingSpoon as soon as the orderer receives and order confirmation from TheCookingSpoon. On delivery of the Goods, the orderer receives the final invoice. Payment procedures are as listed in Point 3 of these AGB.
10 - DATA-PROCESSING AND CUSTOMER DATA
The Customer agrees to all personal data named in the sales contract and on registration (with the online-shop) being stored and processed according to Austrian privacy law. The data are used, as far as necessary, for meeting legal regulations, payment processing, customer service and marketing. The Customer furthermore agrees to receiving digital mail (via email or SMS) for promotional purposes. This consent can be revoked at any given time via email to email@example.com TheCookingSpoon does not pass on personal data to other businesses.
11 - OTHER PROVISIONS
- Should any individual provisions in the sales contract respectively these AGB be invalid, the remaining provisions or the entire AGB shall not be affected thereby. All other provisions as well as all other AGB regulations remain in force.
- Place of performance is the business address of TheCookingSpoon – for the Customer as well as for TheCookingSpoon.
- All disputes arising from these contractual relations fall exclusively under the jurisdiction of the courts in Vienna, Austria.
- The contract is governed exclusively by Austrian law and under exclusion of UN sales laws and provisions.
For all sales to Consumer in the sense of EU Consumer directive point 12.3. does not apply. Point 12.4. applies with the restriction, that under the conditions of Art. 6 of Regulation (EC) No. 593/2008 of the European Parliament the Council of June 17, 2008 (“Rome I”) on the law pertaining to contractual obligations, special provisions for consumer protection in the law of the country in which the consumer has his/her usual residence can supersede Austrian law.