General Terms and Conditions
1. Area of validity
The following General Terms and Conditions shall apply to all sales and deliveries by Weinschloss Koarl Thaller GmbH, Maierhofbergen 24, 8263 Großwilfersdorf, Austria (in the following “Seller”). Any provisions deviating from or supplementing these General Terms and Conditions – in particular general terms and conditions of business or purchase of entrepreneurs within the meaning of § 1 of the Austrian Consumer Protection Act (KSchG) (B2B) – shall only become an integral part of the contract if this has been expressly confirmed in writing by Seller. The contract language is German.
Seller’s offers are subject to change without notice, unless they are expressly designated as binding. The Buyer’s order shall be considered accepted only upon Seller’s order or delivery confirmation, which shall constitute a contract. The acceptance of orders is subject to availability. Seller also reserves the right to allocate lower quantities to Buyers in the event of oversubscription.
3. Prices and terms of payment
Prices are quoted in EURO and are inclusive of taxes and duties, but exclusive of any transport costs (in particular delivery costs or customs duties and levies for deliveries outside Austria). The costs of delivery will be announced to the buyer in the online store before placing the order (for cost coverage see point 5.). When ordering in the online store, the buyer can pay the purchase price by mollie (Visa, Mastercard or American Express, online banking / bank transfer) or PayPal. Unless otherwise agreed, the payment method cash in advance is generally agreed for contract conclusions outside the online store. In the case of part deliveries, partial invoices are always permissible. In the case of agreement of partial payments, loss of date occurs if even only one partial payment is made unpunctually or not in the full amount. Upon the occurrence of a missed deadline, the entire outstanding balance shall become due for payment immediately. In this case, Seller shall also be entitled to refuse to make further partial deliveries until the outstanding payments have been received. In the event of default, Seller shall have the right to take custody of the goods delivered under retention of title without withdrawing from the purchase contract until the entire claim, including ancillary costs, has been fully covered. A cash discount deduction shall only be recognized if it has been separately agreed in writing. In particular, discounts provided for in the general terms and conditions of business or purchase of entrepreneurs within the meaning of § 1 KSchG (B2B) shall not be recognized.
4. Default of payment
If Buyer is an entrepreneur within the meaning of § 1 KSchG (Austrian Consumer Protection Act), Buyer shall be obligated to pay the statutory interest on arrears pursuant to § 456 UGB (Austrian Commercial Code) (base interest rate available at: https://www.oenb.at/Service/Zins-und-Wechselkurse/Anknuepfungszinssaetze.html) and a flat fee of EUR 40.00 for collection costs in the event of default in payment. Seller explicitly reserves the right to assert further collection costs and possible claims for damages. If the buyer is a consumer within the meaning of § 1 KSchG, he agrees to pay interest on arrears of 4% pa. in the event of default.
5. Place of performance, risk, delivery conditions
Place of performance is the registered office of Weinschloss Koarl Thaller GmbH, Maierhofbergen 24, 8263 Großwilfersdorf, Austria. Deliveries are made via a parcel service commissioned by the seller, usually with the Austrian postal service. The transport costs (delivery, any duties and customs duties) are paid by the buyer. Seller reserves the right to adjust transport costs for future business relations. The risk of accidental loss or accidental deterioration and the risk of transport passes to the buyer when the goods are handed over to the carrier, unless the KSchG is applicable. In the case of self-collection, the risk passes to the buyer when the goods are handed over.
6. Delay in delivery
The delivery periods and dates shall be observed by Seller as far as possible: They are, unless expressly agreed as binding, non-binding and are always understood as the expected date of provision and handover. Withdrawal from the contract by the purchaser due to delay in delivery is only possible if a reasonable – at least two-week – period of grace is granted. The withdrawal must be made in writing. The right of withdrawal shall only apply to the part of the delivery or service in respect of which there is a delay.
7. Default of acceptance
The Buyer undertakes to accept the object of purchase.
If the goods are not accepted at the agreed date and place (“Default of Acceptance”), they shall be stored for a period of 6 weeks at the risk and expense of Buyer, for which a storage and handling fee of EUR 30.00 per calendar day or part thereof shall be charged. In addition, in the event of default in acceptance, Seller shall be entitled to invoice the frustrated transport costs. At the same time, Seller shall be entitled either to insist on performance of the contract or, after setting a reasonable grace period, to rescind the contract and otherwise dispose of the goods. In the event of utilization, a penalty of 10% of the invoice amount (excl. VAT) shall be deemed agreed.
8. Retention of title
Seller retains title to the object of purchase until full payment of the purchase price plus additional charges and transport costs.
8.1 Authorization of sale
If the Buyer operates a wine and spirits trade and if the contract is concluded for the purpose of resale, the Buyer shall be prohibited from reselling – except in accordance with the procedure under this clause – until he has paid the purchase price in full to Seller. If the Buyer does not sell the object of purchase to a third party against cash payment before he has paid the purchase price in full to the Seller, the Buyer hereby assigns the purchase price due to him from the resale against such third party to the Seller as security for the (remaining) purchase price claim. In this case, the selling Buyer shall inform the Seller of the name or company of the purchaser before transferring the resold goods and shall ensure that the resale proceeds are paid directly to the Seller. The Buyer shall notify the Seller thereof by e-mail on the same day.
If the Buyer sells the object of purchase to a third party against cash payment before he has paid the purchase price in full to the Seller, he shall accept the amount necessary for payment of the (remaining) purchase price claim from the resale proceeds in trust for the Seller. He is obliged to keep this amount separate from his other assets and as trust money of the Seller and to mark it as such. The escrow deposit shall be paid immediately and under waiver of any objection and defense to the bank account of Seller at Raiffeisenbank Region Fürstenfeld eGen (IBAN: AT88 3807 7000 0607 4652; BIC: RZSTAT2G077). The waiver of defense does not include claims of the Buyer against the Seller based on a legally binding judgment, an incontestable arbitration award or claims of the Buyer acknowledged in writing by the Seller.
8.2 Right of withdrawal, right of repossession
If the Buyer is again in default with the payment of the purchase price for more than 14 days after the expiry of the grace period set and if the Seller therefore withdraws from the contract, the Seller shall be entitled to demand the return of the object of purchase from the Buyer. In case of withdrawal, the Buyer is obliged to return the object of purchase to the Seller at his own expense and to keep it in safe custody until then. The grace period shall be set by e-mail.
8.3 Duty of notification
The Buyer undertakes to notify the Seller by e-mail or by telephone of any action or execution on the object of purchase, in particular if it concerns actions for restitution or alleged product liability claims, within seven working days after delivery of the pleading initiating the proceedings.
Information on products that can be attributed to the seller (service providers), such as on their usability, are non-binding and do not guarantee any specific properties.
Customary or minor deviations in quality, quantity, color, size, weight, equipment or design due to technical reasons are neither warranty defects nor are they to be considered as non-performance of the contract. If the buyer is an entrepreneur as defined by § 1 KSchG, the warranty period is 6 months from the date of delivery. In this case, the existence of defects must be notified and proven by the buyer immediately, specifically and in writing. §§ 924 and 933b ABGB are not applicable in this case.
For consumers within the meaning of § 1 KSchG, the statutory warranty provisions of the ABGB and the VGG shall apply.
10. Distance selling
If it is a distance and away business with a consumer (§ 1 KSchG) and the FAGG is applicable, the buyer is entitled to revoke the contract within 14 days without giving reasons (§ 11 FAGG).
The revocation period is 14 days from the day on which the buyer or a third party named by him, who is not the carrier, has or has taken possession of the goods. To comply with the withdrawal period, it is sufficient that the notice of exercise of the right of withdrawal is sent before the expiry of the withdrawal period.
To exercise the right of withdrawal, Seller shall be informed by means of a clear statement (e.g. a letter or e-mail sent by mail) of the decision to withdraw from the contract.
The goods shall be returned or handed over to Seller without undue delay and in any case no later than 14 days from the day on which Seller receives the revocation of the contract. The deadline is met if the goods are dispatched before the expiry of the 14-day period.
In the event of revocation, the Buyer shall bear the costs of returning the goods.
The customer’s right of withdrawal is excluded for contracts for goods that are made to customer specifications or clearly tailored to personal needs, for goods that can spoil quickly or whose expiration date is quickly exceeded, for goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene reasons, provided that their seal has been removed after delivery, for alcoholic beverages whose price was agreed upon at the time of conclusion of the contract and whose current value depends on fluctuations in the market over which Seller has no control.
To exercise the right of withdrawal, Seller recommends the use of the following withdrawal form, which can be filled out electronically and sent to firstname.lastname@example.org (not mandatory).
Weinschloss Koarl Thaller GmbH
I/we () hereby revoke the contract concluded by me/us () for the purchase of the following goods ()/provision of the following service ():
Ordered on ()/received on ()
Name of the consumer(s)
Address of the consumer(s)
Signature of consumer(s) (only in case of paper communication)
(*) Delete where not applicable.
Seller shall be liable for damages in all relevant cases only in case of intent or gross negligence. In the event of slight negligence, Seller shall only be liable for personal injury. If the buyer is an entrepreneur, the liability expires in 6 months from knowledge of the damage and the damaging party.
Seller shall not be liable for indirect damages, loss of profit, loss of interest, loss of savings, consequential and pecuniary damages.
If, in whatever case, a penalty has been agreed upon, it is subject to the judicial right of moderation. The assertion of damages in excess of the penalty is excluded.
12. Protection of Minors
Wine and spirits may only be sold and delivered to persons over 18 years of age. In order to ensure compliance with the statutory regulations, Seller is entitled to hand over goods only after legitimation by an official photo ID.
By placing an order in the online store, the buyer assures that he or the recipient of the goods is older than 18 years.
13. Jurisdiction and choice of law
For the decision of all disputes arising from a contract – including such about its existence or non-existence – the exclusive jurisdiction of the BG Leibnitz is agreed. § Section 14 KSchG shall remain unaffected.
The contract shall be governed exclusively by the laws of the Republic of Austria to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14. Data processing
Regarding data processing, reference is made to the data protection declaration.
15. Other provisions
Subject to § 6 Abs 1 Z 8 KSchG a set-off against claims of Seller with counterclaims – of whatever kind – is excluded.
Should any provision of these Terms and Conditions be or become legally invalid or unenforceable in whole or in part, this shall not affect the legal validity of all other business provisions. The contracting parties shall replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the legally invalid or unenforceable provision in terms of content and purpose.
Amendments or supplements to a contract must be made in writing. This shall also apply to any modification of the written form requirement.