General terms and conditions of sale

1. Scope

a) These general terms and conditions of sale apply to all long distance sales of goods by Zotter Schokoladen Manufaktur GmbH. The customer accepts these general terms and conditions when placing an order or at the latest upon receipt of the goods.
b) For amendments or collateral agreements to have validity they must be made only by persons authorized to represent the company and whose names have been entered in the commercial register; this validity is restricted to the individual business transaction. Any other employee of our company has no authorization to make amendments or collateral agreements in addition to these general terms and conditions of sale.
b) The contractual terms and conditions of the customer are expressly rejected in their entirety.
c) In the event that individual items of these general terms and conditions of sale should be invalid, this in no way affects the validity of the remaining terms, nor the contracts that have been concluded on their basis. In place of the invalid terms the parties will agree to terms that are valid and serve the same purpose.

2. Conclusion of contract

a) Our offers in their entirety are subject to change without notice. The orders of the customer are in the juristic sense the offer to which the customer is bound for three weeks. The contract becomes effective only after order confirmation by us or through supply or performance. A separate notification from the customer about acceptance is not required.
b) We reserve the right to supply only part of the order.
c) Order placement is possible only when all compulsory fields (fields marked with an asterisk) are filled in. Prior to sending the order the customer receives a summary of the content of the order together with prices, which he can then alter or confirm. We will automatically confirm receipt of the order by means of an e-mail, which, however, does not yet constitute an acceptance of the order.
Messages are received by us only during normal business hours (Monday to Friday from 9 a.m. until 4 p.m. with the exception of Austrian public holidays). Messages received by us outside normal business hours are considered as having been received only on the following working day.
d) The customer is aware that the Internet is not a secure medium for communication and that data transmitted via the Internet can not only be seen but also altered by third parties. The risk that data does not arrive in the form the customer has transmitted it is fully carried by the customer. We assume that the data, as received by us, was sent by the customer in this form.

3. Prices

a) Our prices are inclusive of Austrian sales tax, excluding delivery charges and all other auxiliary service charges, unless other delivery conditions have been specified in the respective valid price list. For deliveries outside Austria the respective valid export and import duties apply.

4. Delivery and delivery period

a) The despatch via DPD (inland) or post (abroad) is made to the delivery address specified by the customer when placing the order, and all risks and associated costs are carried by the customer.
b) The delivery dates specified are not binding. In case of non-compliance with the delivery date, the customer's right to cancel the order comes into effect only after we have set an additional two-week grace period in writing and the goods have not been supplied by us within this period.
b) The delivery period is extended for the duration of hindrances that are due to circumstances beyond the control of the parties, such as force majeure, unforeseeable operational breakdowns, acts by authorities, delays associated with transport and customs clearance, transport damages, breakdown of important production components and industrial disputes.
c) Part delivery can be made insofar as they are legally admissible. Each part delivery counts as a separate business transaction and can be invoiced separately by us.

5. Guarantee

a) Defects are - without legal consequences to the customer, who is consumer within the meaning of the KSchG (buyer protection law), for defaulting - to be disclosed immediately after delivery or when detected. If the customer is a business within the meaning of the KSchG, he is to inspect the delivered goods or rendered services immediately upon receipt for completeness, correctness and other flawlessness and send a written complaint about any possible defects immediately, at the latest, however, five working days after the receipt of goods or rendered services, in order to avoid loss of any justified claim as a result of defects found during proper examination.
b) For all types of deliveries the statute of limitations applies to claims resulting from defects - irrespective of the legal grounds they are based on (especially guarantee, compensation, special right of recourse) - within the legal guarantee period of 2 years starting from the time of delivery or performance.
For consumers this period, in case of defect of title, begins from the time the defect is discovered.
c) In the case of defectiveness the customer may choose between improvement and exchange. Only when these two options are impractical may the customer - in accordance with legal requirements - demand commensurate reduction in price or rescission of sale. If we correct a defect, this is done by us without cost and expense to the customer; however, we can require the customer to send us the goods - as far as this is practical - at our risk and cost. The customer obligates himself to allow us the opportunity to rectify the fault.

6. Compensation for damages

We are not liable for damages whatever the legal ground, especially due to delay, impossibility of performance, breach of primary obligation, culpa in contrahendo, consequential damages, defects or tortious acts, which are the result of ordinary negligence by us or persons for whom we are responsible. Customers who are a business within the meaning of the KSchG carry the burden of proving gross negligence or wilful intent. In case of contracts with consumers, damages to persons and matters taken over for processing are excluded from this exemption from liability.

7. Terms of payment

a) Invoices are to be paid immediately prior to the delivery deadline with one of the following credit cards: American Express, Diners, Mastercard, Visa
The credit card specified will be debited immediately after the despatch of the order. The credit card data will not be stored in any form.
b) In case of delayed payment we will charge default interest to the amount of 6 % above the respective basic interest rate of the central European bank.
c) In case of default of payment or other services on the part of the customer we are entitled - irrespective of other rights - to withhold delivery under observance of non-expired delivery time until the agreed counter performance is fulfilled or withdraw from the contract after expiry of a reasonable period of grace and demand compensation for damages due to non-fulfilment. In this case the customer is to immediately return the supplied goods to us at his cost. We reserve the right to claim damages for depreciation, wear and tear, reimbursement of our own transport costs and other costs, while we are entitled upon rescission of contract to claim or retain 20 % of the price as minimum contract penalty.
d) In case of breach of contract the customer obligates himself to reimburse the necessary costs for the appropriate pursuance of our claims. The customer is to reimburse 5.00 for each reminder and a further 25.00 for the maintaining of records of the customer's obligations. In addition, the costs of the collection agency up to the maximum collection fee specified in the respective ordinance for fee ceilings and the cost of lawyers in accordance with the legal fee schedule for lawyers.

8. Reservation of title

Up to the full payment of the price including all accessory charges the supplied goods remain our exclusive and absolute property. Until then they are merely goods the customer has been entrusted with and are not to be sold nor pledged, neither given away nor loaned. The customer is not entitled to deal with these goods without having first obtained our express approval and in all respects carries the full responsibility for the goods entrusted to his care, especially with regard to the danger of their destruction, loss and deterioration.

9. Applicable law, place of performance, jurisdiction

a) Austrian substantive law applies exclusively to the legal relationship between us and our customer under exclusion of UN law on sales.
b) Place of payment and performance for all obligations resulting from this contract is Riegersburg.
c) As jurisdictional venue for all disputes arising indirectly or directly from this contract 8333 Riegersburg has been agreed as local and competent Austrian court. If the customer is consumer within the meaning of the KSchG, this jurisdictional venue is agreed to only when the customer has his residence and place of activity in the district of this court or if he lives abroad. We are also authorized to sue the customer at his general jurisdictional venue.

10. Data protection

The customer agrees that the data disclosed in connection with the order and the processing of the order will be used, processed and stored by our accounting department as well used for our internal market research and marketing purposes. The data will be used by us for meeting legal regulations, for processing payment transactions and for advertising purposes.

11. Right of rescission in accordance with § 5 e KSchG

a) The customer, who is consumer within the meaning of the KSchG, can withdraw from a long distance sales contract, or from a contractual declaration made in connection with long distance sales, up to the expiry of the deadlines stated in the following. It is adequate for the notice of cancellation to be sent within this period. The period for cancellation is seven working days, while Saturday does not count as a working day. In the case of contracts for the supply of goods, this period starts with the day of the receipt of the goods by the customer, in the case of contracts for the performance of services with the day the contract is concluded. If we have not met our duty to furnish information in accordance with § 5d par.1 and 2 KSchG, the period for cancellation amounts to three months from the times stated in the previous paragraph. If we meet our duty to furnish information within this period, the period for exercising the right to cancel starts from the time of notification by us of the period stated in the previous paragraph.
b) The customer does not have the right to cancel contracts concluded about
1. Services which have been started as per agreement with the customer within seven days (§ 5e par. 2 first sentence KSchG) from the time the contract was concluded,
2. Goods or services whose price is dependent on the development of the rates in financial markets, over which we have no control,
3. Goods that have been manufactured according to customer specifications, tailored to personal requirements, not suited for return due to their condition, could quickly spoil or whose use-by date has expired,
4. Audio or video recordings or software, inasmuch as the material supplied by the customer has been unsealed,
5. Newspapers, magazines and illustrated magazines with the exception of contracts about periodic pamphlets (§26 par. 1 Z 1 KSchG),
6. Competition and lottery services as well as
7. Home deliveries or leisure-time services (§ 5c par. 4 Z 1 and 2 KSchG).
The customer therefore has no right of cancellation of orders for Zotter chocolates or other Zotter chocolate products.
c) When the right of rescission is exercised according to par. a, it becomes necessary that without delay
- we refund the payments made by the customer and compensate for the necessary and useful expenditure on the part of the customer and that
- the customer return the services received (while the costs for the return as per agreement are to be carried by the customer) and pays a reasonable compensation for their use, including compensation for the connected reduction of the value of the services; the takeover of the services alone into the care of the customer are not to be seen as reduction in value.

12. Sundries

a) Deliveries and declarations of intent are made in writing and sent to the address specified during order placement until the announcement of a different legally effective address. The customer obligates himself to correctly and completely state the details requested on the appropriate form during the conclusion of contract. In the event that the customer provides incorrect, incomplete and ambiguous details, the customer is liable for all costs arising as a result therefrom. In case of any other compensation the customer is obligated to supply us, immediately and in writing, changes of name, address or change of residence. In case of omission, each written communication sent to the last address supplied by the customer is considered adequate for an effective delivery.
b) Transferral of rights from the contract concluded with us to third parties requires our written approval.

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