Terms of service
GENERAL TERMS AND CONDITIONS
AND CANCELLATION AND WITHDRAWAL POLICY
1. APPLICABILITY
1.1 These General Terms and Conditions (hereinafter referred to as ‘GTC’) apply to all contracts and other legal transactions in connection with the delivery and/or provision of mobile phones, comfort and cordless phones, as well as their respective accessories (such as headsets, speakers, charging cables, etc.) including consumables, in particular (but not exclusively) of the brands
‘EMPORIA’
‘TELME’
‘IOMI’
‘AXXTRA’
(hereinafter referred to as ‘Contract Products’)
by EMPORIA TELECOM GmbH & Co KG, Industriezeile 36, A-4020 Linz, registered in the company register of the Linz Regional Court under FN 431859 m (hereinafter referred to as ‘EMPORIA’) and the provision of services in connection with the Contract Products by EMPORIA, which EMPORIA provides to all customers, irrespective of whether they are consumers within the meaning of the Austrian Consumer Protection Act (hereinafter referred to as ‘Consumers’) or customers who are entrepreneurs within the meaning of the Austrian Consumer Protection Act (hereinafter referred to as ‘Customers’):‘Consumer") or customers who have entrepreneurial status within the meaning of the Austrian Commercial Code (hereinafter referred to as “Entrepreneur Customers”) (Consumers and Entrepreneur Customers together are hereinafter referred to as “Customer”).1.2 Consumers (but not Entrepreneur-Customers) have a right of withdrawal (right of rescission or cancellation) in accordance with the statutory provisions for contracts concluded outside business premises and for distance contracts.
Please refer to Appendix ./1 to these GTC for the cancellation and withdrawal instructions.
1.3 These GTC shall also apply to all future transactions with entrepreneurial customers, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
1.4 The version of the GTC that is available on the website www.emporia.at at the time the respective contract is concluded shall apply to Entrepreneur-Customers.
1.5 EMPORIA provides deliveries and/or provision of contractual products and other services in connection with the contractual products to end customers (consumer and business customers) exclusively on the basis of the GTC. General terms and conditions of business of the customer or conditions of purchase of the customer shall only apply if these have been expressly confirmed in writing by EMPORIA. A reference to the customer's general terms and conditions of business attached or available at a specific location or the customer's terms and conditions of purchase shall not be deemed to be an express written confirmation. The customer's general terms and conditions or the customer's terms and conditions of purchase shall be deemed waived and are expressly rejected by reference to these GTC. This point 1.5 only applies to business customers.
1.6 The following provisions on the delivery of goods and products shall also apply mutatis mutandis to services.
2. OFFER/CONCLUSION OF CONTRACT
2.1 The presentation of goods by EMPORIA in its web shop and in all documents designated by EMPORIA as ‘offers’, ‘cost estimates’ or similar are initially non-binding and subject to change; they are to be understood as an invitation to submit an offer on the part of the customer and shall only become binding upon written order confirmation (acceptance of the customer's offer) by EMPORIA or upon actual fulfilment of the order. EMPORIA's advertising offers are subject to change as long as they do not become part of a contractual agreement.
2.2 ‘Orders’, ‘commissions’ or similarly designated documents as well as orders placed via the web shop by clicking on the ‘Complete order’ or ‘Place order and pay’ button shall be deemed to be binding offers made by the Customer to EMPORIA. The customer must expressly and prominently indicate in such a document if it is not binding. If the customer fails to make this reference, the customer's offer shall be deemed binding for at least 12 working days (including Saturday). A confirmation of receipt of an order does not constitute acceptance of the customer's offer. A purchase contract is only concluded when EMPORIA expressly declares its acceptance of the purchase offer (order confirmation) or when EMPORIA despatches the goods to the customer without a prior express declaration of acceptance. Insofar as EMPORIA accepts down payments or advance payments, acceptance of the payment shall be deemed to be acceptance of the order.
2.3 Verbal promises, assurances and guarantees on the part of EMPORIA or agreements deviating from these GTC in connection with the conclusion of the contract shall only be binding on business customers if confirmed in writing.
2.4 The Customer must provide EMPORIA with any information about EMPORIA's products and services contained in catalogues, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material) which is not attributable to EMPORIA, insofar as the Customer bases its decision to place an order on such information. In this case, EMPORIA may comment on their accuracy.If the Customer breaches this obligation, such information shall be non-binding unless it has been expressly declared - in writing vis-à-vis business customers - to be part of the contract.
2.5 All cost estimates prepared by EMPORIA shall be subject to payment. Consumers within the meaning of the Austrian Consumer Protection Act shall be informed of the obligation to pay costs before the cost estimate is drawn up.
2.6 The language of the contract and the language of performance shall be German or English. EMPORIA shall be entitled to have all documents and papers submitted to EMPORIA by the customer (or on behalf of the customer) in the course of the conclusion and/or performance of the contract in non-German or non-English translated into German or English. The Customer shall be obliged to reimburse EMPORIA for reasonable translation costs. All delivery and performance deadlines on the part of EMPORIA shall be deferred for the duration of the translation.
2.7 The Contractor-Customer shall itself ensure that the products ordered from EMPORIA fulfil the purpose of the Contractor-Customer or are suitable for the use intended by the Contractor-Customer. Unless a specific suitability or property is expressly warranted in writing, EMPORIA shall have no obligation to test, warn or advise in this respect. The naming and description of the product designation or application does not alter the aforementioned obligation of the Contractor-Customer.
3. PRICES
3.1 If a sales price for EMPORIA products has not been expressly agreed, the sales price shall be the list price stated in EMPORIA's generally applicable price lists on the date of dispatch.
3.2 If EMPORIA generally increases the price of a product in question in the period between conclusion of the contract and delivery, EMPORIA shall be entitled to invoice the increased price to its business customers. In this case, the Buyer may withdraw from the contract in writing immediately after notification of the price increase. In the event of increases in ancillary costs such as freight rates, insurance premiums, customs duties, etc., EMPORIA shall be entitled to increase prices accordingly, without the entrepreneur-customer being entitled to withdraw from the contract.
3.3 Unless otherwise agreed in writing, all prices are EXW Linz in accordance with INCOTERMS 2020, exclusive of VAT or other taxes (excise duties, customs duties, etc.) and also exclusive of packaging.3.4 Any discounts, rebates, goods credits, etc. granted shall be calculated from the sales prices excluding VAT.
3.5 In the case of orders placed by the Business Customer that are below the total amount of EUR 50 (calculated from the sales prices of the products ordered less any rebates or discounts and excluding VAT), EMPORIA shall be entitled to charge a small order surcharge of EUR 5 plus VAT.
3.6 The fee for continuing obligations shall be agreed as value-adjusted in accordance with the CPI 2020 and the fees shall be adjusted accordingly. The month in which the contract was concluded shall be taken as the starting point.
4. DELIVERY AND ACCEPTANCE OBLIGATIONS
4.1 Delivery and completion dates are only binding vis-à-vis business customers if EMPORIA has expressly agreed in writing to meet them as a ‘binding delivery date’ or ‘binding completion date’. All other details of delivery or completion dates are merely non-binding estimates.
4.2 If the start of the performance of the delivery or service is delayed or interrupted due to circumstances attributable to the customer, in particular due to a breach of the duty to co-operate or because agreed advance payments have not been made or because agreed orders for materials have not been placed on time, the delivery or service deadlines shall be extended accordingly and agreed delivery or completion dates shall be postponed accordingly.
4.3 Deadlines and dates shall be postponed and extended in the event of force majeure, strikes, unforeseeable delays on the part of EMPORIA's suppliers for which EMPORIA is not responsible or other comparable events which are beyond EMPORIA's control, to the extent of the duration of the relevant event. This shall not affect the right of both contracting parties to withdraw from the contract in the event of delays that make it unreasonable to expect them to be bound by the contract.
4.4 If EMPORIA is in default with the fulfilment of the contract, the customer shall be entitled to withdraw from the contract after setting a reasonable period of grace. The grace period must be set in writing (by registered letter for business customers) with a simultaneous threat of cancellation.
4.5 Minor changes by EMPORIA to the performance of the service or the products supplied that are reasonable and objectively justified for the customer shall be deemed to have been approved in advance. This right shall only apply to consumers within the meaning of the Austrian Consumer Protection Act if it has been negotiated on a case-by-case basis.
4.6 Objectively justified partial deliveries and services are permissible and may be invoiced separately.
4.7 Deviations from the ordered quantity of up to +/- 5 % are permissible.
4.8 EMPORIA is not obliged to accept follow-up orders. In particular, EMPORIA is not obliged to supply customers who have purchased contractual products with consumables or spare parts after they have been purchased, unless an obligation arises under mandatory law.4.9 If an agreed delivery date is postponed by mutual agreement at the customer's request, EMPORIA shall be entitled to demand a reasonable storage fee for the period of extended storage at EMPORIA.
4.9 If an agreed delivery date is postponed by mutual agreement at the customer's request, EMPORIA shall be entitled to demand a reasonable storage fee for the period of extended storage at EMPORIA. If the Customer is in default of acceptance or advance performance, EMPORIA shall be entitled - insofar as EMPORIA insists on fulfilment of the contract - to store the goods or delivered products either at EMPORIA or in a warehouse close to the Customer or EMPORIA, for which EMPORIA shall be entitled to a weekly storage fee in the amount of the costs incurred by EMPORIA, but in any event in the amount of 10% of the order value.
5. TRANSFER OF RISK, PACKAGING AND DESPATCH
5.1 Even in the case of carriage paid delivery, the risk shall pass to the customer from the time the goods leave the factory. In the event of delays for which the customer is responsible (even if not necessarily at fault), the risk shall pass upon notification of readiness for dispatch.
5.2 Unless otherwise agreed, EMPORIA shall choose the packaging and mode of despatch at its own discretion. The goods to be delivered or the products to be delivered shall only be insured against breakage, transport and fire damage at the written request of the customer and at the customer's expense.
6. DEFAULT OF ACCEPTANCE OR ADVANCE PERFORMANCE
6.1 In the event of default of acceptance or advance performance by the customer, EMPORIA shall be entitled to demand payment for services rendered and to withdraw from the contract after a reasonable period of grace.
6.2 In the event of a justified cancellation of the contract by EMPORIA, EMPORIA shall be entitled to demand a lump-sum compensation for damages in the amount of 95% of the order value plus VAT from the Contractor-Customer without proof of the actual damage. The obligation to pay damages by an Entrepreneur-Customer is independent of fault. The assertion of higher damages is permissible.