General Terms and Conditions Including Information for Customers

General Terms and Conditions Including Information for Customers

General Terms and Conditions Including Information for Customers

Version: April 2016

 

Contents

  • 1. Area of Application
  • 2. Conclusion of the Contract
  • 3. Right to Withdraw from the Contract
  • 4. Prices and Payment Terms
  • 5. Delivery and Shipping Terms
  • 6. Retention of Title
  • 7. Warranties
  • 8. Liability
  • 9. Indemnification in Cases of Conflict with Third Party Rights
  • 10. Applicable Law
  • 11. Information on Online Dispute Resolution
  • 12. Redemption of Campaign Vouchers
  • 13. Redemption of Gift Vouchers
  1. Area of Application

1.1 These General Terms and Conditions (hereinafter called ‘GTC’) of MY superheroes OG; Praterstrasse 9/7, 1020 Vienna (hereinafter called ‘Seller’), apply to all contracts that a consumer or a company (hereinafter called ‘Customer’) concludes with the Seller in connection with the goods and/or services that the Seller offers in their online shop. Unless otherwise agreed, the inclusion of any of the Customer’s own terms and conditions is herewith explicitly rejected.

1.2 A consumer, for the purpose of these GTC, is any natural person who concludes a legal transaction for purposes that are predominantly not attributable to their commercial activities, nor to their activities as a self-employed person. A company, for the purpose of these GTC, is a natural person, or a legal entity, or a partnership having legal capacity that, when concluding a legal transaction, acts in the performance of its commercial or independent professional activity.

  1. Conclusion of the Contract

2.1 The product descriptions in the Seller’s online shop may not be construed as binding offers on the Seller’s part. They only serve as a basis for a binding offer to be placed by the Customer.

2.2 The Customer can place a binding offer via the order form that is included in the Seller’s online shop. After having placed the selected goods and/or services in the virtual shopping basket, and after having completed the electronic order process, the Customer submits a legally binding contract offer for the goods and/or services contained in the shopping basket, by clicking the button that concludes the order process.

2.3 The Seller has the possibility of accepting the offer within five days by:

  • sending a written order confirmation to the Customer, or sending an order confirmation in text form (fax or e-mail), whereby the receipt of the order confirmation by the Customer constitutes the conclusion of the contract; or
  • shipping the goods to the Customer, whereby the arrival of the goods at the Customer’s address constitutes the conclusion of the contract; or
  • requesting payment from the Customer after the latter has placed the order.

In the event that several of the aforementioned alternatives are applicable, the contract shall be deemed concluded at the occurrence of the first alternative. When the Seller does not accept the Customer’s offer within the aforementioned period, this shall be deemed as a rejection of the offer and has the effect that the Customer is no longer bound by his declaration of intent.

2.4 The period of acceptance of the offer starts on the day after the Customer has sent the offer, and terminates at the end of the fifth day following the submission of the offer.

2.5 When an offer is submitted via the Seller’s online order form, the Seller saves the text of the contract and returns it to the Customer, together with these GTC (e.g. By e-mail, fax, or letter). In addition, the text of the contract is stored on the Seller’s homepage, and, provided the Customer has set up a customer account in the Seller’s online shop prior to sending his order, the Customer can access it free of charge on his password-protected customer account by using the corresponding login data.

2.6 Prior to submitting his binding order on the Seller’s online order form, the Customer has the possibility of correcting all data they have entered with the help of usual keyboard and mouse functions. Furthermore, all entries are displayed again in a confirmation window, where they can be corrected with the usual keyboard and mouse functions prior to sending the binding order.

2.7 Contracts shall only be concluded in German or in English.

2.8 In general, e-mail and automated order processing are used for order processing and contacts. The Customer must ensure that the e-mail address they have indicated for use in order processing is correct, so that they receive the e-mails sent to this address by the Seller. In particular, the Customer must ensure that if they use SPAM filters, all e-mails sent by the Seller or by third parties which the Seller uses for order processing, are received without problem.

2.9 When ordering alcoholic beverages, the Customer confirms by sending their order that they have reached the legal drinking age, and commits themselves to ensuring that either they, or another person of full legal age authorised by them, is entitled to receive these goods.

  1. Right to Withdraw from the Contract

3.1 In principle, consumers are entitled to withdraw from a contract.

3.2 Detailed information thereon can be found in the Seller’s Cancellation Policy.

3.3 The right of withdrawal does not apply to consumers who, at the time of concluding the contract, are not resident in a member state of the European Union, and whose sole place of residence and delivery address are outside the European Union at the time of concluding the contract.

  1. Prices and Payment Terms

4.1 Unless otherwise indicated in the Seller’s product description, the prices mentioned are total prices, i.e. they include VAT. Any additional delivery and shipping charges are mentioned separately in the product description.

4.2 Where shipments outside the European Union are concerned, additional expenses may occur in specific cases, and those will not be borne by the Seller and are for the Customer’s account. These expenses can be, amongst others, fees charged by financial institutions for the transfer of funds (e.g. transfer fees, exchange commissions) or all customs and import charges and taxes (e.g. customs duties). Such charges can also occur when the delivery is not effected to a country outside the European Union, but when the Customers transfers the funds from a country not pertaining to the European Union.

4.3 The payment options available to Customers are indicated in the Seller’s online shop. SEPA direct debit, giropay, SOFORT transfers and credit card billings are performed by PAYONE GmbH · Fraunhoferstrasse 2-4 · 24118 Kiel, Germany – Registered Office of the Company: Kiel – Local Court Kiel Company Register B 6107. Managing Directors: Carl Frederic Zitscher, Jan Kanieß – A company of Sparkassen-Finanzgruppe.

4.4 When a pre-payment has been agreed, the payment becomes due immediately after concluding the contract.

  1. Delivery and Shipping Terms

5.1 Unless otherwise agreed, the delivery shall be effected to the delivery address indicated by the Customer.

5.2 In the event that the transport company returns the shipment to the Seller, because the goods could not be delivered to the Customer, the latter shall be liable for all costs related to the unsuccessful delivery. This does not apply when the Customer effectively exercises his right of withdrawal; when the circumstances leading to the unsuccessful delivery are not attributable to the Customer; or when the Customer has been temporarily hindered from receiving the offered services, because the Seller has not informed him of these services in advance within a reasonable period of time.

5.3 In the event that the Customer is a company, the risk of accidental loss or accidental deterioration of the goods sold reverts to the Customer as soon as the Seller has handed over the goods to the freight forwarder, a transport company or any other person or institution entrusted with the delivery. In the event that the Customer is a consumer, the risk of accidental loss or accidental deterioration of the goods sold reverts to the Customer only when the goods have been handed over to the Customer or a person duly authorised to receive the goods. However, as an exception of the aforementioned, the risk of accidental loss or accidental deterioration of the goods sold also reverts to the Customer when the Seller has handed over the goods to a freight forwarder, a transport company or any other person or institution entrusted with the delivery and when the Customer has entrusted this freight forwarder, transport company or other person or institution with the delivery, and the Seller has not nominated this person or institution to the Seller in advance.

5.4 The Seller reserves the right to withdraw from the contract when deliveries to himself have not been made correctly or in proper form. This shall only apply to cases where the Seller is not at fault and where he has concluded, with due care, a specific covering transaction with his supplier. The Seller shall make all reasonable efforts to procure the goods. In the event of the goods not being available or only being partially available, the Customer shall be informed without delay and any payment refunded immediately.

  1. Retention of Title

6.1 With respect to consumers, the Seller retains title of the goods until the Customer has fully paid the purchase price of the goods delivered.

6.2 With respect to companies, the Seller retains title of the goods until all claims resulting from an ongoing business relationship have been settled in full.

6.3 When the Customer is a company, it shall be entitled to re-sell goods subject to retention of title in the course of its ordinary business operations. In such cases, the Customer assigns in advance all receivables from third parties relating to the goods to the Seller to the full amount of the relevant invoice (including VAT). This assignment shall apply independently, no matter whether the goods subject to retention of title are resold without or after further processing. The Customer shall remain entitled to collect the related receivables even after these have been assigned to the Seller. The Seller’s right to collect such receivables himself remains unaffected thereby. However, the Seller shall not collect such receivables when the Customer fulfils all his payment obligations towards the Seller, does not fall in arrears, and does not file an application for the initiation of insolvency proceedings.

  1. Warranties

In the event that the goods bought are defective, the legal stipulations of liability for defects apply. In deviation thereof, the following applies:

7.1 For companies:

  • a minor defect does not constitute a right to claim for defects;
  • the Seller reserves the right to elect the type of supplementary performance;
  • with new goods, the period of limitation for claims based on defects is one year after the date of the transfer of risk;
  • with used goods, all rights or claims for defects are generally excluded;
  • the period of limitation is not renewed if a replacement is provided within the scope of liability for defects.

7.2 The aforementioned limitations of liability and reduction of periods of limitation do not apply:

  • in cases of injury to life, body and health that are due to deliberate or negligent violation of duties by the Seller or deliberate or negligent breach of duties of a legal representative or of a vicarious agent of the Seller;
  • any other damage that is due to a deliberate or grossly negligent breach of duty by the Seller, or a deliberate or negligent violation of duties of a legal representative or vicarious agent of the Seller; or
  • in cases where the Seller has maliciously concealed a defect.

Furthermore, with relation to companies, the obligation to give notice in accordance with Clause 377 of the Austrian Commercial Code (UGB) applies. In failing to do so, their right to claim on warranties, on damages due to the defect itself, or due to an error regarding the non-defective nature of the item, becomes void.

7.3 When the Customer is a consumer, he is requested to lodge a complaint with the delivering party regarding any goods that show obvious transport damage, and to inform the Seller thereof. In the event that the Customer omits to do so, his rights to legal or contractual claims for defects are not affected thereby.

  1. Liability

The Seller is liable to the Customer for compensation for damages and reimbursement of expenses relating to any contractual, quasi-contractual, and legal claims, including claims in tort, as follows:

8.1 The Seller has unlimited liability on any legal ground:

  • in cases of intent or gross negligence; and
  • in the event of deliberate or negligent injury to life, body and health.

8.2 When the Seller breaches an important contractual obligation, his liability is limited to foreseeable damage typical to the contract, unless he has unlimited liability in accordance with the aforementioned stipulations. Important contractual obligations are obligations that the Seller is contractually obliged to fulfil in order to achieve the objective of the contract, whose fulfilment makes the due performance of the contract possible in the first place, and on the fulfilment of which, the Customer may regularly rely.

8.3 In all other cases, the Sellers’s liability is excluded.

8.4 The aforementioned stipulations of liability also apply to the liability of the Seller’s vicarious agents and legal representatives.

  1. Indemnification in Case of Conflicts with Third Party Rights

In the event that the Seller is contractually obliged, beyond the supply of goods, to process goods in accordance with Customer’s instructions, the Customer must ensure that the goods or instructions he imparts to the Seller do not breach the rights of third parties (e.g. copyrights or trademark rights). The Customer holds the Seller free of any claims that third parties may raise against the Seller in connection with a breach of their rights by the Seller’s contractual use of the Customer’s goods or instructions. Furthermore, the Customer agrees to bear all reasonable costs for any legal defence including all court and lawyers’ fees as foreseen by law. This does not apply when the infringement is not attributable to the Customer. In the event of claims by third parties, the Customer is obliged to supply to the Seller, without delay, all correct and complete information that is required for a review and defence of such claims.

  1. Applicable Law, Place of Jurisdiction

10.1 The laws of the Republic of Austria apply, with the exclusion of laws concerning the international purchase of movable property. As regards consumers, the choice of law only applies insofar as the consumer is not deprived of the protection granted by the law of the country in which he is customarily domiciled.

10.2 The right of the choice of law as regards the legal right of withdrawal from the contract by the consumer does not apply to consumers who, at the time of concluding the contract, are not resident in a member state of the European Union, and whose sole place of residence and delivery address are outside the European Union at the time of concluding the contract.

10.3 When the Customer is a company as defined in clause 1.2, it is hereby agreed that the exclusive place of jurisdiction is the Seller’s place of business. To Customers, who are consumers, the following applies: The place of jurisdiction for claims by the Seller against the consumer, and for claims by the consumer against the Seller, is at the consumer’s place of residence when the consumer has their domicile within the EU, but not in Austria. In the event that the consumer has their place of residence or their usual domicile in Austria, court action can only be brought against them before a court in whose jurisdiction their place of residence or usual domicile is located, and the Customer can only initiate court action against the Seller at the Seller’s place of business, unless otherwise agreed.

  1. Information on Online Dispute Resolution

The EU Commission has established a platform for online dispute resolution available under the following link: http://ec.europa.eu/consumers/odr

This platform serves as a contact point for out-of-court settlement of disputes in connection with online purchase or service contracts that involve a consumer.

  1. Redemption of Campaign Vouchers

12.1 Vouchers that the Seller issues free of charge during advertising campaigns and that carry a limited validity, and that the Customer cannot purchase (hereinafter called ‘Campaign Vouchers’), can only be redeemed in the Seller’s online shop within the period indicated thereon.

12.2 Individual products can be excluded from a voucher campaign, provided such a limitation is indicated in the content of the Campaign Voucher.

12.3 Campaign Vouchers can only be redeemed prior to the conclusion of the order process. Retroactive settlement is not possible.

12.4 Only one Campaign Voucher can be redeemed per order.

12.5 The value of the goods must at least correspond to the value of the Campaign Voucher. The Seller shall not refund any remaining balance.

12.6 When the value of a Campaign Voucher does not cover the order amount, the remaining balance can be paid by one of the payment methods offered by the Seller.

12.7 The credit amount of a Campaign Voucher is not paid out in cash, nor does it carry interest.

12.8 The amount of the Campaign Voucher is not refunded when the Customer returns the goods for which they have paid, completely or in part, in connection with their right of withdrawal.

12.9 Only the person named on the Campaign Voucher is entitled to use it. Campaign Vouchers may not be transferred to third parties. The Seller is entitled, but not obliged, to review the proper entitlement of the concerned holder of the Voucher.

 

  1. Redemption of (Gift) Vouchers

13.1 Gift vouchers that have been bought in the Seller’s online shop (hereinafter called ‘Gift Vouchers’) can only be redeemed in the Seller’s online shop, unless otherwise indicated on the voucher.

13.2 Gift Vouchers can only be redeemed prior to the conclusion of the order process. Retroactive settlement is not possible.

13.3 Only one Gift Voucher can be redeemed per order.

13.4 Gift Vouchers can only be used for the purchase of goods and not for the purchase of additional Gift Vouchers

13.5 When the value of a Gift Voucher does not cover the order amount, the remaining balance can be paid by one of the payment methods offered by the Seller.

13.6 The credit amount of a Gift Voucher is not paid out in cash, nor does it carry interest.

 

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