The specialist retailer for outdoor kitchens, outdoor (kitchen) appliances, outdoor heating systems and outdoor furniture, in Austria
General information
1.1. These general terms and conditions apply to legal transactions between companies and private individuals for the delivery of goods and, mutatis mutandis, for the provision of services.
1.2. Unless expressly agreed otherwise, the General Terms and Conditions of Ettenfellner, FLAM.E e.U. as the seller/contractor – hereinafter referred to as the Contractor – shall apply exclusively.
1.3. Collateral agreements as well as subsequent amendments to the contract must be made in writing, including the original signature or electronic signature. The client/buyer (hereinafter referred to as “client”) agrees that its own terms and conditions of purchase or other terms and conditions and references to Austrian standards shall only apply if their validity has been expressly agreed; it therefore expressly agrees that in the event of the use of general terms and conditions by it, in case of doubt the terms and conditions of the contractor shall apply exclusively, even if the terms and conditions of the client remain unchallenged by the contractor. In this respect, acts of fulfillment of the contract by the Contractor shall not be deemed as consent to contractual conditions deviating from these GTC.
1.4. The terms and conditions overleaf become part of this contract when you sign it.
Cost estimates and offers
2.1. Cost estimates or offers from the Contractor are non-binding and subject to change.
We shall be bound by our offer for 14 days from the date of issue.
The contract shall only be deemed concluded upon dispatch of a written order confirmation from the Contractor.
2.2. No guarantee can be given for the accuracy of a cost estimate. Should cost increases of more than 15% occur after the order has been placed, the Contractor shall notify the Client thereof without delay. Unavoidable cost overruns of up to 15% may be invoiced without prior notification. Unless otherwise agreed, changes to the order and/or additional orders shall be invoiced at reasonable prices. Cost estimates and planning are subject to a fee and shall be invoiced in accordance with the scale of fees for civil engineers. If an order is placed, the fee paid for the cost estimate shall be credited to the order.
Protection of plans and documents / confidentiality
3.1 Plans, sketches, cost estimates and other documents such as brochures, catalogs, samples, presentations and the like shall remain our intellectual property. Any use, in particular the passing on, duplication, publication and making available, including the copying of extracts, requires our express consent.
3.2 All of the above-mentioned documents may be reclaimed by us at any time and must be returned to us immediately without request if the contract is not concluded.
3.3 Our contractual partner also undertakes to maintain confidentiality vis-à-vis third parties with regard to the knowledge obtained from the business relationship.
Price (purchase price, wages)
4.1 The prices are quoted unpacked and unloaded ex works of the Contractor and/or the domestic subcontractor.
4.2 Work expenses shall be invoiced according to the applicable rates of the Contractor, as shall travel expenses, allowances. Allowances and the like.
4.3 If the work is to be carried out urgently at the Client’s request, the corresponding additional costs shall be borne by the Client.
4.4 In the case of measurement settlements, the measurements shall be determined in the presence of the Client; if the Client fails to attend the measurement determination despite having been invited in good time, the measurements determined by the Contractor shall be deemed to have been determined correctly.
4.5 If cost factors of the Contractor such as purchase prices, customs duties, wages, social charges, taxes and the like increase between conclusion of the contract and completion, these increases shall be borne by the Client, unless price increases have been expressly excluded in writing.
4.6 Fixed and all-inclusive price commitments shall only be binding if they are made in writing.
Value retention clause
5.1 It is expressly agreed that the value of the claim, including ancillary claims, shall remain stable. The consumer price index published monthly by the Austrian Central Statistical Office or an index replacing it shall serve as a measure for calculating the stability of value.
5.2 The index figure calculated for the month in which the contract is concluded serves as the reference value for this contract. Upward or downward fluctuations in the index figure of up to 5% are not taken into account and are only invoiced in full if this margin is exceeded. This margin shall be recalculated each time it is exceeded upwards or downwards, whereby the first index figure outside the applicable margin shall always form the basis both for the redetermination of the claim amount and for the calculation of the new margin. The resulting amounts must be commercially rounded to one decimal place.
5.3 If the transaction is a consumer transaction, no price changes – unless these have been expressly negotiated in detail – shall be invoiced during the first two months after conclusion of the contract.
5.4 If the transaction is a consumer transaction, no price changes – unless these have been expressly negotiated in detail – shall be invoiced during the first two months after conclusion of the contract.
Payments and default in payment, prohibitions on refusal of performance and retention
6.1. If no separate terms of payment have been agreed, the Client shall be obliged to pay a down payment of 50% of the agreed purchase price/wages prior to the commencement of the performance of services upon signing the contract. The remaining 50% of the purchase price/wages shall be paid upon delivery and completion.
6.2. Payment shall only be deemed to have been made on time if the amount has been received or credited to our account on the due date.
6.3. The withholding of payments due to defects that do not significantly impair the function or use of the delivery item (system, device, etc.) is inadmissible and excluded.
6.4. The offsetting of claims of the Client against claims of the Contractor shall be excluded; this shall not apply in the event of the insolvency of the Contractor or for counterclaims that have been established by a court or recognized by the Contractor.
6.6. In the event of default of payment by the Client, the Contractor shall be entitled to demand immediate payment of the total price and, in the event that the Client fails to meet its payment obligation, to take back the systems, goods, equipment and the like subject to its retention of title, without this being equivalent to a withdrawal from the contract, without prejudice to its other rights.
6.7. In any case, the Contractor shall be entitled to charge pre-litigation costs, in particular reminder fees and lawyer’s fees necessary for appropriate legal action.
6.8 If the buyer/customer fails to make even one partial payment within the payment period agreed for a discount deduction, he shall lose his right to a discount not only with regard to this partial payment, but also with regard to all partial payments already made or to be made at a later date.
Interest on arrears
Even in the event of default of payment by the buyer/customer through no fault of his own, we shall be entitled to charge interest on arrears at an annual rate of 10% above the prime rate; this shall not affect claims for compensation for proven higher interest.
Electronic invoicing
Our customer agrees that invoices may also be issued and transmitted to him electronically.
Performance, changes and delivery obligation
9.1. In technical matters, the Contractor reserves the right to make changes in the course of the execution of the service, insofar as these are reasonable for the Client and an equivalent quality of execution is guaranteed.
9.2. The Client shall obtain or arrange for any necessary authorizations from third parties, including those from authorities, as well as notifications to them at its own expense.
9.3. The Client shall provide the Contractor with lockable rooms free of charge for the workers to stay in and for the storage of machines, tools and materials for the period of performance of the service until the contractual services are handed over and shall provide the energy and water required for the performance of the service, including trial operation, free of charge.
9.4. The Principal must ensure that the machines, materials and equipment required for delivery can be delivered to the place of performance and confirm acceptance of the equipment and materials delivered for performance.
Non-performance/delay in delivery and performance
10.1. The delivery period shall commence at the latest of the following dates:
a) Date of the written order confirmation
b) Date of fulfillment of all technical, commercial, constructional and other requirements incumbent on the Customer;
c) Date on which the Contractor receives a down payment or security to be paid before delivery of the goods.
10.2. If there is a delay in the performance of the service due to circumstances beyond the Contractor’s control, for example because a supplier fails to deliver on time, the agreed dates and deadlines shall be postponed.
10.3. Only in the event of a delay in performance for which the Contractor is responsible shall the Client be free to withdraw from the contract after setting a reasonable grace period, which may under no circumstances be less than 4 weeks; any other or further claims of any kind are excluded, unless the Contractor is guilty of gross negligence or intent in the delay in delivery.
10.4. The Customer shall accept minor delays in delivery without being entitled to claim damages or withdraw from the contract.
10.5. In the event of unforeseeable circumstances or circumstances beyond the control of the parties, in particular cases of force majeure, which prevent the Contractor from complying with the agreed delivery period, the delivery period shall be extended by the duration of these circumstances. These circumstances include, in particular, official interventions and prohibitions, transport and customs clearance delays, transport damage, energy and raw material shortages, labor disputes and the loss of an essential upstream supplier that is difficult to replace. These circumstances shall also entitle us to extend the delivery period if they occur at upstream suppliers.
Transfer of risk, place of performance and acceptance, default of acceptance
11.1. Our sales prices do not include the costs of delivery, assembly or installation. However, we can provide these services on request for a separate charge.
11.2. Use and risk shall pass to the Customer upon delivery ex works of the Contractor or ex warehouse. This shall also apply if the delivery is made as part of an assembly or if the transport is carried out or organized and managed by the Contractor.
11.3. In the case of services, the place of performance shall be the place where the service is provided. The risk for a service or for an agreed partial service shall pass to the Customer upon its provision.
11.4. The Contractor shall notify the Client in good time of the date of handover of the service provided.
11.5. If the Client fails to attend the handover date notified to him, the handover shall be deemed to have taken place on that date.
11.6. Commissioning at the client’s company is deemed to be a successful takeover.
Retention of title
12.1. The goods shall remain our property until the purchase price and all costs and expenses have been paid in full. A resale is only permitted if we have been notified of this in good time in advance, stating the name or company name and the exact business address of the buyer, and if we agree to the sale. In the event of our consent, the purchase price claim shall be deemed assigned to us and we shall be authorized to notify the third-party debtor of this assignment at any time. In the event of a plurality of claims on our part, payments by the debtor shall be allocated primarily to those of our claims that are not (or no longer) secured by a reservation of title or other means of security.
12.2. In the event of default, we shall be entitled to assert our rights arising from the retention of title. It is agreed that the assertion of the retention of title does not constitute a withdrawal from the contract, unless we expressly declare our withdrawal from the contract.
Early due date
13.1. In the event of default in payment pursuant to 6.6. and in the event of delays in the performance of services attributable to the sphere of the Client, the Contractor shall be entitled to demand immediate payment for its services rendered to date.
13.2. Furthermore, the Contractor shall be entitled to demand immediate payment of all services rendered to date if, after conclusion of the contract, it becomes aware of unfavorable circumstances regarding the Client’s due date for payment or its financial situation; in this case, the Contractor shall also be entitled to suspend the execution of the commissioned service and/or delivery and to make the continuation of the work dependent on the payment of its due claims and on the provision of corresponding securities for the remaining order amount by the Client.
Cancellation fees/repentance fee
The buyer has the right to withdraw from the contract without giving reasons (§ 909 ABGB) against payment of a cancellation fee (a regret fee) of 50% of the purchase price/wages.
Obligations of the customer (operator)
15.1. The client (operator) of the devices and systems must comply with the instructions in the operating manual and ensure regular maintenance by a specialist company; the system and devices must be kept clean and subjected to regular, professional cleaning.
15.2. When operating the systems and equipment, the contractor of the client (operator) must carry out regular checks in accordance with the instructions in the operating manual in accordance with the training and instructions given in handling the purchased goods; the client (operator) must report this immediately at the first sign of a fault.
15.3. If a service is not available or if it is otherwise no longer possible to rectify the malfunction in good time, the Client (operator) must immediately take all measures necessary to minimize the damage.
15.4. The client (operator) must make the system and the devices accessible for the elimination of malfunctions.
Limitation of the scope of services
16.1. Wear parts only have the service life corresponding to the respective state of the art.
16.2. In the case of makeshift measures and repairs, very limited durability is to be expected, so that professional repairs must be carried out immediately.
16.3. Failures of the system or equipment cannot be ruled out according to the state of the art; the supplier shall only be liable for such failures and any resulting damage in accordance with the provisions set out in 12.0 and 13.0.
Warranty
17.1. Subject to compliance with the agreed terms of payment, the Contractor shall be obliged, in accordance with the following provisions, to remedy any defect affecting the functionality of the goods at the time of handover which is due to a defect in design, material or workmanship. No warranty claims can be derived from information in catalogs, brochures, websites, advertising material and written or verbal statements by the Contractor that have not been included in the contract.
17.2. With the exception of those cases in which the right to rescission is granted by law, the Contractor reserves the right to fulfill the warranty claim at its discretion by improvement, replacement or price reduction. The warranty period shall always expire after 6 months in the case of movable items and after 1 year in the case of immovable items after acceptance within the meaning of Clause 1. 11.0. There are no further claims.
17.3. The warranty period shall not be interrupted or suspended, nor shall the commencement of a new warranty period be triggered if a warranty claim is made
17.4. The auxiliary personnel, lifting equipment and services, scaffolding and the like required to remedy defects at the place of installation or at the Customer’s premises shall be provided by the Customer free of charge.
17.5. If the defect cannot be remedied at the place of installation or at the Client’s premises, the defective part or the defective appliance shall be sent to the Contractor at the Client’s expense and risk in accordance with the Contractor’s instructions
17.6. Hidden defects must be reported in writing immediately after their discovery. If a notice of defects is not made in writing and/or not made in good time, the goods shall be deemed to have been approved. The goods must therefore be inspected immediately after delivery, and any defects discovered must also be reported to the contractor immediately, but at the latest within 5 days of delivery, stating the nature and extent of the defect.
17.7. The provisions of this point shall also apply mutatis mutandis to any liability for defects on other legal grounds. If the term “guarantee” has been used between the contracting parties, this shall always be understood to mean warranty in accordance with the above.
17.8. Excluded from the warranty are defects resulting from arrangement and assembly not carried out by the Contractor, inadequate equipment, non-compliance with the installation requirements and conditions of use, overloading of the parts beyond the performance specified by the Contractor, negligent or incorrect handling and use of unsuitable operating materials; this also applies to defects attributable to material provided by the Customer. The Contractor shall also not be liable for damage caused by the actions of third parties, atmospheric discharges, overvoltage and chemical influences. The warranty does not apply to the replacement of parts that are subject to natural wear and tear. The Contractor shall not assume any warranty for the purchase of used goods.
17.9. The warranty shall expire immediately if the Client itself or a third party not expressly authorized by the Contractor makes changes or repairs to the delivered items without the written consent of the Contractor.
17.10. Claims under § 933 b ABGB shall in any case become time-barred upon expiry of the period specified in point 17.2.
Liability for damages, right of recourse pursuant to § 933 ABGB
18.1. The Contractor shall only be liable for damages of any kind – with the exception of personal injury – including damages arising from the performance or non-performance of the contract, from tortious acts or omissions and from defects, insofar as it has caused such damages through gross negligence or willful misconduct.
18.2. Any further claim for compensation for damages is excluded.
18.3. Claims arising from product liability shall not be affected by this. Any recourse claims from the title of product liability within the meaning of the Product Liability Act are excluded, unless the party entitled to recourse proves that the defect is attributable to the sphere of the supplier, was caused by the supplier and was at least due to gross negligence.
18.4. The right of recourse according to § 993b ABGB is time-barred after 3 years from delivery/service.
Place of fulfillment and jurisdiction agreement
The competent court at the registered office of our company shall have local jurisdiction to decide on all disputes arising from this contract. However, we also have the right to take legal action at the general place of jurisdiction of the contractual partner.
For all actions brought against a consumer who has his domicile, habitual residence or place of employment in Austria due to disputes arising from this contract, one of the courts in whose district the consumer has his domicile, habitual residence or place of employment shall have jurisdiction. For consumers who are not domiciled in Austria at the time the contract is concluded, the statutory places of jurisdiction shall apply.
Choice of law
20.1. This contract shall be governed by Austrian substantive law; the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
20.2. Severability clause.
The illegality or invalidity of a contractual provision shall not affect the legality or validity of the remaining contractual provisions. In such a case, the contracting parties shall replace the illegal or invalid provision with another provision that comes as close as possible to the intended economic purpose.
Arbitration agreement – Arbitration clause
All disputes or claims arising out of or in connection with this contract, including disputes as to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the International Arbitral Institute of the Austrian Federal Economic Chamber (VIAC) by one or three arbitrators appointed in accordance with these Rules.
Disclaimer
The contents of this webshop have been created with the greatest possible care. However, FLAM.E GmbH assumes no liability for the accuracy, completeness and timeliness of the information provided. All offers are subject to change and non-binding.
FLAM.E GmbH is not liable for material or immaterial damage caused by the use or non-use of the information provided or by the use of incorrect or incomplete information, unless there is evidence of willful intent or gross negligence.
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FLAM.E GmbH expressly reserves the right to change, supplement or delete parts of the webshop or the entire offer without prior notice or to cease publication temporarily or permanently.