General Terms and Conditions of Bergfalke GmbH ("Alpengummi")

Status: 18.10.2019

PREAMBLE

For reasons of easier readability, only the masculine form is used in the following, but persons of all genders are always addressed and meant equally.

1. Scope of application

1.1 These General Terms and Conditions of Business (“Terms and Conditions”) of BERGFALKE GMBH (also “Alpengummi” or “Seller”) shall apply to all contracts concluded with the Seller by a consumer or entrepreneur (“Customer”) and to all deliveries by the Seller which are made on the basis of orders placed by distance selling, in the version applicable at the time of conclusion of the contract or at the time of the respective order.

By placing an order, the Customer accepts these General Terms and Conditions and also the delivery and payment terms and conditions which are valid as an integral part of these General Terms and Conditions and which can be found on the homepage https://www.alpengummi.at on a daily basis.

1.2 Consumer in the sense of these GTC is every natural person for whom the legal transaction does not belong to the operation of their company. An entrepreneur in the sense of these GTC is a natural or legal person or a partnership with legal capacity for whom the legal transaction is part of the operation of their business.

1.3 If a provision of these General Terms and Conditions should be invalid, the validity of the remaining provisions shall not be affected. The parties shall agree on a valid provision that comes closest to the meaning and purpose of the invalid provision.

1.4 Defense Clause: Herewith the inclusion of general terms and conditions or contractual conditions of the customer, which deviate from these terms and conditions, is contradicted, unless something different has been expressly agreed with the customer.

1.5 Amendments or ancillary agreements must be made in writing and confirmed by authorised representatives of BERGFALKE GMBH entered in the commercial register in order to be valid and shall only apply to the individual business transaction. The other employees of Alpengummi are not authorised to make any amendments or ancillary agreements to these GTCs.

2. Offer and conclusion of contract

2.1 Offers of BERGFALKE GMBH are completely subject to change and are considered to be “while stocks last”. Errors excepted. The product presentation of Alpengummi on the website does not constitute an offer in the legal sense, but an invitation to the customer to make an offer himself. The customer makes the offer in the legal sense by placing an order.

2.2 Orders placed by the customer are the offer in the legal sense, to which the customer is bound for 10 days. The contract shall only come into existence through (verbal/telephone or written) order confirmation by BERGFALKE GMBH or through delivery or performance. A separate notification of the customer of the acceptance is not necessary.

2.3 BERGFALKE GMBH shall be entitled to accept orders even in part.

2.4 An online order shall only be possible if all mandatory fields (fields marked with an asterisk) are filled in. Before sending the order, the customer shall receive a summary of the contents of the order including prices, which he can still correct or confirm. The receipt of the order by Alpengummi is confirmed by an automatically sent e-mail, which does not, however, constitute acceptance of the order. Messages are only sent to BERGFALKE GMBH during normal business hours (Monday to Friday from 9:00 to 16:00 hrs with the exception of public holidays in Austria). Messages arriving on Alpengummi’s server outside of these hours shall not be deemed to have been received until the next working day.

2.5 The customer is aware that the internet is not a secure communication medium and that data sent via the internet can become known on the one hand and can be changed by third parties on the other hand. The customer bears the risk that data does not arrive at Alpengummi or does not arrive in the form in which it was sent. BERGFALKE GMBH may rely on the fact that the data has been sent by the customer in the form in which it is received.

2.6 Invoices shall be sent to the customer electronically in PDF format to the e-mail address given in the order. A copy of the invoice can also be sent by post to the desired billing address after informal notification by the customer.

3. Revocation/rescission of contract

3.1 The customer, who is a consumer within the meaning of the KSchG, may withdraw from a contract concluded by distance selling or a contractual declaration made by distance selling in writing within 14 days without stating reasons. It is sufficient if the declaration of withdrawal/cancellation (with information on article/order, order date & delivery date) is sent within the period. The period for cancellation/rescission begins on the day on which the consumer or a third party named by the consumer (not the carrier) comes into possession of the goods.

3.2 Consequences of cancellation/rescission:

3.2.1 In the event of revocation/rescission, all payments received by BERGFALKE GMBH, including delivery costs (with the exception of additional costs resulting from the fact that a different type of delivery than the offered, cheapest standard delivery was chosen), shall be repaid immediately and at the latest within fourteen days from the day on which BERGFALKE GMBH received the notification of revocation.

3.2.2 The same means of payment used in the original transaction shall be used for the aforementioned repayment, unless expressly agreed otherwise. Repayment shall be free of charge for the customer. Alpengummi may refuse repayment until the goods have been returned or until the client has provided proof that the goods have been returned, whichever is the earlier.

3.2.3 The goods shall be returned to BERGFALKE GMBH, Vorgartenstraße 101/1/5, 1200 Vienna, without delay and in any case within fourteen days at the latest from the day on which Alpengummi was informed of the revocation/cancellation. The deadline shall be deemed to have been met if the customer sends the goods before the deadline expires.

3.2.4 The customer shall bear the direct costs of returning the goods. Goods returned freight collect will not be accepted. The customer shall only be liable for any loss of value of the goods if this loss of value is due to handling by the customer that is not necessary for checking the condition, properties and functionality of the goods.

3.2.5 If consumed, damaged or worn out goods are returned, the legally permissible amount will be deducted. This can be avoided by simply inspecting the goods as it would have been possible in a retail shop and returning them without signs of use and in their original packaging.

3.3 The right of revocation/cancellation does not exist:

3.3.1. For goods which are not prefabricated and for the production of which an individual selection or determination by the consumer is decisive (e.g. production according to customer specifications) or which are clearly tailored to the personal needs of the consumer (e.g. goodies for companies);

3.3.2 Already opened packages (with damaged tamper-proof seal) are excluded from return. These goods are not suitable for return for reasons of health protection and hygiene if they have been opened or used after delivery. Therefore, the purchase price for such goods cannot be refunded.

3.3.3. For contracts for the delivery of goods, if they have been inseparably mixed with other goods after delivery due to their nature.

4. Prices

4.1 Unless otherwise stated in the seller’s product description, the prices quoted are total prices (gross prices) including Austrian VAT. Possible additional delivery and shipping costs as well as possible costs of additional services are indicated separately.

4.2 For deliveries to countries outside of Austria, additional costs may be incurred in individual cases and shall be borne by the customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer and exchange rate fees) as well as export and import duties and taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of money if the delivery is not made to a country outside Austria, but the customer makes the payment from a country outside the European Union.

4.3 For deliveries to customers with a valid VAT number in EU countries, the net prices without VAT will be invoiced.

4.4 The invoicing is in Euro. Price errors reserved. If the actual price is higher than the price indicated, the customer will be contacted. In this case a contract is only concluded if the customer expressly agrees to the actual price. If the correct price is lower, this price will be charged.

5. Terms of payment

5.1 Payment method and due date:

5.1.1 Invoices are due immediately and payable without deduction. For resellers or corporate customers, all payments are due within 21 days of the invoice date and without further deductions. Payment is to be made in such a way that Alpengummi can dispose of the receipt of payment at the latest on the 21st day after the date of the invoice, unless expressly agreed otherwise. This does not apply to consumers who make payment by bank transfer. The proven issuance of a bank transfer order is deemed to be a deadline for consumers. Various payment options are available to end customers, which are specified during the ordering process.

a) In case of payment in advance, payment is due immediately after conclusion of the contract. The shipment will only take place after receipt of payment by the seller.

b) When paying by credit card (Visa, Mastercard, American Express), the credit card will be charged after completion of the order. This is also done immediately if the goods are not in stock and can only be shipped in a few days.

c) When paying by Paypal, the invoice amount is paid via the online provider PayPal. The customer must be registered there or register first. After identification with the access data, the payment order can be confirmed to Alpengummi. Further instructions are given to the customer during the ordering process.

d) If payment is made by immediate bank transfer, the payment is processed by the payment service provider Sofort GmbH, Theresienhöhe 12, 80339 Munich (“SOFORT”). In order to be able to pay the invoice amount via SOFORT, the customer must have an online banking account with PIN/TAN procedure activated for participation in SOFORT, must identify himself accordingly during the payment process and confirm the payment instruction to SOFORT. The payment transaction will be executed immediately afterwards by SOFORT and the customer’s bank account will be debited. The customer can find more information on the payment method SOFORT on the Internet at https://www.klarna.com/sofort/. The purchase price will be debited from the specified account upon completion of the order.

5.2 Default of payment:

5.2.1 If the customer is in default of payment or other services, BERGFALKE GMBH shall be entitled - without prejudice to other rights - to retain the deliveries until the agreed counter-performance has been rendered, while maintaining the still open delivery period, or to withdraw from the contract after a reasonable period of grace has elapsed and to claim damages for non-performance. In this case the customer shall return the delivered goods to BERGFALKE GMBH without delay and at his own expense. BERGFALKE GMBH shall reserve the right to assert claims for compensation for depreciation, wear and tear, compensation for its own transport expenses and the like. If BERGFALKE GMBH withdraws from the contract, it shall be entitled to demand or retain 25% of the price of the goods as a minimum contractual penalty.

5.2.2 If the customer is in default of acceptance, the seller shall be entitled to invoice the costs incurred thereby.

5.2.3 If the customer is in default of payment, BERGFALKE GMBH shall be entitled to demand the legally regulated default interest. The statutory interest rate for monetary claims between entrepreneurs from entrepreneurial transactions shall be 9.2 percentage points above the base interest rate. The statutory interest on arrears in consumer business (between consumers and entrepreneurs) shall amount to 4 percentage points above the base interest rate. The base interest rate applicable on the first calendar day of a half-year is decisive for the respective half-year.

5.2.4 In case of breach of his contractual obligations, the client undertakes to reimburse Alpengummi for all costs necessary for the appropriate pursuit of the claims. Reminder costs can be claimed from the first reminder onwards and amount to EUR 10,– per reminder and a further EUR 50,– for keeping the debt on record in the dunning process. In addition, the costs of debt collection agencies (up to the maximum fees provided for in the respective valid regulation for maximum fees in the debt collection system) and the costs of lawyers (according to the Law on lawyers’ fees) are to be reimbursed.

5.2.5 In the event of unjustified deductions of discounts, shipping costs or other amounts by the customer, the outstanding amount shall be claimed by the seller at the customer’s expense.

6. Delivery and delivery time

6.1 The dispatch of the goods by BERGFALKE GMBH shall be effected at the customer’s expense to the delivery address indicated by him in the order. If the transport company returns the dispatched goods to the seller because delivery to the customer was not possible, the customer shall bear the costs of the unsuccessful dispatch. Upon delivery of the goods to the customer or a third party named by the customer, the risk of loss or damage/deterioration of the goods also passes to the customer (applies only to consumers). The mode of shipment by mail or private delivery services is considered approved. If the customer himself concludes the contract of carriage, the risk of loss or damage to the goods shall pass to the customer as soon as the goods are handed over to the carrier.

6.2 BERGFALKE GMBH’s indication of delivery dates shall be non-binding. The delivery time shall normally be approx. 4-14 working days. In any event, failure to comply with the delivery dates shall entitle the customer to assert the right of revocation/cancellation only if BERGFALKE GMBH does not carry out the delivery despite having set a period of grace of at least two weeks in writing.

6.3 Delivery period:

6.3.1 In the case of payment in advance, the delivery period shall begin one day after receipt of the amount in the bank account of BERGFALKE GMBH.

6.3.2 In the case of payment by cash on delivery or purchase on account, the delivery period shall commence one day after the day of conclusion of the contract. In all other cases the delivery period shall begin one day after receipt of the order.

6.3.3 The delivery period shall be extended by the duration of the hindrance due to circumstances independent of the will of the parties, such as cases of force majeure, unforeseeable operational disruptions, official intervention, transport and customs clearance delays, transport damage, rejects of important production parts and labour disputes.

6.4 BERGFALKE GMBH shall not bear any responsibility in the event of obstacles to delivery in the area of suppliers or manufacturers. If delivery or compliance with an agreed delivery time becomes impossible due to circumstances for which BERGFALKE GMBH is not responsible, BERGFALKE GMBH shall be entitled to withdraw from the contract in whole or in part. BERGFALKE GMBH shall inform the customer immediately in this respect. Claims for damages shall be excluded in this case. The customer shall be informed of any existing delivery restrictions before the start of the ordering process.

6.5 Alpengummi reserves the right to make changes to the type of packaging, in particular with regard to colour and shape. Furthermore, the customer agrees to objectively justified and reasonable deviations of Alpengummi’s delivery and service obligations, in particular with regard to exceeding the delivery period, quantity deviations in the amount of 5% or other changes affecting the goods.

6.6 Collection by the customer is possible by prior arrangement.

6.7 Resale on online platforms such as Amazon and Ebay is not permitted.

7. Retention of title

7.1 If the seller makes advance payment, he reserves the right of ownership of the delivered goods until full payment of the purchase price owed and all associated costs and expenses.

8. Warranty

8.1 Consumers shall notify us of any defects that occur - without any adverse legal consequences being associated with an omission - immediately, but no later than within one week of delivery of the goods or after defects become visible, in writing, by letter (Bergfalke GmbH, Vorgartenstrasse 101/1/5, 1200 Vienna) or by e-mail (info@alpengummi.at).

8.2 The warranty is excluded in the case of defects caused by the customer (B2C). This is particularly the case in the event of improper handling.

8.3 In the case of damaged shipments, the deliverer (Post, DHL, etc.) must be notified immediately, but no later than 4 days after acceptance of the shipment, to assess the damage; if this is not done, Alpengummi must refuse to settle the claim. The basic principle is that the damage must be reported by the customer. Damage reports within the EU must be made by the client himself or by Alpengummi, depending on the national regulations of the place of delivery.

8.4 If the client is an entrepreneur within the meaning of the Austrian Commercial Code (UGB), the client must check the delivered goods or services immediately after receipt for completeness, correctness and other freedom from defects. Any defects must be notified immediately, but no later than eight working days after receipt of the goods or service and before resale or use, in writing, by letter (Bergfalke GmbH, Vorgartenstrasse 101/1/5, 1200 Vienna) or e-mail (info@alpengummi.at). Failure to do so shall lead to the loss of all claims to which he is entitled (in the case of a proper examination of recognisable defects), in particular also consequential damage caused by defects.

8.5 Warranty claims arising from defects expire within the statutory warranty period of 2 years from delivery or performance. In the case of defects of title, this period shall only commence from the time the defect is detected.

8.6 The customer can choose between improvement and replacement in case of defectiveness of the item. Only if this is impossible or infeasible can the customer - in accordance with the legal regulations - demand an appropriate price reduction or rescission. The customer is obliged to give BERGFALKE GMBH the opportunity for improvement. If Alpengummi rectifies a defect, this is done free of charge and expenses, whereby Alpengummi can demand that the customer returns the goods - as far as this is possible - at the risk and expense of Alpengummi.

8.7 Only those characteristics of the goods that Alpengummi has expressly guaranteed in writing shall be considered guaranteed characteristics of the goods. Alpengummi reserves the right to make changes to the product range, they do not constitute a defect.

9. Withdrawal and termination of the contract by the seller

9.1 Alpengummi is entitled to withdraw from the contract, also with regard to any outstanding part of the contract (delivery or service),

- if the customer or a third party files a petition for the initiation of insolvency proceedings against the customer or a petition for the initiation of insolvency proceedings against the customer is dismissed for lack of cost-covering assets

- if insolvency proceedings have been opened against the customer, but taking into account §§ 21 - 25b IO,

- if the customer violates provisions of the contract, these General Terms and Conditions or other legal provisions or

- if the customer is more than 14 days in arrears with payment of an invoice despite a reminder.

9.2 If Alpengummi withdraws from the contract in accordance with point 9.1 of the GTC, Alpengummi is entitled to compensation for lost profit plus reimbursement of expenses incurred by Alpengummi to date.

10. Exclusion of liability

10.1 Alpengummi is liable for damages only in case of intent or gross negligence within the scope of legal regulations, contractual and tortious liability is limited to the legal minimum, which also applies to product liability and environmental liability. The liability of Alpengummi for slight negligence, loss of interest and damages resulting from third party claims against the customer are excluded. The amount of Alpengummi’s liability for damages is limited to the amount of the order. The liability for financial and consequential damages is - as far as legally permissible - excluded.

10.2 Claims for compensation are subject to a limitation period of 6 months from the date of knowledge of the damage and the damaging party.

10.3 In the absence of any express indication to the contrary, the customer has been sufficiently informed and warned of all risks and incidental circumstances or has waived the application of the pre-contractual protective provisions. To the extent permitted by law, the customer also waives the right to assert a reduction of more than half (§ 934 f ABGB) as well as the right to contest errors (§ 871 ff ABGB).

11. Right of set-off, right of retention

11.1 The customer shall only be entitled to offsetting in the event of BERGFALKE GMBH’s insolvency. Furthermore, offsetting shall only be possible with related, undisputed or legally established claims or if the counterclaims have been recognised in writing by BERGFALKE GMBH. The customer shall also be entitled to offset against the claims of Alpengummi if he/she makes complaints or counterclaims from the same purchase contract.

11.2 Entrepreneurs in the sense of the UGB may only exercise the right of retention if their counterclaim is based on the same purchase contract and if the claims are undisputed or legally established.

12. Data protection

12.1 Provisions on data protection are contained in the separate data protection declaration of BERGFALKE GMBH, which is available at https://www.alpengummi.at/datenschutzerklaerung.

13. Copyright and industrial property rights, secrecy

13.1 BERGFALKE GMBH retains without restriction all rights - in particular the (intellectual) property rights - to all content, data and materials provided on or submitted to the Alpengummi website and social media, including all artistic representations, graphics, texts, video and audio clips, trademarks, logos and other content. In particular, documents such as brochures, catalogues, samples, presentations and similar remain the intellectual property of Alpengummi.

13.2 The use of texts, pictures, photos, layouts and other representations published on the website https://www.alpengummi.at as well as in the social media, as well as parts thereof, requires the express prior written consent of BERGFALKE GMBH (with the exception of the press kit at https://www.alpengummi.at/kontakt/, stating the stated copyrights).

13.3 Alpengummi reserves the right to restrict the availability of the websites and/or their contents at any time for any person and geographic area.

13.4 The contractual partners of BERGFALKE GMBH shall undertake to maintain secrecy towards third parties with regard to the knowledge they receive from the business relationship.

13.5 The websites of Alpengummi may contain links to the websites and services of third parties, including social media (collectively referred to as “linked sites”). Linked sites are not subject to Alpengummi’s control and verification.

14 Applicable law, place of performance, place of jurisdiction

14.1 All legal relations between BERGFALKE GMBH and its customers shall be governed exclusively by the law of the Republic of Austria, excluding its referral norms and the UN Convention on Contracts for the International Sale of Goods. In the case of consumers, this choice of law shall only apply insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has his habitual residence is not withdrawn.

14.2 The place of performance for all services under the contract shall be the registered office of BERGFALKE GMBH (1200 Vienna).

14.3 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between BERGFALKE GMBH and the customer shall be the court with subject-matter jurisdiction for the seller’s registered office (1200 Vienna).

15 Alternative dispute resolution

15.1 The EU Commission provides a platform for online dispute resolution on the Internet under the following link: https://ec.europa.eu/consumers/odr

15.2 This platform serves as a contact point for out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved.

15.3 The seller is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.