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§ 1 General scope of application
(1) These General Terms and Conditions (hereinafter also referred to as "GTCs") of Tradition Mexico GmbH, Auweg 20, 6112 Wattens, Austria (hereinafter also referred to as "TM") shall apply to all contracts in connection with the sale of beverages and associated products related to the brands of TM or other services vis-à-vis entrepreneurs within the sense of Section 1 para. 1 no. 1 and para 2 KSchG (Austrian Consumer Protection Law) and consumers within the sense of Section 1 para. 1 no. 2 KSchG (hereinafter referred to as "Customers"). If regulations in these GTCs do not comply with the applicable consumer protection provisions, these regulations shall apply exclusively to contracts between TM and entrepreneurs.
(2) TM does not recognise the general terms and conditions of Customers, even if TM does not expressly object to them in the individual case, unless TM has expressly agreed in writing to the validity of the Customer's terms and conditions. These GTCs shall also apply exclusively if TM provides performance to the Customer without an explicit reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these GTCs.
(3) These GTCs shall also apply to all future business transactions with the Customer. No further express reference on the part of TM is required in this respect. These GTCs remain in force until new terms and conditions are put into effect by TM. The effective inclusion of the new terms and conditions in the business relationship between TM and the Customer shall be effected by a reference to their validity by TM and their publication on the TM website (www.padreazul.com/agb) on the internet.
(4) With the exception of the managing directors, authorised signatories and authorised agents, employees of TM are not authorised to enter into agreements that deviate from these terms and conditions.
(5) In exceptional cases, there may be changes in the agreed GTCs. The Customer will be notified of such changes in advance. The Customer may object to any changes within one month of their announcement. In this case, the original GTCs shall continue to apply and TM shall have an extraordinary right of termination. If the Customer does not object to the changes, the new GTCs shall apply from the date announced by TM, but in no case before expiry of the aforementioned one-month period.
§ 2 PROVISIONS APPLICABLE ONLY TO CONSUMERS as defined by Section 1 para. 1 no. 2 KSchG:
It is pointed out that the products sold may fall under the exemption provisions of Section 18 para. 1 no. 4 and/or 7 of the law on distance selling and off-premises transactions (hereinafter referred to as the "FAGG") and therefore there is no right of withdrawal.
Section 18 para. 1 no. 4 FAGG provides that there is no right of withdrawal regarding goods sold that can spoil quickly or whose expiry date would be quickly exceeded.
Section 18 para. 1 no. 7 FAGG provides that there is no right of withdrawal regarding alcoholic beverages sold, the price of which was agreed upon conclusion of the contract, but which cannot be delivered earlier than 30 days after the conclusion of the contract and the current value of which depends on fluctuations in the market which cannot be controlled by the entrepreneur.
The provisions of §§ 2.1 and 2.2 of these GTCs shall apply exclusively to consumers as defined by Section 1 para. 1 no. 2 KSchG.
§ 2.1 Obligations to provide information
In accordance with Section 5a para. 1 of the Consumer Protection Law (hereinafter referred to as "KSchG") and Section 4 para. 1 FAGG, TM hereby provides the following information to the Customer:
Contracting partner: Tradition Mexico GmbH, Auweg 20, 6112 Wattens, Regional Court of Innsbruck, e-mail:[email protected]
Total price/costs: The prices stated on the website for consumers (not business organisations as defined by the KSchG) include all taxes and duties.
Telecommunication costs: standard rate of the Customer (no added value rates).
Terms of payment: see § 6
Right of withdrawal: see cancellation policy in § 2.2.
Right of warranty: according to Section 922 et seq. ABGB (Austrian Civil Code);
Conditions of cancellation:
For continuing obligations: in writing 3 months before the end of the contract, see contract duration § 13
For individual purchases: no cancellation required
§ 2.2 Right of cancellation or withdrawal
Customers, insofar as they are consumers within the meaning of the KSchG, are legally entitled pursuant to Section 3 KSchG and Section 11 para. 1 FAGG to revoke their contractual declaration (purchase order) given outside the business premises of TM or (after acceptance by TM) to withdraw from the contract subject to the conditions of the following cancellation policy (see § 2).
Withdrawal period: The right of withdrawal must be exercised within 14 days.
No right of cancellation or withdrawal exists, for example, regarding
Cancellation policy: Pursuant to Section 3 KSchG and Section 4 para. 1 no. 8 FAGG, TM informs the Customer about the following right of cancellation:
RIGHT OF CANCELLATION
You have the right to cancel this contract within fourteen days without stating any reasons. The cancellation period is fourteen days from the date of delivery of the relevant products by TM.
To exercise your right of cancellation, you have to inform Tradition Mexico GmbH, Auweg 20, 6112 Wattens, Regional Court of Innsbruck, e-mail: [email protected] of your decision to cancel this contract by means of a clear statement (e.g. by post or e-mail). To comply with the cancellation period, it is sufficient to send the notice of cancellation prior to the expiry of the cancellation period.
CONSEQUENCES OF CANCELLATION
If you cancel this contract without applying the exemption provisions under Section 18 FAGG, we shall reimburse you all payments that we have received from you, less any performance rendered by us, calculated on a pro rata basis in accordance with Section 16 para. 1 FAGG, without undue delay and at the latest within 14 days of the day on which we received your notice of cancellation of this contract. For repayment, we will use the same means of payment that you used for the original transaction, unless otherwise explicitly agreed with you; in no event will we charge any fees for repayment.
SAMPLE NOTICE OF CANCELLATION:
(If you want to cancel the contract, please complete and return this form.)To Tradition Mexico GmbH, Auweg 20, 6112 Wattens, Regional Court of Innsbruck, e-mail: [email protected]:
I/we (*) herewith cancel the contract concluded by me/us (*) on the purchase of the following goods (*)/the provision of the following service (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only for paper-based notices
(*) Delete as appropriate
§ 3 Offer and conclusion of contract
(1) Offers made by TM are always non-binding (so-called "invitatio ad offerendum"), unless they are expressly designated as binding in writing.
(2) The Customer must specify which product they wish to purchase from TM when making their enquiry or offer. TM reserves the right to reject the Customer's request or offer if the intended purpose is incompatible with TM's orientation. Otherwise, TM will submit a concrete binding offer to the Customer regarding the object of the contract. This binding offer by TM shall in any case be an integral part of the contract and shall contain a detailed performance description of the object of the contract.
(3) The Customer shall duly sign the offer and return it to TM. By signing the offer, the contract is deemed accepted by the Customer and concluded. At the same time, these GTCs are regarded as accepted. The GTCs are also attached to each offer.
(4) If goods are ordered via the webshop on the website www.padreazul.com, an offer can be submitted as follows:
To order products from the TM webshop, the Customer must first register. You can use the input mask that appears when you select "Register" on the start page of the webshop. To prevent misuse, a traceable email address is required for registration on this website. In particular, it is prohibited to provide a non-existent e-mail address or the e-mail address of a third party. The personal data provided by the Customer must be entered correctly and completely. Changes or additions to the data are to be communicated immediately to TM or can be made by the Customer under "My account". Should Customers become aware of the unauthorised use of their user name, they are obliged to change their password. If this is not possible, they must inform TM immediately. The offer is submitted by means of the "Order" button in the webshop. By ticking the appropriate box, the Customer accepts these GTCs, which then become a part of the contract.
Otherwise, the provisions set forth in § 3 (1) - (3) shall also apply, mutatis mutandis, to any orders placed via the webshop.
(5) Insofar as special provisions - deviating from these GTCs - have been agreed for an order, these shall expire with the completion of the order and shall not relate to simultaneously ongoing or follow-up business transactions.
WHY DOES TRADITION MEXICO GMBH COLLECT PERSONAL DATA?
Tradition Mexico GmbH collects and uses your personal information in order to provide you with extraordinary customer service, to facilitate convenient access to our website and to provide you with an optimum range of services. In addition, your personal information will help keep you up to date on the latest product announcements, special offers and other developments that we think may be of interest to you.
If you are not interested in keeping up to date with the latest developments, as well as up-to-date product and service information, you can let us know at any time.
§ 4 Prices
(1) The prices applicable on the date of the order as indicated on the websitehttps://shop.padreazul.com shall apply. Any other prices shall not be valid.
(2) Depending on the agreement, these are one-off prices or recurring fees.
(3) All prices are stated in euro.
§ 5 Payment, default in payment
(1) TM's claims are due and payable immediately and without deductions after invoicing before the agreed service is rendered. In the case of continuing obligations (contracts for an indefinite period), payment shall generally be made on a monthly basis in accordance with the terms and conditions set out in this document. In this case, payments can also be made on a monthly basis by agreement. In this case, the (partial) claims shall always be due in advance on the first day of the month and shall be paid in accordance with the conditions stated herein.
Customer are regarded in default of payment if they fail to pay within 7 days after the due date and receipt of an invoice. The interest rate pursuant to the Austrian Commercial Code ("UGB") shall be deemed agreed for interest on arrears. For consumers, the interest rate of 4 percent p.a. is deemed to be agreed.
(2) If TM issues its invoice to a party other than its contractual partner (the Customer) after the conclusion of the contract or in the case of the annual fees, this shall in principle not constitute a change of the contractual partner and, in particular, not constitute a release of the Customer from their payment obligation.
(3) The Customer shall be charged € 10.00 for each reminder after the due date of the claim. TM's statutory rights in the event of default in payment by the Customer shall remain unaffected.
(4) The Customer agrees to electronic invoicing.
§ 6 Performance
(1) The performance provided by TM is the sale of products as offered on the website www.padreazul.com. Performance by TM shall take place after an order has been placed in the webshop and after payment of the agreed price. Unless otherwise agreed, TM's performance is regarded as provided when the goods have been dispatched.
(2) TM shall only be in default with its performance obligation if the Customer has sent to TM a reminder for the default, stating a reasonable period of grace.
(3) TM shall not be responsible for delays in delivery and performance due to force majeure.
(4) TM is entitled to partial performance provided that this is reasonable for the Customer or is necessary or ordered for product reasons. In the event of permissible partial performance, TM shall also be entitled to issue partial invoices.
(5) TM reserves the right to extend its services, to modify them and to make improvements independently, provided that this is reasonable for the Customer, taking into account TM's interests.
§ 7 Customer's duties and obligations of cooperation
The Customer shall be obliged to perform all acts of cooperation owed under the contract or in good faith in a timely manner and to use the object of the contract in compliance with the law.
§ 8 Warranty
(1) The Customer shall be obliged to inspect all goods for defects immediately after delivery; the failure to do so will result in the loss of warranty. Apparent defects must be demonstrably notified by the Customer to TM no later than ten days from the delivery (burden of proof lies with the Customer); otherwise, the Customer may lose their right of warranty and compensation for damages. Hidden defects must be demonstrably notified by the Customer to TM no later than three days from their identification; otherwise, any warranty can be excluded (burden of proof lies with the Customer). TM's warranty obligation for hidden defects ends six months after delivery of the goods.
(2) TM does not provide any warranty for defects of title regarding the content and data obtained via the internet through the object of the contract.
(3) Claims for warranty and compensation are excluded in the following cases: a) If the goods are commingled with products of other manufacturers or if products of other manufacturers are used together with the delivered goods in preceding or additional operations, b) if the goods are not used for the purposes specified by TM or are used in an unusual manner, and c) if storage of the beverages does not comply with the storage guidelines appropriate for the product.
(4) The Customer shall be obliged to send a sample of the goods subject to the complaint at their own expense and risk to TM simultaneously with the notice of defect and to grant a period of at least 14 days for the examination of the alleged defect, since otherwise they shall lose their warranty claims.
(5) If a warranty claim exists, TM shall be obliged, within a reasonable period, to replace the defective goods with non-defective goods, to deliver any missing goods or to grant the Customuer a corresponding price reduction. TM shall be entitled to make the respective choice. For the purpose of fulfilling the warranty obligation, the Customer shall send all defective goods within 14 days to TM.
(6) The statutory warranty provisions shall apply to consumers.
§ 9 Liability and compensation for damages
(1) TM shall only be liable for damages of any kind - provided that the other conditions for claims are met - in the event of intent and gross negligence and, in the case of the latter, capped in accordance with § 9 para. 2. In all other respects, liability for damages of any kind, regardless of the basis of the claim, including liability for culpa in contrahendo, shall be excluded.
(2) TM's liability under paragraph 1 shall be limited to the value of the order. If TM has taken out liability insurance and if the insurance company will cover or take over the damage incurred, the cap corresponds to the amount of the liability insurance taken out.
(3) Proof of fault on the part of TM in the context of liability for damages must be provided by the Customer seeking compensation for damages.
(4) The liability regulations set forth in § 10 paras. 1 – 3 shall not apply to consumers, except for the acceptance of damage by any liability insurance company. For consumers, the relevant statutory regulations shall apply with regard to liability, whereby liability for slight negligence is excluded, with the exception of personal injury.
(5) TM shall not liable for third-party content and data or any infringements of rights which may be caused by the provision thereof.
§ 10 Data protection
§ 11 Reservation of title (not applicable to consumers)
(1) All goods delivered shall remain the property of TM until all liabilities of the Customer vis-à vis TM, irrespective of their nature, have been settled in full. When the goods are handed over, this reservation must be disclosed to the purchaser, and the Customer must be informed thereof and the relevant obligations transferred to the purchaser. Bills of exchange and cheques are only regarded as payment when honoured by the Customer. Payments received by TM are always set off against the oldest outstanding debt. Dedications of payment made by the Customer shall be ineffective.
(2) Upon acceptance of TM's products, the Customer shall assign to TM its claims against their purchaser arising from the resale of the goods belonging to TM until all claims have been paid in full.
(3) The Customer shall be entitled to dispose of the reserved goods and the claims assigned to TM within the scope of their ordinary business operations as long as they meet their obligations towards TM in due time; extraordinary dispositions such as, in particular, security settlements or assignments or pledges are not permitted.
(4) The Customer shall notify TM without delay if third parties wish to establish or exercise any rights to the goods subject to retention of title or to TM's claims.
§ 12 Industrial property rights and copyright/granting rights of use
TM shall be the owner of all rights (e.g. copyright, intellectual property rights, right of use, etc.) to the products sold.
§ 13 Packaging
(1) Unless otherwise agreed, TM shall provide its deliveries in disposable packaging; which will not be taken back.
(2) The Customer shall be obliged to dispose of the empty packaging properly and in accordance with the relevant waste disposal regulations at their own expense, but in any case to indemnify TM in full in this respect.
§ 14 Contract duration and end (termination, cancellation for good cause)
(1) In the event of a one-off purchase of certain products, the contract ends upon performance.
(2) As regards contracts concluded for an unspecified period, the parties are entitled to terminate the contract in writing with a three-month period of notice to the end of a month.
(3) TM is entitled to cancel the contract for important cause without a period of notice by a written declaration. An important cause exists, in particular, if the object of the contract is misused or unlawfully used by the Customer (including violation of third-party rights) or if the Customer is in default of payment. In addition, we refer to the options of termination pursuant to § 9.
(4) Claims for damages of the parties remain unaffected by the cancellation for important cause.
§ 15 Final provisions
(1) Substantive Austrian law shall apply. The cross-referencing norms of private international law (IPRG), the cross-referencing norms of another jurisdiction and of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.
(2) The place of performance for all services under this contract shall be the registered office of TM.
(3) The exclusive place of jurisdiction for all disputes arising from this contractual relationship shall be the competent court in Wattens.
(4) The provisions set forth in § 15 (1) – (3) shall not apply to consumers if these provisions are incompatible with applicable consumer protection laws.
(5) Changes to the contract, additions and ancillary agreements must be made exclusively in writing to become effective. This shall also apply to the cancellation or modification of this written form clause. If written form is required, a message by e-mail is sufficient.
(6) If individual provisions of these GTCs are or become invalid or if the contract contains a regulatory loophole, the validity of the other provisions shall not be affected. The invalid provision or incomplete provision shall be replaced by a valid provision that comes as close as possible to the economic sense and purpose of the invalid provision.
(7) Contracts between TM and its Customuers are concluded in German and English. If the individual provisions of various language versions of the contract or these GTCs differ, the German version shall apply.
Tradition Mexico GmbH