GTC
1) General
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all contracts concluded between the purchaser or customer (hereinafter referred to as “Customer”) and us, Schwarz GmbH (hereinafter referred to as “Supplier”) with regard to our goods, in particular purchase contracts. The inclusion of the Customer’s own terms and conditions is hereby rejected, unless otherwise agreed in writing. The GTC shall also apply to subsequent orders, even if they are not separately agreed again verbally or in writing. The current version of the GTCs can be accessed via the website at kaerntnerland.at or requested by e-mail to office@kaerntnerland.at.
1.2 The business purpose of Schwarz GmbH includes in particular the manufacture of musical instruments such as Styrian harmonicas, accordions and jaw harps. Schwarz GmbH also operates a webshop.
1.3 A consumer is any person who enters into a transaction that is not part of the operation of their business. An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, is acting in the exercise of their commercial or independent professional activity. Public limited companies, limited liability companies, commercial and economic co-operatives, mutual insurance associations, savings banks, European Economic Interest Groupings (EEIG), European Companies (SE) and European Co-operatives (SCE) are entrepreneurs by virtue of their legal form.
1.4 Verbal agreements require the written confirmation of the supplier to be effective. Communication shall take place exclusively in German.
2) Order processing in the web shop/distance selling
2.1 The product descriptions contained in the Supplier’s online shop do not constitute binding offers, but serve to submit a binding offer by the Customer.
2.2 The customer can submit the offer via the online order form integrated in our online shop. After placing the selected goods in the virtual shopping basket and going through the electronic ordering process, the customer submits a legally binding contractual offer with regard to the goods contained in the shopping basket by clicking the button that concludes the ordering process.
2.3 The subsequent confirmation of receipt of the order sent by the supplier and any subsequent status reports do not constitute acceptance of the offer. The purchase contract is only concluded as soon as we deliver the ordered goods and confirm dispatch to the customer.
2.4 All orders, agreements, supplements, amendments and ancillary agreements, including those made by telephone, shall only be binding if they have been confirmed in writing by the supplier, unless an order has been tacitly executed in an individual case.
2.5 The content of the contract, all other information, customer service, data information and complaint handling are offered in German throughout.
3) Conclusion of contract
3.1 Our offers are subject to change. The contract shall only be deemed concluded upon dispatch of a written order confirmation or actual fulfilment by us. The order is binding upon signature by the customer. All orders, agreements, supplements, amendments and ancillary agreements, including those made by telephone, shall only be binding on us if they have been confirmed by us in writing, unless an order has been tacitly executed in an individual case.
3.2 Quotations and cost estimates shall be provided to the best of our expertise; no account can be taken of order-specific circumstances that are beyond the control of our company. Should the need for further work or cost increases arise during the execution of the order, our company shall inform the customer immediately. If the customer does not make a decision regarding the continuation of the interrupted work within one week or does not accept the cost increases, our company reserves the right to invoice the partial service rendered and to withdraw from the contract.
3.3 Insignificant, reasonable deviations in the dimensions and finishes (colour and structure), in particular in the case of repeat orders, shall remain reserved – irrespective of the type of contract concluded – insofar as these are in the nature of the materials used and are customary. In particular, material-related changes, e.g. in colours, wood and veneer appearance, grain and structure, etc. are deemed to be objectively justified.
4) Cancellation rights
4.1 Customers who are consumers within the meaning of the Austrian Consumer Protection Act (KSchG) may withdraw from a distance contract (or a contractual declaration made at a distance) within a period of fourteen working days without giving reasons. The cancellation period begins upon receipt of delivery of the ordered goods to the customer or to a third party named by the customer who is not acting as a carrier, whereby Saturdays do not count as working days. The cancellation must be in writing to be legally effective and must clearly identify the items to which the exercise of the right of cancellation relates.
The cancellation can be sent by email or post to:
SCHWARZ GmbH
Harmonica and jaw harp manufactory, A-4591 Molln, Waldeggstraße 1
Website: www.kaerntnerland.at
E-Mail: office@kaerntnerland.at
Consumers who are not resident in the EU are not entitled to the right of cancellation.
Furthermore, the right of cancellation does not apply if the agreed price does not exceed € 15 or if goods are manufactured according to customer specifications.
There is generally no right of cancellation for audio or video recordings (e.g. CDs, video cassettes, DVDs,…) or software that has been unsealed by the customer, nor for services that have been transmitted online (e.g. software for download).
We do not grant any cancellation rights to customers who are not consumers within the meaning of the Consumer Protection Act.
4.2 If consumers within the meaning of the KSchG withdraw from the contract, we must refund all payments that we have received from you immediately and at the latest within fourteen days. For the repayment, we will use the same means of payment that you used for the transaction. We may refuse to refund you until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
The condition for a full refund is that the goods are unused and in a re-saleable condition and are returned in the original packaging if possible. The costs of returning the goods shall be borne by the customer.
4.3 In the case of items that are impaired by signs of use or whose packaging is damaged, we will charge an appropriate fee for the reduction in value. The same applies if accessories (such as manuals, driver CDs, software, etc…) or parts are missing when the goods are returned.
4.4 If a customer withdraws from the order without the right of withdrawal, the contract shall be cancelled at our discretion or a cancellation fee of 30% of the agreed purchase price shall be paid to the supplier.
5) Prices and terms of payment
5.1 Our prices – unless otherwise stated – are understood without exception as gross prices “ex works” including the statutory value added tax plus all expenses incurred with the dispatch. Should export or import duties become due in the course of despatch, these shall also be borne by the customer.
5.2 In the case of sales to customers outside the EC, no value added tax is payable, but these customers must pay the respective national import duties. In the case of sales to entrepreneurs within the EC, no Austrian value added tax shall be payable if proof of the UID is provided; the latter must pay the value added tax in their home country.
5.3 Our prices according to the respectively valid price lists and all our price offers are subject to change and are quoted ex works in Molln, Upper Austria. All prices quoted include the value added tax applicable at the time of invoicing. Payments by the purchaser or customer shall be amortised to the oldest liability. Any other dedications by the buyer shall not apply. The prices are based on the current costs for materials, energy, transport, external labour, financing and wages. Should these cost components change, we reserve the right to make corresponding adjustments at the time of delivery to corporate customers. Any cost estimate is prepared to the best of our expertise, but no guarantee can be given for its accuracy; in particular, deviations of +/- 15% are to be tolerated. Cost estimates are subject to a charge. A fee paid for the cost estimate shall be credited if an order is placed on the basis of this cost estimate.
5.4 Invoicing shall be in euros.
5.5 We accept credit/debit cards (MasterCard and Visa) as well as cash in advance and payment on account with payment slip upon receipt.
5.6 All invoices must be paid to our bank account in accordance with the agreed terms of payment, otherwise immediately after receipt of the invoice without deduction. Bills of exchange shall only be accepted by prior agreement. Entrepreneurial customers may neither withhold payment nor claim set-off due to any complaints of defects not recognised by us. In special cases, we reserve the right to make deliveries only against advance payment or cash on delivery.
5.7 Furthermore, in the event of default, we shall be entitled to charge default interest in the amount of 5% p.a. above the base interest rate of the Austrian National Bank, irrespective of any further claims for compensation. In the event of default, the customer also undertakes to reimburse the creditor for any legal and statutory reminder fees incurred by the creditor, insofar as they are necessary for appropriate legal action.
5.8 If the customer does not fulfil his payments, suspends his payments or if bankruptcy or composition proceedings are opened against his assets, the entire remaining debt shall become due. In the case of consumer transactions, this shall only apply if the Supplier itself has already rendered its services, at least one overdue service of the Customer has been due for at least six weeks and the Supplier has sent the Customer an unsuccessful reminder under threat of the loss of the deadline and setting a grace period of at least two weeks.
6) Delivery and dispatch conditions
6.1 Schwarz GmbH reserves the right to change the content of the respective range of services offered by www.kaerntnerland.at at any time. The prices for the deliveries and services offered by www.kaerntnerland.at do not include costs charged by third parties. If not all ordered items are immediately available, the immediately available items will be delivered immediately and others as soon as they are available. Shipping costs will be charged separately. Delivery is made by cash on delivery or by post.
6.2 The sales prices do not include the costs of delivery and insurance. Transport is always at the risk and expense of the customer from our factory in Molln, Upper Austria to the delivery address specified by the customer; other agreements are only valid with written confirmation from Schwarz GmbH. The risk shall pass to the customer as soon as the delivery has been handed over to the shipper by Schwarz GmbH or one of its authorised agents, even if partial deliveries are made. Information about the delivery period is non-binding, transport insurance is not covered by us. The basis for invoicing shall be exclusively the quantities determined at the place of dispatch.
6.3 The delivery of goods – with the exception of Styrian harmonicas – normally takes place within 6 working days of the order confirmation, but in any case within the legally prescribed delivery period of 30 days from the order date. The delivery time for Styrian harmonicas depends on the current production capacity utilisation and is based on the current delivery time stated in the web shop or by the supplier.
6.4 Should the delivery be delayed, we will contact the customer immediately after becoming aware of the delay, but before the 30-day deadline, and obtain his agreement to a later delivery. If the customer does not agree to this, he is entitled to withdraw from the contract.
6.5 You will be informed of the shipping costs in the webshop before you send the order.
7. Retention of title
7.1 Goods delivered by us shall remain our property until all our claims arising from the business relationship with the recipient concerned have been paid in full. The recipient is not authorised to pledge or otherwise encumber goods still subject to retention of title; he is also obliged to inform us immediately in writing of any seizure of the goods or any other measure restricting the freedom of ownership and to point out our ownership. In the event of default of payment or any other breach of contract by the recipient, we shall be entitled to reclaim or collect the goods at any time, asserting the retention of title.
8) Warranty/liability
8.1 The warranty is limited to the statutory period of 24 months.
8.2 Any defects that occur must be reported – without any adverse legal consequences for the customer, who is a consumer within the meaning of the Consumer Protection Act (KSchG), in the event of failure to do so – if possible upon delivery or as soon as they become apparent. In the event of justified complaints about defects, either a replacement or improvement shall be made free of charge, for which a reasonable period of time shall be granted. If the purchase is a commercial transaction (B2B) for the customer in accordance with § 1 KSCHG (377 para. 1 HGB), the customer must inspect the goods immediately upon receipt and notify us immediately if a defect is found.
8.3 Schwarz GmbH is only liable for damages caused by intent and gross negligence, with the exception of damages to persons. The existence of slight or gross negligence must be proven by the injured party, unless it is a consumer transaction. Compensation for (consequential) damages, as well as other property damage, financial losses and third-party damages against the customer is excluded.
8.4 Schwarz GmbH warrants that at the time of shipment or handover of the goods in our store, the products are free from defects that cancel or reduce the value or suitability for normal use. An insignificant reduction in value or suitability shall be disregarded.
8.5 The customer must inspect the goods for completeness or any defects immediately upon receipt of the delivery. Notification of defects must be made immediately, at the latest 3 days after the date of the invoice, and in the case of corporate customers with other exclusion of warranty claims. In the case of hidden defects, notification must be made immediately after discovery of the hidden defect within the warranty period. The warranty period corresponds to the statutory provisions.
8.6 Any returns will only be accepted if confirmed by us in writing as defective goods. Defects in parts of a delivery shall not entitle the customer to complain about the entire delivery. We shall be entitled, at our discretion, either to replace defective deliveries or partial deliveries within a reasonable period of grace or to issue a credit note for the invoice value of the defective goods, both only against return of the defective goods. Warranty claims and/or claims for damages that exceed the total invoice value of the defective goods are excluded, unless the damage was caused by us intentionally or through gross negligence. We shall only be liable to our corporate customers for defects in goods not produced by us to the extent that the upstream supplier or manufacturer is liable to us. In the event of alleged warranty claims, we are entitled to assign our claims against the upstream supplier to the corporate customer and are exempt from any liability in such a case. Return shipments shall only be deemed accepted with our written consent. Manufacturing-related deviations in material quality shall not constitute grounds for complaint about the goods.
8.7 Schwarz GmbH is not liable for damages that have not occurred to the delivery item itself; in particular, Schwarz GmbH is not liable for loss of profit or other financial losses of the customer, except in cases of intent or gross negligence. A warranty cannot be assumed for defects that are attributable to improper use or above-average use of the goods by the customer, nor for wearing parts. Indirect damage (third-party damage) is generally excluded. Insofar as the liability of Schwarz GmbH is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents.
8.8 Claims for damages by the customer due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, consequential harm caused by a defect or due to unauthorized actions are excluded, unless they are based on intent or gross negligence on our part. Our liability and that of our subcontractors and suppliers for material damage caused by a defective product suffered by an entrepreneur is excluded. The client is obliged to impose this exclusion of liability on its customers. Should the client be held liable under the title of product liability, he waives his right of recourse.
8.9 Neither data processing systems nor computer software always work error-free according to the current state of technology. Consequently, Schwarz GmbH cannot guarantee that online trading will always be error-free. Added to this are the imponderables of the Internet itself. Schwarz GmbH is therefore not liable for damages resulting from the fact that Schwarz GmbH does not receive or does not consider purchase offers submitted by customers due to technical defects. A contract is only concluded upon written confirmation of the order or actual fulfillment.
8) Applicable law/jurisdiction
The law of the Republic of Austria shall apply to all legal relationships between the parties to the exclusion of 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 is not withdrawn by mandatory provisions of the law of the country in which the consumer is domiciled.
If the customer is an entrepreneur within the meaning of section 1.2, the exclusive place of jurisdiction shall be Kirchdorf an der Krems, Upper Austria.
9) Alternative dispute resolution
The EU Commission provides a platform for online dispute resolution on the Internet at the following link:
https://ec.europa.eu/consumers/odr
This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved.
10) Data protection:
The customer agrees that his/her personal data, namely name/company name, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, VAT number) may be processed for the purpose of fulfilling the contract (Art 6 para 1 lit b GDPR), fulfilling a legal obligation (Art 6 para 1 lit c GDPR) and for safeguarding the legitimate interests of the controller (Art 6 para 1 lit f GDPR). All personal data is treated confidentially. For further information, please refer to our privacy policy on our website www.kaerntnerland.at.
Status: April 2024
