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GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY of Luke Roberts GmbH
SCOPE OF APPLICATION OF THESE GENERAL TERMS AND CONDITIONS
- Luke Roberts GmbH is a limited liability company with its corporate seat in Vienna, registered with the commercial register of the Commercial Court in Vienna under FN 425277 h (hereinafter "Luke Roberts"). These general terms and conditions (hereinafter the "General Terms and Conditions") shall apply to all orders placed by the customer (hereinafter the "Customer"; the Customer and Luke Roberts hereinafter also jointly referred to as the "Parties") whether via (i) Luke Roberts' online shop at www.luke-roberts.com (hereinafter the "Online Shop") as applicable at the time of the order, (ii) Amazon.com, Inc at www.amazon.com or other country specific website of Amazon.com, Inc, or (iii) similar distribution channels, or (iv) direct sales via Luke Roberts' retail stores, as applicable. These General Terms and Conditions shall also apply to orders made by e-mail.
- These Terms and Conditions shall apply to consumers as well as to entrepreneurs in the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz).
- If these General Terms and Conditions refer to "consumer(s)", these are natural persons who order goods online as set forth under section 1.1 (i) to (iii) or purchase goods from retail stores not for a commercial, independent or freelance activity, i.e. the respective order does not belong to the natural person's business.
- If these General Terms and Conditions refer to "entrepreneurs", these are natural or legal persons or legal partnerships for which the respective order made online as set forth under section 1.1 (i) to (iii) or purchase from retail stores belongs to their business. The differentiation between consumer and entrepreneur is made according to the Austrian Consumer Protection Act.
- Luke Roberts rejects any deviating general terms and conditions of the Customer. Any deviating or supplementary general terms and conditions shall not become integral part of the contract, even if no explicit objection has been made. Any deviations from these General Terms and Conditions, additional agreements or any possible contradictory terms and conditions of the Customer shall only be valid if they have been confirmed in writing by Luke Roberts.
- The provisions of these General Terms and Conditions may be amended by Luke Roberts without notice at any time, whereby any such amendments shall be published in the Online Shop of Luke Roberts at least 30 days before any such amendments enter into force. Amendments of these General Terms and Conditions require the Customer's approval. The Customer approves the amended General Terms and Conditions by clicking an OK button in the course of the next order or the next login to the Online Shop. In case the Customer does not approve the amended General Terms and Conditions, the contractual relationship between the Customer and Luke Roberts shall be continued subject to the General Terms and Conditions as in force prior to the announced amendments. The Customer is informed, that the use of the Online Shop is no longer possible without consent to the amended General Terms and Conditions.
- The Customers may register for the use of the Online Shop. Customers do not have a claim to registration. Luke Roberts reserves the right to request proof of the identity and creditworthiness of the Customer as well as the power of representation of the persons acting on behalf of the Customer as part of the registration process and to refuse registration of a person without giving reasons. For the avoidance of doubt, proof of the power of representation of the persons acting on behalf of the Customer can only be requested if the Customer is an entrepreneur.
- As part of the registration process, the Customer has to provide all required information completely and truthfully and subsequently update such information without delay in the event of any change. Following true indication of all required data in the registration process and acceptance of the registration by Luke Roberts, the Customer receives a confirmation e-mail containing an activation link for completion of the registration. After the initial registration, the Customer may register by entering his or her personal access data (username and password) in the Online Shop.
- The Customer undertakes to keep his access data secret and to protect the access data from access by unauthorized third parties. The Customer is solely responsible for the confidentiality and protection of his or her access data. If the Customer passes on his or her access data to third parties, he or she undertakes to transfer the obligation to comply with these General Terms and Conditions to the third party. The Customer shall be liable for all disadvantages Luke Roberts may suffer if the Customer does not comply with the foregoing obligation. However, the foregoing shall not apply in the event of misuse of access data by third parties without fault on the part of the Customer. In case the Customer loses his or her access data or in case of suspicion that unauthorized third parties have become aware of the access data, the customer is obliged to promptly notify Luke Roberts by e-mail to firstname.lastname@example.org in order to arrange for the Customer account to be blocked.
CONCLUSION OF A CONTRACT
- With respect to orders placed by the Customer via the Online Shop, the Customer submits a binding offer to conclude a contract with Luke Roberts by clicking on the "complete order and pay" button. The acceptance of this offer and thus the conclusion of the contract is effected by sending an order confirmation to the Customer by e-mail to the e-mail address provided by the Customer. Luke Roberts shall be entitled to demand proof of the identity and creditworthiness of the Customer before accepting an order. Any offers made by Luke Roberts shall be free and non-binding and merely represent an invitation for the Customer to submit an offer.
- With respect to orders placed by the Customer via Amazon.com, Inc at www.amazon.com or other country specific websites of Amazon.com, Inc, or similar distribution channels as set forth under section 1.1 (ii) and (iii) with third party suppliers, the general terms and conditions of the respective suppliers may apply in addition to these General Terms and Conditions.
- With respect to direct sales via Luke Roberts' retail stores, the Customer submits a binding offer to conclude a contract with Luke Roberts by expressing his or her will to purchase the respective good at the indicated price. The acceptance of this offer and thus the conclusion of the contract shall be effected by issuance of the respective invoice by Luke Roberts.
- Customers who are entrepreneurs shall also have the possibility to place their orders by email. By placing an order by e-mail, the Customer submits a binding offer to conclude a contract with Luke Roberts. The acceptance of this offer and thus the conclusion of the contract is effected by sending an order confirmation to the Customer by e-mail to the e-mail address provided by the Customer. In addition section 3.1 of these General Terms and Conditions apply.
PRICES AND TERMS OF PAYMENT
- Unless agreed otherwise, the prices shown on the website of Luke Roberts at www.luke-roberts.com valid on the day of delivery including statutory value-added tax shall apply. Luke Roberts reserves its right to correct typing errors and calculation errors with respect to the prices set forth at www.luke-roberts.com. The shipping costs are included in the price quoted unless specified otherwise during the checkout process.
- In case export fees, import fees or other additional costs related to the shipping of the goods become due, these costs shall be borne by the Customer.
- Any discounts or rebates granted to the Customers shall only apply to the respective delivery and are not granted for any subsequent purchases or deliveries. The foregoing shall also apply in case Luke Roberts does not object to deductions made by the Customer in the course of subsequent purchases.
- With respect to direct sales via Luke Roberts' retail stores, the method of payment agreed between Luke Roberts and the Customer shall apply. Cheques and bills of exchange are not accepted.
- With respect to orders via the Online Shop, the Customer is entitled to choose one of the given payment methods available in the Online Shop before the end of the ordering process. Payment slips and cash on delivery are not accepted.
- If the payment is possible by invoice, the payment must be made within 15 days after receipt of goods and invoice. For all other payment methods, the payment must be made in advance without any deduction.
- If the Customer is an entrepreneur and in default of payment, Luke Roberts shall be entitled – at its sole discretion – to either (i) demand payment of interest in the amount of 9.2 % p.a. above the latest base interest rate set by the European Central Banks as of the due date and claim damages for the damages caused by the default of payment or (ii) withdraw from the contract and claim damages for non-performance. In the latter case, Luke Roberts is entitled, irrespective of the Customer's misconduct and the actual occurrence of damage, to demand or withhold the agreed down payment, at least 15% of the purchase price, as a contractual penalty. The obligation to pay the contractual penalty does not prevent the assertion of further damages.
- In case the Customer is a consumer, section 4.7 shall apply with the following deviations: Luke Roberts (i) shall be entitled to demand payment of interest in the amount of 9 % p.a. as of the due date, (ii) may only exercise its right to withdraw from the contract after a reasonable period of grace and (iii) demand contractual penalty only in case of misconduct of the Customer.
- Furthermore, in case of default of payment by the Customer, any dunning charges or collecting fees, which are necessary for an appropriate legal prosecution and are in a proportionate relation to the claim, shall be borne by the Customer. In case the Customer is a consumer the foregoing shall only apply to the extent the Customer acted with misconduct. The assertion of other claims or rights remains unaffected.
- In addition, in case the Customer is in default with any payments, Luke Roberts may demand immediate payment of all outstanding claims against the respective Customer.
CONDITIONS OF DELIVERY, SHIPPING COSTS
- Any deadlines specified regarding delivery of goods are only approximate and non-binding, unless they are expressly agreed as binding. Luke Roberts shall thus not be liable for delayed delivery. All products will be delivered within 5-6 weeks.
- Luke Roberts' delivery obligations and delivery periods shall be suspended as long as the Customer is in default with his or her payments.
- The ordered goods will be delivered by Luke Roberts to the delivery address provided by the Customer by using a customary shipping method.
- Delivery and packaging costs are included in the prices unless specified otherwise during the checkout process. Packaging material will not be taken back by Luke Roberts.
- The shipping of the goods is carried out at the risk of the Customer. If the Customer is a consumer, the risk of loss or damage of the goods shall be transferred to the Customer with delivery of the goods to the Customer or to a third party designated by the Customer. If the Customer is a consumer and has concluded the contract of carriage without using a shipping method proposed by Luke Roberts, the risk already passes to the carrier upon delivery of the goods.
EXCLUSION OF SET-OFF
- The Customer is not entitled to set off claims of Luke Roberts with counterclaims. However, this does not apply to consumers in the event of insolvency of Luke Roberts as well as to counterclaims which are connected with a claim of Luke Roberts in a legal context or are determined by a court or are recognized by Luke Roberts. In these cases the consumers are entitled to set off.
- The title to the goods remains with Luke Roberts until full payment by the Customer. A resale by the Customer to a third party buyer is only permitted, if Luke Roberts has been notified in time about the resale including the name or the company name and the exact (business)address of the third party buyer and Luke Roberts agrees to the resale. In case of consent of Luke Roberts, the purchase price claim of the Customer shall already be deemed assigned to Luke Roberts and Luke Roberts is at any time entitled to inform the third party buyer of this assignment.
- If the customer is in default with payments, Luke Roberts is entitled at any time, even without withdrawing from the contract, to reclaim the goods. A legal action with respect to the purchase price or a part thereof shall not affect Luke Roberts' retention of title. As long as Luke Roberts' retention of title exists, Luke Roberts shall also be entitled to withdraw from the contract.
- In the case of a withdrawal from the contract, the Customer shall only receive an amount for the returned goods which corresponds to the time value of the goods at the time of withdrawal, less any manipulation fees, transportation costs and other disadvantages incurred as a consequence of the withdrawal from the contract, including loss of profit.
- The statutory warranty provisions shall apply.
- Luke Roberts delivers within the standards and specifications shown on the website at www.luke-roberts.com. All other promises regarding special suitability and requirements of the purchased goods, e.g. as set forth in the Installation Manual, require the written consent of an authorized representative of Luke Roberts without exception.
- The warranty is excluded in case of defects caused by the Customer. This is the case particularly for improper handling. Furthermore, any warranty is excluded in case the purchased goods are repaired, or modified in any way by the Customer or a third party without Luke Roberts' prior written consent.
- It is the Customer’s responsibility to check the delivered goods for any defects immediately after receipt of the goods. Any defects identified at that point shall be claimed immediately, at least within 7 days after receipt of goods in written form with details and description of the defect. Hidden defects shall be claimed immediately after their discovery. If the defect is not notified or not notified in time, the good shall be deemed as approved and accepted and the assertion of warranty damage claims as well as the right to contest this contract due to error or defects shall be excluded. The presumption provision pursuant to Section 924 Austrian civil law code ("Allgemeines Bürgerliches Gesetzbuch") is excluded.
- If the Customer is an entrepreneur, sections 8.1, 8.2. and 8.3 of these General Terms and Conditions shall apply with the following deviations:
- The agreed warranty period is six months.
- Luke Roberts is entitled to fulfil the warranty claim at its discretion by improvement, exchange, price reduction or conversion.
- Luke Roberts shall be liable to Customers who are consumers, if damage is caused by wilful misconduct or gross negligence. The liability for slight negligence of Luke Roberts, except for personal injuries, shall be excluded.
- To the fullest extent permitted by law, Luke Roberts shall be liable to Customers who are entrepreneurs, irrespective of the legal ground for damages, only to the extent that any such damages are caused by gross negligence or wilful misconduct of Luke Roberts. To the fullest extent permitted by law, the liability for slight negligence of Luke Roberts shall be excluded. Liability for personal injury shall remain unaffected.
- To the fullest extent permitted by law, the liability of Luke Roberts to Customers who are entrepreneurs, shall be limited to the price of the products purchased by the Customer.
- If the Customer is an entrepreneur, Luke Roberts shall not be liable for indirect damages, loss of profit, loss of interest, lost savings, consequential and pecuniary damages or damages resulting from third party claims.
- In case of force majeure, work conflicts, natural catastrophes as well as other circumstances that are beyond the control of Luke Roberts, respectively in case of reasons not related to Luke Roberts which delay the fulfilment of a contract, Luke Roberts does not assume any liability. The foregoing shall also apply with respect to a delay in delivery of the goods caused by a default of Luke Roberts' suppliers to provide Luke Roberts with the respective goods unless Luke Roberts has caused such delay with gross negligence or wilful misconduct.
- Compensation claims of Customers who are entrepreneurs shall lapse within six months following knowledge of the damage and the damaging party.
RIGHT OF WITHDRAWAL FOR CONSUMERS
Customers who purchase online as set forth under section 1.1 (i) to (iii) and are consumers in the sense of the Consumer Protection Act are entitled to the following right of withdrawal:
- The Customer has the right to withdraw from the contract within 14 days without giving any reason.
- The withdrawal period will expire within 14 days from the day on which the Customer or a third party named by the Customer, other than the carrier, acquires physical possession of the goods.
- To exercise the right of withdrawal, the Customer must inform Luke Roberts via [email@example.com] or Luke Roberts GmbH, Phorusgasse 8/2, 1040 Vienna of his or her decision to withdraw from the contract by an unequivocal statement (e.g. a letter sent by post or E-Mail). The Customer may use the model withdrawal form below or another unequivocal statement or may download the model withdrawal form on the website www.luke-roberts.com and send it to Luke Roberts.
- To meet the withdrawal deadline, it is sufficient for the Customer to send the communication concerning his exercise of the right of withdrawal before the withdrawal period has expired.
- In case the Customer withdraws from the contract, Luke Roberts shall reimburse to the Customer all payments received from the Customer, including the costs of delivery (with the exception of the supplementary costs resulting from the Customer’s choice of a type of delivery other than the least expensive type of standard delivery offered by Luke Roberts) and packaging, without undue delay and in any event not later than 14 days from the day on which Luke Roberts is informed about the Customer’s decision to withdraw from the contract. Luke Roberts will carry out such reimbursement using the same means of payment the Customer used for the initial transaction, unless the Customer has expressly agreed otherwise; in any event there will not incur any fees as a result of such reimbursement for the Customer.
- Luke Roberts may withhold reimbursement until Luke Roberts has received the goods back or the Customer has supplied evidence of having sent back the goods, whichever is the earliest. The Customer shall send back the goods without undue delay and in any event not later than 14 days from the day on which the Customer communicates his withdrawal from the contract to the following address:
For the European Union:
2700 Wr. Neustadt
For North America:
2700 Wr. Neustadt
- The deadline is met if the Customer sends back the goods before the period of 14 days has expired. The Customer will have to bear the direct cost of returning the goods and shall use the same type of packaging as used for the delivery of the goods. The Customer is only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
- Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
To Luke Roberts GmbH, Phorusgasse 8/2, 1040 Vienna, E-Mail: firstname.lastname@example.org:
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*) / for the provision of the following service (*)
Ordered on (*)/received on(*)
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if this form is notified on paper)
(*) Delete as appropriate
DATA PROTECTION PROVISIONS
- The data protection regulations of Luke Roberts apply to all Customers of Luke Roberts and are an integral part of these General Terms and Conditions. They are available on the website of Luke Roberts.
APPLICABLE LAW AND PLACE OF JURISDICTION
- Austrian law shall apply exclusively but without giving effect to its conflict law rules and the UN Sales Convention. In case of consumers, this choice of law applies only to the extent that the consumer is not deprived of the protection granted by the mandatory provisions of the law of the country of the consumer’s usual residence.
- The Parties agree that the competent court in Vienna shall have jurisdiction to hear and determine any suit action or proceedings and to settle any disputes which may arise out of or in connection with these General Terms and Conditions or the legal relationship between Luke Roberts and its Customers and, for such purposes, irrevocably submit to the jurisdiction of such courts. The legal venue for all disputes arising in connection with the contract against a consumer having his place of residence, usual domicile or place of employment within the country shall be one of the courts of the district where the consumer has his place of residence, usual domicile or place of employment. For consumers who are not resident in Austria at the time of signing the contract, the legal place of jurisdiction shall apply.
- Should any provision of these General Terms and Conditions (or any part thereof) be invalid, the validity of the other provisions shall not be affected. The invalid or ineffective provision shall be deemed to be replaced by such valid and effective provision as most closely corresponds to the economic purpose of the invalid or ineffective provision.
- Any changes, amendments and side agreements to these General Terms and Conditions are only valid if made in writing. This shall also apply to any agreed waiver of the written form requirement. In case of inconsistencies between these General Terms and Conditions and written side agreements between the Parties, the provisions of side agreements shall prevail.