General terms and conditions of Ennobled OG for consumer and business transactions
1. scope of application of these GTC
1.1 The present General Terms and Conditions (“GTC”) shall apply to all legal transactions, including the following contractual terms and conditions, between Ennobled GmbH as the supplier and the customer as the purchaser, their conclusion, effectiveness, interpretation and implementation, as well as to all other legal relationships or offers existing between the parties, which concern the delivery of goods and/or other services of Ennobled GmbH of any kind whatsoever; this shall include in particular, but not exclusively,
a) legal transactions carried out in business premises,
b) legal transactions carried out via the website www.ennobled.at or an online store located there,
c) other legal transactions concluded at a distance (e.g. via telephone, e-mail, fax or similar).
Ennobled GmbH concludes all legal transactions exclusively on the basis of these GTC, unless the validity of the GTC has been explicitly waived in writing for individual transactions.
1.2 These GTC contain some provisions that are only valid for entrepreneurs and others that are only valid for consumers in the sense of the Austrian Consumer Protection Act (KSchG). These provisions are marked accordingly. Consumer in the sense of this law is anyone who is not an entrepreneur. An entrepreneur is anyone for whom the legal transaction is part of the operation of his business. An enterprise in this sense is any permanent organization of independent economic activity, even if it is not profit-oriented, i.e. in particular also associations according to the Associations Act 2002.
1.3 If Ennobled GmbH enters into an ongoing business relationship with a customer, these GTC shall apply as a framework agreement for this business relationship. If a condition agreed in a legal transaction contradicts these GTC, this contradictory provision shall only be effective if a departure from the relevant point of the GTC is expressly agreed.
1.4 General Terms and Conditions of the Customers shall not apply unless they have been expressly accepted in writing by Ennobled GmbH.
1.5 The General Terms and Conditions of Ennobled GmbH are available at the company’s registered office and at www.ennobled.at/agb.
The terms used in these GTC are defined in more detail below. If the same terms are used in individual legal transactions, the following definitions shall also be used for the interpretation of terms in all legal transactions concluded by Ennobled GmbH, unless a term is exceptionally defined independently in a legal transaction:
2.1 “Customer” shall mean any contracting and/or negotiating party of Ennobled GmbH, in particular any buyer or purchaser of goods as well as any visitor to the business premises of Ennobled; this irrespective of whether a contract has already been concluded or not.
2.2 “Performance” shall mean any tangible or intangible product, any tangible or intangible delivery, and any tangible or intangible other performance of Ennobled Ltd. of whatever nature.
2.3 “Goods” shall mean any product offered or distributed by Ennobled GmbH.
2.4 “Reserved Goods” are goods that remain the sole property of Ennobled GmbH until all claims against the Customer arising from the contract have been fulfilled.
2.5 “Order” shall mean the Customer’s binding request for the provision of a service by Ennobled GmbH, in particular the request for the manufacture and/or delivery of a good.
2.6 “Order” (“Contract”) shall mean the legal transaction concluded between Ennobled GmbH and the Customer.
2.7 “Custom-made goods” are goods that are manufactured according to customer specifications, i.e. according to the customer’s wishes individually for the customer.
3. offer, acceptance of contract, contract documents
3.1 Offers, advertising mailings or other invitations to tender of Ennobled GmbH are merely invitations to place orders with customers and are in principle subject to change and non-binding. Insofar as a written offer of Ennobled GmbH is available and nothing else has been agreed upon, the offer shall be binding for a maximum period of 4 weeks after submission. For business transactions with entrepreneurs, an acceptance period of 2 weeks shall apply. A contract is concluded with the written order confirmation (also via email) of Ennobled GmbH. A written notification to the customer that the ordered goods have been handed over for shipment constitutes an order confirmation.
3.2 Orders sent by customers to Ennobled GmbH constitute binding offers by the customer to conclude a contract. They are binding and cannot be revoked by the customer – subject to special legal provisions and the right of withdrawal regulated below. After examination of the order received, Ennobled GmbH reserves the right, at its own discretion, either to reject the order or to accept it by order confirmation. Silence on the part of Ennobled GmbH is in no case to be considered as consent or acceptance of an offer or order. If the Customer receives an automated or manual confirmation of the receipt of the order, this does not constitute an acceptance of the order by Ennobled GmbH.
3.3 Ennobled GmbH expressly reserves the right to refuse orders from customers without giving reasons. An explicit notice to the customer may be omitted. Apart from a possible claim for the return of an already paid fee, the Customer shall not be entitled to any claims whatsoever due to the non-execution of the order.
3.4 Should deviations become necessary after receipt of the order confirmation, the Customer shall notify Ennobled GmbH thereof in writing within a period of 5 days after sending the order confirmation. Otherwise, the terms of the contract communicated in the order confirmation shall apply.
3.5 Ennobled GmbH reserves the property rights and copyrights to contractual documents such as drawings, illustrations, samples, calculations and similar information/data of a physical and non-physical nature, also in electronic form, unless they are part of the contractual performance; these may be made accessible to third parties only with the prior express written consent of Ennobled GmbH. If the Customer’s order is not accepted, any documents of Ennobled GmbH shall be returned to Ennobled GmbH without delay.
4. non-binding cost estimate
Ennobled GmbH does not guarantee the correctness of a cost estimate. It is only a preliminary order amount. If it becomes necessary to exceed the cost estimate, the customer will be notified immediately. The customer has the possibility to withdraw from the contract in writing within a period of 3 days from the notification of the overrun. In this case, Ennobled GmbH shall be reimbursed for the costs of the expenses incurred up to that point as well as the proportionate remuneration for the work performed up to that point. If the customer does not declare a withdrawal, the overrun is considered as approved. Consumers will be informed of this separately.
5. exclusion of a quality or durability guarantee
5.1 Ennobled GmbH does not give any warranty of quality or durability for goods as well as information, descriptions or samples. The customer acknowledges that illustrations or samples of products and goods may differ from the goods actually delivered. Wood and the means used to preserve and treat the wood are subject to uninfluenceable variations in color and structure, in particular due to temperature and (air) humidity. Furthermore, the wood product is exposed to weathering influences, which is why changes in color, structure, etc. can occur due to UV radiation, light, temperature fluctuations, precipitation, humidity and the like. There is also the possibility that mechanical impact on the product (e.g. by hail) may result in spalling. In this case, it cannot be completely ruled out that color changes may also occur in such places (the treated layers of wood may come off, etc.). In this case the customer has to have these places professionally treated or exchanged in order to maintain the function and appearance of the goods. Therefore, Ennobled GmbH shall not be liable for any changes of the subject matter of the contract occurring due to such circumstances.
5.2 Due to the fact that the goods are not machine-made products but a manually treated natural product, there are individual deviations from piece to piece due to the natural product characteristics (structure, grain, etc.) and the manual production process. Illustrations, samples or representations of the goods of any kind are therefore only exemplary representations. The delivered goods may therefore deviate from illustrations, representations and samples in terms of shape, color, weight or thickness. These deviations therefore at most do not represent a defect and therefore do not lead to a warranty claim. No samples or illustrations of custom-made products can be sent to the customer in advance, as these are only produced after the customer has placed an order. In individual cases, the production of a sample for custom-made products may be agreed with the Customer in advance at the Customer’s expense.
5.3 Ennobled GmbH does not guarantee the accuracy, completeness and timeliness of the information provided on the homepage, in print media, image- and sound-supported advertising mailings or other media and expressly reserves the right to make errors, in particular with regard to price markings.
5.4 Ennobled GmbH does not warrant that the subject matter of the contract is suitable as a natural product for the purpose intended by the Customer. This shall only apply if Ennobled GmbH has not been informed about the intended use prior to the conclusion of the contract and has expressly assured the suitability in writing. Products sold by Ennobled GmbH are in any case not suitable for roofing, as well as for use in children’s rooms or comparable rooms, because the products are the results of a combustion process and therefore in case of improper use (e.g. consumption of parts of the goods, contact with eyes, mucous membranes, etc.) health impairments cannot be completely excluded.
6. delivery time, delays in delivery, default in acceptance
6.1 The delivery time results from the agreement between Ennobled GmbH and the Customer and presupposes the timely and proper fulfillment of the obligations, in particular the agreed down payment obligation of the Customer. Its observance by the Supplier presupposes that all commercial and technical questions have been clarified and that the Customer has fulfilled all obligations incumbent upon him. If this is not the case, the delivery period shall be extended accordingly. The delivery period shall be deemed to have been met if the delivery item has left the warehouse of Ennobled GmbH by the expiry of the delivery period or if the customer has been notified that the delivery item is ready for dispatch. Ennobled GmbH reserves the right to plead non-performance of the contract.
6.2 Ennobled GmbH reserves the right to choose the mode and route of shipment, unless a special agreement has been made in writing in individual cases. In particular, Ennobled GmbH shall not be obliged to choose the cheapest mode of transport. Packaging shall be done in a customary manner, whereby the Customer acknowledges that the goods offered by Ennobled GmbH are partly sensitive and therefore require careful and protective packaging. This may cause higher shipping costs under certain circumstances. Any additional special packaging shall only be carried out upon the express instruction of the customer and shall be at the customer’s expense. The customer shall arrange for the disposal of the packaging at his own expense. Export surcharges and customs duties shall be borne by the customer and shall be charged separately.
6.3 Ennobled GmbH shall take out transport insurance for the goods only upon the Customer’s express prior written request; the costs of such transport insurance shall be borne by the Customer.
6.4 In the event of delays in the shipment of the delivery item for reasons for which the Customer is responsible or the Customer’s default in acceptance, Ennobled GmbH shall be free to either withdraw from the contract by granting a 14-day grace period and to dispose of the goods elsewhere, to insist on performance of the contract and to store the goods itself at the Customer’s risk and against payment of an appropriate and customary charge for a maximum period of 8 weeks or to have the goods stored by a third party at the Customer’s risk and expense. In the case of entrepreneurs, in the event of the choice of compensation for damages instead of performance, the compensation for damages shall regularly amount to at least 25% of the net sales price, unless the customer proves a lesser damage. Ennobled GmbH shall be at liberty to claim higher damages. In case of any other utilization, the Entrepreneur shall pay a penalty of 25% of the order value (excl. VAT) to Ennobled GmbH within 14 days from the written request.
6.5 The goods shall be delivered by means of a semi-trailer truck (40 tons) customary in traffic. It is the Customer’s responsibility to provide access and delivery facilities for such vehicles. If it is not possible for the Customer to make such a delivery, the Customer shall notify Ennobled GmbH thereof without being asked and a special agreement on the delivery shall then be made in the individual case. If the customer fails to give such notice and the impossibility of delivery only becomes apparent at the time of transport, the customer shall be liable for all disadvantages resulting therefrom (additional costs of unloading, temporary intermediate storage until another vehicle can complete the delivery, etc.).
For entrepreneurs applies:
6.5 If non-compliance with the agreed delivery time is due to force majeure, labor disputes or other events beyond the control of Ennobled OG, Ennobled OG shall be released from its obligation to deliver and perform for the duration of their occurrence. Delivery periods and dates shall be extended in accordance with the duration of the event. Ennobled GmbH shall immediately notify the Customer of the beginning and the end of such circumstances. If the aforementioned events last longer, the agreed delivery period shall be extended by a maximum of 6 weeks. In case of a delay of more than 6 weeks, Ennobled GmbH is entitled to withdraw from the contract. The customer may withdraw from the contract if the entire performance becomes finally impossible for Ennobled GmbH before the passing of risk. If the impossibility occurs without intent or gross negligence of Ennobled GmbH during the delay in acceptance or through the fault of the customer, the customer shall remain obligated to counter-performance. Ennobled GmbH shall only be liable for damages resulting from such operational disruptions in case of intent.
The following shall apply to consumers:
6.6 The following shall apply to consumers: Ennobled GmbH shall not be liable for delays in delivery due to force majeure or other unavoidable circumstances for which Ennobled GmbH is not responsible, such as labor disputes. The delivery periods shall be extended by the period of the hindrance. Even within extended delivery periods, the customer has the right to withdraw from the contract within the legal regulations. Ennobled GmbH shall be liable for damages resulting from such disruptions only in case of intent and gross negligence.
7. transfer of risk
For entrepreneurs applies:
7.1 The price risk shall pass to the Customer upon handover of the goods to the Customer or the third party commissioned by the Customer (e.g. carrier). In case of direct delivery, the price risk shall pass to the Customer as of the handover to the carrier; the handover to the carrier shall take place either directly at the Supplier’s warehouse or at a place to be agreed upon by Ennobled GmbH directly with the carrier; this shall be independent of any separately agreed price regulation for the delivery. This means that the Customer shall not be entitled to withdraw from the contract or to claim damages if the goods are lost, perish or damaged after leaving the factory or the warehouse through no fault of Ennobled Ltd. or only due to slight negligence of Ennobled Ltd. The Customer shall bear the risk of transport, whereas the transport costs shall be borne by Ennobled OG (INCOTERM CPT – “carriage paid”). The customer will be charged a special transport fee, which will be stated in the offer. At the customer’s request, the customer can name a carrier himself – in this case, however, at his own expense. A carrier named by the Customer shall then pick up the goods at the place to be named by Ennobled GmbH.
7.2 If the shipment or the handover is delayed or does not take place due to circumstances not attributable to Ennobled GmbH, the risk shall pass to the Customer from the day of the notification of readiness for shipment or acceptance; however, Ennobled GmbH shall be obliged to take out the insurances requested by the Customer at the Customer’s expense.
7.3 In the event of a delay for which Ennobled GmbH is responsible and of a justified withdrawal of the Customer, the latter shall only be entitled to claim damages if Ennobled GmbH or its vicarious agents have caused the delay intentionally or by gross negligence. The liability for damages caused by delay of Ennobled GmbH is in any case – without prejudice to any other exclusion of liability – limited to cases of gross negligence and, per working day of delay, to 1% of the value of that part of the delivery or service which was not delivered in time. Any claim for damages in excess thereof shall be excluded.
7.4 Accordingly, this shall also apply if partial deliveries are made or if Ennobled GmbH itself carries out the transport to the place of destination on behalf of the Contractual Partner.
For consumers applies:
7.5 In case of shipment of the goods by Ennobled GmbH, the risk of loss or damage of the goods shall pass to the Customer only as soon as the goods are delivered to the Customer or to a third party designated by the Customer and different from the carrier. If, however, the Customer has concluded the transport contract itself without using a selection option proposed by Ennobled GmbH, the risk shall pass to the Customer as soon as the goods are handed over to the carrier.
7.6 If delivery free to the place of delivery has been agreed, unloading shall be the responsibility of the Buyer. In the case of delivery to the place of delivery, drivable access routes for trucks and trailers/trucks are assumed. If the delivery vehicle leaves the drivable delivery route on the instructions of the purchaser, the purchaser shall be liable for any damage resulting therefrom. The delivery time is to be agreed upon. Waiting times/stopping times caused by the buyer will be charged.
For entrepreneurs and consumers applies:
7.7 In the case of self-collection, the price and performance risk shall pass to the customer from the time of handover, and in the case of default in acceptance, from the time of default.
7.8 If the Customer is in default with the acceptance of the object of purchase, the risk shall pass to the Customer at the time of default.
7.9 If Ennobled GmbH is in default for reasons for which Ennobled GmbH is responsible, the Customer shall be entitled to withdraw from the contract, provided that the Customer sets a reasonable grace period for the delivery of the goods or the performance of the service in writing after the default has occurred and threatens to withdraw from the contract after the grace period has expired. The grace period shall be deemed reasonable if it is not less than 50% of the original delivery or performance period.
8. prices, terms of payment and default of payment
8.1 Unless otherwise agreed, the prices shall apply ex warehouse, excluding packing, transport and unloading. If due to the conditions at the place of unloading above-average unloading costs arise, which could not be taken into account when the offer was prepared, these shall in any case be borne by the customer. The goods will be packed in a customary manner, as far as necessary according to the dutiful discretion of Ennobled GmbH. In the offers the value added tax is shown separately in the respective legal amount. Unless explicitly stated otherwise, the prices are net prices.
8.2 If, after the conclusion of the contract, the purchase prices for materials, raw materials, auxiliary materials, wages, transport costs or other operational costs change unforeseeably and significantly for Ennobled GmbH for reasons for which Ennobled GmbH is not responsible, Ennobled GmbH may demand a corresponding price adjustment, provided that there is a period of at least 4 months between the order confirmation and the delivery. In this case the customer has the right to withdraw from the contract. In case of such a price adjustment, Ennobled GmbH shall be entitled to make the delivery dependent on the payment of a deposit adjusted to the same extent. In case of partial deliveries, the right to adjust the price shall apply analogously to the parts not yet delivered.
8.3 Payment of the purchase price shall be made exclusively to the account specified by Ennobled GmbH on the invoice. The deduction of discounts shall only be permissible upon express agreement.
8.4 Ennobled GmbH shall be entitled to demand a down payment of 50% of the order amount. This shall be due for payment within 14 days of receipt of the order confirmation issued by Ennobled OG. Should the customer fail to make the down payment in due time, Ennobled GmbH shall not be obliged to deliver or perform.
8.5 The remaining purchase price not yet paid by the down payment shall be due for payment by the Customer to the account specified in the invoice within 10 days after the invoice has been issued. The relevant invoice shall not be issued before the goods have been delivered in the agreed form, it has been determined that the Customer is in default of acceptance or it has been determined that the delivery will not be made for reasons for which Ennobled GmbH is not responsible.
8.6 In the event of default, interest on arrears shall be charged immediately from the due date to consumers at the statutory interest rate pursuant to § 1000 ABGB as amended (currently 4%) and to entrepreneurs at the statutory interest rate for business-related transactions pursuant to § 456 UGB as amended (currently 9.2% p.a. above the base interest rate published from time to time). In the event of default, the customer shall also bear any customary dunning and collection charges or attorney’s fees at the standard rate. In the case of business transactions, these shall include a lump sum of EUR 40.00, irrespective of any additional collection costs.
Incoming payments shall first be credited against reminder and collection costs as well as costs of legal or judicial collection, then against the accrued interest on arrears and finally against the outstanding capital.
The right to claim higher damage caused by default is reserved. In case Ennobled GmbH claims a higher damage caused by delay, the Customer shall have the possibility to prove that the claimed damage caused by delay has not occurred or has occurred at least at a significantly lower amount.
8.7 The Customer shall only have the right to withhold payments or to set off payments against counterclaims to the extent that its counterclaims are undisputed, acknowledged by Ennobled GmbH or have been finally determined by a court of law. The prohibition of set-off shall not apply to consumers if it concerns a counterclaim for payment of costs for the removal of defects under the same purchase contract.
8.8 If, after the conclusion of the contract, Ennobled GmbH becomes aware of circumstances that are likely to significantly reduce the creditworthiness of the Customer, such as the opening of insolvency proceedings, Ennobled GmbH shall be entitled to refuse performance and to set a reasonable period of time within which the Customer shall effect counter-performance or provide security concurrently with the delivery. After expiration of the deadline, Ennobled GmbH may withdraw from the contract in writing. In this case, Ennobled GmbH may also demand payment of all claims arising from the business relationship.
8.9 If the Customer is granted a longer payment period or if a payment by installments is agreed upon separately, this shall not constitute a postponement of the due date. Only the further collection of the already due claim is waived for the agreed period of time. If the customer is in default with the payment of even one installment or if he does not meet the deferred payment date, the entire claim plus the above-mentioned default interest shall be due for payment immediately from the due date (loss of maturity). Furthermore, Ennobled GmbH reserves the right to immediately withdraw from the contract in this case.
9. retention of title
9.1 The goods shall remain the sole property of Ennobled GmbH (legal designation: reserved goods) until all claims of Ennobled GmbH against the Customer arising from the respective contract have been fulfilled, in particular until all payments including interest and ancillary costs have been made (legal designation: reserved goods), even if individual parts have already been paid for.
9.2 For the duration of the retention of title, the Customer shall handle the goods with care and shall bear the full risk for the goods entrusted to it, in particular for the risk of loss and deterioration.
9.3 In case of sale of the goods subject to retention of title to a third party by the Customer, the third party shall be informed by the Customer that Ennobled GmbH retains title to the goods and the Customer’s purchase price claim against the third party shall pass to Ennobled GmbH up to the amount of Ennobled GmbH’s claim against the Customer (extended retention of title).
9.4 In case of combination, processing or mixing of the Reserved Goods with goods not belonging to Ennobled GmbH, Ennobled GmbH shall acquire co-ownership in proportion to the invoice value of the Reserved Goods to the other goods.
9.5 In case of seizure of the Reserved Goods or other access to the Reserved Goods by third parties, the Customer shall point out the ownership of Ennobled GmbH and the Customer shall immediately notify Ennobled GmbH in writing of the seizure or other access to the goods.
9.6 In case of breach of contract by the Customer, in particular in case of default of payment, Ennobled GmbH shall be entitled to reclaim the Reserved Goods or, at its option, to demand the assignment of the Customer’s claims for return against third parties, if any. In this case, Ennobled GmbH shall be entitled to demand the immediate return of the goods to the exclusion of any right of retention. After taking back the goods, Ennobled GmbH may, at its discretion, either sell the goods and credit the proceeds obtained less 20% resale charges to the Customer’s outstanding obligations or take back the goods at the invoice price, deducting any depreciation in value, and charge the Customer a reasonable usage fee for the period of its possession and use of the goods. Ennobled GmbH is also entitled to collect the goods from the customer or to have them collected by an authorized third party. The relevant transport and possible storage costs are to be borne by the customer. Ennobled OG is not obligated to return the collected goods to the customer before all claims of Ennobled OG against the customer have been paid in full, including interim interest and (reminder) costs.
9.7 In the event that the customer violates the agreements on retention of title, the customer shall be obligated to pay a contractual penalty in the amount of twice the net value of the goods subject to retention of title. The assertion of claims exceeding this amount, in particular claims for damages and the costs of excision in execution proceedings, shall not be excluded by the agreed contractual penalty. If the customer is not a consumer, the contractual penalty shall not be subject to judicial moderation. If the customer does not fulfill his obligations or stops his payments, the entire remaining debt shall also become due immediately.
10.1 Ennobled GmbH does not warrant for the ordinary wear and tear of the goods and for defects caused by improper handling. Ennobled GmbH provides warranty to consumers to the extent provided by law, in particular according to §§ 922 to 933 ABGB (Austrian Civil Code) and §§ 8 to 9a KSchG (Consumer Protection Act).
10.2 Wood is a natural product. The range of natural color, structure and other differences of the goods is part of the properties of the natural product wood and does not constitute a defect or deficiency that entitles to complaints or for which Ennobled GmbH is liable. The same applies to insignificant deviations from samples or other representations, due to the processing of the product wood in manual work. For this reason, it is recommended to seek professional advice on the biological, physical and chemical properties of this natural product with regard to the desired use before concluding the contract.
10.3 Furthermore, Ennobled GmbH shall not be liable for the consequences of improperly performed repairs to the goods, carried out by the customer or a third party.
10.4 In case of considerable defects, the Customer shall initially have the choice between the primary warranty remedies, improvement or replacement. However, Ennobled GmbH shall be entitled to refuse the type of supplementary performance chosen by the Customer if it is only possible at disproportionately high costs and another type of supplementary performance remains without significant disadvantages for the Customer. During the supplementary performance, the reduction of the purchase price or the withdrawal from the contract by the customer are excluded. A subsequent improvement shall be deemed to have failed at the earliest with the unsuccessful third attempt, unless something else arises in particular from the nature of the item or the defect or the other circumstances.
From the moment of notification of a defect, Ennobled shall have 14 days to inspect the defect. Within one week from the date of the inspection, Ennobled Ltd. has the possibility to declare its readiness to remedy the defect or, if necessary, to reject the asserted claims. If Ennobled OG declares its willingness to remedy the alleged defect, a period of three weeks shall be available for the attempt to remedy the defect. If a rectification fails, Ennobled OG shall have the option of an exchange within the originally agreed delivery period.
10.5 If there is a considerable defect in a part of the goods and if primary warranty remedies are not economical or have failed, this defect shall in no case entitle the Customer to rescind the contract altogether.
10.6 Ennobled GmbH expressly does not provide any special warranties that would go beyond the provisions of the statutory warranty.
10.7 Ennobled GmbH exclusively operates the trade of the goods. The customer himself is responsible for the professional processing or assembly of the purchased goods by authorized professionals. Therefore, Ennobled OG does not give any assembly instructions or the like. If, in individual cases, Ennobled OG passes on instructions (e.g. in brochures, product descriptions or other product or goods information) to the Customer, this shall only be general information based on the information provided by the supplier of Ennobled OG, which does not take into account the individual specifications or requirements of the concrete Customer. The Customer shall therefore also check such information by a specialist entrusted with the assembly or processing for compliance with the requirement profile intended by the respective intended use of the goods. If, in individual cases, Ennobled GmbH expressly gives care and/or assembly instructions, these must be strictly followed by the customer in order to avoid any damage. Ennobled GmbH shall not be liable for any damage resulting from non-compliance with such instructions and care and assembly instructions or any other improper handling of the goods.
10.8 It is expressly stated that Ennobled GmbH does not guarantee any specific functions, modes of operation or properties of its goods.
10.9 The consequential costs of disassembly and reassembly in case of warranty, which are claimed beyond the usual extent, are excluded. Furthermore, the costs shall always be excluded or limited if an effective exclusion has been asserted against Ennobled GmbH by its importer.
10.10 If manufacturer’s warranties exist for delivery items, the rights granted herein in favor of the Customer shall be granted by the product manufacturer on its own legal basis. However, this possibly arising warranty relationship between the manufacturer and the Customer shall have nothing to do with the scope of the contract owed by Ennobled GmbH. If necessary, Ennobled GmbH shall assign to the Customer any rights to which it may be entitled against the manufacturer or supplier, so that the Customer may assert such rights directly against the supplier or manufacturer of the goods.
10.11 The statements of a manufacturer regarding the quality and/or the durability of the products in a possible guarantee declaration, as well as the services described by the manufacturer in the event of a guarantee are not part of the purchase contract between Ennobled GmbH and the customer and, in particular, are not included in the purchase contract to be concluded as a tacit agreement on quality.
The following shall apply vis-à-vis entrepreneurs:
10.13 With the exception of the following cases, Ennobled GmbH shall exclude the assertion of any warranty claims, claims for shortening by more than half and the contestation of errors vis-à-vis entrepreneurs.
10.14 The Customer shall immediately notify Ennobled GmbH in writing of any recognizable defects of the purchased goods, shortages or wrong deliveries prior to processing or installation, but no later than within two weeks from delivery. Liability for material defects which do not or only insignificantly affect the value or the usability shall be excluded. Hidden defects shall be notified to Ennobled GmbH in writing within two weeks after detection at the latest. These written complaints must be sufficiently substantiated and supported by evidence. The existence of considerable defects shall be proven by the Customer, § 924 ABGB (Austrian Civil Code) shall not apply.
10.15 The warranty for considerable defects which are not covered by the warranty exclusion shall be a maximum of twelve months from delivery.
10.16 In case of resale of the delivered goods by the Customer, all claims against Ennobled GmbH under the title of warranty shall lapse; the right of recourse pursuant to § 933b ABGB is expressly excluded.
The following shall apply vis-à-vis entrepreneurs:
11.1 Ennobled GmbH shall be liable for any damage caused to the Customer in the course of business only in case of its own intent or gross negligence or in case of intent and gross negligence of the vicarious agents working for Ennobled GmbH. In case of gross negligence, the liability is limited to the amount of the order, at the most, however, to the amount of the business liability insurance coverage. This provision shall also apply to damages in addition to performance and damages in lieu of performance, irrespective of the underlying legal grounds. This also applies to claims for compensation for frustrated expenses. Excluded from this are personal injuries. The provisions of the Product Liability Act shall remain unaffected.
11.2 Liability for claims for damages by entrepreneurs against Ennobled GmbH due to slight negligence – except for personal injury – is also excluded. Liability shall expire 6 months after knowledge of the damage and the damaging party.
11.3 Ennobled GmbH shall not be liable for indirect damages, loss of profit, loss of interest, loss of savings, consequential and pecuniary damages, damages from third party claims as well as for damages caused by unsuitable or improper use, natural wear and tear, faulty or negligent handling or storage, except in case of intentional infliction of damage. This exclusion of liability was taken into account in the price calculation, so that without such an exclusion of liability Ennobled GmbH would not carry out the legal transactions. If a customer does not wish this exclusion of liability, it is possible to deviate from this in individual cases with a correspondingly different price calculation. However, a deviation shall only be made on the basis of an express written agreement concluded in this regard.
11.4The claim for damages for the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract. Liability for damage caused by the delivery item to the customer’s legal assets is excluded.
11.5 The preceding limitations of liability shall also apply in favor of the employees and in favor of commissioned third parties of Ennobled GmbH. Further claims, for whatever legal reasons, are excluded.
11.6 Should the Customer itself be held liable on the basis of the Austrian Product Liability Act or similar foreign provisions, it shall expressly waive any recourse against Ennobled GmbH, in particular that within the meaning of § 12 of the Austrian Product Liability Act or similar foreign provisions.
11.7 All claims for damages against Ennobled GmbH shall be forfeited if they are not asserted by the Customer in court within three months after Ennobled GmbH has rejected the obligation to pay compensation. In any case, any claims for damages shall become time-barred within 18 months after the claimant first became aware of the occurrence or threat of occurrence of the damage.
11.8 In the event that damage has already occurred or is imminent, the customer shall be obligated to mitigate the damage as far as possible. In this regard, the Customer shall, if this can still be done in time, immediately contact Ennobled GmH and coordinate the further course of action with Ennobled GmbH. Instructions given by Ennobled GmbH on how to proceed shall be complied with in any case.
The following shall apply vis-à-vis consumers:
11.9 Towards consumers the liability of Ennobled GmbH for damages caused only by slight negligence is excluded. This exclusion does not apply to any personal injury. Otherwise Ennobled GmbH shall be liable in accordance with the statutory provisions.
11.10 In case of an already occurred or threatened damage, the customer is obliged to minimize the damage as far as possible. In this regard, the Customer shall immediately contact Ennobled GmbH, if this can still be done in time, and coordinate the further course of action with Ennobled GmbH. Instructions given by Ennobled GmbH on how to proceed shall be complied with in any case.
12.prohibition of assignment
12.1 The assignment of warranty claims or claims for damages or the like shall not be permitted without the prior written consent of Ennobled GmbH.
13.withdrawal from the contract, exchange:
13.1 Right of withdrawal for consumers in distance selling transactions:
In the case of legal transactions carried out exclusively at a distance (e.g. via the website of Ennobled GmbH, other online platforms, via e-mail or telephone, etc.), the customer shall have the right to withdraw from the contract within 14 days, whereby this period shall be calculated from the date of receipt of the delivery of goods by the customer or, in the case of service contracts, from the date of conclusion of the contract (right of withdrawal). If the customer has ordered several goods as part of a single order, which are delivered separately, or if the delivery of goods is made in several partial shipments, the right of withdrawal begins on the day on which the customer or a third party named by the customer, who is not acting as a carrier, obtains possession of the last delivered goods or partial shipment. The withdrawal does not have to contain a reason and is not bound to a certain form. It can be done in written form (e.g. letter, fax) or by returning the already received goods to Ennobed GmbH. The consumer may also use the model withdrawal form available at the offices of Ennobled GmbH and available on the website www.ennobled.at. The withdrawal period shall be deemed to have expired. In order to comply with the withdrawal period, it is sufficient to send the declaration of withdrawal or the goods before the expiry of the withdrawal period to the address stated in point 8.3.
This right of withdrawal does not apply to goods purchased in the business premises of Ennobled GmbH.
This right of withdrawal does not apply to legal transactions concerning custom-made products (§ 18 para. 1 item 3 Distance and Foreign Transactions Act – FAGG).
13.2 Consequences of withdrawal for consumers:
If the customer, who is a consumer, effectively makes use of his right of withdrawal according to point 13.1. of these General Terms and Conditions, he shall return or hand over all services received from Ennobled GmbH immediately, at the latest within fourteen days from the day on which he made the declaration of withdrawal, with original packaging against reimbursement of the remuneration to Ennobled GmbH. The deadline is met if the goods are dispatched before the expiry of this period. The customer bears the direct costs for the return of the goods. If the delivered goods are not in their original condition, the customer must compensate for any loss in value, no matter how small. When returning the goods, the customer must ensure that they are adequately protected against damage during transport. The customer takes note of the fact that most of the goods are sensitive and particularly vulnerable items, which require special care during shipment. Ennobled GmbH will advise the Customer in case of queries regarding the shipment or the necessary packaging at the Customer’s request. Goods that can no longer be sold due to the condition for which the customer is responsible are worthless for Ennobled GmbH and therefore excluded from the right of withdrawal.
In case of contracts with consumers, which have not been concluded in the business premises of Ennobled OG, the following shall apply in deviation from point 8.2. of these GTC:
A possible decrease in value of the goods covered by the withdrawal shall only be compensated by the customer who is a consumer if this decrease in value is due to a handling of the goods that is not necessary for the examination of the condition, properties and functioning of the goods or to insufficient packaging (transport damage during return).
13.3 Declarations of revocation and returns shall be sent to the following business address of Ennobled GmbH or shall be sent to the following address:
Ennobled GmbH Glanstraße 2 a 5082 Grödig Austria.
Provisions vis-à-vis consumers and entrepreneurs.
13.4 Ennobled GmbH shall be entitled to unilaterally withdraw from a contract for good cause with immediate effect. Good cause shall include, but not be limited to, default of payment by the Customer, a gross breach of contractual obligations by the Customer, the opening of insolvency or reorganization proceedings against the assets of the Customer or the non-opening of such proceedings due to lack of assets.
13.5 In the case of defect-free goods, there shall generally be no right of exchange beyond the statutory mandatory right of withdrawal of a consumer.
13.6 Parts and custom-made products that have been specially manufactured for the customer are excluded from return. For custom-made products, the customer shall in any case be obliged to accept the goods if they have been properly delivered. This shall also apply to goods specially procured at the customer’s request.
14. data protection and advertising
14.1 Ennobled GmbH processes personal data of the Customer for a specific purpose and in accordance with the statutory provisions.
14.2 The personal data provided for the purpose of ordering goods (such as name, e-mail address, address, payment data) shall be used by Ennobled GmbH for the performance and execution of the contract. These data will be treated confidentially and will not be disclosed to third parties who are not involved in the ordering, delivery and payment process.
14.3 The Customer shall have the right to receive, upon request and free of charge, information about the personal data stored by Ennobled GmbH about him. In addition, he has the right to correct incorrect data, blocking and deletion of his personal data, provided that there is no legal obligation to keep records.
15 Choice of Law, Place of Jurisdiction
15.1 All legal disputes arising from or in connection with these GTC and/or from a contractual relationship between Ennobled GmbH and a Customer shall be governed exclusively by Austrian substantive law, excluding the conflict of laws rules of private international law and excluding the UN Sales Convention. This shall also apply to questions concerning the conclusion and interpretation of these GTC and the contract.
15.2 For all legal disputes arising from or in connection with these GTC and/or from a contractual relationship between Ennobled GmbH and a customer who is an entrepreneur, it is agreed that the court with local and subject-matter jurisdiction for the provincial capital of Salzburg shall have jurisdiction.
16. change of address
The customer is obliged to provide evidence of changes in his residential or business address and the contact details (telephone, e-mail) provided and to notify Ennobled GmbH without delay and without being requested to do so, as long as the legal transaction that is the subject of the contract has not been completely fulfilled by both parties. If this notification is omitted, declarations and goods to the customer shall also be deemed to have been received if they were sent to the address last notified to Ennobled GmbH, to the last notified contact data (e-mail). It is incumbent upon the Customer to prove the receipt of its notification of change in the individual case. The customer is liable for all damages resulting from a failure to notify a change of address and/or notification of a change of his contact details.
17. safety instructions
The products of Ennobled GmbH are basically the result of a combustion process and therefore not suitable for use in children’s rooms or similar. Furthermore, there is no suitability for roofing with the products of Ennobled GmbH.
18.1 Any ancillary agreements shall be made in writing and shall be recorded in the contract. Oral agreements as well as written agreements outside the contract shall not become part of the contract unless the respective document is expressly appointed as an integral part of the contract.
18.2 Should any provision of these Terms and Conditions be or become legally invalid or unenforceable in whole or in part, this shall not affect the legal validity of all other business provisions. The contracting parties shall replace the legally invalid or unenforceable provision by a valid and enforceable provision which comes as close as possible to the legally invalid or unenforceable provision in terms of content and purpose.
Salzburg, November 2019
Cancellation policy and form for consumers in distance selling transactions
Withdrawal by express written declaration
Every customer (consumer) can withdraw from the contract under the following conditions within 14 days after receipt of the goods by sending a written declaration of withdrawal without giving reasons.
If the consumer has ordered several goods as part of a single order, which are delivered separately, or if the delivery of goods is made in several partial shipments, the right of withdrawal begins on the day on which the consumer or a third party named by the consumer and not acting as a carrier acquires possession of the last delivered goods or partial shipment. The withdrawal does not have to contain a reason and is not bound to a certain form. It can be made in writing (e.g. letter, fax) or by returning the goods already received to Ennobled OG (see below). The consumer may also use the model withdrawal form available at the offices of Ennobled OG and available on the website www.ennobled.at. The withdrawal period shall be deemed to have expired if the consumer does not use the withdrawal form. In order to comply with the withdrawal period, it is sufficient to send the declaration of withdrawal or the goods before the expiry of the withdrawal period to the address stated in point 13.3. of the GTC.
The declaration of withdrawal must be sent to the following address:
Withdrawal by simply returning the goods:
The customer can also exercise his right of withdrawal by simply returning the goods to the seller within 14 days of receipt without written notice of withdrawal. In this case, the timely dispatch of the goods shall be sufficient to meet the deadline. The prerequisite for this form of exercising the right of withdrawal by simply returning the goods is that the goods are not damaged or used and that they are returned with sufficient postage. Exclusively in the case of an incorrect or defective delivery, the seller shall bear the return shipping costs (postage).
The risk of the return as well as its proof lies in each case with the customer. In case of an effective withdrawal of the customer (by explicit declaration or simple return of the goods), the seller immediately pays back the already paid purchase price – shipping costs will not be refunded. In the case of open account orders, the customer’s account will be credited.
Consequences of exercising the right of withdrawal:
If you revoke a contract concluded with us, we shall reimburse you all payments we have received from you on the basis of the revoked contract, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and no later than within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees because of this repayment. We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days.
Notes on the exclusion of the right of withdrawal:
The right of withdrawal does not apply to the delivery of goods that are manufactured according to customer specifications or clearly tailored to personal needs or to the delivery of audio or video recordings or software, provided that the delivered data carriers have been unsealed by you.
This right of withdrawal does not apply to goods purchased in the business premises of Ennobled GmbH.
For legal transactions where the value of the consideration of the customer does not exceed EUR 50.00, this right of withdrawal does not apply (§ 1 para 2 Zi. 1 far- and away business- ses-law – FAGG).
Notes on returns
The modalities mentioned in this section (“Notes on returns”) are not a prerequisite for the effective exercise of the above right of withdrawal. More details can be found in the general terms and conditions (www.ennobled.at/agb) of Ennobled GmbH.
Customers are requested to notify the seller of the return before returning the goods.
to announce the return. In this way, they enable the seller to allocate the products as quickly as possible.
Customers are requested to return the goods to the seller as a prepaid package and to keep the receipt.
Customers are asked to avoid damage or contamination of the goods. If possible, the goods should be returned to the seller in the original packaging with all accessories. If the original packaging is no longer in the customer’s possession, other suitable packaging should be used to ensure adequate protection against damage in transit and to avoid any claims for damages due to inadequate packaging.