General Terms and Conditions
1) Scope of Application, Definitions
1.1 These Terms and Conditions (hereinafter referred to as “GTC”) of the company Ashley William Wiggins, Mariahilfpark 2, 6020 Innsbruck, Österreich (hereinafter referred to as “Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as “Client”) and the Seller relating to all goods presented in the Seller’s online shop. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.
1.2 A consumer pursuant to these GTC is every natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity.
1.3 A trader pursuant to these GTC is any natural or legal person or partnership with legal capacity acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.
1.4 Goods within the meaning of these GTC are so-called subscription boxes made up of different products selected at random by the seller whose precise composition is not known by the buyer at the date of conclusion of the contract.
2) Contractual object
The contractual object is specified in the seller’s respective product description. Purchase of goods by means of a one-time delivery as well as purchase of goods by means of a stable delivery (hereinafter called “subscription contract”) may be subject of the contract. In those cases goods are selected by the seller at random prior to each delivery, taking into account certain characteristics disclosed by the seller in his online shop beforehand such as categories of items, brand name, number of pieces, etc. The client will discover only on delivery which goods will be actually delivered to him in the individual case. The seller is only bound by the characteristics disclosed by him in his online shop prior to the selection of goods. Thus, the contract shall achieve a certain element of surprise the buyer accepts tacitly when submitting his declaration of contract. Therefore, the seller does not have any obligation to deliver a specific item. In the case of a subscription contract, the seller is obliged to deliver the goods to the client for the contract period agreed upon and in the contractually stipulated time intervals.
3) Conclusion of the Contract
3.1 The product descriptions in the Seller’s online shop do not constitute binding offers on the part of the Seller, but merely serve the purpose of submitting a binding offer by the Client.
3.2 The Client may submit the offer via the online order form integrated into the Seller’s online shop. In doing so, after having placed the selected goods in the virtual basket and passed through the ordering process, and by clicking the button finalizing the order process, the Client submits a legally binding offer of contract with regard to the goods contained in the virtual basket.
3.3 The seller may accept the Client’s offer within five days,
- by transferring a written order confirmation or an order conformation in written form (fax or e-mail); insofar receipt of order confirmation by the Client is decisive, or
- by delivering ordered goods to the Client; insofar receipt of goods by the customer is decisive, or
- by requesting the Client to pay after he placed his order.
Provided that several of the aforementioned alternatives apply, the contract shall be concluded at the time when one of the aforementioned alternatives firstly occurs. The period for acceptance of the offer
shall start on the day after the client has sent the offer and ends on expiry of the fifth day following the sending of the offer. Should the Seller not accept the Client’s offer within the aforementioned period of time, this shall be deemed as rejecting the offer with the effect that the Client is no longer bound by his statement of intent.
3.4 In case of an order via the seller’s online order form, the text of the contract is stored and sent to the client in text form (e.g. e-mail, fax or letter) after the posting of his order in addition to the available General Terms and Conditions. However, after posting his order, the text of the contract can no longer be called by the Client on the Seller’s website.
3.5 The Client can correct all the data entered via the usual keyboard and mouse function prior to submitting his binding order via the Seller’s online order form. In addition, prior to submitting a binding order, all data entered will be once again displayed in a confirmation window and can be corrected here as well, via the usual keyboard and mouse function.
3.6 The German and the English language are available for the conclusion of the contract.
3.7 Order processing and contacting usually takes place via e-mail and automated order processing. It is the Client’s responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by the Seller can be received at this address. Particularly, it is the Client`s responsibility, if SPAM filters are used, to ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered.
4) Right to Cancel
4.1 Consumers are entitled to the right to cancel. Detailed information about the right to cancel are provided in the Seller’s instruction on cancellation.
4.2 The right to cancel does not apply to consumers, who are not nationals of a member state of the European Union at the time of concluding the contract und whose exclusive domicile and delivery address are located outside of the European Union at the time of concluding the contract.
5) Prices and Payment Conditions
5.1 Unless otherwise stated in the product descriptions, prices indicated are total prices and include the statutory value-added tax. Any possible additional delivery and dispatch costs are specified separately in the respective product description.
5.2 In case of subscription agreements the purchase price of the goods to be delivered on a permanent basis has to be paid in advance for the respectively agreed delivery interval.
5.3 In case of delivery to countries outside the European Union, additional costs may incur in individual cases for which the Seller is not responsible and which have to be borne by the Client. This includes for example transfer fees charged by banking institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such additional costs regarding money transfer may also incur, if the Client carries out the payment from a country outside the European Union, even if delivery is not made in a country outside the European Union.
5.5 When paying by direct debit, the amounts due will be collected from the client’s bank account. The seller will be authorized until revoked to collect the respective invoice amount from the bank account
indicated by the client. In the event that a direct debit is not redeemed due to insufficient funds of the bank account or due to incorrect accounts details or in case the client object to the direct debit although he is not entitled hereto, the client has to bear the charges arising as a result of reverse booking, if he is responsible for it.
5.6 The Seller reserves the right to carry out a credit assessment when the payment method direct debit or credit card is chosen and to refuse those payments methods in the case of a negative outcome of the credit assessment.
5.7 In the case of the subscription contract, the purchase price agreed upon will be collected always on the 10th of each month or rather on the next business day if this day falls on a Saturday, Sunday or a holiday recognized by the State at the seller’s business place.
6) Shipment and Delivery Conditions
6.1 Goods are generally delivered on dispatch route and to the delivery address indicated by the Client, unless agreed otherwise. During the processing of the transaction, the delivery address indicated in the Seller’s order processing is decisive.
6.2. In the case of a subscription contract, the client has to inform the seller without delay of any changes regarding the delivery address.
6.3 In the case of subscription contracts, dispatch of goods takes place not later than the 10th of each month respectively or rather on the next business day, if this day falls on a Saturday, Sunday or a holiday recognized by the State at the seller’s business place. Deviating hereof, in the event of a first-time purchase order in the context of subscription contract or in the case of contracts involving a first-time delivery, dispatch of goods takes place not later than the 10th of the month following the (first-time) order or rather on the next business day, if this day falls on a Saturday, Sunday or a holiday recognized by the State at the seller’s business place, provided that the order was submitted not later than the 20th of the month. Otherwise, dispatch of goods will take place not later than the 10th after the next month or rather on the next business day, if this day falls on a Saturday, Sunday or a holiday recognized by the State at the seller’s business place.
6.4 Should the assigned transport company return the goods to the Seller, because delivery to the Client was not possible, the Client bears the costs for the unsuccessful dispatch. This shall not apply, if the Client exercises his right to cancel effectively, if the delivery cannot be made due to circumstances beyond the Client’s control or if he has been temporarily impeded to receive the offered service, unless the Seller has notified the Client for a reasonable time in advance about the service.
6.5 In case the Client is a trader, the risk of accidental destruction and accidental deterioration of the sold goods shall be transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment. In case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods shall in principle be transferred to the Client upon delivery of the goods to the Client or to an authorized recipient. Deviating from this, even in case the Client is a consumer, the risk of the risk of accidental destruction and accidental deterioration of the sold goods is transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment, if the Client has instructed the freight forwarder, carrier or other person or institution designated with the task of performing shipment to carry out the delivery of the goods and if the choice of this person or institution was not previously offered by the Seller.
6.6 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This only applies if the Seller is not responsible for the non-supply and if he has concluded a concrete hedging transaction with the supplier. The Seller shall make all reasonable efforts to obtain the goods. In case of non-availability or partial availability of the goods he shall immediately inform the Client and grant him immediately counter-performance.
6.7 Personal collection is not possible for logistical reasons.
7) Contract duration and contract termination regarding subscription contracts
7.1 The subscription contract will be concluded for an unlimited period. The client may choose between a minimum term of one month, three months or six months. During the minimum term the contract can be cancelled by both parties with 14 days’ notice to the end of the minimum term. If none of the parties cancels the contract, the contract shall be extended periodically each time by the period respectively agreed upon by contract. The contract can be cancelled by both parties with 14 days’ notice to the end of the agreed duration.
7.2 The right to immediate termination for important reasons remains unaffected.
An important reason is considered, when the continuation of the contract is no more reasonable until the end of the agreed contractual period or until expiry of the notice period for termination, taking into account all circumstances of the particular case and with balanced judgement of mutual interests
An important reason is considered in particular:
- If the client is in default with the payment or a not insignificant part of the payment on two consecutive dates;
- If the client ceases payment
- If enforcement procedures are initiated against the other party’s entire assets or a substantial part thereof, or if there are reasons for initiating insolvency proceedings against the other party, or if such proceedings were not opened due to insufficient assets, or if insolvency proceedings were applied against the other party, or if the other party has made a declaration on oath concerning his assets.
7.3 Notices of cancellation must be made in writing or in text format (for example per e-mail).
8) Reservation of Proprietary Rights
8.1 In case the Client is a consumer, the Seller retains title of ownership to the delivered goods until the purchase price owed has been paid in full.
8.2 In case the Client is a trader, the Seller reserves title to the goods delivered until the fulfilment of all claims arising out of the current business relationship.
Should the object of purchase be deficient, statutory provisions shall apply. Deviating hereof, the following shall apply:
9.1 For traders,
- a marginal defect shall generally not constitute warranty claims defects,
- the Seller may choose the type of subsequent performance,
- for new goods, the limitation period for defects shall be one year from transfer of risk,
- for used goods, rights and claims for defects are generally excluded,
- the limitation period shall not recommence, if a replacement delivery is carried out within the scope of liability for defects.
9.2 For consumers the limitation period regarding warranty claims for used goods shall be one year from delivery of goods to the Client with the restriction of the following section.
9.3 The aforementioned limitations of liability and the restrictions of limitation periods do not apply
- for a product, which was not used, in accordance with its usual application, for building construction and which was the cause of the building’s defectiveness,
- for damages arising out of injuries to life, body or health, which result from intentional or negligent violation of the Seller’s duties or the intentional or negligent violation of duties by the legal representative or the vicarious agent of the user,
- for other damages resulting from intentional or grossly negligent violation of the Seller’s duties or the intentional or grossly negligent violation of duties by the legal representative or the vicarious agent of the user,
- if the Seller has fraudulently concealed the defect.
9.4 If the Client is a consumer, the forwarding agent has to be immediately notified of any obvious transport damages and the Seller be informed accordingly. Should the Client fail to comply therewith, this shall not affect his statutory or contractual claims for defects.
The Seller shall be liable to the Client for any contractual and quasi-contractual claims and for claims of liability in tort regarding damages and effort compensation as follows:
10.1 The Seller shall face unlimited liability regardless of the legal ground
– in case of intent or gross negligence, – in case of injuries of life, body or health resulting from intent or negligence, – in case of a promise of guarantee, unless otherwise provided, – in case of liability resulting from mandatory statutory provisions such as the product-liability-law.
10.2 Provided that the Seller negligently infringes an essential contractual duty, the liability to pay damages shall be limited to the foreseeable, typically occurring damage, unless unlimited liability applies pursuant to the aforementioned Section. Essential significant contractual obligations are obligations the contract imposes on the Seller according to its content to meet the purpose of the contract and whose fulfilment is essential for the due and proper implementation of the contract and on the fulfilment of which the Client can regularly rely.
10.3 For the rest the Seller’s liability is excluded.
10.4 The aforementioned provisions on liability apply also for the Seller’s liability regarding his legal representatives and vicarious agents.
11) Applicable Law
11.1 The law of the Republic of Austria shall apply to all legal relationships between the parties under exclusion of the laws governing the international purchase of movable goods. For consumers, this
choice of law only applies to the extent that the granted protection is not withdrawn by mandatory provisions of the law of the country, in which the consumer has his habitual residence.
11.2 Furthermore, this choice of law regarding the right to cancel does not apply to consumers, who are not nationals of a member state of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside of the European Union at the time of concluding the contract.
12) Place of Jurisdiction
If the Client is a businessman, a legal entity of public law or a separate estate under public law with its seat in the territory of the Republic of Austria, the Seller’s place of business shall be the solely place of jurisdiction for all legal disputes arising from this contract. If the Client is domiciled outside the territory of the Republic of Austria, the Seller’s place of business shall be the solely place of jurisdiction for all legal disputes arising from this contract provided that the contract or claims from the contract can be assigned to the Client’s professional or commercial activities. In any event however, regarding the aforementioned cases the Seller is entitled to call the court responsible for the seat of the Client.
13) Information about online dispute resolution
The EU Commission provides on its website the following link to the ODR platform: http://ec.europa.eu/consumers/odr. We are neither obliged to nor willing to participate in a dispute resolution before a consumer conciliation committee.
This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.