SCOPE OF APPLICATION
2. These General Terms and Conditions apply to the sale, auction, and delivery of goods by Viva la Mamma Gastronomie GmbH (hereinafter referred to as "VIVA LA MAMMA") with its registered office and business address at Dr.-Karl-Lueger-Platz 5, 1010 Vienna. These General Terms and Conditions do not apply to the sale and delivery of goods by VIVA LA MAMMA within the scope of regular restaurant operations.
3. VIVA LA MAMMA reserves the right to amend these General Terms and Conditions at any time and they apply in the version valid at the time of the customer's order.
4. Deviating terms and conditions are not valid unless VIVA LA MAMMA has expressly agreed to them in writing or by email before accepting the order.
5. By placing an order, the customer agrees to these General Terms and Conditions. The customer's order constitutes a binding offer. Acceptance of the customer's offer by VIVA LA MAMMA is made by the actual delivery of the ordered goods. VIVA LA MAMMA reserves the right to reject an order without stating reasons.
PRICES AND SHIPPING COSTS
1. The prices offered for the goods are gross prices in euros and include all statutory taxes and charges for deliveries within Austria. However, the offered prices do not include any packaging and shipping costs.
2. For deliveries outside Austria, additional customs duties and/or charges may apply, including any import or export duties and any consumption taxes, which may result in a change in the offered gross prices. Such customs duties and/or charges are to be borne by the buyer at the respective statutory rates. Deliveries outside Austria can only be made if there are no legal or disproportionate logistical obstacles to delivery.
3. The prices stated in the online shop are - unless expressly stated otherwise in individual cases - always non-binding. Prices for repeat orders are also non-binding.
4. The prices are based on the costs at the time of the initial price indication. If the costs change by the time the buyer places an order, VIVA LA MAMMA is entitled to adjust the prices accordingly. The binding prices are displayed in the internet online shop after correct selection in the shopping cart, and in the case of orders placed by mail, telephone, fax, or email, in the order confirmation issued by VIVA LA MAMMA in writing (including by fax or email).
5. All costs incurred by shipping are borne by the buyer. The delivery costs are displayed when ordering in the internet online shop after correct selection in the shopping cart, and in the case of orders placed by mail, telephone, fax, or email, in the order confirmation issued by VIVA LA MAMMA in writing (including by fax or email).
PAYMENT
1. The purchase price is due upon conclusion of the contract (placing the order), at the latest upon delivery of the goods. This also applies to partial deliveries, where the purchase price for the quantities delivered is to be paid.
2. VIVA LA MAMMA reserves ownership of all goods until full payment of the purchase price plus ancillary charges.
3. If the buyer is in default with payment or other performance, VIVA LA MAMMA may: postpone the fulfillment of its own obligations until the overdue payments or other performances have been made,
4. take an appropriate extension of the delivery period corresponding to the buyer's default,
5. declare the entire or remaining purchase price immediately due for payment (loss of term); this also applies in the case of an agreement on installment payments with the consumer under the condition that VIVA LA MAMMA has already performed its services, at least one outstanding payment from the consumer has been due for at least 6 weeks, and VIVA LA MAMMA has unsuccessfully warned the consumer of the loss of term and set a grace period of at least 2 weeks, whereby the immediately due installments are to be reduced taking into account a deduction for the corresponding interest for the remaining term, charge default interest of 6% above the base rate of the Austrian National Bank, at least 10% per year, plus value-added tax, and withdraw from the contract in case of failure to comply with a reasonable grace period, and claim from the buyer the resulting reminder and collection costs, insofar as they are necessary for appropriate legal action and are in a reasonable proportion to the pursued claim, whereby the buyer is obliged to reimburse at most the fees of the engaged debt collection institute, which result from the regulation of the Federal Ministry for Economic Affairs and Labour on the maximum rates of debt collection institutes. Furthermore, any further damage, especially the damage resulting from the fact that as a result of non-payment, higher interest on any credit costs incurred by VIVA LA MAMMA, regardless of fault in the default of payment, is to be compensated.
6. Granted discounts or bonuses are contingent upon the receipt of full payment. If payment is made with vouchers, no credit will be issued for any remaining balance. The redemption period for merchandise vouchers/shopping vouchers etc. is determined by the date specified on them.
7. Discounts and rebates do not apply to subscriptions, pre-sales, or items already marked down. Discounts, rebates, and promotional offers are applicable only when purchasing typical household quantities.
PASSING OF RISK
1. If the buyer collects the goods themselves, the use and risk pass to the buyer at the latest upon handover at the checkout.
2. In the case of delivery, VIVA LA MAMMA determines, in the absence of specific instructions from the buyer, the mode of transport and route as an agent of the buyer. Upon delivery, the use and risk pass to the buyer upon the transfer of the goods from VIVA LA MAMMA to the carrier. Delivery is thus at the expense and risk of the buyer. The coverage of delivery by transport insurance beyond a value of EUR 500 is only carried out upon explicit instruction from the buyer and at the buyer's expense.
3. In the case of delivery, VIVA LA MAMMA determines, in the absence of specific instructions from the buyer, the mode of transport and route as an agent of the buyer. Upon delivery, the use and risk pass to the buyer, provided that the buyer is a consumer within the meaning of the Consumer Protection Act, as soon as the goods are delivered to the buyer or to a third party designated by the buyer, other than the carrier. However, if the consumer has entered into the transport contract himself without utilizing a selection proposed by VIVA LA MAMMA, the risk passes upon delivery of the goods to the carrier.
RETURN OF GOODS AND RIGHT OF WITHDRAWAL
1. Until revoked, VIVA LA MAMMA is willing to accept goods purchased from them for a full refund under the following conditions: Returns must be made within 14 days from the invoice date, in the original packaging, undamaged, and with the original invoice presented. Marked promotional offers will be accepted only in the quantity purchased. Returns are made at the price valid at the time of the original purchase. The refund will be issued in the form of a credit note. Specifically excluded from this are ordered goods, display items, clearance items, remnants, partial quantities from packaging units, partial quantities from sets, and goods from auctions.
2. If the buyer is a consumer within the meaning of the Consumer Protection Act and has placed his order by mail, telephone, fax, email, or via the internet online shop, he can declare his withdrawal from the purchase contract within fourteen days from the day the goods are received by the buyer, in deviation from section 5.1. The withdrawal period begins as soon as the buyer or a third party named by him has taken possession of the goods. In the case of a purchase contract for several goods, the withdrawal period begins as soon as the buyer or a third party named by him has received the last partial shipment, the last item, or the last piece. The day of receipt is not included in the deadline calculation. Saturdays, Sundays, and public holidays are included in the calculation of the deadline. To meet the withdrawal deadline, it is sufficient to send the declaration of withdrawal or the return of the goods in due time.
3. To exercise your right of withdrawal, you must inform VIVA LA MAMMA Gastronomie GmbH, 1010 Wien, Dr.-Karl-Lueger-Platz 5, Email: shop@vivalacasa.at, by means of a clear statement (e.g., a letter sent by post or email) about your decision to withdraw from this contract. To meet the withdrawal deadline, it is sufficient for you to send the notification of exercising the right of withdrawal before the withdrawal period expires.
4. Consequences of withdrawal: If you withdraw from this contract, VIVA LA MAMMA must reimburse you for payments received from you, excluding delivery costs (and not the additional costs resulting from your choice of a different type of delivery than the cheapest standard delivery offered by VIVA LA MAMMA), immediately and no later than fourteen days from the day on which VIVA LA MAMMA receives notification of your withdrawal from this contract. VIVA LA MAMMA will use the same means of payment for this refund as you used for the original transaction, unless expressly agreed otherwise with you. In no case will you be charged fees for this refund. VIVA LA MAMMA may refuse repayment until the goods have been returned to VIVA LA MAMMA or until you have provided proof that you have returned the goods, whichever is earlier. You must return or hand over the goods to VIVA LA MAMMA Gastronomie GmbH, 1010 Wien, Dr.-Karl-Lueger-Platz 5, without delay and in any event no later than fourteen days from the day on which you inform VIVA LA MAMMA of the withdrawal from this contract. The deadline is met if you send back the goods before the period of fourteen days has expired. You bear the direct costs as well as the risk of returning the goods. You are only liable for any loss of value of the goods if this loss of value is due to handling of the goods that is not necessary for testing the nature, properties, and functionality of the goods.
5. For orders by mail, telephone, fax, email, or via the internet online shop from consumers within the framework of the subscription/pre-sale offer from VIVA LA MAMMA according to section 10.1, there is no right of withdrawal according to section 10.4.
6. For the sale of goods by VIVA LA MAMMA Gastronomie GmbH within the scope of "VIVA LA MAMMA Express Delivery," according to Point 8. of the terms "Express Delivery," there is no right of withdrawal.
ORDERS, CONTRACT TERMS, DELIVERY PERIOD, DELIVERY OBSTACLES, WITHDRAWAL FROM CONTRACT
1. VIVA LA MAMMA does NOT accept orders by phone or email.
2. VIVA LA MAMMA accepts orders via the internet online shop vivalacasa.at from (Monday to Friday 10:00 am - 3:00 pm).
3. The ordering times may be changed by VIVA LA MAMMA according to the information in advertising mailings or in the internet online shop from time to time. If orders are received outside of the ordering times, they shall only be deemed received at the beginning of the ordering time on the next working day. When placing an order, the customer must specify an exact delivery location. VIVA LA MAMMA shall send the customer a written order confirmation to the email provided in the checkout with all relevant order data. VIVA LA MAMMA does not store any further contract terms other than the entered data for the order. The data cannot be accessed by the customer, but will be transmitted to the customer together with the order confirmation.
4. In case of non-acceptance of ordered goods, VIVA LA MAMMA is entitled to demand compensation for the additional expenses incurred, such as frustrated transport costs. This does not apply if VIVA LA MAMMA fails to provide its services in accordance with the contract.
5. Acceptance of orders is subject to availability. VIVA LA MAMMA reserves the right to allocate lesser quantities to buyers in case of oversubscription of a product. If delivery or compliance with an agreed delivery period becomes impossible due to circumstances not attributable to VIVA LA MAMMA, the obligation to deliver expires at the intended delivery date. Circumstances not attributable to VIVA LA MAMMA include in particular: difficulties in obtaining goods or raw materials from third parties, delayed release of goods by VIVA LA MAMMA's supplier in subscription cases, operational disruptions (including those of VIVA LA MAMMA's suppliers), traffic disruptions, lockouts and strikes as well as all cases of force majeure. In such cases, VIVA LA MAMMA will contact the buyer to provide a new delivery date. If VIVA LA MAMMA offers the buyer a new delivery date which is no later than two weeks after one of the originally agreed delivery dates, and delivery is also properly carried out at this new date, timely delivery by VIVA LA MAMMA within the meaning of the purchase contract is deemed to have occurred.
6. If VIVA LA MAMMA cannot offer the buyer a new delivery date according to Point 6.3 or if the new delivery date cannot be met due to the circumstances mentioned in Point 6.3 (impossibility of delivery at the agreed date due to circumstances not attributable to VIVA LA MAMMA), VIVA LA MAMMA is entitled to withdraw from the contract in whole or in part without becoming liable for damages. Likewise, in these cases, the buyer may withdraw from the contract.
7. In the case of divisible services, the buyer has no right of withdrawal regarding deliverable parts, insofar as parts of the service are executable and usable for the buyer. Under the same conditions, or if the remaining parts can be delivered in a timely manner (in terms of Point 6.3), the buyer is not entitled to refuse acceptance of partial deliveries.
8. If the buyer unjustifiably declares not to want to adhere to the contract ("cancellation"), and VIVA LA MAMMA agrees to this in writing (including by email), VIVA LA MAMMA is entitled to claim 15% of the purchase price as lump-sum damages ("cancellation fee") for goods in stock. Such dissolution of the contract is generally excluded for ordered goods. Contrary to this, the statutory withdrawal rights for consumers without a cancellation fee according to §§ 5e – 5h Consumer Protection Act (see also Point 5.2) remain in force.
9. Changes or cancellations of orders by the buyer generally require written form (including by fax or email). VIVA LA MAMMA reserves the right to accept statements in other forms, which, however, only become effective upon written confirmation by VIVA LA MAMMA (including by fax or email).
10. Additional conditions apply to online vouchers as stated on the internet.
WARRANTY
1. Assurances, such as those regarding the usability or special characteristics of the goods, or statements made by employees of VIVA LA MAMMA, are non-binding and do not constitute an express warranty of specific qualities unless made in writing (including via email).
2. Warranty claims require that defects be reported to VIVA LA MAMMA immediately; visible defects upon acceptance, hidden defects upon discovery, accompanied by presenting the opened goods and original invoice.
3. In any case, a warranty claim is limited to the purchase price of the delivered and defective goods.
4. VIVA LA MAMMA fulfills its warranty obligations at its discretion by either delivering defect-free goods, improving, supplying missing quantities, or rescinding the contract (i.e., refunding the purchase price) within a reasonable period.
5. For transactions with consumers within the meaning of the Austrian Consumer Protection Act, instead of points 7.1 to 7.4, the customer may, in case of a defect, request, at his discretion and in compliance with legal provisions, improvement, replacement of the item, appropriate price reduction, or rescission.
6. Taste-related reasons, customary or minor, technically caused deviations in quality, quantity, color, size, weight, equipment, or design, as well as age-related changes in taste, color, and packaging, do not constitute defects in warranty or non-performance of the contract.
7. VIVA LA MAMMA is not liable for taste, color, material, and pattern consistency or other conformity features of reordered goods. The same applies to goods ordered according to a sample, as long as the deviation remains within customary and technical limits.
8. After tasting, consumption, or commencement of processing of the goods, any warranty is excluded.
9. The warranty period is 2 years from the moment of transfer of risk according to point 4.
10. For transactions with consumers within the meaning of the Consumer Protection Act, points 7.6 to 7.8 do not apply.
LIABILITY FOR DAMAGES
1. VIVA LA MAMMA is liable for damages in accordance with statutory provisions. However, liability for damages caused by slight negligence is excluded. This limitation of liability does not apply to damages resulting from injury to life, body, or health of individuals and for claims under the Austrian Product Liability Act.
2. Entrepreneurs must prove the existence of intent or gross negligence. Liability to entrepreneurs is excluded for loss of profit and other consequential damages. Furthermore, liability towards them is limited to 10% of the purchase price. Compensation for (defect-related) consequential damages, other property damages, financial losses, and damages arising from claims of third parties against the customer is also excluded from entrepreneurs.
3. For transactions with consumers within the meaning of the Austrian Consumer Protection Act, point 8.1 does not apply.
PICKUP, BUYER'S DEFAULT OF ACCEPTANCE
1. Goods ordered or commissioned from VIVA LA MAMMA must be picked up within 14 days from notification or commissioning. Any longer storage period of up to a maximum of 4 weeks must be agreed upon and recorded electronically on the order or invoice.
2. If the goods are not picked up or accepted within this period, VIVA LA MAMMA has the right either to store the goods at the buyer's risk, charging a storage fee of 5% of the invoice amount per month commenced plus VAT, and insist on performance of the contract, or to withdraw from the contract after setting a grace period of 2 weeks and resell the goods to another customer. In this case, the buyer must pay a manipulation fee of 10% of the purchase price plus VAT, which is immediately due.
YOUTH PROTECTION
1. The sale and delivery of wine and spirits can only be made to persons over 18 years of age. To comply with legal requirements, VIVA LA MAMMA is entitled to hand over goods only after identification with an official photo ID. In the event of justified refusal of delivery, the customer is obliged to compensate for the actual damage incurred (e.g., delivery costs).
2. By placing the order, the customer assures that he or the recipient of the goods is over 18 years of age.
OTHER PROVISIONS
1. The place of performance for both WEIN & CO and the buyer is the business address of WEIN & CO. This does not apply to consumer contracts.
2. The competent court in Wiener Neustadt shall have exclusive jurisdiction over all disputes arising in connection with contractual relationships in which no consumer is involved.
3. The contract is subject to Austrian law, excluding the UN Sales Convention, with the limitation that mandatory provisions of the law of the state in which the consumer has his habitual residence shall not be displaced.