General Terms and Conditions (“TERMS”)

The Finest Only GmbH, A-1190 Vienna, Hardtgasse 6 Top 14, Commercial register no. FN 471482g
Last revised: August 2017

These TERMS regulate the sale of goods in distance sales via the internet to consumers and contractors (“customers”). They apply for services in the “B2C” as well as in the “B2B” sector. For consumer business, the mandatory provisions under Austria consumer protection law, in particular those under the Austrian Consumer Protection Act [Konsumentenschutzgesetz (“KSchG“)] apply.
A consumer is considered to be that within the meaning of KSchG who is not a contractor. A contractor within the meaning of Section 1 (1) KSchG is somebody for whom the business transaction here appertains to his enterprise’s operation. An enterprise pursuant to Section 1 (2) KSchG is each long-term independent economic activity, even if it is not profit-oriented.

1. General provisions

Bachna & Staindl GmbH engages in a national and international trade in high-quality, rare foods (“goods”) through the online shop www.finestfoodage.com. The TERMS apply for each use of the website www.finestfoodage.com as well as all associated domains and regulate in particular the legal relationships between Bachna & Staindl GmbH and the customers which source goods through www.finestfoodage.com.

2. Scope

The Finest Only GmbH’s deliveries, services and offers are effected exclusively based on these TERMS in their valid wording at the time of the purchase order. The TERMS may be amended by The Finest Only GmbH at any time. The customer’s contrary terms and conditions or terms and conditions deviating from these TERMS will not be recognised by The Finest Only GmbH, unless it has expressly consented to their application. For the avoidance of doubt, it is stated clearly that acts in the performance of the Agreement by The Finest Only GmbH are not considered as consent to terms and conditions of the Agreement deviating from these TERMS.

3. Purchase order and conclusion of the Agreement

The presentation of the goods on the website www.finestfoodage.com does not constitute any binding offer to conclude a purchase agreement by The Finest Only GmbH. The customer is thereby merely requested to make an offer through a purchase order.
The purchase order essentially is placed in the following steps:

• Selection of the requested goods
• Input of the credentials for the registration in the online shop, in particular name, street and house number, postal code, place, country, e-mail address; (after the first registration, only a further login with e-mail address and password is required).
• Display of the above information for consumers pursuant to Section 5a KSchG and Section 4 Austrian Distance Selling and External Transactions Act [FAGG].
• Selection of the payment (upfront payment)
• Check of the details in the shopping cart
• Confirmation by clicking on the button “Purchase Now”
• Repeat check and where appropriate, correction of the data entered in each case
• Binding sending of the purchase order

By sending the purchase order in the online shop, the customer places a binding offer, aimed at the conclusion of a purchase agreement regarding the goods contained in the shopping cart. By sending the purchase order, the customer recognises the precontractual information for consumers and these TERMS alone as authoritative for the legal relationship with Bachna & Staindl GmbH.

The Finest Only GmbH confirms the receipt of the customer’s purchase order by forwarding the confirmation e-mail. This order confirmation does not yet constitute the acceptance of the offer by The Finest Only GmbH. It serves merely to provide information to the customer that the purchase order has been received by The Finest Only GmbH. The declaration of acceptance of the offer is effected through the delivery of the goods or an express declaration of acceptance.

4. Consumer’s right of withdrawal pursuant to Section 11 FAGG

Consumers within the meaning of KSchG may withdraw from an Agreement concluded outside of the contractor’s premises or from a distance selling agreement – unless a statutory exception provision is effective – within fourteen working days.

The withdrawal period is fourteen calendar days. In the case of agreements on a delivery of goods, it commences on the day on which the consumer or a third party appointed by them, which is not the carrier, has taken possession of the goods. In the case of an agreement on several goods, which are ordered in a single standard purchase order or delivered separately, as from the day on which the consumer or a third party appointed by them, which is not the carrier, has taken possession of the goods. It is sufficient when the consumer has sent the declaration of withdrawal within the period.

The declaration of withdrawal may also be forwarded electronically using a model withdrawal form, which is available on our website www.finestfoodage.com.

It is expressly pointed out that the right of withdrawal within the meaning of Section 18 (1) FAGG does not exist in the case of goods

• that are made in accordance with the customer’s specifications;
• that are obviously tailored to personal requirements;
• that are not suitable for sending back by virtue of their nature, for example because they were inseparably mixed with other goods;
• that can quickly deteriorate or whose expiry date was exceeded or
• that are delivered sealed and are not suitable for return for health protection reasons or for hygiene reasons, if their sealing was removed after the delivery.

If the consumer withdraws from the Agreement, the following acts must occur concurrently (“Zug um Zug”):

• The Finest Only GmbH must refund the payments made by the consumer including the delivery costs (with the exception of the additional costs resulting from the fact that the consumer has selected a different type of delivery than the cheaper standard delivery offered by The Finest Only GmbH) and reimburse the necessary and useful expense incurred by the consumer on the item as well as
• the consumer must return the received goods to The Finest OnlyGmbH and pay reasonable compensation to it for the use, including compensation for a reduction of the fair market value of the goods.
• The consumer must bear the immediate costs of sending back the goods by themselves.

5. Prices and shipment costs

The prices are indicated at www.finestfoodage.com. All prices indicated by The Finest Only GmbH are indicated in euros, including the currently legally prescribed VAT and apply to the goods illustrated and/or described on the website www.finestfoodage.com. The prices indicated at www.finestfoodage.com apply exclusively at the time of the purchase order.

The Finest Only GmbH’s sales prices do not include any costs for the shipment. The shipment occurs at the customer’s expense – the costs are shown explicitly and indicated separately before placing the binding purchase order in the ordering process. All details are subject to change and non-binding; Bachna & Staindl GmbH reserves the right to make printing errors and carry out price changes. For the shipment, the costs actually incurred plus a reasonable administration surcharge, however at least the freight and transport fees valid or usual on the day of the dispatch, are invoiced.

6. Payment conditions, default interest

After the purchase order has been completed and the order confirmation has been sent, the customer is debited with the purchase price (plus ancillary costs). The payment is made in principle before delivery of the goods. The Finest Only GmbH confirms the receipt of the customer’s purchase order by e-mail after payment in full beforehand transmitted by means of credit card, Maestro or PayPal – the payment settlement is done by Six Payment Services GmbH. The customer receives a detailed invoice by e-mail.

The customer’s right of set-off against The Finest Only GmbH’s claims is excluded, unless this counterclaim has been recognised by a court or acknowledged in writing by The Finest Only GmbH. Moreover, the right of set-off vis-à-vis consumers in the case of the contractor’s insolvency or for the consumer’s counterclaims which are legally associated with their liability is excluded.

In the event of default of payment by the customer, The Finest Only GmbH is entitled to request, at its choice, the reimbursement of the damage actually incurred or default interest in the statutory amount. In the case of consumers, this is: 4% p.a.; in the case of contractors, this is: 9.2% p.a. above the basic interest rate.

The Finest Only GmbH is entitled also to request compound interest in the case of default of payment by the customer as from the time of the delivery of the goods.

7. Dunning and debt collection expenses

The customer undertakes to reimburse the dunning and debt collection expenses incurred by The Finest Only GmbH, insofar as they are necessary for appropriate prosecution in the case of default of payment. In the case of contractor business, this includes in any case a lump-sum amount of EUR 40 as compensation for the debt collection costs pursuant to Section 458 Austrian Commercial Code [UGB]. The assertion of further rights and claims are unaffected.

8. Default of acceptance

If the customer has not accepted the goods as agreed (default of acceptance) and after their failure to meet an extended time limit, Bachna & Staindl GmbH is entitled either to stock the goods at its premises, for whichThe Finest Only GmbH may invoice a storage fee of 0.1% of the gross invoice amount per commenced calendar day, or stock these at an authorised commercial warehouse, at the customer’s expense and risk. At the same time, The Finest Only GmbH is entitled either to insist on the performance of the Agreement or, after setting a reasonable extended time limit comprising at least two weeks, withdraw from the Agreement and utilize the goods otherwise.

9. Delivery terms and conditions

• The Finest Only GmbH is only entitled to perform the service as soon as the customer has met all of its obligations that are required for the performance.
• Unless indicated in the order confirmation otherwise, The Finest Only GmbH shall ship the goods within two working days after receipt of payment.
• The Finest Only GmbH is entitled to exceed the agreed appointed dates and delivery periods by up to one week. The customer is entitled to withdraw from the Agreement after having been set a reasonable extended time limit only after the expiry of this period.

10. Minimal modifications of the service

Unless consumer business is concerned, minimal changes or other changes of the service and delivery obligations reasonably acceptable to customers are considered to have been approved beforehand. This applies in particular for goods-related deviations (e.g. in dimensions, colours, structures, etc).

Photos and other illustrations serve to illustrate the goods at www.finestfoodage.com. Consequently, these do not represent the goods absolutely accurately in any case, but primarily serve as an example. Due to different screens, in particular colours and depictions can possibly be reproduced differently. In any case, the details of the respective product are authoritative.

11. Damages

All claims for damages in cases of slight negligence are excluded. This does not apply for personal injuries or – in the case of consumer business – for damage to items acquired for handling. If no consumer business exists, claims for damages in cases of simply gross negligence are also excluded. Unless consumer business is concerned here, the existence of slight or gross negligence must be proved to the injured party. The provisions on damages contained in these TERMS or agreed otherwise also apply, if the claim for damages is asserted in addition to or instead of a warranty claim.

12. Retention of title

All goods are delivered by The Finest Only GmbH subject to retention of title and remain its property up until the complete payment. The assertion of the retention of title only comprises a withdrawal from the Agreement, if this is expressly declared. If the goods are taken back, The Finest Only GmbH is entitled to set off transport or handling expenses. In the event of third-party access to the goods subject to retention of title – in particular through attachments – the customer undertakes to point out this retention of title and notify The Finest Only GmbH without undue delay. If the customer is a consumer or not a contractor whose ordinary course of business includes the trade in the goods acquired from The Finest Only GmbH, it may not dispose of the goods subject to retention of title up until the complete settlement of the outstanding purchase price claim, in particular not sell, pledge, gift or lend out these goods. The customer bears the full risk for the goods subject to retention of title, in particular for the risk of their decay, loss or deterioration.

13. The Finest Only GmbH’s right of withdrawal / customer’s unjustified withdrawal

• In the event of default of acceptance (Point 8) or other important grounds, such as in the event of default of payment by the customer, The Finest Only GmbH is entitled to withdraw from the Agreement, if it has not yet been performed in full by both parties. In the case of the withdrawal, if the customer is at fault, The Finest Only GmbH has the option to request liquidated damages of 15% of the gross invoice amount or the reimbursement of the damage actually incurred. In the case of default of payment by the customer, The Finest Only GmbH is discharged from all further service and delivery obligations and entitled to withhold still outstanding deliveries or services and claim upfront payments resp. the provision of security or withdraw from the Agreement after setting a reasonable extended time limit.
• If the customer withdraws from the Agreement – without being entitled to do so – or it requests its rescission, The Finest Only GmbH has the choice to insist on the performance of the Agreement or consent to the rescission of the Agreement; in the latter case the customer is obliged, at The Finest Only GmbH’s choice, to pay liquidated damages in the amount of 15% of the gross invoice amount or the damage actually incurred.

14. Information on the online dispute resolution in consumer matters

For online Agreements, the Online Dispute Resolution Regulation shall apply. An alternative dispute resolution between consumers and online traders is possible through the ODR platform. In this way, customers have the possibility to clarify disputes in connection with an online purchase order without the involvement of a court. The ODR platform may be contacted using the following link: http://ec.europa.eu/consumers/odr

15. Data protection, change of address and copyright

• The customer grants its consent to the personal data contained in the purchase agreement in fulfilment of this Agreement being stored and processed EDP-supported by The Finest Only GmbH.
• The customer is obliged to disclose changes of its residential or business address to The Finest Only GmbH as long as the contractual legal transaction is not performed in full by both parties. If the notification is omitted, declarations are also considered to have been received, if they are sent to the last-disclosed address. NB fiction of delivery: pursuant to Section 6 (1) no. 3 KSchG, for consumers in particular, such contract provisions within the meaning of Section 879 Austrian Civil Code [ABGB] according to which the contractor’s legally relevant declaration, which has not been received by them, is considered to have been received by them, if this concerns the validity of a declaration sent to the consumer’s last-disclosed address in the case of the consumer not having disclosed a change of its address to the contractor, are not binding. The fiction of delivery therefore is only permitted if, on the one hand, the consumer‘s obligation (contractually or under a particular statutory regulation) to disclose any change of address exists and on the other hand the consumer has not met this obligation. In this case, the contractor only has to prove the receipt of its declaration to the consumer at their last-disclosed address. If the consumer’s new address has not been disclosed to the contractor only due to other circumstances, it may not just send to the last-disclosed address by invoking to agreed fiction of delivery. In such a case, they shall be under an obligation to reduce the purchase price. In addition, declarations must be sent among bona fide contractual partners regarding where they also reach the contractual partners.
• Any plans, sketches or other technical documents as well as recipes, manufacturing information, samples, catalogues, prospectuses, illustrations, graphics, sound documents, video sequences, texts and suchlike are always The Finest Only GmbH’s intellectual property; the customer will not obtain any rights to use works or exploitation rights to these whatever.

16. Right of retention

Unless a consumer business is concerned here, in the event of a justified complaint – apart from in cases of a rescinded underlying transaction – the customer is entitled to retain not the entire, but only a reasonable part of the gross invoice amount.

17. Place of performance, contract language, choice of law, legal venue

• The place of performance is The Finest Only GmbH’s registered office.
• The contract language is German.
• The contractual partners agree on Austrian domestic jurisdiction. If consumer business is concerned here, the court with subject-matter jurisdiction at Bachna & Staindl GmbH’s registered office has local jurisdiction to decide on all disputes arising under this Agreement.
• This Agreement is governed by Austrian law excluding the conflict of laws rules of Private International Law (e.g. Convention on the Law Applicable to Contractual Obligations 1980, ROM I Regulation) and UN Sales Law. With respect to a consumer, this choice of law applies only provided that no mandatory statutory provisions of the state in which they have their place of residence or usual abode are thereby restricted.

18. Severability

Should parts of provisions of this Agreement be legally ineffective, invalid and/or null and void or become so in the course of its duration, this shall not affect the legal effectiveness and the validity of the other provisions. The contractual partners undertake in this case to replace the legally ineffective, invalid and/or null and void provision (or provision which has become legally ineffective, invalid and/or null and void) by a provision that is legally effective and valid and conforms in terms of its economic impact to the replaced provision – insofar as possible and permitted by law.

19. Final provisions

• All declarations of a legally binding nature under this Agreement must be made in writing to the respective other contractual partner’s address last-disclosed in writing. If a declaration is sent to the address last-disclosed in writing, this is considered to be received by the respective contractual partner.
• The designation of the headings selected for the individual chapter serves merely and solely to ensure transparency and therefore must not be used for the interpretation of this Agreement.
• The assignment of individual rights and obligations under these TERMS are granted only with the other contractual partner’s express written consent.

20. Consent pursuant to Section 107 TKG

The customer consents to receiving messages within the meaning of Section 107 Austrian Telecommunications Act (TKG) for advertising purposes from The Finest Only GmbH or from enterprises which are commissioned for this purpose by The Finest Only GmbH. This consent may be revoked by the customer at any time under office@finestfoodage.com.