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Ennobled HQ
Halleiner Landesstraße 58
5411 Oberalm – Salzburg (AT)
T: +43 6245 23 513
Mail: office@ennobled.at
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1 Scope of these GTC
1.1 These General Terms and Conditions (“GTC”) apply to all legal transactions including the following contractual terms and conditions between Ennobled GmbH as supplier and the customer as purchaser, their conclusion, effectiveness, interpretation and execution as well as to all other legal relationships or offers existing between the parties concerning the delivery of goods and/or other services of any kind provided by Ennobled GmbH; this includes 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 shop located there,
c) other legal transactions concluded remotely (e.g. by telephone, e-mail, fax or similar).
Ennobled GmbH therefore concludes all legal transactions exclusively on the basis of these GTC, unless the validity of the GTC has been expressly waived in writing for individual transactions by way of exception.
1.2 These GTC contain some provisions that only apply to entrepreneurs and others that only apply to consumers within the meaning of the Austrian Consumer Protection Act (KSchG). These provisions are labelled accordingly. A consumer within the meaning 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 organisation of independent economic activity that is set up for the long term, even if it is not aimed at making a profit, i.e. in particular also associations in accordance with 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 deviation from the relevant point of the GTC is expressly agreed.
1.4 General terms and conditions of the customer shall not apply unless they have been expressly recognised in writing by Ennobled GmbH.
1.5 Ennobled GmbH’s General Terms and Conditions are available at the company’s registered office and at www.ennobled.at/agb.
2 Definitions
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 defined separately in a legal transaction by way of exception:
2.1 “Customer” means any contractual and/or negotiating partner of Ennobled GmbH, in particular any purchaser or orderer 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 “Service” means any tangible or intangible product, any tangible or intangible delivery, and any other tangible or intangible service of Ennobled GmbH, regardless of its nature.
2.3 “Goods” means 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” is 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 goods.
2.6 “Order” (“Contract”) is the legal transaction concluded between Ennobled GmbH and the customer.
2.7 “Customised goods” are goods that are manufactured according to customer specifications, i.e. according to the customer’s individual wishes.
3 Offer, acceptance of contract, contract documents
3.1 Offers, advertising mailings or other invitations to tender from Ennobled GmbH are merely invitations to customers to place orders and are generally subject to change and non-binding. If Ennobled GmbH has submitted a written offer and nothing else has been agreed, 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 applies. A contract is concluded with the written order confirmation (also via email) from Ennobled GmbH. A written notification to the customer that the ordered goods have been handed over for dispatch constitutes an order confirmation.
3.2 Orders placed by customers with 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 statutory provisions and the right of cancellation regulated below. After checking the order received, Ennobled GmbH reserves the right to either reject the order or accept it by confirming the order. Silence on the part of Ennobled GmbH shall under no circumstances be deemed to constitute approval or acceptance of an offer or order. If an automated or manual confirmation of receipt of the order is sent to the customer after receipt of the order, this does not constitute 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 reimbursement of a fee already paid, the customer shall not be entitled to any claims whatsoever due to the non-realisation of the order.
3.4 Should deviations become necessary after receipt of the order confirmation, the customer is obliged to inform Ennobled GmbH in writing within a period of 5 days after sending the order confirmation. Otherwise, the contractual terms and conditions contained 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, including in electronic form, unless they are part of the contractual performance; these may only be made accessible to third parties with the prior express written consent of Ennobled GmbH. If the customer’s order is not accepted, any documents of Ennobled GmbH must be returned to Ennobled GmbH without delay.
4. non-binding cost estimate
Ennobled GmbH does not guarantee the accuracy of a cost estimate. It is only a provisional order total. Should it become necessary to exceed the cost estimate, the customer will be notified immediately. The customer has the option of cancelling the contract in writing within a period of 3 days from notification of the overrun. In this case, Ennobled GmbH must be reimbursed for the costs of the expenses incurred up to that point and the pro rata remuneration for the work performed up to that point must be paid. If the customer does not declare cancellation, the delay shall be deemed approved. Consumers shall be informed of this separately.
5 Exclusion of a guarantee of quality or durability
5.1 Ennobled GmbH does not provide any guarantee of quality or durability for goods or 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 agents used to preserve and treat the wood are subject to colour and structural fluctuations that cannot be influenced, in particular due to temperature and (air) humidity. Furthermore, the natural product is exposed to weather influences, which is why changes in colour, structure, etc. can occur due to UV radiation, light, temperature fluctuations, precipitation, moisture and the like. There is also the possibility that mechanical impact on the product (e.g. from hail) may cause chipping. It cannot be completely ruled out that colour changes may also occur in such places (flaking of the treated wood layers, etc.). In this case, the customer must have these areas professionally re-treated or replaced as far as possible in order to maintain the function and appearance of the goods. Ennobled GmbH therefore accepts no liability for any changes to the subject matter of the contract resulting from these 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 caused by 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 examples. The delivered goods may therefore deviate in shape, colour, weight or thickness from illustrations, representations and samples. These deviations do not constitute a defect and therefore do not give rise to a warranty claim. No samples or illustrations of customised 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 customised products can be agreed with the customer in advance at the customer’s expense.
5.3 Ennobled GmbH assumes no liability for 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 labelling.
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 of the intended use prior to conclusion of the contract and has expressly warranted suitability in writing. Products sold by Ennobled GmbH are in any case not suitable for roofing or for use in children’s rooms or similar rooms because the products are the result of a combustion process and therefore, if used improperly (e.g. consumption of parts of the goods, contact with eyes, mucous membranes, etc.), adverse health effects cannot be completely ruled out.
6 Delivery time, delays in delivery, default of acceptance
6.1 The delivery time is determined by the agreement between Ennobled GmbH and the customer and presupposes the timely and proper fulfilment of the customer’s obligations, in particular the agreed down payment obligation. The supplier’s compliance with the delivery time requires 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 deadline shall be deemed to have been met if the delivery item has left the warehouse of Ennobled GmbH by the expiry of the deadline or readiness for dispatch has been notified. The defence of non-performance of the contract remains reserved.
6.2 Ennobled GmbH reserves the right to choose the mode and route of dispatch, unless a special agreement is made in writing in individual cases. In particular, Ennobled GmbH shall not be obliged to choose the cheapest mode of transport. Packaging shall be carried out in the customary manner, whereby the customer acknowledges that some of the goods offered by Ennobled GmbH are sensitive and therefore require careful and protective packaging. This may result in higher shipping costs. Any additional special packaging shall only be used at the express instruction of the customer and shall be at the customer’s expense. The customer must arrange for the disposal of the packaging at his own expense. Ex- press surcharges and customs costs shall be borne by the customer and shall be invoiced separately.
6.3 Ennobled GmbH shall only take out transport insurance for the goods at the express prior written request of the customer; the costs of such transport insurance shall be borne by the customer.
6.4 In the event of delays in the dispatch of the delivery item for reasons for which the customer is responsible or if the customer is in default of acceptance, Ennobled GmbH shall be free either to withdraw from the contract by setting a 14-day grace period and to utilise the goods elsewhere, to insist on fulfilment of the contract and to store the goods itself at the customer’s risk and against payment of a reasonable and customary fee for a maximum period of 8 weeks or to have them stored by a third party at the customer’s risk and expense. In the case of entrepreneurs, if compensation is chosen instead of performance, the compensation shall regularly amount to at least 25 % of the net sales price, unless the customer can prove a lower damage. Ennobled GmbH reserves the right to claim higher damages. In the event of other utilisation, the contractor must pay a contractual penalty of 25% of the order value (excluding VAT) to Ennobled GmbH within 14 days of the written request.
6.5 The goods shall be delivered by means of a standard articulated lorry (40 tonnes). It is the customer’s responsibility to ensure access and delivery facilities for such vehicles. If such a delivery is not possible for the customer, he must inform Ennobled GmbH of this without being asked and a special agreement on delivery must then be made in each individual case. If the customer fails to notify Ennobled GmbH and if the impossibility of delivery only becomes apparent at the time of transport, the customer shall be liable for all resulting disadvantages (additional costs for unloading, temporary storage until another vehicle can complete the delivery, etc.).
The following applies to entrepreneurs:
6.5 If non-compliance with the agreed delivery time is due to force majeure, labour disputes or other events beyond the control of Ennobled OG, Ennobled GmbH shall be released from its obligation to deliver and perform for the duration of the event. Delivery deadlines and dates shall be extended in accordance with the duration of the event. Ennobled GmbH shall notify the customer of the beginning and end of such circumstances without delay. If the aforementioned events last longer, the agreed delivery period shall be extended by a maximum of 6 weeks. In the event of a delay of more than 6 weeks, Ennobled GmbH shall be entitled to withdraw from the contract. The customer may withdraw from the contract if Ennobled GmbH is finally unable to provide the entire service before the transfer of risk. If the impossibility occurs without wilful intent or gross negligence on the part of Ennobled GmbH during the delay in acceptance or through the fault of the customer, the customer shall remain obliged to provide consideration. Ennobled GmbH shall only be liable for damages resulting from such operational disruptions in the event of wilful intent.
The following applies to consumers:
6.6 For 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 labour disputes. The delivery periods shall be extended by the period of the hindrance. The customer shall also have the right to withdraw from the contract within extended delivery periods in accordance with the statutory provisions. Ennobled GmbH shall only be liable for damages resulting from such operational disruptions in the event of wilful intent and gross negligence.
7. transfer of risk
The following applies to entrepreneurs:
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 the case of direct delivery, the price risk shall pass to the customer upon handover to the carrier; handover to the carrier shall take place either directly at the supplier’s warehouse or at a location to be agreed directly with the carrier by Ennobled GmbH; this shall apply irrespective of any separately agreed price regulation for the delivery. This means that the customer is not entitled to withdraw from the contract or to claim damages if the goods are lost, destroyed or damaged after leaving the factory or warehouse through no fault of Ennobled GmbH or only due to slight negligence on the part of Ennobled GmbH. The customer shall therefore bear the transport risk, whereby the transport costs shall be borne by Ennobled OG (INCOTERM CPT – “carriage paid”). The customer shall be charged a flat-rate transport fee specifically stated in the offer. At the customer’s request, the customer may nominate a carrier itself – in this case, however, at its own expense. A carrier nominated by the customer shall then collect the goods from the location to be specified by Ennobled GmbH.
7.2 If dispatch or handover is delayed or does not take place as a result of circumstances for which Ennobled GmbH is not responsible, the risk shall pass to the customer from the date of notification of readiness for dispatch or acceptance; however, Ennobled GmbH shall be obliged to take out the insurance policies requested by the customer at the customer’s expense.
7.3 In the event of a delay for which Ennobled GmbH is responsible and justified cancellation by the customer, the customer shall only be entitled to compensation if Ennobled GmbH or its vicarious agents have caused the delay intentionally or through gross negligence. Ennobled GmbH’s liability for damages caused by delay shall in any case – notwithstanding other exclusions of liability – be limited to cases of gross negligence and to an amount of 1% of the value of that part of the delivery or service that was not delivered on time for each working day of delay. Any further claim for damages is excluded.
7.4 This also applies 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.
The following applies to consumers:
7.5 If the goods are sent by Ennobled GmbH, the risk of loss or damage to the goods shall only pass to the customer as soon as the goods are delivered to the customer or to a third party other than the carrier designated by the customer. However, if the customer has concluded the contract of carriage himself 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 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 delivery routes are assumed for lorries and trailers/trailer combinations. If the delivery vehicle leaves the drivable delivery route on the instructions of the buyer, the buyer shall be liable for any damage resulting from this. The delivery time must be agreed. Waiting times/standing times caused by the buyer will be charged.
The following applies to entrepreneurs and consumers:
7.7 In the case of self-collection, the price and performance risk shall pass to the customer from the time of handover, in the case of default of acceptance from the time of default.
7.8 If the customer is in default of 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 it is responsible, the customer shall be entitled to withdraw from the contract, provided that it sets a reasonable grace period in writing for the delivery of the goods or the provision of the service 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 are ex warehouse, excluding packaging, transport and unloading. If, due to the conditions at the place of unloading, above-average unloading costs are incurred which could not be taken into account when the offer was made, these shall in any case be borne by the customer. The goods shall be packaged in a customary manner, insofar as this is necessary at the dutiful discretion of Ennobled GmbH. The respective statutory value added tax is shown separately in the offers. Unless explicitly stated otherwise, prices are net prices.
8.2 If the purchase prices for materials, raw materials, auxiliary materials, wages, transport costs or other operational costs for Ennobled GmbH change unexpectedly and significantly after conclusion of the contract 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 order confirmation and delivery. In this case, the customer has the right to withdraw from the contract. In the event of such a price adjustment, Ennobled GmbH shall be entitled to make the delivery dependent on the payment of a down payment adjusted to the same extent. In the case of partial deliveries, the right to price adjustment shall apply analogously to the parts not yet delivered.
8.3 Payment of the purchase price must be made exclusively to the account specified by Ennobled GmbH on the invoice. Cash discounts may only be deducted if expressly agreed.
8.4 Ennobled GmbH is entitled to demand a down payment of 50% of the order amount. This is due for payment within 14 days of receipt of the order confirmation issued by Ennobled OG. If the customer fails to make the down payment on time, Ennobled OG shall have no obligation to deliver or perform.
8.5 The remaining purchase price not yet settled 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. Invoicing in this respect shall not take place before the goods have been delivered in the agreed form, it has been established that the customer is in default of acceptance or it has been established that delivery will not take place for reasons for which Ennobled GmbH is not responsible.
8.6 In the event of default, interest on arrears shall also accrue immediately from the due date in the amount of the statutory interest rate pursuant to § 1000 ABGB as amended (currently 4%) for consumers and in the amount of the statutory interest rate for business-related transactions pursuant to § 456 UGB as amended (currently 9.2% p.a. above the respective published base interest rate) for entrepreneurs. Any customary reminder and collection charges or standard legal fees shall also be borne by the customer in the event of default. 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 offset against dunning and collection costs as well as the costs of legal or judicial collection, then against the accrued interest on arrears and finally against the outstanding capital.
The right to assert higher damages caused by default remains reserved. In the event that Ennobled GmbH claims a higher damage caused by default, the customer shall have the opportunity to prove that the claimed damage caused by default did not occur or at least occurred in a significantly lower amount.
8.7 The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed, recognised by Ennobled GmbH or have been legally established. The prohibition of set-off shall not apply to consumers if it concerns a counterclaim for payment of defect rectification costs from the same purchase contract.
8.8 If, after conclusion of the contract, Ennobled GmbH becomes aware of circumstances that are likely to significantly reduce the customer’s creditworthiness, such as the opening of insolvency proceedings, Ennobled GmbH shall be entitled to refuse performance and to set a reasonable deadline within which the customer must effect counter-performance concurrently with delivery or provide security. After expiry of the deadline, Ennobled GmbH may withdraw from the contract in writing. In this case, Ennobled GmbH may also declare all claims arising from the business relationship due and payable.
8.9 If the customer is granted a longer payment period in individual cases or if payment by instalments is agreed separately, this shall not constitute a postponement of the due date. The customer merely waives further collection of the claim already due for the agreed period. If the customer defaults on payment of even one instalment or fails to meet the deferred payment deadline, the entire claim plus the above-mentioned default interest shall be due for payment immediately from the due date (loss of deadline). Furthermore, Ennobled GmbH reserves the right to withdraw from the contract immediately in this case.
9 Retention of title
9.1 The goods shall remain the sole property of Ennobled GmbH (legal term: reserved goods) until all claims to which Ennobled GmbH is entitled against the customer under the respective contract have been fulfilled, in particular until all payments including interest and ancillary costs have been settled, even if individual parts have already been paid for.
9.2 For the duration of the retention of title, the customer shall treat the goods with care and consideration and shall bear the full risk for the goods entrusted to him, in particular for the risk of loss and deterioration.
9.3 If the customer sells the goods subject to retention of title to a third party, the third party must be informed by the customer that Ennobled GmbH retains title to the goods, and the customer’s claim to the purchase price against the third party shall be transferred to Ennobled GmbH up to the amount of Ennobled GmbH’s claim against the customer (extended retention of title).
9.4 If the goods subject to retention of title are combined, processed or mixed with goods not belonging to Ennobled GmbH, Ennobled GmbH shall acquire co-ownership in proportion to the invoice value of the goods subject to retention of title to the other goods.
9.5 In the event of seizure of the reserved goods or other access to the reserved goods by third parties, the customer must point out Ennobled GmbH’s ownership and the customer must notify Ennobled GmbH immediately in writing of the seizure or other access to the goods.
9.6 If the customer acts in breach of contract, in particular in the event of default in payment, Ennobled GmbH shall be entitled to reclaim the goods subject to retention of title or, at its discretion, to demand the assignment of the customer’s claims for restitution against third parties. 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 customer with the proceeds realised, less 20% resale costs, towards its outstanding obligations or take back the goods at the invoice price less any depreciation in value and charge the customer a reasonable fee for the time the customer is in possession of and using the goods. Ennobled GmbH is also entitled to collect the goods from the customer or have them collected by an authorised third party. The related transport and any storage costs shall be borne by the customer. Ennobled OG is not obliged to return collected goods to the customer until all claims of Ennobled GmbH against the customer have been paid in full, including interim interest and (reminder) costs.
9.7 If the customer breaches the agreements on retention of title, the customer shall be obliged to pay a contractual penalty amounting to twice the net value of the goods subject to retention of title. The assertion of claims in excess of this amount, in particular claims for damages and the costs of execution in execution proceedings, shall not be excluded by the agreed contractual penalty. If the customer is not a consumer, the contractual penalty is not subject to the judicial right of moderation. If the customer does not fulfil his obligations or suspends his payments, the entire remaining debt shall become due immediately.
10 Warranty
10.1 Ennobled GmbH provides no warranty for normal wear and tear of the goods or for defects caused by improper handling. Ennobled GmbH provides a warranty to consumers to the extent permitted by law, in particular in accordance with §§ 922 to 933 ABGB and §§ 8 to 9a KSchG.
10.2 Wood is a natural product. The range of natural colour, structure and other differences in the goods is part of the properties of wood as a natural product and does not constitute a fault or defect that entitles the customer to make a complaint or for which Ennobled GmbH is liable. The same applies to insignificant deviations from samples or other representations due to the processing of the wood product by hand. For this reason, it is recommended to obtain expert 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 the event of significant defects, the customer shall initially have the choice between the primary warranty remedies, improvement or replacement delivery. However, Ennobled GmbH is entitled to refuse the type of subsequent fulfilment chosen by the customer if it is only possible with disproportionately high costs and another type of subsequent fulfilment remains without significant disadvantages for the customer. During subsequent fulfilment, the reduction of the purchase price or withdrawal from the contract by the customer are excluded. Subsequent fulfilment shall be deemed to have failed after the third unsuccessful attempt at the earliest, unless the nature of the item or defect or other circumstances indicate otherwise.
Ennobled shall have a period of 14 days from notification (complaint) of a defect to inspect the defect. Within one week of the inspection, Ennobled GmbH has the opportunity to declare its willingness to remedy the defect or, if necessary, to reject the claims asserted. If Ennobled OG declares its willingness to rectify the alleged defect, a period of three weeks is available for the attempt to rectify the defect. If rectification fails, Ennobled OG has the option of replacing the goods within the originally agreed delivery period.
10.5 If there is a significant defect in a part of the goods and if primary warranty remedies are not economical or have failed, this defect shall under no circumstances entitle the customer to rescind the contract in its entirety.
10.6 Ennobled GmbH expressly does not provide any special guarantees that would go beyond the provisions of the statutory warranty.
10.7 Ennobled GmbH only trades in the goods. The customer is responsible for the professional processing or assembly of the purchased goods by authorised professionals. Ennobled OG therefore does not issue any assembly instructions or similar. 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 is only general information based on the information provided by Ennobled OG’s supplier and does not take into account the individual specifications or requirements of the specific customer. The customer must therefore also have such information checked by a specialist entrusted with the assembly or processing for conformity with the requirement profile specified by the respective intended use of the goods. Insofar as Ennobled GmbH expressly provides care and/or assembly instructions in individual cases, 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 removal and reinstallation in the event of a warranty claim, which are asserted 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 therein in favour of the customer are granted by the product manufacturer on its own legal basis. However, this possible warranty relationship between the manufacturer and the customer has nothing to do with the scope of the contract owed by Ennobled GmbH. If necessary, Ennobled GmbH will assign any rights it may have against the manufacturer or supplier to the customer so that the customer can assert claims directly against the supplier or manufacturer of the goods.
10.11 The statements of a manufacturer regarding the quality and/or durability of the products in any warranty declaration, as well as the services described by the manufacturer in the event of a warranty claim, are not part of the purchase contract between Ennobled GmbH and the customer and are in particular not included in the purchase contract to be concluded as an implied quality agreement.
The following applies to entrepreneurs:
10.13 With the exception of the following cases, Ennobled GmbH excludes the assertion of any warranty claims, claims due to shortening by more than half and the contestation of errors vis-à-vis entrepreneurs.
10.14 The customer must notify Ennobled GmbH in writing of any recognisable defects in the purchased item, shortfalls or incorrect deliveries immediately before processing or installation, but at the latest within two weeks of delivery. Liability for material defects which do not or only insignificantly impair the value or usability is excluded. Hidden defects must be reported in writing to Ennobled GmbH within two weeks of discovery at the latest. These written complaints must be adequately substantiated and supported by evidence. The existence of significant defects must be proven by the customer, § 924 ABGB does not apply.
10.15 The warranty for significant defects that are not covered by the warranty exclusion shall be a maximum of twelve months from delivery.
10.16 If the customer resells the delivered goods, all warranty claims against Ennobled GmbH shall lapse; the right of recourse pursuant to § 933b ABGB is expressly excluded.
11 Liability
The following applies to entrepreneurs:
11.1 Ennobled GmbH shall only be liable for any damage caused to the customer in the course of the business transaction in the event of its own intent or gross negligence or in the event of intent and gross negligence on the part of vicarious agents working for Ennobled GmbH. In the event of gross negligence, liability shall be limited to the amount of the order, but no more than the amount of the public liability insurance cover payable. This provision also extends to compensation for damages in addition to performance and compensation for damages instead of performance, irrespective of the underlying legal grounds. This also applies to claims for compensation for frustrated expenses. Personal injury is excluded from this. The provisions of the Product Liability Act remain unaffected by this.
11.2 Liability for claims for damages by entrepreneurs against Ennobled GmbH due to slight negligence is also excluded – with the exception of personal injury. Liability shall expire 6 months after knowledge of the damage and the damaging party.
11.3 Ennobled GmbH shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, consequential damage and financial loss, damage arising from third-party claims or for damage caused by unsuitable or improper use, natural wear and tear, incorrect or negligent handling or storage, except in the case of wilful damage. This exclusion of liability has been taken into account in the price calculation, so that Ennobled GmbH would not enter into legal transactions without such an exclusion of liability. If a customer does not wish this exclusion of liability, this can be deviated from 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 to this effect.
11.4The claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract. Liability for damage caused by the delivery item to legal assets of the customer is excluded.
11.5 The above limitations of liability shall also apply in favour of Ennobled GmbH’s employees and in favour of third parties commissioned by Ennobled GmbH. Further claims, on whatever legal grounds, are excluded.
11.6 Should the customer itself be held liable under the Austrian Product Liability Act or similar foreign provisions, the customer expressly waives 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 in court by the customer within three months of Ennobled GmbH’s rejection of its obligation to pay compensation. In any case, any claims for damages shall become time-barred within 18 months of the claimant first becoming aware of the occurrence or imminent occurrence of damage.
11.8 In the event that damage has already occurred or threatens to occur, the customer shall be obliged to minimise the damage as far as possible. In this case, the customer must contact Ennobled GmbH immediately, provided this can still be done in good time, and coordinate the further course of action with Ennobled GmbH. Any instructions issued by Ennobled GmbH on how to proceed must be complied with.
The following applies to consumers:
11.9 Ennobled GmbH shall not be liable to consumers for damages caused by slight negligence. This exclusion shall not apply to any personal injury. Otherwise, Ennobled GmbH shall be liable in accordance with the statutory provisions.
11.10 In the event that damage has already occurred or threatens to occur, the customer shall be obliged to minimise the damage as far as possible. If this can still be done in time, the customer must contact Ennobled GmbH immediately and coordinate the further course of action with Ennobled GmbH. Any instructions issued by Ennobled GmbH on how to proceed must be complied with.
12.prohibition of assignment
12.1 The assignment of warranty claims or claims for damages or the like is not permitted without the prior written consent of Ennobled GmbH.
13. cancellation of the contract, exchange:
13.1 Right of cancellation for consumers in distance selling transactions:
The customer has the right to cancel the contract within 14 days in the case of legal transactions carried out exclusively at a distance (e.g. via the website of Ennobled GmbH, other online platforms, by e-mail or telephone, etc.), provided that the customer is a consumer, whereby this period is calculated from the day of receipt of the delivery of goods by the customer or, in the case of service contracts, from the day of conclusion of the contract (right of cancellation). If the customer has ordered several goods as part of a single order, which are delivered separately, or if the goods are delivered in several partial shipments, the right of cancellation begins on the day on which the customer or a third party named by the customer, who is not acting as the carrier, acquires possession of the last delivered goods or partial shipment. The cancellation does not have to contain a reason and is not bound to any particular form. It can be made in writing (e.g. letter, fax) or declared by returning the goods already received to Ennobed GmbH. The consumer can also use the sample cancellation form available in the offices of Ennobed GmbH and on the website www.ennobled.at. To comply with the cancellation period, it is sufficient to send the declaration of cancellation or the goods before the expiry of the cancellation period to the address stated in point 8.3.
This right of cancellation does not apply to goods purchased on the business premises of Ennobled GmbH.
This right of cancellation does not apply to legal transactions concerning custom-made products (§ 18 para. 1 no. 3 of the Distance and Off-Premises Selling Act – FAGG).
13.2 Consequences of cancellation for consumers:
If the customer, who is a consumer, makes effective use of his right of cancellation in accordance with point 13.1. of these GTC, he must return or hand over to Ennobled GmbH all services received from Ennobled GmbH immediately, at the latest within fourteen days from the day on which he submitted the declaration of cancellation, in the original packaging against reimbursement of the payment. The deadline shall be deemed to have been met if the goods are dispatched before the expiry of this period. The customer shall bear the direct costs of returning the goods. If the delivered goods are not in their original condition, any reduction in value, however slight, shall be reimbursed by the customer. When returning goods, the customer must ensure that they are adequately protected against damage during transport. The customer acknowledges that most of the goods are sensitive and particularly vulnerable items that require special care during shipping. Ennobled GmbH will advise the customer in the event of queries regarding dispatch 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 of no value to Ennobled GmbH and are therefore excluded from the right of cancellation.
In the case of contracts with consumers that have not been concluded on the business premises of Ennobled OG, the following applies in deviation from point 8.2. of these GTC:
Any reduction in value of the goods covered by the cancellation shall only be reimbursed by the customer who is a consumer if this reduction in value is due to handling of the goods that is not necessary to check the nature, properties and functioning of the goods or to inadequate packaging (transport damage during return).
13.3 Cancellation notices and returns must be sent to the following business address of Ennobled GmbH or must be sent to the following address:
Ennobled GmbH Glanstraße 2 a 5082 Grödig Austria
Provisions for consumers and entrepreneurs.
13.4 Ennobled GmbH is 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 reorganisation proceedings against the customer’s assets or the non-opening of such proceedings due to lack of assets.
13.5 In general, there is no right to exchange goods that are free of defects beyond a consumer’s statutory right of cancellation.
13.6 Parts and customised products that have been specially made for the customer are excluded from return. In the case of customised products, the customer is obliged to accept the goods in any case if they have been properly delivered. This also applies to goods specially procured at the customer’s request.
14 Data protection and advertising
14.1 Ennobled GmbH processes the customer’s personal data 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) will be used by Ennobled GmbH to fulfil and process the contract. This data will be treated confidentially and will not be passed on to third parties who are not involved in the ordering, delivery and payment process.
14.3 The customer has the right, upon request and free of charge, to receive information about the personal data that Ennobled GmbH has stored about him. In addition, he has the right to correct incorrect data, block and delete his personal data, provided that there is no legal obligation to retain it.
14.4 Further information on the type, scope, location and purpose of the collection, processing and use of the required personal data by Ennobled GmbH can be found in the data protection declaration, which is available on the business premises of Ennobled GmbH, can be accessed on the Internet at www.ennobled.at or can be sent electronically or by post at any time on request.
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 to the exclusion of the conflict of laws rules of private international law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. 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, the court with local and subject-matter jurisdiction for the provincial capital of Salzburg is agreed.
16. change of address
The customer is obliged to provide proof of any changes to his residential or business address and the contact details provided (telephone, e-mail) and to notify Ennobled GmbH immediately and without being requested to do so, as long as the contractual legal transaction has not been completely fulfilled by both parties. If this notification is omitted, declarations and goods shall be deemed to have been received by the customer even if they were sent to the address last notified to Ennobled GmbH, to the contact details last notified (e-mail). It is the customer’s responsibility to prove the receipt of his notification of cancellation in each individual case. The customer is liable for all damages resulting from a failure to notify a change of address and/or a change of contact details.
17. safety instructions
Ennobled GmbH products are basically the result of a combustion process and are therefore not suitable for use in children’s rooms or similar. Furthermore, Ennobled GmbH products are not suitable for roofing.
18 Other
18.1 Any ancillary agreements must be made in writing and recorded in the contract. Verbal agreements and written agreements outside the contract shall not form part of the contract unless the relevant document is expressly made an integral part of the contract.
18.2 Should any provision of these Terms and Conditions be or become invalid or unenforceable in whole or in part, this shall not affect the legal validity of all other provisions of the contract. The contracting parties shall replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the content and purpose of the legally invalid or unenforceable provision.
Salzburg, im November 2019
Cancellation policy and form for consumers in distance selling transactions
Cancellation by express written declaration
Every customer (consumer) can withdraw from the contract concluded within 14 days of receipt of the goods by sending a written declaration of cancellation without giving reasons, subject to the following conditions.
If the consumer has ordered several goods as part of a single order, which are delivered separately, or if the goods are delivered in several instalments, the right of withdrawal begins on the day on which the consumer or a third party named by the consumer who is not acting as a carrier acquires possession of the last delivered goods or instalment. The cancellation does not have to contain any justification and is not bound to any particular form. It can be made in writing (e.g. letter, fax) or declared by returning the goods already received to Ennobled OG (see below). The consumer may also use the sample cancellation form available in the offices of Ennobled OG and on the website www.ennobled.at. To comply with the cancellation period, it is sufficient to send the declaration of cancellation or the goods before the expiry of the cancellation period to the address stated in point 13.3. of the GTC.
The notice of cancellation must be sent to the following address:
Ennobled GmbH
Halleiner Landesstraße 58
5411 Oberalm
Austria
Cancellation by simply returning the goods:
The customer can also exercise his right of cancellation by simply returning the goods to the seller within 14 days of receipt without a written declaration of cancellation. In this case, it is sufficient to prove that the goods have been dispatched in good time to meet the deadline. The prerequisite for this form of exercising the right of cancellation by simply returning the goods is that the goods are not damaged or used and that they are returned with sufficient postage. The seller shall only bear the return shipping costs (postage) in the event of an incorrect or defective delivery.
The customer shall bear the risk of the return shipment as well as proof thereof. In the event of an effective cancellation by the customer (by express declaration or simple return of the goods), the seller shall immediately refund the purchase price already paid – shipping costs will not be refunded. If the order is placed on open account, the customer’s account will be credited.
Consequences of exercising the right of cancellation:
If you withdraw from a contract concluded with us, we shall reimburse to you all payments received from you under the withdrawn contract, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from 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 for this repayment. We may refuse to refund you until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earliest.
You must return or hand over the goods to us immediately and in any case within fourteen days at the latest from the day on which you inform us of the cancellation of this contract. The deadline is met if you dispatch the goods before the period of fourteen days has expired.
Notes on the exclusion of the right of cancellation:
The right of cancellation does not apply to the delivery of goods that are manufactured according to customer specifications or are 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 cancellation does not apply to goods purchased on the business premises of Ennobled GmbH.
This right of cancellation does not apply to legal transactions where the value of the customer’s consideration does not exceed EUR 50.00 (§ 1 para. 2 subpara. 1 of the Distance and Off-Premises Selling Act – 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 cancellation. Further details can also 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 goodsEnnobled GmbH
Halleiner Landesstraße 58
5411 Oberalm
Austria
office@ennobled.at
to announce the return. In this way, they enable the seller to allocate the products as quickly as possible.
Customers are requested to send the goods back to the seller as a prepaid parcel and to keep the proof of posting.
Customers are requested to avoid damaging or contaminating the goods. If possible, the goods should be returned to the seller in their 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 transport damage and to avoid any claims for compensation due to damage caused by defective packaging.