Gerstner Catering Betriebs GmbH - General Terms and Conditions
These General Terms and Conditions of Sale and Delivery apply to all deliveries of goods which are made by Gerstner Catering Betriebs GmbH (hereinafter referred to as "we") on the basis of orders placed via distance selling. By ordering the goods, the customer accepts these General Terms and Conditions of Sale and Delivery. The General Terms and Conditions of Sale and Delivery are valid from 05.12.2017. Information, complaints, data information at Konditorei(at)gerstner.at Member of the WKO Gastronomy Section.
2. Conclusion of contract
a) Contract, order and business language is German.
b) Our offers are entirely subject to change. The customer is bound for a fortnight to orders of the customer which are the offer in the legal sense. The contract is only concluded by our order confirmation or by delivery or service. A separate notification of the customer of acceptance is not required.
c) Orders can also be accepted by us only in part.
d) An order is only possible if all mandatory fields (fields marked with an asterisk) are filled in. Before sending the order, the customer will receive a summary of the contents of the order including prices, which he can still correct or confirm. The receipt of the order by us is confirmed by an automatically sent e-mail, which does not yet mean that the order has been accepted. Messages are only sent to us during normal business hours (Monday to Friday from 9:00 to 16:00 with the exception of public holidays in Austria). Messages arriving on our server outside of these hours are only considered received on the next working day.
e) The Customer is aware that the Internet is not a completely secure communication medium and that data sent via the Internet could, on the one hand, become known and, on the other hand, could be altered by third parties. The customer bears the risk that data does not reach us or does not reach us in the form in which it was sent. We may rely on the fact that the data has been sent by the customer in the form in which we receive it.
f) The contract data is stored for invoicing purposes.
a) Our prices include the statutory Austrian value added tax in Euro, without delivery costs and without any additional services, unless other delivery conditions are stated in the respective valid price list. For deliveries outside of Austria, the respectively applicable export and import duties are also payable.
b) All prices are current prices and are valid until revoked.
c) For our deliveries, we charge an additional packaging and shipping flat rate ("delivery costs"), the specific amount of which depends on the product ordered and the place of delivery.
d) Please contact your local customs office for information on any customs charges.
4. Delivery and delivery time
a) Shipping is carried out via EMS (domestic) or DHL (foreign). When the goods are shipped, the risk of loss or damage to the goods is only transferred to the consumer as soon as the goods are delivered to the consumer or to a third party designated by the consumer and different from the carrier. If, however, the consumer himself has concluded the transport contract without making use of a choice proposed by us, the risk shall pass to the consumer as soon as the goods are handed over to the carrier.
b) Delivery is normally made within 5 working days, but no later than 10 working days after the order. The indication of delivery dates is not binding. Non-compliance with delivery dates only entitles the customer to assert the right to withdraw from the contract if we do not carry out the delivery despite having set a period of grace of at least two weeks in writing.
c) The delivery period shall be extended by the duration of the hindrance due to circumstances that are independent of the will of the parties, such as cases of force majeure, unforeseeable operational disruptions, delays in transport and customs clearance, transport damage, labour disputes.
d) As far as partial deliveries are possible, they are also legally permissible. Each partial delivery is considered a separate transaction and can be invoiced separately by us.
We are to be notified of any defects that occur, if possible, upon delivery or immediately after they become visible. If the customer is an entrepreneur within the meaning of the Austrian Consumer Protection Act - hereinafter referred to as "KSchG" for short - he shall inspect the delivered goods immediately upon receipt for completeness, correctness and other freedom from defects and shall notify us in writing of any defects immediately, but no later than five working days after receipt of the goods, otherwise he shall lose all claims to which he is entitled in the event of a proper inspection. If the goods are defective, the customer can choose between improvement and replacement - as far as this is possible and does not involve a disproportionately high effort for us. Only if both are impossible or involve a disproportionately high effort for us, the customer may - in accordance with the statutory provisions - request a reasonable price reduction or, if the defect is not minor, cancellation of the contract. If we rectify a defect, this shall be done by us free of charge and expenses, whereby we can demand that the customer sends the goods to us at our risk and expense - insofar as this is feasible and legally permissible. If the customer is an entrepreneur within the meaning of the KSchG, he is in any case obliged to first give us the opportunity to improve the goods at our request.
6. right of withdrawal or revocation
a) Entrepreneur: If the customer is an entrepreneur, he is not entitled to a right of withdrawal or right of revocation according to any legal consumer protection regulations.
b) Consumers according to the Consumer Protection Act (KSchG) have the right to revoke this contract within fourteen days without giving reasons.
The revocation period is:
1). in the case of a purchase contract, fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken possession of the goods or have received them.
2). in the case of a contract covering several goods ordered by the consumer under a single order and delivered separately, fourteen days from the day on which you or a third party, other than the carrier and designated by you, took possession of the last of the goods.
3). in the case of a contract for the delivery of goods in several instalments or pieces, fourteen days from the day on which you or a third party, other than the carrier and designated by you, took possession of the last instalment or piece.
4). in the case of a contract for the regular supply of goods over a fixed period, fourteen days from the day on which you or a third party, other than the carrier and designated by you, took possession of the first goods.
In order to exercise your right of withdrawal, you must inform us of your decision to withdraw from this contract by means of a clear statement (giving your name, address and, where available, telephone number and e-mail address and order number). You can use the attached sample revocation form for this purpose, which is not mandatory, and send it to us by e-mail to konditorei[at]gerstner.at.
[Download: Revocation form]
In order to comply with the cancellation period, it is sufficient to send the notification of the exercise of the right of cancellation before the end of the cancellation period.
Consequences of revocation:
If you withdraw from this Agreement, we shall reimburse you for all payments we have received from you, including delivery charges (other than any additional charges arising from your choice of a different method of delivery to the cheapest standard delivery offered by us), immediately and no later than fourteen days from the date on which we receive notice of your withdrawal from this Agreement. We 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 event will you be charged for this refund. In the case of a contract of sale where we have not offered to collect the goods ourselves in the event of cancellation, we may refuse to refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
If you have received goods in connection with the Agreement, you must return or hand over the goods to us immediately and in any event no later than fourteen days from the date on which you notify us of the cancellation of this Agreement. This period is deemed to have been observed if you send the goods before the expiry of the fourteen-day period. You shall bear the direct costs of returning the goods.
You only have to pay for any loss of value of the goods if this
loss of value is due to handling of the goods which is not necessary for testing the nature, properties and functioning of the goods.
If you have requested that the services should commence during the withdrawal period, you shall pay us a reasonable amount corresponding to the proportion of the services already provided by the time you inform us of the exercise of the right of withdrawal in respect of this contract compared to the total amount of services provided for in the contract.
If the customer is an entrepreneur, cancellation is completely excluded.
The consumer has no right of withdrawal for contracts concerning
1. services, if the entrepreneur - on the basis of an explicit request by the consumer according to § 10 FAGG as well as a confirmation by the consumer that he/she is aware of the loss of the right to withdraw from the contract in the case of complete fulfilment of the contract - had started to perform the service before the expiry of the withdrawal period according to § 11 FAGG and the service was then fully performed
2. goods which are manufactured according to customer specifications or are clearly tailored to personal requirements,
3. goods that can spoil quickly or whose expiry date would be quickly exceeded,
4. goods which are delivered sealed and are not suitable for return for reasons of health protection or hygiene, if the seal has been removed after delivery.
Finally, the consumer has no right to withdraw from a contract concluded at public auction.
It should be noted that most of the goods we offer are perishable food products with a short expiry date and are therefore generally excluded from the right of withdrawal.
The notice of withdrawal should be addressed to:
Gerstner Catering Operations GmbH
Kärntner Strasse 51, 1010 Vienna
Phone: +43 1 31665 2202
Fax: +43 1 31665 4201
This is also the summonable address of our company, where information and data from our customer service department are available at any time and where complaints are received.
consequences of withdrawal:
In the event that a consumer exercises his right of withdrawal, the payments made by him are to be refunded concurrently with the return of the goods and any necessary and useful expenditure made by him on the goods is to be reimbursed.
c) Right of revocation for consumers with habitual residence in Germany:
Information on the right of withdrawal:
A consumer within the meaning of the German Civil Code (BGB) may revoke his or her contractual declaration in the case of distance selling contracts within 14 days without stating reasons in text form (e.g. e-mail, fax, but also letter) or - if the goods have been handed over to him or her before expiry of the period - also by returning the goods. The time limit begins after receipt of this notification in writing, but not before receipt of the goods (in case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also does not fulfill our obligations under Article 246 §2 in conjunction with §1 para 1 and 2 EGBGB and our obligations under §312g para 1 sentence 1 BGB in conjunction with Article 246 §3 EGBGB. The timely dispatch of the revocation (postmark/shipping report) or the goods (proof of posting with a shipping service provider) is sufficient to comply with the revocation period.
There is no right of revocation for contracts for the delivery of goods which are produced according to customer specifications or clearly tailored to personal needs or which are not suitable for return due to their nature or which can spoil quickly or whose expiry date would be exceeded.
The revocation is to be addressed to:
Gerstner Catering Operations GmbH
Kärntner Strasse 51, 1010 Vienna
Phone: +43 1 31665 2202
Fax: +43 1 31665 4201
Consequences of withdrawal:
In the event of an effective revocation, the services received by both parties are to be returned and any benefits derived (e.g. interest / benefits of use) surrendered. If the consumer is unable to return or surrender the received goods or services in whole or in part or only in a deteriorated condition, the consumer must compensate us for lost value. The consumer must only pay compensation for the deterioration of the goods insofar as the deterioration is due to handling of the goods which goes beyond the examination of the properties and functionality. Testing of the properties and functionality" means testing and trying out the respective goods, as is possible and customary in a retail shop.
Goods that can be sent by parcel post are to be returned at our risk. The consumer has to bear the regular costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the goods to be returned does not exceed an amount of 40 euros or if the consumer has not yet paid the consideration or a contractually agreed partial payment at the time of the revocation in case of a higher price of the goods. Otherwise, the return shipment is free of charge for the consumer.
Goods that cannot be sent by parcel post will be collected from the consumer. Obligations to refund payments must be fulfilled within 30 days. For the consumer, the period begins with the dispatch of his declaration of withdrawal or the goods, for us with their receipt.
Right of withdrawal or revocation for consumers with a habitual residence in other member states of the European Union:
In accordance with Article 6 para. 2 1.S of this Regulation, Austrian law shall apply to the contractual relationship with consumers within the meaning of Article 6 of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008, excluding the UN Convention on Contracts for the International Sale of Goods, with the exception of those provisions of consumer protection law which, according to the law of the country in which the consumer has his habitual residence, are more favourable to the consumer and which may not be deviated from by agreement. Accordingly, the right of withdrawal according to lit b) above also applies to such consumers.
7. Compensation for damages
We do not accept any liability for damages on any legal grounds whatsoever, in particular for delay, impossibility of performance, positive breach of contract, culpa in contrahendo, consequential damages, loss of profit, material defects or for tort, which are caused by us or persons for whom we are responsible as a result of slight negligence. Customers who are entrepreneurs within the meaning of the KSchG must prove gross negligence or intent for which we are responsible. In the case of contracts with consumers within the meaning of the KSchG, damage to the person and to objects taken over for processing are excluded from this exclusion of liability.
8. terms of payment
a) Our invoices must be paid immediately before the start of the delivery period using a credit card accepted by us - AMEX, Diners, JCB, Mastercard, Visa. The credit card indicated will be charged immediately after sending the order. The credit card data will not be stored in any form. Our payment partner is Mpay24. You can find information on www.mpay24.at.
b) In the event of late payment, we charge interest on arrears at a rate of 4% for non-merchants and 8% for entrepreneurs above the respective base rate of the European Central Bank.
c) If the customer is in arrears with payment or other services, we are entitled - without prejudice to other rights - to withhold our deliveries until the agreed counter-performance has been rendered, while maintaining the still open delivery deadline, or to withdraw from the contract after a reasonable grace period has expired and to claim damages for non-performance. In this case, the customer must return the delivered items to us immediately at his own expense. We reserve the right to assert claims for compensation for depreciation, wear and tear, compensation for our own transport expenses and other matters, whereby we are entitled to demand or retain 20% of the price as a minimum contractual penalty in the event of our withdrawal from the contract.
d) In the event of a breach of his contractual obligations, the customer undertakes to reimburse us for all costs necessary for the appropriate pursuit of our claims. The customer shall reimburse EUR 5,-- per reminder and EUR 25,-- for keeping the debt on record in the dunning process.
9 Applicable law, place of performance, place of jurisdiction
a) Our contractual relationship with the customer and all related issues shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private law. This is subject to the national mandatory consumer law provisions applicable to consumers with a habitual residence within the European Union.
b) Place of payment and performance for all obligations arising from and in connection with the contract is our registered office in Vienna, Austria.
c) The place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contract shall be the court responsible for the I. Vienna district is the competent Austrian court. If the customer is a consumer within the meaning of the Austrian Consumer Protection Act (KSchG), this place of jurisdiction shall only be deemed agreed if the customer has his domicile, habitual residence or place of employment in this jurisdiction or if he has his habitual residence outside Austria. Irrespective of this, we are also entitled to sue the customer at his general place of jurisdiction.
d) We recognise the Internet Ombudsman as an out-of-court dispute settlement:
For further information on the types of proceedings, please visit www.ombudsmann.at or refer to the respective procedural guidelines:
Procedural guidelines of the Internet Ombudsman for alternative dispute resolution under the German Corporations Act (AStG) (AStG conciliation procedure)
Guidelines for the conciliation procedure with the Internet Ombudsman outside the scope of the AStG (standard procedure).
The OS platform can also be used to settle disputes with our company: http://ec.europa.eu/consumers/odr
Our e-mail address: konditorei[at]gerstner.at
The customer agrees that the data provided to us within the scope of the pre-contractual and contractual relationship may be used by us for accounting as well as market research, advertising and marketing purposes. This consent can be revoked by the customer at any time. Otherwise, the data will be used by us to comply with legal regulations and to process payment transactions. Customer data will not be passed on to third parties, except if this is necessary for the fulfilment of the contract, whereby our partner companies are also subject to the legal data protection regulations.
In order to use our shopping cart, cookies must be enabled. If you do not wish to accept cookies, you can also order by telephone or fax.
Access files are stored with every request for a file in the shop. The data stored about you will only be evaluated for statistical purposes. We will not pass on your data to third parties, even in part.
When concluding the contract, the customer is obliged to provide the relevant data requested in our forms completely and correctly. In case of incorrect, incomplete and unclear information provided by the customer, the customer is liable for all costs, damages and disadvantages incurred by us as a result. The customer is obliged to inform us immediately in writing of any changes in his name or address, otherwise he will be liable for damages. In the event of failure to do so, any written notification sent to the last known address of the customer shall be deemed to have been effectively delivered to the customer.
12. security through SSL
Our secure server software encrypts all of the customer's personal data such as credit card number, bank code, bank account number, name and address. This data cannot be read by unauthorised persons during transmission over the Internet. During the encryption process, the data entered by the customer is converted into a code that is securely transmitted over the Internet, thus protecting the data from unauthorised access.
Additional - Online order information
Step 1 - Order
The page shows an overview of the order and requires filling in the delivery and billing address. In case of a deviation from the delivery or invoice address, the deviating address (delivery or invoice address) can be indicated optionally on this page.
The summary can be edited as follows: The product can be deleted by clicking the [x]. With [+] or [-] the number of the respective product can be increased or decreased by 1.
By clicking on the button [Next] you will reach step 2
Step 2 - Delivery method
On the page you select the desired delivery method, payment method and the collection or delivery date. You can also attach an optional message to your order using the "Remarks" field.
Self-collection in Gerstner K.u.K. Court confectioner
Delivery in Vienna
Payment by credit card and bank card are accepted as possible payment methods.
Collection or delivery date
The specified date is considered a binding collection date or delivery date.
Step 3 - Summary
The page shows the previously selected options of the order and again offers the possibility to post-process the shopping basket with the functions mentioned under "Step 1 - Order".
Step 4 - go to checkout
This page is used to inform that the customer is forwarded to the external service provider www.mpay24.com for payment. By clicking on the button [order now subject to payment], the Customer is automatically redirected to www.mpay24.at for payment in accordance with the specifications specified in point 8 (Terms of payment).
Cancellation of the order
The order can be cancelled at any time by closing the browser. Products that are in the shopping cart will be deleted.