Terms and Conditions
of Tischlerei Radaschitz GmbH (herein after abbreviated to „contractor“), valid from April 1st, 2013
1. General information
We are a carpentry workshop and use the online sales portal MOBILAMO (herein after abbreviated to „MOBILAMO“) to offer the production, delivery and assembly of customized furniture (herein after also called „products“). MOBILAMO is available under www.mobilamo.com, www.mobilamo.at, www.mobilamo.de and www.mobilamo.ch. Users can register with MOBILAMO (herein after also abbreviated to „customers“) to select products from a variety of default configurations and order them online.
2.1 The terms and conditions stated here are valid for all contracts between you and us closed online via MOBILAMO (Herein after customer and contractor will also be called „the parties“.), regulating the delivery and implementation of all current and future mutual rights and obligations arising between us.
2.2 All services we render to you are, without exception, subject to these terms and conditions. Possibly existing delivery, purchasing or contractual conditions of the customer are invalid without the need for our express objection against such delivery, purchasing or contractual conditions.
3. Registration / your account
3.1 To order our products online on MOBILAMO you have to either register on the domains listed under paragraph 1 to place your first order, or to log in if you are already a registered user.
3.2 You need to submit the necessary information for your registration completely and truthfully. Please note that we do not sell to minors.
3.3 After your registration we will send your log-in data including your username and password to the e-mail address you have provided, thus giving you access to the MOBILAMO customer section.
3.4 You will inform us without delay of relevant changes to your data which occur during our contractual relation.
3.5 You can review and update all data you submit during or after your registration, and all your MOBILAMO account settings, under “my account”.
4. Storage of customer data
4.1 We use automated systems to collect and store all information you submit on MOBILAMO or provide in any other form („customer data“).
4.2 By using MOBILAMO you give us consent to collect, store, process and use these customer data. You can revoke this consent at any time, effective immediately and for the future, by e-mail to firstname.lastname@example.org.
4.3 We use customer data for processing orders, the delivery of goods and services you ordered, and billing and payment transactions. We also use customer data for marketing purposes, e.g. to communicate with you about orders, products and services.
4.4 We do not divulge customer data to third parties except to companies we control, to our subsidiaries, and to service providers we employ in the fulfillment of our contractual obligations. The latter are financial institutions and banks, credit card companies (payment processing), freight forwarders and delivery services (delivery) and assembly services (assembly of delivered products). For these service providers we restrict the access to customer data to the absolutely necessary minimum, prohibiting further use for unrelated purposes. Should we transfer business shares, the rules laid down in paragraph 4 will also apply to the transferee.
5. Product images and descriptions
5.1 On MOBILAMO, we endeavor to provide sample product images and descriptions which convey a realistic impression of the product of your choice. Additionally, you can order wood samples. Furthermore, you are welcome at our showroom to get an immediate impression of our products. For more information, please consult the web pages mentioned under 1.).
5.2 Please note that wood is a natural material which may show differences in grain, color and growth patterns (branches), even within one and the same batch of one and the same type of wood. Therefore, we explicitly reserve the right to use wood which deviates in insignificant and/or negligible details. In this respect, representations on MOBILAMO are not binding.
6. Conclusion of contract
6.1 You can use the MOBILAMO online configurator (herein after also called „configurator“) to choose from a variety of products and order products in various configurations of dimensions, base frames, material, color etc. Furthermore, you can choose home delivery and assembly options.
6.2 Clicking „Order now“ completes the ordering process. After you have completed your order on MOBILAMO, we will send you an e-mail which confirms the reception of your order with all details („order confirmation“). Upon receipt of our order confirmation, your order becomes valid as your binding offer to close a contract with us. Note that the order confirmation does not constitute our binding acceptance of your offer: It only informs you that we have received your order.
6.3 We are entitled to accept your order within 3 days after receiving it. The contract between you and us about your order on MOBILAMO will be concluded by us sending another e-mail which confirms that we accept your order (“order acceptance”). This e-mail will also include the contract text and these terms and conditions.
6.4 Should we be unable to fulfill your order because ordered products or services are unavailable, we will inform you immediately by e-mail and will refund any payments already made. This also applies in case we have already accepted your offer.
7. Right to rescission
7.1 Pursuant to §5f, section 1, clause 3 of the Consumer Protection Act (“KSchG”), consumers are not entitled to withdraw from contracts concluded by means of remote communication (e.g. Internet) if the ordered products (i) are made to customer specifications, (ii) are clearly tailored to the customer’s personal needs, (iii) are not suitable for return on the basis of their nature, (iv) may deteriorate rapidly, or (v) if their expiration date would be exceeded.
7.2 As a rule, you will configure your order on Mobilamo according to your individual preferences. If a contract with us is concluded in this way, we will manufacture on your behalf and according to your specifications products which are tailored to your personal requirements. In such cases, the right of rescission according to § 5e KSchG does not apply. 7.3 For contracts which do not fall under the above-mentioned exception, nor under any other exception as mentioned in § 5f KSchG, the following applies: Customers who are private consumers may rescind a distance contract, or a contract declaration made in distance sales, at any time before the expiry of the deadlines set out in points 7.4 and 7.5. Such a declaration of rescission addressed to us will be considered valid if it is sent within the respective deadline. For the purpose of proof, we recommend sending such a declaration of rescission by registered mail. The declaration of rescission must be sent to our address as stated in point 19.3.
7.4 The deadline for rescission expires after seven work-days, with Saturdays not counting as work-days. For contracts about the delivery of goods, the period begins at the day of its receipt by the customer. For contracts about the performance of a service, the period begins on the day of the conclusion of the contract.
7.5 If we have not complied with our information requirements pursuant to § 5d para. 1 and 2 KSchG, the withdrawal period shall be three months from the dates specified in section 7.4. If we meet these information requirements within the said deadlines, the period for exercising the right of rescission as set out in clause 7.4 begins on the day the information is transmitted by us. 7.6 If you are a commercial customer you have no right of rescission under the KSchG or any other provision.
8. Prices and transport costs
8.1 All prices listed on MOBILAMO are subject to change and non-binding. We reserve the right to change product and service offers whenever required.
8.2 All prices are quoted in Euro including the statutory value-added tax at the currently applicable rate of 20% for Austria.
8.3 Deliveries outside of Austria may cause extra charges for import and export, payable by you. Note that for deliveries to non-EU countries, the Austrian VAT is not refundable.
8.4. Fees for delivery are listed under the menu point „Delivery“ in the webpages mentioned in 1.). The effective fees for delivery to, and possible assembly at your address depend on location and expenses and will be in the course of the order process.
8.5 All prices and the effective fees for transport/delivery are displayed online before the closing of the order, in the order confirmation, and in the bill we send you.
8.6 Should we discover during processing your order that a product/a service was quoted on MOBILAMO at an incorrect, lower price we will contact you before proceeding, asking if you want to buy the product/service at the correct, higher price or if you prefer to withdraw your order. Should a correct price of a product/service turn out to be lower than the price we quoted on MOBILAMO, we will automatically charge you this lower price and proceed with the delivery.
8.7 In the event that you lawfully exercise a legal right of withdrawal, you will be charged the costs for the proper return of the products you ordered. We will refund all payments you made, in accordance with statutory provisions, minus a reasonable charge for the use and minus the actual impairment.
9.1 All ordered products and fees for delivery and possible assembly have to be paid by credit card or by bank collection to close the order.
9.2 Default of payment, caused e.g. by insufficient bank account funds, will entitle us to charge 8% yearly default interest and reasonable costs for legal services and/or collection agency services.
10. Delivery and risk assumption
10.1 All deliveries are by default managed by forwarder Gebrüder Weiss. Gebrüder Weiss in turn reserves the right to commission other companies. Should this apply to your delivery you will be notified separately. The liability is carried in accordance with the AÖSp. (General Austrian Forwarding Conditions).
10.2 We deliver to all member states of the European Union and Switzerland.
10.3 The delivery period usually ranges between 8 and 10 weeks.
10.4 Please note that all information regarding product availabilities and delivery periods is approximate.
10.5 Delivery dates are agreed directly between you and the forwarder named in 10.1. Should you turn out to be unavailable under the telephone number you provided, you will be contacted under the e-mail you provided.
10.6 The delivery will be made to your doorstep at the delivery address you provided.
10.7 If a shipment or delivery to the address you provided is not possible because the goods you ordered do not fit through doors, entrances or staircases, or because neither you nor a person authorized by you is available to accept the delivery on the delivery date either agreed upon by you or announced to you with a reasonable deadline, the forwarding company will determine a new delivery date and make a second delivery attempt.
10.8 If, on the second delivery attempt, you fail again to receive the goods as agreed (default of acceptance), we are entitled, after a reasonable additional period, to either store the goods on our own premises and charge you a storage fee of 0.1% of the gross invoice amount per calendar day, or to store them at your expense and risk in a licensed commercial warehouse. Furthermore, we are entitled to either insist on fulfillment of the contract or, after setting a reasonable last deadline of at least two weeks, to rescind the contract, to put the goods to a different use and to demand compensation from you. In any case you will have to replace the cost of the second unsuccessful delivery attempt.
10.9 Delivery delays which occur with us or with one of our suppliers or subcontractors due to force majeure circumstances (such as, e.g., strikes, shortages in raw material or energy supply, or operational disruptions by fire or machine defects) entitle us to postpone delivery by the duration of the fault. If this delay renders the fulfillment of the contract unacceptable for you, you are entitled to rescind the contract after setting a reasonable new deadline. In case of lasting impediments to our performance we are entitled to withdraw from the contract.
10.10 Deliveries in Germany will only be carried out up to the 5th floor without additional fees if no suitable or functioning lift is available. Otherwise, additional charges will be collected by the forwarder upon delivery. German islands are excluded from delivery. This affects the following postal codes:
Hiddensee: 18565, Northfries. islands: 25845, 25846-25847, 25849, 25859, 25863, 25869, 25929-25933, 25938-25942, 25946-25949, 25952-25955, 25961-25970, 25980, 25985-25986, 25988-25990, 25992-25994, 25996-25999
Eastfries. islands: 26465, 26474, 26486, 26548, 26571, 26579, 26757
11. Transfer of risk / transfer of ownership
The risk of loss and accidental deterioration of the ordered products will be transferred from us to the transporter/freight forwarder upon handover of the goods. This implies that you have to pay the purchase price even if the ordered products are lost or deteriorated during transport. Possible claims you make against the transporter/freight forwarder shall remain unaffected.
12. Retention of title
12.1 The contractual products/services remain our property until full payment has been received.
12.2 You are obliged to notify us immediately and in writing of all accesses by third parties and you expressly declare that you will indemnify and hold us harmless in this regard, and that you will compensate us for the costs of any legal excretion action to enforce our claims.
12.3 The resale, rental, awarding, gifting or repair by third parties, as well as the pledging and securing of surrenders are not permitted while retention of title is in effect.
12.4 Should a delay in payment occur we shall be entitled to reclaim the products delivered under retention of title at your expense or, if necessary, to demand the assignment of your claim against a third party.
13.1 We only provide warranty for the characteristics of our products and services as described by us in the course of the order process and as recorded in the order confirmation. We do not warrant for not expressly promised product properties.
13.2 We provide warranty for material defects present at the time of handover as described in the following paragraphs. We do not provide any warranty for obvious defects which are easily recognizable for everyone and present on handover.
13.3 Any transport damage must be reported immediately to both the freight forwarder/deliverer and to us. Should the transport damage only affect surface plates we will send you corresponding replacement parts for magnetic mounting by you. For this purpose, we would like to ask you to forward photographs of the transport damages to email@example.com. Should the transport damage extend beyond simple replacement we will contact you regarding the further procedure within a reasonable period.
13.4 If you are a commercial customer, you need to check the contractual nature and proper function of the products immediately upon handover. You must inform us in writing within a period of three days of any defects which you have ascertained by inspection after delivery during proper course of business (“notification of defect”). Your complaint notice must include the order number, the product or service which you believe was defective, and a detailed description of the defect.
13.5 If you are a commercial customer and fail to comply with the obligation to notify us in accordance with the above provision, you cannot assert against us any claims for warranty, damages for the defect itself or a mistake concerning the defectiveness of the product.
13.6 Should a defect appear at a later time you must again inform us within 3 days from the date of detection; otherwise, you can no longer assert the aforementioned claims in respect of this defect.
13.7 You have to inform us in a written complaint within three days after discovery of any defects which you as a commercial customer have not discovered during the inspection of the product despite a proper inspection immediately after acceptance (“hidden defects”). In this complaint you must declare and substantiate that and why this hidden defect could not be recognized in the course of the examination of the product/service immediately following handover.
13.8 If the alleged defect cannot be found during a review on our part you will be charged the cost of this review. This provision also applies if the defect is attributable to faulty operation or to causes beyond our influence. In all these cases you will also be charged the transport costs for a return.
13.9 If products you ordered should prove defective you are entitled to either improvement or replacement of the defective product. In cases where replacement would cause us unreasonably high costs, we offer an improvement of the defective product. Reciprocally, we may offer to exchange products if a repair would cause unreasonable costs.
13.10 We shall endeavor to remedy deficiencies immediately, if possible during delivery (regarding transport damage see point 13.3). If this should prove impossible, you will return the defective product to our risk and costs, if this is reasonable, after previously obtaining our agreement to the shipping method.
13.11 In case the products have been moved to a location other than the agreed delivery address we shall repair defects only in locations where it is reasonable for us, and only if the products cannot be shipped.
13.12 For commercial customers we provide improvements or exchanges of defective products only at the contractual place of fulfillment; which is the seat of our company in Riegersburg / Austria.
13.13 If an improvement or exchange of the product is impossible or would require a disproportionate effort, you are entitled to a reduction in the price or, if the defect is more than only minor, to withdrawal from the contract under reverse processing.
13.14 The warranty period for movable items is 2 years from the date of delivery. For commercial customers we provide 12 months´ warranty from the date of delivery of the product.
13.15 We assume no liability for defects which occur as a result of unauthorized changes to the ordered products. Furthermore, we assume no liability whatsoever for faults, malfunctions or damages which are attributable to improper operation, the use of unsuitable equipment and/or unusual operating conditions.
14.1 Despite the legal grounds, we shall be liable only for deliberate and grossly negligent damages. Liability – with the exception of personal injury – is excluded for slight negligence.
14.2 For commercial customers, the liability for simple gross negligence is excluded as well. Furthermore, we shall not be liable to commercial customers for indirect damages, consequential damages, loss of profits and property damages.
14.3 An instruction and care manual will be handed to you upon delivery of the ordered products, or will be enclosed with the consignment or delivery. You will also receive an installation manual with the delivery. We are not liable for damages resulting from failing to observe or follow these instructions.
15. Rescission on grounds of error
For commercial customers we exclude the right to rescission on the grounds of error or shortening of over the half (“laesio enormis”).
16. Applicable law
For all disputes between the parties – subject to mandatory provisions for the protection of the consumer – Austrian law shall be applicable, with the exclusion of the standards of reference and the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
17. Court of jurisdiction
17.1 For all disputes between the parties, the non-exclusive jurisdiction of Feldbach’s competent court of jurisdiction shall be agreed upon. This means that you can make claims in connection with an order via MOBILAMO or with these terms and conditions, which result from consumer protection standards, either in Austria or in the EU Member State in which you have your habitual residence.
17.2 For disputes with commercial customers the exclusive jurisdiction of the court of competent jurisdiction for Feldbach is agreed upon.
18. Changes to the Terms of Sale
We reserve the right to make changes to MOBILAMO and these Terms and Conditions at any time. Your order will be processed according to those GTC which were in force at the time of this order, unless an immediate change to the GTC is required by law or due to an official order.
19. Written Form Requirement
19.1 For purposes of proof we recommend to submit to us all notifications and declarations regarding your order in writing.
19.2 It is understood by commercial customers that all communications and declarations concerning the contractual relationship between the parties are valid only if they are made in writing. Verbal ancillary agreements between the parties were not made. Changes or additions to all agreements between the parties also require written form. This also applies to a departure from this written form requirement.
19.3 Until further notice, and unless otherwise agreed, all communications or declarations to us are to be made to this address:
Riegersburg, Nr. 172
Fax:+43 (3153) 8301
20. Severability Clause
Void, ineffective or unenforceable provisions of the contractual agreements between the parties and these General Terms and Conditions shall not affect the effectivity, validity or enforceability of the remaining provisions. Void, ineffective or unenforceable provisions shall be replaced by those which come closest to the purpose of the agreements and these terms and conditions.
Riegersburg, April 30th, 2013