1. scope of application
1.1 The present General Terms and Conditions (GTC) (as amended and agreed) shall conclusively govern the business relationship between VP Wheels GmbH, Anton Benya-Straße 11/1/3, 2334 Vösendorf (VP Wheels) and the customer (Customer) regarding the products distributed by VP Wheels (in particular automotive accessories such as individualized automotive rims, spare and wear parts) (Product).
1.2 For the avoidance of doubt it is stated that the customer has had sufficient opportunity to familiarize himself with the content and scope of the GCS, VP Wheels has answered all inquiries in this regard sufficiently and satisfactorily and the GCS have been contractually agreed upon (e.g.) by signing the underlying offer by the customer regarding the product and thus decisively regulate the contractual relationship.
1.3 Any existing General Terms and Conditions of the Customer or amendments or supplements to these GTC shall require the express consent of VP Wheels in order to be valid. If the customer is an entrepreneur in the sense of the relevant provisions (in particular the Consumer Protection Act, Distance and Foreign Transactions Act) (the B2B customer alone is a corporate customer), such consent by VP Wheels must be given in writing.
Offers, service descriptions and conclusion of contract
2.1 VP Wheels operates an online store on the internet platform available online at www.vp-wheels.at, on which primarily car rims are sold (online store). This online store also includes an online tool (“a configurator”), which enables customers to have individually customized car rims created that fully comply with the customer’s wishes (hereinafter referred to as “configurator”).
2.2 All products offered for sale in the online store (or in any available catalogs in paper or electronic form) are pure invitations to make an offer (invitatio ad offerendum). It is therefore clarified that VP Wheels does not make any promises, assurances or guarantees (of any kind or scope whatsoever) in the online store.
2.3 All information regarding the products and other services of VP Wheels that originate from the sphere of third parties (e.g.: Internet forums, car shows, trade fair booths) must be explicitly presented to VP Wheels in advance by the customer, insofar as he bases his order on them.
2.4 All graphic illustrations in the online store are pure product representations and symbolic photos, which may deviate from the (individually produced) original to be created due to production reasons. The customer is aware of this and gives his consent in advance, to only non-substantial production-related deviations of the product. VP Wheels expressly reserves the right to make any further errors.
Right of withdrawal of the customer
3.1 The customer is aware that the products created via the configurator and sold in the online store are custom-made products, which are individually manufactured according to customer specifications and tailored to the personal needs of the customer. Therefore, the customer shall have no right to withdraw from the contract by analogous application of § 18 para. 1 no. 3 FAGG.
3.2 For the other products available in the online store, for which the aforementioned exemption provision of § 18 para. 1 no. 3 FAGG does not apply, VP Wheels shall inform the customer in accordance with the law about the right of withdrawal to which the customer is entitled, according to which the customer has the right to withdraw from the contract within 14 (fourteen) days without giving reasons. In order to comply with the aforementioned deadline, it is sufficient that the notification pursuant to point 3.3 (below) is sent before the expiry of the withdrawal period.
3.3 In order to exercise the right of withdrawal, the Customer shall inform VP Wheels of the decision to withdraw by means of a clear statement (letter or e-mail); this withdrawal shall not be subject to any further form or content. VP Wheels always strives for a good customer relationship, which is why VP Wheels provides corresponding sample cancellation forms on the homepage.
3.4 If the customer exercises his right of withdrawal according to this point, he shall return to VP Wheels any products received from VP Wheels undamaged and in the condition in which they were received (i.e. “as received”); VP Wheels shall transfer back to the customer any payments already received vice versa without any deductions.
4 Order process and conclusion of contract
4.1 The Customer can select products from the VP Wheels range available in the online store without obligation and collect them in a so-called shopping cart by clicking the Add to cart button. Within the shopping cart, the product selection can be changed (e.g. deleted). Subsequently, the customer can proceed within the shopping cart via the button Continue to checkout to complete the ordering process. If the shopping cart is not available, products can be requested via the configurator. The customer will then receive an offer from VP Wheel by e-mail. The customer can accept the offer by (corporate) countersignature; the offer is based on the present GCS. In this case, the contract is already legally effective by countersignature.
4.2 By clicking on the button Order with payment obligation, the Customer submits a binding request to purchase the goods in the shopping cart. Before submitting the order, the customer can change and view the data at any time, as well as go back to the shopping cart using the browser function Back to Shopping Cart or cancel the ordering process altogether. Necessary data are marked with an asterisk (*).
4.3 The seller then sends the customer an automatic confirmation of receipt by e-mail, in which the customer’s order is listed again and which the customer can print out using the print function (order confirmation). The automatic confirmation of receipt merely documents that the Customer’s order has been received by VP Wheels and does not constitute an acceptance of the application. The purchase contract shall only be concluded (i) (implied) when the Seller ships, hands over the ordered stocked product to the Customer within 2 days or (ii) has confirmed the shipment to the Customer within 2 days with a second e-mail, explicit order confirmation or sending of the invoice.
4.4 However, if VP Wheels allows prepayment and the Customer makes use of this offer, the contract shall be concluded upon provision of the bank details and request for payment. If the payment is not received by VP Wheels within 10 calendar days after sending the order confirmation, VP Wheels has the right to withdraw from the contract with the consequence that the order is void. In this case the contract is void and there are no mutual rights and obligations (of any kind) between VP Wheels and the buyer. Reservation of the item in case of advance payment shall therefore be made for a maximum period of 10 calendar days. The provision of this point 4.4 does not apply to the products ordered through the configurator.
4.5 If the Customer decides to order a product that is not in stock or that has to be custom-made via the configurator, the contract is subject to the condition precedent that the Customer makes an advance payment in the amount of 50% (fifty percent) of the order volume. The balance of the payment is due upon collection or before the product is shipped to the customer. For the sake of good order, it is pointed out that with regard to the provisions of this point, the customer has no right of withdrawal (see point 3.1).
Information and duty to cooperate
5.1 The customer shall provide VP Wheels with all information required for the fulfillment of the order and execution of the product upon first request, in any case within a reasonable period of time.
VP Wheels shall be entitled to authorize suitable third parties for the fulfillment and completion of the product. However, it is clarified that the customer will not suffer any financial disadvantages, in any form whatsoever, as a result of this or will be invoiced separately.
Prices and shipping costs
7.1 All prices stated in the online store of VP Wheels are in Euro (depending on the country) including the applicable VAT, unless otherwise stated.
7.2 VP Wheels shall charge shipping costs in addition to the stated product prices. The shipping costs shall be brought to the Buyer’s attention on a separate information page or (if requested by the Customer) within the scope of the offer of VP Wheels or the order process.
Delivery, availability of goods
8.1 If the parties agree on advance payment as a payment method, the product shall be delivered after receipt of the full invoice amount. VP Wheels is thus obliged to deliver the owed product to the customer only if and insofar as the owed invoice amount has been credited in full to the bank account of VP Wheels.
8.2 If (despite three attempts) no delivery can be made to the customer and if this circumstance is attributable to the sphere of the buyer, VP Wheels shall be entitled to withdraw from the contract. In this case, VP Wheels shall immediately refund any payments already made to the customer. However, it is clarified that (all) costs concerning a special production ordered by the customer (in particular orders via the configurator available in the online store) cannot be refunded.
8.3 If a product ordered by the customer is not available or cannot be manufactured, in particular for reasons not attributable to VP Wheels (e.g. delivery bottlenecks or production bottlenecks), VP Wheels shall be entitled to a refund: Delivery bottlenecks or production stoppages in connection with the Covid19 pandemic), VP Wheels shall be entitled to withdraw from the contract. In this case, VP Wheels shall inform the customer immediately and, if necessary, propose the delivery of a comparable product. If no comparable product is available or if the customer does not wish the delivery of a comparable product, VP Wheels is obliged to reimburse the customer for any services already rendered without unnecessary delay.
8.4 VP Wheels shall inform the customer to the best of its ability on (i) a separate information page or (ii) within the respective product description about delivery times and delivery restrictions (e.g. restriction of deliveries to certain countries).
Terms of payment
9.1 The customer is free to choose one of the available payment methods during the order process; customers will be informed about the available payment methods on a separate information page.
9.2 For all other payment methods, payment must be made in advance without deduction.
9.3 If third-party providers are commissioned with the payment processing, e.g. PayPal, Santander, the customer must separately submit to the general terms and conditions of these external payment service providers. VP Wheels has informed the Customer that there is a possibility to process the payment of the products through an external payment service provider (such as Santander) and has either (i) informed the Customer to the best of its ability about the associated costs or (ii) referred the Customer to the competent body appointed to provide information.
9.4 If the Client is in default with its payment obligation, it shall owe VP Wheels default interest at the statutory rate.
9.5 For the avoidance of doubt, the obligation to pay interest on arrears pursuant to clause 94 shall not affect any further claims of VP Wheels (of any kind whatsoever).
9.6 The customer shall only be entitled to set-off within the meaning of § 1438 ABGB (Austrian Civil Code) if his counterclaims have been legally established or acknowledged by VP Wheels. The customer shall only be entitled to exercise a right of retention if and insofar as the claims result from the same contractual relationship.
Retention of title
10.1 The product ordered by the customer shall remain the property of VP Wheels until full payment has been made.
10.2 If the customer is in default of payment and the product owed has already been handed over to him (for whatever reason), VP Wheels shall be entitled (in the case of corporate customers) to demand the return of the product, setting a reasonable grace period. If the customer is not a corporate customer, the aforementioned right of VP Wheels shall only apply in case of a delay in payment of at least 6 (six) weeks under simultaneous threat of reclaim.
10.3 The customer shall reimburse VP Wheels for any necessary and appropriate legal costs pursuant to this clause 9 upon first request, but in any case within a reasonable period of time.
10.4 The assertion and use of the retention of title according to this clause 10 shall only be considered as a withdrawal from the contract if this is expressly declared.
11.1 The statutory provisions concerning warranty shall apply (cf. §§ 932ff ABGB).
11.2 In the absence of an agreement to the contrary (e.g. formal acceptance), the time of handover (and thus the warranty period) shall be the time of completion, at the latest, however, when the customer has taken possession of the product or when the customer has refused to take possession of the product for no reason, although VP Wheels has duly offered to do so.
11.3 With regard to corporate customers, the following shall apply (in deviation and in addition):
The warranty period shall be 1 (one) year (in deviation from § 929 ABGB).
The statutory burden of proof shall be waived in favor of VP Wheels. The customer must prove that the defect was already present at the time of handover.
The notice of defect has to be made in time, otherwise the product is considered as approved and in conformity with the contract.
VP Wheels shall be granted 2 (two) attempts to remedy the defect.
11.4 If the customer’s claims for defects turn out to be groundless and unjustified, the customer shall reimburse VP Wheels for all expenses incurred in connection with the determination of the absence of defects upon first request, in any case within a reasonable period of time.
12.1 VP Wheels shall be liable for the violation of contractual or pre-contractual obligations, in particular due to (subsequent) impossibility of performance or delay with regard to financial losses only in cases of intent or gross negligence.
12.2 With regard to corporate customers the following shall apply (deviating and supplementary):
Liability shall be limited to the maximum liability amount of any liability insurance concluded by VP Wheels.
Claims for damages shall be asserted within 2 (two) years from knowledge of the damage and the damaging party.
12.3 VP Wheels shall in any case not be liable for damages caused to the customer by improper handling or storage, overuse, non-compliance with manufacturer’s instructions, faulty commissioning, maintenance or servicing, provided that this event was causal for the damage.
12.4 If and to the extent that the customer receives insurance benefits for damages for which VP Wheels is liable, the customer shall make use of such benefits and in this case VP Wheels’ liability shall be limited by the disadvantages incurred by the customer as a result of making use of the insurance (in particular the obligation to pay an increased insurance premium).
12.5 The exclusions of liability according to this clause 12 also include claims against employees, authorized representatives and assistants of VP Wheels.
12.6 Rims are not permitted for road traffic and are only intended for show and/or motorsport purposes.
Transfer of risk and default of acceptance
13.1 If the customer is a corporate customer, the risk shall pass as soon as the owed product is ready for collection or has been handed over to a carrier. With regard to customers who are consumers, § 7b KSchG shall apply (i.e. as of handover).
13.2 In case of default of acceptance by the customer, VP Wheels shall be entitled to store the owed product itself or with a third party if it insists on performance of the contract, for which it shall be entitled to a reasonable storage fee in case of qualified default of acceptance (i.e. more than 2 (two) weeks).
13.3 Notwithstanding the provision of item 13.2, VP Wheels shall be entitled to demand payment of the remaining purchase price for the owed product and to withdraw from the contract after a reasonable grace period.
13.4 In case of justified withdrawal from the contract, VP Wheels shall be entitled to claim liquidated damages from the Corporate Client in the amount of 10% (ten percent) of the order value plus VAT without proof of actual damage. The obligation according to the preceding sentence is independent of fault. The right to claim higher damages shall remain expressly unaffected.
The assertion of a higher damage is permissible. In relation to consumers, this right shall only exist if it is expressly negotiated in the individual case.
Storage of the contract text
14.1 VP Wheels shall ensure that the customer can print out the text of the contract before submitting the order to VP Wheels by using the print function of his browser in the last step of the order process.
14.2 VP Wheels shall also send the Customer an order confirmation with all order data to the e-mail address provided by the Customer. Together with the order confirmation, but at the latest upon delivery of the goods, the customer shall also receive a copy of the General Terms and Conditions together with the cancellation policy and the information on shipping costs as well as delivery and payment terms. If the customer has registered on the online platform of VP Wheels, it is possible for him to view the orders placed there. VP Wheels stores the text of the contract internally (in accordance with the principles of proper accounting), but refrains from any publication.
Choice of law and place of jurisdiction
15.1 These terms and conditions of order and the contractual relationship established hereunder shall be governed by Austrian law (excluding the conflict of laws rules).
15.2 For disputes arising from or in connection with the present contractual relationship, including disputes regarding its formation and validity, the exclusive jurisdiction of the competent court in Korneuburg is agreed, insofar as and to the extent that mandatory legal provisions do not conflict with this jurisdiction clause.
16.1 Changes, amendments, modifications or any other deviation from these General Terms and Conditions of Contract shall be valid and effective only if made in writing and expressly agreed between VP Wheels and the Customer.
16.2 The Customer is aware of the amendments and provisions of the Basic Data Protection Regulation (and the Austrian Data Protection Act) and against this background expressly agrees that VP Wheels processes, transfers and/or transmits personal data (e.g.: name, address) to the extent and insofar as this is necessary and expedient for the performance of the underlying order between the Customer and VP Wheels.
16.3 VP Wheels shall be entitled to name the customer as a reference customer on its own online presence (www.vp-wheels.at) and, if available, to use its logo or vehicle photo on customer reference lists.
This text has been translated with www.DeepL.com/Translator. Please refer to german original version.