GENERAL TERMS AND CONDITIONS AND CUSTOMER INFORMATION
(as of October 2019)
1.1 The following General Terms and Conditions (“GTCs”) of moma element OG (hereinafter referred to as “MOMA” or “we”) apply to all contracts which consumers or entrepreneurs (hereinafter referred to as “customer” or “you”) conclude with MOMA relating to goods and services provided in our online shop on this website.
1.2 We act exclusively on the basis of following GTCs according to the valid version at the time of placing the order.
1.3 Oral arrangements and/or agreements do not exist. Any waiver of any provision of the GTCs will be effective only if in writing. Additionally, we herewith reject the inclusion of the own conditions of the customer unless agreed otherwise in writing.
- Contract formation
2.1 With the placement of your order you submit a binding offer to enter into a contract of purchase. A contract shall enter into effect only after its acceptance by us. You will receive an order confirmation via email informing you about our acceptance and therewith the conclusion of the purchase agreement.
2.2 You can only submit the offer by using the order form in our online shop. By clicking the button completing the ordering process after adding the chosen goods and/or services to the virtual shopping cart and having gone through the various steps of the electronic ordering process, you make a binding offer relating to the goods and/or services in the shopping cart.
2.3 As soon as we have received your order you will be sent confirmation of receipt of your order to the email address supplied by you. That confirmation of receipt does not yet constitute our acceptance of your order.
2.4 You are bound to your order for 7 working days after receipt of the order by us. The day of receipt of your order can be determined from the related confirmation of receipt.
2.5 After submitting your order we will send you the related invoice together with the order confirmation, provided a contract of purchase is concluded. The order confirmation again contains all information about your order. That contract of purchase will not be saved by us.
You are free to do so and save, print or file the document in any form.
2.6 Order processing and contacting normally happen via email and automated order processing. You must ensure that the email address supplied by you upon ordering is correct and that emails sent by us or third parties charged with the order processing can be received at that address.
2.7 Contract language is German.
- Right of withdrawal/right of revocation
3.1 “Right of withdrawal (German: “Rücktrittsrecht”)” is a term commonly used in Austria and parallels the term “right of revocation (German: “Widerrufsrecht”)” commonly used in Germany and its Consumer Rights Directive. MOMA’s cancellation policy only uses the term “right of revocation(German:”Widerrufsrecht”)”, equivalent to the Austrian term „right of withdrawal (German: “Rücktrittsrecht”)”.
3.2 Further Details about the right of revocation can be found in our cancellation policy (including withdrawal form).
3.3 Acting as entrepreneur will not grant a voluntary right of revocation.
- Delivery and shipping terms
4.1 The costs of shipping will be paid by us as long as you are a consumer.
4.2 Our non-binding offerings are directed exclusively towards customers whose office, domicile or habitual place of residence is located in one of the EU Member States.
4.3 The delivery will be dispatched to the address supplied by you upon ordering provided nothing else has been agreed in writing. We shall not be obligated to perform service until you have fulfilled all your obligations needed for performance of service.
4.4 If you act as a entrepreneur, the risk of accidental loss or accidental deterioration shall change over to you as soon as we deliver the item to the haulage company, carrier or any other person in charge of dispatch. If you act as a consumer, the risk of accidental loss or accidental deterioration of sold goods shall change over to you only after handover of the goods to you or to a third party assigned by you (distinct from carrier).
4.5 If you did not take the goods into charge as agreed (default of acceptance), we shall after failure to meet an appropriate period of grace have the right to either request performance of the contract or rescind the contract. Apart from this, we reserve all legal claims in case of present default of acceptance.
4.6 If the transport company sends the goods back to us due to impossibility of delivery to you, you shall take the costs of unsuccessful shipping. This will not apply if you effectively exercise your right of revocation, or if you do not have to represent the case which led to the impossibility of delivery, or if you were temporarily unable to accept the provided service unless we notified you about the service in due time.
4.7 Collection by the customer is not possible for logistical reasons.
- Prices and payment terms
5.1 Provided there is nothing different resulting from our product description, prices are total prices, they include the statutory sales tax. If you act as an entrepreneur additional costs for packaging, shipping and delivery will be separately charged.
5.2 We reserve the right to make alteration to our products and services and the details and information contained at any time.
5.3 Upon delivery to countries outside of the EU additional costs can occur, which we are not responsible for and which you have to bear yourself. Furthermore, there may be individual additional charges, even if the delivery is not outside a country in the EU, but your payment is made from a country outside the EU.
5.4 There are different payment possibilities, which are given in our Online-Shop and in the section “shipping & payment information” on our website.
5.5 In Case of payment via Sofort Banking or another type of payment in advance (by bank transfer) the payment is due immediately upon the conclusion of the contract.
5.6 If you select the payment method “Paypal” the payment process will be made by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., by the terms and conditions of PayPal.
5.7 If you choose to pay by credit card the payment process will be made by the payment service provider Bubblestorm Management (Proprietary) Limited trading as WooCommerce („WooCommerce”) by the terms and conditions of WooCommerce.
5.8 The settlement is made exclusively in euro.
- Default of payment
6.1 In case of default of payment, we shall be released from all further obligations to perform and deliver and shall have the right to hold back outstanding deliveries or performance and to demand payment in advance or deposits, or to withdraw from the contract after setting a reasonable extended time limit
6.2 In the case of default of payment, you shall undertake to reimburse all expenses and business expenses which we incur by the necessary pursuit of our claims. The assertion of further claims and rights stays unaffected.
6.3 We reserve the right to claim the actual caused damage, or to demand default interest at the legal level.
- Retention of title
7.1 We shall retain title to the goods delivered towards consumers, until the payment of the purchase price or for entrepreneurs until the settlement in full of all receivables to which we are entitled resulting from the business association. You take the full risk for the conditional goods especially for destruction, loss, or deterioration.
7.2 In case of delayed payment, we are entitled to assert our rights arising from reservation of title. It is agreed that, in exercise of the retention of title does not mean a withdrawal of the contract, unless it is declared explicitly. Any withdrawal by us takes place without affecting our claims for damages for non-performance. In addition, you owe us a reasonable compensation for the usage of our goods.
7.3 In case of acting as a consumer and selling the goods to a third party before you paid the price in full towards us, you hereby assign to us its claims against such a third party in an amount equal to the invoice total, in order to protect our purchase price claim.
7.4 In case of acting as an entrepreneur you are entitled to sell on the goods subject to the reservation of title in normal business transactions. The buyer cedes all claims against third parties in advance arising out of this to us, to the extent of the invoice total (including sales tax).
You shall continue to be entitled to enforce such claims after they have been assigned. Our authority to collect the receivables ourselves remains unaffected. You agree to notify us in writing about every lawsuit and execution proceeding that is related to our goods, within 7 working days after delivery of the proceeding initiating pleading.
8.1 If there are defects, the warranty is applied in the framework of the legal regulations.
8.2 If you are the consumer, we pay the return and shipping cost in case of defective goods within the scope of statutory guarantee.
8.3 The following terms will apply if you are an entrepreneur.
- We may choose the method of correction of defects.
- In general a minor defect doesn’t claim warranty.
- The limitation does not restart when a compensation delivery was made in the framework of the liability for defects.
8.4 In case of an entrepreneur transaction -except for the event of rescission-, in conditions of legal and justified complaint, you are not allowed to withhold the gross invoice, but only a reasonable part thereof.
8.5 If acting as an entrepreneur, you have to take inspection and complaint obligations in accordance with §377 UGB. If you fail to keep those the goods are considered approved.
8.6 Acting as a consumer you are requested to inform us and the deliverer earliest possible about delivered goods with transport damage. If you fail to comply, your legal warranty claims will not be affected.
- Right of withdrawal by MOMA and unjustified withdrawal by the customer
9.1 In the event of an important reason like default of payment, we shall be entitled to rescind the contract if it has not yet been fully performed by both parties. In case of cancellation on our part we have the choice to be paid a flat rate compensation for damage in the amount of 15% of the gross invoice amount or the actual damage.
9.2 If you cancel the contract without being entitled to do so or if you request the cancellation, we will have the option to insist on the fulfillment or to consent to the cancellation. In the latter case, you will be obligated to pay flat rate compensation for damage in the amount of 15% of the gross invoice amount or the actual damage.
All claims for compensations shall be excluded in the case of minor negligence. This does not apply to personal injury and in consumer business for damage to parts taken on for further processing. The aggrieved party has to prove the act of slight negligence or gross negligence.
The regulations on damages in these terms and conditions, or any other terms and conditions agreed, only apply if the claim for the damages is made separately or instead of warranty claim.
- Copyright law
All content on this website is protected by copyrights. Copyright and other protecting laws protect all texts, images and graphics. The content may not be used for commercial purposes in particular it may not be copied, distributed, modified or made accessible to third parties. Any usage, particularly in the archives of databases, any reproduction, distribution, editing and any form of commercial use as well as transmission to third parties -also partially and in edited form- is not permitted without the written consent of MOMA.
- Place of fulfilment and applicable jurisdiction
12.1 Place of fulfilment is the registered office of MOMA.
12.2 This contract is subject to Austrian substantive law, to the exclusion of the referring statutes of the international private law, and the UN convention on international sale of goods. Regarding customers who are end-users, this choice of law will only apply as far as this is not restricting the mandatory legal provisions in the domicile or usual place of residence of the customer.
- Court of jurisdiction
The contracting parties agree to Austrian, domestic jurisdiction. If the matter is not a consumer transaction, the technically responsible court at the registered office of MOMA shall be exclusively locally responsible for ruling on all disputes arising from this contract.
- Severability clause
Should individual provisions of this contract be or become ineffective or non-executable, the effectiveness of the contract remains otherwise unaffected. The invalid or impracticable provision will be replaced by a ruling that is as close as possible in commercial purpose to the invalid or impracticable provision in a legally effective and practicable form.
- Final provisions
15.1 The titles of the individual chapters and their headlines only purpose is to provide clarity and cannot be used for interpretation of the contract.
15.2 All declarations considering this contract must be sent in written form to the current address of the contract partner. Is a declaration sent to the last notified written address, the notice is considered delivered to the respective contract partner.
15.3 Transfer of individual rights and duties of our general terms and conditions is only allowed with explicit and written approval of the other contractual partner.