SCOPE OF APPLICATION OF GENERAL TERMS AND CONDITIONS
These general terms and conditions ("AGB") shall apply to any and all transactions made between F.TV Programmgesellschaft mbH ("F.TV") and customers via the website www.shopftv.com (the "Website"). By making and issuing a contractual statement (offer) the customer accepts and approves these AGB. Differing contractual terms and conditions of the customer shall expressly be disagreed to.
REGISTRATION ON WEBSITE, WEBSITE ACCESS
1. Prior to its first order, the customer has to register, and to open an account, on the Website. All of his personal data – especially the information regarding his credit card – are solely processed via SSL.
2. The customer has to be at least 18 years old and thus entire sui juris. By sending the registration form, the customer confirms the correctness of his data, especially as to age and UID number.
3. After receiving the application for registration, the customer will receive a pin code provided by F.TV via e-mail. He can login at the website and place an order with this pin code. F.TV reserves itself the right to refuse new applications for registration or to terminate an existing registration without any reason. Such a termination has no impact on contracts already entered into but not yet carried out. Thus, contracts must be fulfilled by both parties.
4. Responsibility for the secrecy of the pin code lies solely with the customer. F.TV can only verify whether the pin code conforms with a properly activated customers’ authorization. F.TV has no duty for any further investigation. Each person who logs in with an activated customers’ authorization to the relevant website and with the relevant pin code is authorized to place binding and effective orders.
5. F.TV shall not be liable for a continuously working website. F.TV has the right to apply, anytime and without prior notice, changes which require a website downtime. Further, F.TV shall not be liable to provide a certain capacity of connection and server and, therefore, overload and longer response times can be expected.
ENTERING INTO THE CONTRACT
1. F.TV reserves itself the right to decide whether or not to accept customer placed offers on the website, i.e. it shall be in the sole and absolute discretion of F.TV to refuse a customer offer. Therefore, from a legal point of view the "order" placed by the customer constitutes an offer to enter into a contract with F.TV addressed to F.TV.
2. A confirmation e-mail is sent to the customer immediately after receipt of his order by F.TV. This confirmation shall be a mere confirmation of receipt of the order and shall not be, or constitute, an acceptance of such order.
3. A customers’ offer shall only be accepted by an order confirmation by (i) separate e-mail or (ii) delivery of the product within agreed delivery period after receipt of the order. F.TV shall be entitled to accept orders only partially or refuse orders without giving any reason.
PRICES, DELIVERY- AND FORWARDING EXPENSES
1. The prices stated on the website are final prices - ie, they include all pricing components including any accruing taxes (value added tax - VAT) and packaging, but shall, however, be exclusive of any cargo, postage, duty and insurance costs.
2. Shipping and delivery charges are disclosed as shipping and handling on the website [Link to be completed].
3. Additional insurance of the products may be taken over upon explicit request of the customer. Any additional costs arising due to such insurance shall be fully borne by the customer. F.TV will make an offer for such insurance in accordance with such customer request. Refusal of such offer to take over the proposed additional insurance by the customer shall not entitle the customer to withdraw from the contract.
4. For sales outside of the EU the buyer is responsible for duties and excises in their country.
CONDITIONS OF PAYMENT
1. Payment can only be made by credit card. The purchase price be shall become due at the acceptance of the offer by F.TV. Consequently, the purchase price is automatically debited from the credit card in the moment F.TV is sending (i) the acceptance of the offer or (ii) the products.
2. The delivered product remains exclusive property of F.TV until payment of the purchase price for the delivered product has been received by F.TV (retention of title – Eigentumsvorbehalt).
1. Delivery of the product occurs – provided that the products are in stock and nothing to the contrary is published on the Website - within 14 days after acceptance of the order (i) via e-mail or (ii) via dispatch of the products (point 3.3). The choice of the courier service is made by F.TV in its sole and absolute discretion according to the best of its knowledge, but without any guarantee for the choice of the quickest and cheapest courier service or dispatch.
2. The term of delivery may be extended by all or any circumstances independent of the intention of the parties, for example, by cases of force majeure, unpredictable operational disturbances, official interventions, transport and payment of duty delay, damages in transit, rejects of important manufacturing parts and industrial conflicts, for the duration of this respective impediment.
3. Delivery is made to the delivery address specified by the customer. Any possible costs resulting from the specification of a wrong address of delivery, which caused false delivery, shall be fully borne by the customer.
RIGHT OF WITHDRAWAL AND CONSEQUENCES OF CANCELLATION ACCORDING TO THE AUSTRIAN CONSUMER PROTECTION ACT (KONSUMENTENSCHUTZGESETZ "KSCHG")
1. Consumers within the definition of the KSchG are entitled to withdraw from the contract entered into with F.TV via the Website until the expiry of the terms mentioned under points 7.2 and 7.3. It is sufficient that the cancellation notice is dispatched within this term.
2. The cancellation term is 14 days. However, in any case the cancellation term is seven working days whereby Saturday is not considered to be a working day. Regarding contracts concerning delivery of goods the term, commences with the day of delivery of the goods to the consumer, regarding contracts concerning the performance of services with the day of entering into the contract.
3. If F.TV has not fulfilled its information duties according to article 5 d para 1 and 2 KSchG, the cancellation term is three months from the date in point 7.2. If F.TV does not fulfill its information duties within this term, the term set out in point 7.2 as to the exercise of the withdrawal right commences with the date F.TV provides the information.
4. The consumer does not have any withdrawal rights in respect of contracts concerning
· services, the performance of which is started in favor of the customer within seven working days (point 7.2 first sentence) from entering into;
· goods or services, which prices depend on the development of rates at the capital markets, on which F.TV does not have any influence;
· goods, which are produced according to customer specifications that are definitely adapted to personal needs which are not suitable for a return as a result of its nature and which can deteriorate quickly or the expiry date of which would be exceeded; that pertains for example to personalized products via gravure and imprint;
· audio or video recordings or software, provided that the delivered goods have been unsealed by the consumer, e.g. FTV-DVDs, FTV-CDs;
· newspapers, journals and magazines with the exception of contracts concerning periodical brochures (article 26 para 1 num 1 KSchG);
· betting and lottery services; and
· house deliveries or leisure-services (article 5 c para 4 num 1 and 2 KSchG), e.g. delivery of energy drinks, vodka or event tickets.
5. In case of an effective cancellation, the mutually received benefits shall be returned by either party in accordance with article 5 g KSchG. The consumer shall bear the costs of returning the product. After receipt of the returned product, F.TV shall refund the payment to the credit card of the customer. In case the product has been used before return, F.TV shall be entitled to deduct and retain an appropriate fee inclusive of a compensation in exchange for possible depreciation in accordance with article 5 g para 2 KSchG.
WARRANTY AND GUARANTEE PROVISIONS
1. In case of any defects of the product, the statutory warranty provisions shall apply unless otherwise agreed upon herein for merchants. Damages which have originated and resulted from improper use or treatment of the article shall not entitled the customer to warranty claims. The same shall apply to usual wear and tear.
2. The pictures of the products - due to resolution and size of the pictures – can be distortionary in comparison with the appearance of the delivered products regarding color and size. The delivered product shall be considered as according to agreement if the delivered pieces are identical to the written product specifications on the website.
3. If the customer is a consumer within the definition of the KSchG, the consumer has to test the delivered product after receipt for completeness, correctness and other flawlessness with best efforts and to notify F.TV of possible defects and describe such defects by sending an e-mail to [e.g. email@example.com]. A violation of this obligation, however, shall not result in a limitation of the statutory warranty rights of the consumer. Defective products shall be returned only upon explicit demand of F.TV. If such a return is requested and the product is de facto inadequate, F.TV will pay the costs of returning. Otherwise, the consumer shall bear the costs of shipping and handling.
4. If the customer is merchant within the definition of the Austrian Commercial Code (Unternehmensgesetzbuch "UGB"), he has to test the delivered product upon receipt for completeness, correctness and other flawlessness with best efforts. If there are defects, he has to notify such defect immediately by sending an e-mail to [e.g. firstname.lastname@example.org]. At least he has to notify the defect within five working days upon receipt of the product. If the product is directly shipped to a customer of the merchant, the term of the examination and notice of non-conformity obligation commences on arrival of the product at the third person. Thus, if the merchant is not notifying the defect, the delivery shall be deemed to be approved and all pretentions such as warranty, rescission for error or damages shall not apply due to the difference or defect being claimed too late. The same shall apply as wrong delivery or difference of delivery quantity.
5. If the customer is a merchant within the definition of the UGB, F.TV has the right to choose the legal remedy to redress a timely notified defect in its sole and absolute discretion. F.TV shall further be entitled to rescind the agreement instantly in its sole and absolute discretion.
6. If the customer is a merchant within the definition of the UGB, he shall bear the costs of returning the product for advancement or exchange.
7. Any possible producer guarantees referred to on the Website are only and solely binding on the producer of the product. An acceptance of such a guarantee by F.TV shall be excluded.
1. F.TV shall be responsible for damages according to the legal provisions. Nevertheless, liability for slight negligently caused damages is excluded. This restriction of liability does not apply to damages resulting from violation of life, personal injury or violating health of people and to claims according to the Austrian Product Liability Law (Produkthaftungsgesetz).
2. Merchants in the sense of the UGB have to prove intention or gross negligence. For merchant the liability for loss of profit and other consequential damages is excepted. Furthermore the liability for the merchants is generally limited to EUR 100.000.
DATA PROTECTION INFORMATION AND DECLARATION OF CONSENT
1. The data given by the customer and authorized for passing on to contractual partners as well as data announced by the customer at F.TV within the scope of the business connection, as for example name, address, e-mail, telephone number as well as address of delivery (data) are stored and processed by F.TV. F.TV uses the data within the scope of the legal authorization to fulfill the order as well as for own marketing purposes (see point 10.2). Hereby, the customer expressly agrees to the use of data for own marketing purposes by F.TV, in particular, to sending of advertising news by e-mail. This approval to the use of data for own marketing purposes on the part of F.TV can be revoked by the customer any time by e-mail to [e-mail-address].
2. The data are processed and used for the grounds, realization and execution of contracts entered into via the website as well as for the purpose of a future customer service and customer care (marketing). A transfer of personal data to third parties only and solely occurs within the scope of the purchase transaction.
3. The customer agrees hereby explicitly to receive calls and communications within the meaning of article 107 of Austrian Telecommunication Law 2003 (Telekommunikationsgesetz), in particular, c-mails, from F.TV. This acceptance can be cancelled via e-mail to [e-mail-address, e.g. email@example.com] at any time.
JURISDICTION, CHOICE OF LAW, OTHERS
1. In case of merchant transactions as well as in case of transactions with consumers, whereas the consumer has neither residence nor usual domicile in Austria at the time of filing the suit nor is employed in Austria, the court locally competent for 1010 Vienna shall have exclusive jurisdiction for all disputes arising from, or in connection with, this contract. In this case the authority of F.TV to appeal to another competent court of law that is responsible for the customer hereof also remains unaffected.
2. These AGB shall be governed under and construed exclusively by the laws of the Republic of Austria with the exclusion to its conflicts-of-laws rules and the UN Sales Convention unless, in case of consumers the choice of law is effective as far as several obligatory laws of the country in which the consumer has his usual residence are not replaced therewith.
3. If one or several clauses of the AGB are ineffective, this shall not affect the validity of the remaining provisions and the contracts entered into according to them. The parties shall agree – instead of the ineffective provision – on an effective one which comes closest to the spirit and purpose of the ineffective provision, unless the customer is consumer in the sense of KSchG.