I. SCOPE OF APPLICABILITY:
These General Terms and Conditions of Business apply as amended from time to time to all legal transactions entered into between Nespresso Österreich GmbH & Co OHG (hereinafter referred to as Nespresso) and purchasers and customers of Nespresso products (hereinafter referred to as Nespresso customers).
These General Terms and Conditions of Business also apply to all future transactions, even if no explicit reference is made to them in the case of follow-up agreements. The mutual rights and obligations of the contracting parties are exclusively based on the order confirmation and on these General Terms and Conditions of Business (hereinafter referred to as „GTC“).
Nespresso customers are requested to read these GTC at periodic intervals in order to find out about changes to these terms and conditions of business.
Conflicting GTC of contracting parties shall be invalid unless explicitly acknowledged by Nespresso in writing. No ancillary oral arrangements have been made. For transactions with consumers as defined by the Austrian Consumer Protection Act (KSchG), the provisions of the latter shall be applicable.
Should any individual provisions of these GTC be legally invalid, this shall not affect the validity of the remaining provisions and of the agreements entered into on the basis of these general terms and conditions. Any invalid provision shall be deemed to have been replaced by a legally effective provision which comes as close as possible to the economic purpose of such invalid provision.
II. OFFERS, CREATION OF A CONTRACT, RESCISSION:
All offers from Nespresso are subject to change without notice unless explicitly referred to as binding. An order shall become binding on Nespresso only upon confirmation of its acceptance in writing or delivery of the ordered merchandise by Nespresso. If offers are addressed to Nespresso, the person making such offer shall be bound to it for a reasonable period but at least 10 days after receipt of the offer in question. A contractual offer by a Nespresso customer is subject to an order confirmation. Shipment of the merchandise ordered by the Nespresso customer to the latter also creates a contractual relationship. Any arrangements made orally, by telephone, by e-mail or arrangements with our representatives require confirmation in writing in order to be legally valid. Any amendments to or cancellations of orders already placed are subject to confirmation in writing from Nespresso. Any terms and conditions stated on an order note shall be binding on Nespresso only if explicitly confirmed by Nespresso.
If the consumer has neither given his or her contractual declaration on the premises permanently used by Nespresso for business purposes nor at a trade fair or market stand used by Nespresso to this end, he or she may revoke his or her application to enter into an agreement or from the agreement itself within one week; the period shall begin to run upon delivery of a document to the consumer that contains, as a minimum, the name and address of Nespresso along with information on the right of rescission, but at the earliest once the agreement enters into force.
The right of rescission shall not be available to the consumer if he or she initiated the business relationship with Nespresso or if no talks or negotiations between the parties preceded the entry into force of the Agreement.
In order to be legally effective, any such rescission must be in writing; to satisfy this requirement, it is sufficient that a document containing a contractual declaration, with a notation to the effect that the consumer rejects the entry into force or maintenance of the Agreement, is returned to Nespresso or to an agent of Nespresso who participated in the contractual negotiations.
The consumer may also revoke his or her application to enter into an agreement or rescind the Agreement itself if, without his or her behest, circumstances of relevance to his or her consent, such as approval by third parties, a promise of tax benefits or public grants or a loan that Nespresso declared to be probable in the course of the contractual negotiations, do not occur or only to a substantially lesser extent. Rescission may be declared within one week from when it becomes evident to the consumer that the circumstances mentioned will not occur or will only occur to a substantially lesser extent and if he or she has received instructions in writing on such right of rescission. However, such right of rescission shall lapse no later than one month after full performance under the Agreement by both contracting parties.
The consumer shall not be entitled to the right of rescission if (I) he or she already knew or was bound to know at the time of the contractual negotiations that the relevant facts and circumstances would not occur or would only occur to a lesser extent, (II) the exclusion of the right of rescission was specifically negotiated or (III) Nespresso declares itself prepared to accept an appropriate adjustment to the Agreement.
In the event of rescission by the consumer, the latter shall bear the direct costs of returning the Nespresso products.
III. PRICING:
All prices quoted are based on the wages, procurement prices and freight rates applicable on the date of ordering. The prices listed in the Nespresso order form shall apply until such time as a new order form is issued containing new prices and are inclusive of value added tax and packing costs. The shipment costs are charged separately to the Nespresso customer.
If the costs or prices of the Nespresso supplier happen to change before the order has been fulfilled, Nespresso shall be entitled to make corresponding price changes. Any discounts granted to the customer (of whatever kind) are always on a voluntary basis on the part of Nespresso. Nespresso may revoke a discount granted to a customer at any time, without having to specify any reasons and irrespective of the past duration of any such grant. The customer has no entitlement to being granted a discount; discounts of whatever kind shall not give rise to any entitlement of the customer to such discounts being granted in future either.
This Section III does not apply to transactions with consumers.
IV. DELIVERY, DELIVERY PERIODS, DELIVERY QUANTITY, DELIVERY PROVISO:
The volume and options of delivery shall remain reserved. Nespresso only delivers to delivery addresses in Austria. Delivery periods shall run from the date of order confirmation by Nespresso. No liability is assumed for meeting a certain delivery period. All circumstances over which Nespresso has no control or for which it is not responsible as well as force majeure shall discharge Nespresso from any delivery obligations without the transaction concluded being revoked. To the extent permitted by law, the occurrence of such circumstances shall not entitle the Nespresso customer to assert any other claims of whatever nature against Nespresso. In the event of circumstances beyond the control of Nespresso or for which Nespresso is not responsible, as well as in cases of force majeure, Nespresso shall be entitled to rescind the order to the extent that it has not yet been executed without Nespresso being liable to damages.
Nespresso will endeavour to ship the merchandise ordered no later than 1 working day after order confirmation by Nespresso or, in the event of the merchandise being delivered without an order confirmation, 1 working day after receipt of the order in question. The choice of shipment route and the method of shipment can be made at Nespresso’s discretion. The shipment costs are charged separately to the Nespresso customer.
The minimum purchase per order is 200 capsules. In the event of orders involving lower minimum purchases, Nespresso shall be entitled to impose a surcharge for additional costs incurred. Such surcharge for additional costs shall not exceed 10% of the total amount of the order.
V. WARRANTY CLAIMS:
THE STATUTORY PROVISIONS APPLY TO CONSUMER TRANSACTIONS; IN ALL OTHER CASES, THE FOLLOWING SHALL APPLY:
Complaints raised owing to defects or properties of the merchandise will be taken into account only if submitted in writing within 7 working days after receipt of the merchandise. In the case of defects not discernible without special inspection, the same period shall apply from the time of discovery but no later than one month after receipt of the delivery. Once this period expires, the Nespresso customer can no longer rely on a complaint for defects unless the defect discovered after expiry of the period could not have been discovered previously even in the course of a careful inspection. In the event of justified complaints – in the case of defects in quality, only after the defective items have been returned – Nespresso will, at its own discretion, either replace the defective item(s) or have the corresponding value credited to the customer’s account.
Nespresso shall be entitled to first carry out a free subsequent or replacement delivery. If this also fails, the Nespresso customer shall be entitled to request, at his or her discretion, a price reduction or rescission. Deficiencies of part of the merchandise shall not entitle the customer to register a complaint for the entire shipment.
VI. DAMAGES:
In the case of consumer transactions, Nespresso’s liability shall be excluded for damage attributable to slight negligence, with the exception of personal injuries. In all other cases, all claims for damages by business customers shall be ruled out unless Nespresso is responsible for intent or gross negligence, with such business customers having to prove such intent or gross negligence. In any event, consequential loss and lost profits, atypical damage or cases of damage attributable to improper use of the merchandise and when not using espresso machines especially manufactured for the Nespresso capsules shall be excluded. If the case in question is not a transaction with a consumer, the period of limitations of all claims for damages of the Nespresso customer is 6 months once the aggrieved customer obtains knowledge of damage occurring. Any liability on the part of Nespresso to Nespresso customers shall in any event be limited to the sum total of payments made by the Nespresso customer to Nespresso. The provisions set out in these GTC or any other provisions agreed concerning damages shall also apply if the claim for damages is made in addition to or in lieu of a warranty claim.
Rights of recourse as contemplated by Section 12 of the Austrian Product Liability Act shall be excluded unless the customer entitled to recourse can prove that the defect was caused within the sphere of influence of Nespresso and was at least attributable to gross negligence.
VII. INVOICING AND TERMS OF PAYMENT:
Invoicing shall be made to reflect the date of shipment of the merchandise. All invoices are payable upon receipt of the invoice, without deduction of any discounts or rebates. Payments are to be made directly to the bank account of Nespresso or by crossed check (account-only check). Payments shall be deemed to be received on the date on which they are credited to our bank account.
No bills of exchange are accepted as payment. Checks shall only be accepted as payment once paid by the bank. Deferred payment terms are granted in individual cases and are to be agreed on a separate basis. Confirmation in writing from Nespresso shall be necessary in this regard.
From the due date, the purchaser shall be obliged, without a reminder being necessary, to pay arrear interest amounting to 2% above the base interest rate, and to pay compensation for any further losses due to delay. In the case of transactions with consumers, arrear interest shall be charged in the statutory amount. Moreover, in the event of non-payment or only partial payment of a receivable when due by the Nespresso customer, all receivables arising from current business relations shall likewise be due and payable; this shall also apply in cases where bills of exchange/checks were accepted or other payment arrangements have been made. Furthermore, in the event of non-payment by the Nespresso customer in spite of the receivable being due and payable, Nespresso shall be entitled to secure the merchandise owned by Nespresso at the expense of the Nespresso customer. The Nespresso customer shall be obliged to allow an agent of Nespresso to have access to the business premises and storage facilities to this end. The receivables for merchandise delivered will still be due in these cases.
In the event of delay in payment, the Nespresso customer shall compensate Nespresso for all ancillary charges and fees associated with the delay in payment (including but not limited to dunning fees, collection or legal costs) to the extent that these are necessary to assert the relevant legal rights. Specifically, the Nespresso customer shall be obliged to pay the dunning fees incurred by Nespresso amounting to a flat fee of EUR 10.-- per reminder sent as well as an amount of EUR 5.-- per half-year for maintaining the records in the debt collection system. After an unsuccessful second reminder, Nespresso shall be entitled to commission a collection agency whose cost the customer will be required to refund to Nespresso up to the rate determined by the Ordinance on the maximum rates of collection agencies issued by the Austrian Federal Ministry for Economic Affairs. This shall not apply to consumer transactions.
Nespresso shall be entitled, even if the purchaser is in delay with payments only on one occasion, to ship any further deliveries only C.O.D. and to net the amount outstanding with the following C.O.D. shipment. In the event of a non-consumer transaction, where complaints are justified, except in cases of restitution, the Nespresso customer will not be entitled to withhold the entire gross invoice amount but only a reasonable portion thereof.
We explicitly reserve the right to refuse acceptance of checks or bills of exchange. If at all, we accept them only as conditional payment. Discount and bill charges shall be borne by the buyer and are due for immediate payment.
VIII. RESERVATION OF TITLE:
All merchandise is supplied by Nespresso subject to reservation of title and shall remain the property of Nespresso until full payment of all receivables arising from the business relationship as a whole, including interest and costs, as well as payment of the checks presented to this end has been effected. Asserting the reservation of title shall only be construed as a rescission of the Agreement if such rescission is explicitly declared by Nespresso. Where merchandise is returned, Nespresso shall be entitled to net any transport and handling costs incurred. Where third parties are given access to the merchandise subject to reservation of title – in particular if the merchandise is attached – the Nespresso customer undertakes to state that the merchandise is the property of Nespresso and to notify Nespresso without delay. If the Nespresso customer is in delay with payments, he or she shall deposit the merchandise if requested to do so at a location to be determined by Nespresso as collateral security in favour of Nespresso or ship the merchandise to an address to be determined by Nespresso, in each case at the customer's own expense. If the Nespresso customer is a consumer or not a business customer whose ordinary course of business extends to include trading in merchandise acquired from Nespresso, the customer shall not dispose of, sell, pledge, give away or lend the merchandise subject to reservation of title until full payment of the purchase price outstanding has been effected. The Nespresso customer bears the full risk for the merchandise subject to reservation of title, including but not limited to the risk of destruction, loss or deterioration.
IX. PROHIBITION OF SALE:
The Nespresso customer shall not be entitled to commercially re-sell the merchandise ordered and received without the written consent of Nespresso.
X. DATA PROTECTION:
Nespresso shall be entitled to store and process, as contemplated by the Austrian Data Protection Act (DSG 2000), the personal data of the business associate obtained in the course of or in connection with the relevant business relations, irrespective of whether such data was sourced from the business associate or from third parties. The Nespresso customer is obliged to disclose any change to its residential or business and e-mail address as long as the legal transaction that is the subject matter hereunder has not been fully and mutually performed.
Nespresso undertakes not to disclose any personal data of Nespresso customers to any third parties. At the request of the purchaser in writing, the data will be deleted from the database of Nespresso Österreich GmbH & Co OHG or modified as requested.
XI. PROVISIONS RELATING TO DISTANCE SELLING TO CONSUMERS:
If the Nespresso customer is a consumer, any agreements entered into by exclusive use of one or multiple means of telecommunication (distance selling agreements) will be subject to the provisions of the Austrian Consumer Protection Act (KSchG).
The consumer may rescind a customer agreement entered into by way of distance selling or revoke a contractual declaration made in distance selling within the applicable time limit. The period for rescission is seven working days, with Saturday not counting as a working day. For contracts concerning the performance of services (such as after-sales services), this period shall commence on the date on which the contract was signed; for contracts providing for the delivery of merchandise, it commences on the date of their receipt by the consumer. For the effectiveness of rescission in cases of distance selling agreements, it is sufficient if the declaration of rescission is dispatched within the stipulated period.
XII. LEGAL VENUE:
The sole legal venue for any disputes arising from or in connection with all agreements between Nespresso and Nespresso customers is the competent court at the registered offices of Nespresso Österreich GmbH & Co OHG. With regard to consumer transactions, the provisions of the Austrian Consumer Protection Act (KSchG) are applicable.
XIII. CHOICE OF LAW:
Nespresso Österreich GmbH & Co OHG is a company listed in the Commercial Register of the Commercial Court of Vienna under No. FN 214169 f with its registered offices in Vienna and its business address at Wiedner Gürtel 9, 1100 Vienna.
All legal relations based on these General Terms and Conditions of Business between Nespresso Österreich GmbH & Co OHG and the Nespresso customer are subject to Austrian substantive law to the exclusion of any conflict of law provisions under International Private Law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
NOTE: This English version of the Nespresso General Terms and Conditions of Business is a translation of the German original text. ln case of discrepancies between the English translation and the German original text, the latter shall prevail.
IX. EASY ORDERING
‘Easyordering’ allows you to reorder and pay for your Nespresso capsules and selected accessories automatically based on a chosen frequency. The General Conditions of Sales automatically apply to any order placed through Easyordering. In the event of a conflict between the General Conditions of sale and the conditions related to Easyordering, the conditions related to Easyordering will prevail.
“Your order will soon ship” notification
Three days before your recurrent order will be shipped by us, you will receive a written notification from us to inform and remind you of the date of shipment, the details of your Product basket, the total price of your recurrent order and whether any Product is out of stock.
Payment
Payments shall be made by credit card or by invoice.
All recurrent orders by credit card will be billed to your credit card on the day of shipment.
In the event that your credit card cannot be charged, Nespresso will place your order on hold and send you a notification that the payment could not be executed. Your order will be shipped upon receipt of your payment.
Modification and Cancellation
You are entitled to cancel your Easyordering subscription, cancel one or more recurrent orders or modify the Product(s) basket, the frequency or any customer detail at any time free of charge. In the event that you cancel a specific order or your Easyordering subscription before or while your order is being shipped, you are entitled to refuse the delivery of the Product(s) and, in the event that you received the Product(s) to return the order in accordance with the present General Conditions of Sale.
Out of stock
If one of your Product(s) included in your recurrent order is out of stock at the moment of the “your order will ship soon” notification, we will notify you in this notification and will still ship your other recurrent orders on your requested frequency, unless the order is cancelled by you. You will not be charged for any Product(s) which is out of stock.
Promotions
You will have the opportunity to benefit from promotional offers specifically relating to your Easyordering subscription. These Easyordering-specific promotions will not be applicable to any order made outside an Easyordering subscription.
With your Easyordering account, you will also have the possibility to benefit from ongoing general campaigns and promotions. Your Easyordering subscription does not automatically take into account other promotional offers announced on or around the time of your recurrent order processing. To benefit from such a promotion, it is recommended to place a separate order and modify your next shipment date for your Easyordering subscription.
Operating Contract
If you have a Nespresso Professional Operating contract, contractual obligations require the regular sending and volume of capsules as agreed in the contract. If you wish to change the frequency or the month of the Next shipment date, please call us on 0810 981 981.
Nespresso Österreich GmbH & Co OHG
Nespresso Professional
Wiedner Gürtel 9, 1100 Wien
Version 1, 28.08.2014
