Terms and conditions
Last Updated: February 13, 2018
Please inform yourself by reading these general terms and conditions (hereinafter “Terms”) carefully. Browsing or using the Holzkern website available at http://www.holzkern.com or http://www.us.holzkern.com or any website associated with this agreement (hereinafter referred to as the “Website”) in any way or clicking a button which says “I accept” or something similar, you thereby confirm that (1) you have read, understand, and agree to be bound by the Terms, (2) you are of legal age to form a binding contract with Holzkern, and (3) you have the authority to enter into the Terms on your own behalf or that of the company you work for, as well binding that company to these terms. If you do not agree to be bound by the Terms, you may not access or use this website.
Please note that Holzkern may in its sole discretion change the Terms at any time. When changes are made, Holzkern will make a new copy of the Terms available on its website and will update the “Last Updated” date at the top of the Terms page. Any changes to the Terms will be effective immediately for new users of the website and become effective for existing users thirty (30) days after posting notice of the changes on the Website. Holzkern may require you to provide consent to the updated Terms in a particular manner before you may continue to use the website. If you do not agree to any of the change(s) after receiving notice of them you shall cease using the website; otherwise, your continued use of the website constitutes your acceptance of such change(s). Please regularly check the website to view the current Terms.
1. Scope of Application
1.1. These Terms of Holzkern e.U. (hereinafter referred to as the "Seller") apply to all contracts concluded by a consumer or entrepreneur (hereinafter referred to as the "Customer") with the Seller with regard to the goods and/or services displayed by the Seller in his online shop. This contradicts the inclusion of customer's own terms, unless otherwise agreed to in writing. If the seller is in a long-term business relationship with the customer, these terms and conditions shall apply even if their validity is not particularly pointed out. The terms and conditions also apply to follow-up orders, even if they are not agreed upon separately, be it orally or in writing.
1.2. A consumer, within the meaning of these terms and conditions, is any natural person who concludes a legal transaction for purposes to which neither their commercial nor their independent professional activity can be predominantly attributed. An entrepreneur, within the meaning of these terms and conditions, is a natural or legal person or a legal partnership, which acts in the execution of a legal transaction in the exercise of their commercial or independent professional activity.
1.3. Employees of our company are prohibited from making deviating commitments from these terms. Verbal agreements only become effective if they are confirmed in writing by the seller.
All text, graphics, images, photographs, trademarks, logos, artwork (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained the Website is owned, controlled or licensed by or to Holzkern, and is protected by trade, copyright, and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as provided expressly in these Terms, neither any part of the Website nor any Content may be copied, republished, reproduced, distributed, licensed, sold, rented, leased, transferred, assigned, uploaded, posted, publicly displayed, translated, transmitted, hosted or otherwise commercially exploited without Holzkern’s express prior written consent.
3. Contract Conclusion
3.1. The customer's order constitutes an offer. A contract is only concluded after being accepted by the seller. The customer is informed of the acceptance of the seller by e-mail.
3.2. The order is made in the following steps:
a) Selection of the desired product
b) personal information, shipping and billing address
c) Selection of payment method
d) Verification of the information and, if necessary, correction of the data entered
e) Confirmation by clicking on the button "Confirm your order"
f) Binding dispatch of the order
g) info window with the note: "Thank you for your order! You will soon receive an order confirmation by e-mail"
3.3. An order is only possible if all mandatory fields marked with * in the order form are filled out. If information is missing or if the seller cannot fulfill the order due to other reasons, the customer will receive an error message. Before finalizing the order, the customer will be given the opportunity to correct his order. The customer receives supporting detailed information directly during the ordering process. Once the order process has been completed, the customer will be directed to an info window which displays "Thank you for your order! You will soon be notified of an order confirmation by e-mail." This notification from the seller does not constitute acceptance of the customer's offer.
3.4. When the order has been received by the seller, the customer will be notified of the receipt of his order by the e-mail address provided by him. This agreement of the seller does not constitute acceptance of the customer's offer.
3.5. The customer is bound to his order 5 days from receipt of this order by the seller. The legal right of withdrawal (right of withdrawal) remains unaffected. The day of receipt of the order is visible to the customer from the acknowledgment of receipt.
3.6. The purchase contract is not stored by the seller. If the customer wants to save the contract text after his order, he can proceed as follows: Use the usual function of your Internet service program (= Browser: usually "File" --> "Save As"). You can also download and archive this document in PDF format using the function "Save as PDF." To open the PDF file, you need to download a software compatible with the PDF format.
3.7. In addition, the customer can also simply archive the data of his order by storing the data summarized on the last page of the ordering process in the online shop by using the functions of his browser or he/she waits for the e-mail with which the seller accepts the customer’s offer. This e-mail also contains the data of his order and the terms and conditions or other information requirements and can easily be printed or saved with an e-mail program.
3.7.1. The contract language is English or German.
3.8. The (non-binding) offer of the seller is exclusively for customers with registered office, place of residence or habitual residence in Austria, the states of the European Union (EU), and the United States.
4. Right of Withdrawal / Withdrawal
4.1. The term "right of withdrawal", which is commonly used in Austria, corresponds to the term "right of withdrawal" which is customary in Germany and used in the Consumer Rights Directive. In the cancellation policy, only the term "right of withdrawal" is used. This is synonymous with the Austrian term "rücktrittsrecht".
4.2. Details can be found in the cancellation policy (including revocation form).
5. Prices, Terms of Payment and Default Interest
5.1. Unless otherwise stated in the seller's product description, all prices are quoted in the denomination stated and are total prices which include statutory value added tax. If applicable, additional delivery and shipping costs are specified separately in the respective product description, e.g., state sales tax for customers in the United States.
5.2. For deliveries to countries outside the European Union, additional costs may be incurred in individual cases, which the seller is not responsible for and which are to be borne by the customer. These include, for example, costs for the transfer of money by credit institutions, e.g., transfer fees, exchange rate charges, or import duties or taxes, i.e., customs duties. Such costs may be incurred in relation to the transfer of funds even if the delivery is not made to a country outside of the European Union, but the customer makes the payment from a country outside the European Union.
5.3. The customer has various payment options available, which are specified in the seller’s online shop and during the delivery and payment part of the checkout process.
5.4. If “Sofortüberweisung” (pre-payment) is agreed upon purchase via the online shop, the payment is due immediately after conclusion of the contract.
5.7. In the event of default of payment by the customer, the seller is entitled, at his discretion, to claim compensation for the actual damage or default interest at the statutory rate. These are for consumers: 4% p.a., for entrepreneurs: 9.2% p.a. above the base rate.
5.8. In the case of default of payment of the customer, the seller is entitled to demand compound interest starting with the date of delivery of the goods.
6. Reminder and Collection fees
In the event of default of payment, the customer is obligated to reimburse the monitory and collection expenses incurred by the seller to the extent that they are necessary for the purpose of prosecution. In the case of business dealings, this includes a lump sum of EUR 40, - in compensation for the costs of operation according to § 458 UGB. The assertion of further rights and claims remains unaffected.
7. Delivery and Shipping Conditions
7.1. The seller is only obligated to execute the service once the customer has fulfilled all obligations of his which are necessary for the execution of the service.
7.2. Unless otherwise agreed, the seller will ship the order within 30 days of the contract’s confirmation.
7.3. The seller is entitled to exceed the agreed-upon dates and delivery periods by up to one week. Only after this period has expired is the customer entitled to withdraw from the contract after having established a reasonable grace period.
7.4. The goods shall be delivered to the delivery address specified by the customer, unless otherwise agreed.
7.5. As long as the customer is a consumer, the cost of shipping from the seller to the customer will be covered by the seller.
7.6. If the customer is acting as an entrepreneur, the risk of accidental loss and accidental deterioration of the goods sold passes to the customer as soon as the seller has delivered the goods to the forwarding agent, the carrier or the person or institution otherwise responsible for carrying out the shipment. If the customer acts as a consumer, the risk of accidental loss and accidental deterioration of the goods sold generally does not pass to the customer until the goods have been handed over to him or to a third party determined by the customer and not belonging to the carrier. By way of derogation, the risk of accidental loss and accidental deterioration of the goods sold to consumers also passes to the customer as soon as the seller has handed over the goods to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment, i.e., if the Customer has entrusted the hauler, carrier or other person or entity otherwise responsible for performing the shipment with the execution itself and Seller has not previously proposed to the Customer such hauler, carrier or other person or entity otherwise responsible for carrying the shipment as a choice.
7.7. Pickup is not possible for logistical reasons.
8. Acceptance delay
If the customer has not accepted the goods as agreed (default of acceptance), the seller is entitled to store the goods after an unsuccessful grace period and for this the seller can charge a storage fee of 0.1% of the gross invoice amount per calendar day started. Alternatively, the goods can be stored at cost and risk of the customer by an authorized business person. At the same time, the seller is entitled either to insist on fulfillment of the contract or to rescind the contract after setting a reasonable grace period of at least 2 weeks and to reuse the goods elsewhere.
8.1. If the transport company sends the goods back to the seller because a delivery to the customer was not possible, the customer bears the cost of an unsuccessful shipment. This shall not apply if he is not responsible for the circumstance leading to the impossibility of delivery or if he was temporarily prevented from accepting the service offered, unless the seller had informed him of the service with reasonable notice.
In the case of defects, the provisions of the statutory warranty apply. Deviating from this:
9.1. For entrepreneurs
9.1.1. an insignificant defect principally does not justify any warranty claims;
9.1.2. the seller has the choice of the type of rectification;
9.1.3. the limitation period does not start again if a replacement is made within the scope of the warranty.
9.2. If the customer acts as an entrepreneur, he/she will be subject to the examination and complaint obligations under § 377 UGB. If these are omitted, the goods are considered as approved.
9.3. If the customer acts as a consumer, he/she is requested to file a complaint about delivered goods with obvious transport damage with the deliverer and to inform the supplier thereof. If the customer (consumer) does not comply with this, this has no effect on his warranty claims.
9.4. Complaints due to statutory warranty claims or other complaints can be made under the contact details mentioned in the imprint.
9.5. The return and shipping costs for the replacement of defective goods within the scope of the statutory warranty shall be borne by the seller, provided that the customer is a consumer.
All claims for damages are excluded in cases of negligence. This does not apply to personal injuries or - in the case of consumer transactions - for damage to items taken for processing. The injured party has to prove the presence of slight or gross negligence, unless it is a consumer business. The provisions on compensation contained in these General Terms and Conditions or otherwise agreed apply even if the claim for damages is asserted in addition to or instead of a warranty claim.
11. Indemnification for Infringement of Third-party Rights
If, after the content of the contract, the seller owes not only the delivery of goods but also the processing of the goods according to the customer's specifications, the customer must ensure that the content provided to the seller by him for the purpose of processing does not violate the rights of third parties, e.g., copyrights or trademark rights. The customer indemnifies the seller against claims of third parties which they may assert against the seller in connection with a breach of their rights as a result of the contractual use of the contents of the customer by the seller. The customer also assumes the reasonable costs of the necessary legal defense, including all court and legal fees in the statutory amount. This does not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obligated to immediately, truthfully and completely provide the seller with all information necessary for the examination of the claims and a defense.
12. Retention of Title
12.1. The seller reserves the right to ownership of the delivered goods until full payment of the purchase price. The buyer bears the full risk for the reserved goods, in particular for the risk of loss, loss or deterioration.
12.2. In the event of default of payment by the buyer, the seller is entitled to assert his rights under the retention of title. It is agreed that the assertion of the reservation of title does not constitute a withdrawal from the contract, unless the seller expressly declares the withdrawal from the contract. Any (possible) withdrawal of the seller is without prejudice to the claim for damages for non-fulfillment. In addition, the buyer owes the seller a reasonable fee for the use of the object of purchase. The seller must reimburse the buyer for payments already received within 14 days after the return of the object of purchase, provided that no claims under the previous paragraph exist or that the payments have been already paid by the buyer.
12.3. The Buyer is obligated to notify the Seller by e-mail of any litigation or execution order on the object of purchase within 7 working days of the delivery of the written pleadings.
12.4. If the buyer sells the delivered goods to a third party before he has paid the purchase price in full to the seller, the buyer hereby assigns the purchase price due to him from the resale against this third party to the seller as collateral for the (residual) purchase price claim.
12.5. The Buyer is obligated to make a book entry noting the assignment of the resale proceeds in his account books during the time of the resale at the latest.
12.6. If the buyer sells the delivered goods for cash to a third party before paying the purchase price in full to the seller, he will accept the amount necessary for payment of the (residual) purchase price from the resale proceeds in trust for the seller. He is obliged to identify and hold this amount separately from his other assets and as trustee money of the seller. The trustee is to waive any defense or objection and the trust payment is to be paid immediately to the bank account of the seller (IBAN: AT95 3444 2000 0036 3978). The waiver of a defense does not include the purchaser against the seller on the basis of the legally recognized claims due to the seller.
12.7. Prior to payment of the purchase price for the object of purchase, the buyer is entitled to resell without simultaneous receipt of the purchase price only under the condition that he simultaneously with the resale (1) notes the second purchaser of the advance assignment of the resale proceeds in accordance with this agreement and (2) instructs them individually and in writing to pay the purchase price only to the account of the seller (IBAN: DE70 5123 0800 2620 693174) and (3) notes the resale in his (the buyer's) books of business.
13. Right of Withdrawal of the Seller / Unauthorized Withdrawal of the Customer
13.1. In the event of default of acceptance (Item 7) or other important reasons, such as late payment by the customer, the seller is entitled to withdraw from the contract, provided that he has not yet been fully satisfied by both parties. In the event of withdrawal and if the customer is at fault, the seller has the option to claim a lump-sum compensation of 15% of the gross invoice amount or compensation for the actual damage incurred. In the event of default of payment by the customer, the seller is released from all further performance and delivery obligations and is entitled to withhold any outstanding deliveries or services and to demand advance payments or seizures or to withdraw from the contract after establishing a reasonable grace period.
13.2. If the customer –without being entitled to do so– withdraws from the contract or if he requests the cancellation of his contract, the seller then has the choice to insist on the performance of the contract or to agree to the cancellation of the contract; in the latter case, the customer is obliged to —at the discretion of the seller– pay a lump-sum compensation of 15% of the gross invoice amount or the damage actually incurred.
14. Right of Retention
If it is not a consumer business, in the case of a justifiable complaint –except in cases of rescinded – the customer is not entitled to withhold the entire gross invoice amount, but only a reasonable part of it.
15. Redemption of Discount Vouchers
15.1. Vouchers that are issued by the seller free of charge as part of promotions with a specific period of validity and that cannot be purchased by the customer (hereinafter "discount vouchers") can only be redeemed in the vendor's online shop and during the specified period.
15.2. Individual products may be excluded from the coupon promotion, provided that a corresponding restriction results from the content of the promotional coupon.
15.3. Discount vouchers can only be redeemed before the order process has been completed. Subsequent offsetting is not possible.
15.4. Only one promotional coupon can be redeemed per order.
15.5. The value of the goods must be at least equal to the amount of the promotional voucher. Any remaining balance will not be refunded by the seller.
15.6. If the value of the action voucher is insufficient to cover the order, one of the remaining payment methods offered by the seller may be selected to settle the difference.
15.7. The balance of a discount voucher is neither paid in cash nor interest.
15.8. The discount voucher will not be refunded if the customer returns the goods fully or partially paid for by using the discount voucher within the scope of his legal right of withdrawal.
15.9. The discount voucher is transferable. The seller can make a liberating effect to the respective owner who redeems the discount voucher in the online shop of the seller. This does not apply if the seller has knowledge or grossly negligent ignorance of the non-entitlement, the legal incapacity or the lack of representation of the respective owner.
Holzkern watches are, of course, shipped with a battery. These can be returned to us at the end of their service life. We guarantee a professional and environmentally friendly disposal of the batteries. Batteries containing pollutants are indicated by chemical symbols: Cd for cadmium, Hg for mercury, Pb for lead, e.g., Pb = battery contains lead, Cd = battery contains cadmium, Hg = battery contains mercury. Please do not dispose of batteries in the household waste.
17. Warranty Conditions
17.1. The guarantee is granted only to consumers, not to businesses, where a consumer is any natural person who concludes a legal transaction for purposes which cannot be attributed primarily to their commercial or independent professional activity.
17.2. The period for the calculation of the guarantee period of 24 months begins with the invoice date. Our warranty covers the Republic of Austria as well as the member states of the European Union and the United States. If defects in our products occur during this period, we grant you, as guarantor under the guarantee, one of the following services of our choice:
• Free repair of the goods or
• Free replacement of the goods against an equivalent article (possibly a successor model if the original goods are no longer available).
17.3. In case of warranty please contact us as guarantor:
17.4. Guarantee claims are excluded in cases of damage to the goods which are due to:
- Abusive or improper handling of the goods, especially resulting in breakage and glass damage
- Environmental influences (humidity, extreme cold or heat, excess voltage, dust, etc.), especially damage caused by moisture and water
- Failure to observe any safety precautions
- Non-compliance with the operating instructions
- use of force (e.g. blow, hit, drop)
- unauthorized repair attempts
17.5. Excluded from the warranty are changes in the color and wood of the (patina, color, structural changes).
17.6. Claiming the guarantee requires that you allow us to check the warranty claim by sending in the goods. It must be ensured that damage to the goods during transport is avoided by using appropriate packaging.
To apply for the guarantee, you must enclose a copy of the original invoice of the shipment. We ask for your understanding that without settlement of this invoice copy we can refuse the guarantee service as the consignment of the invoice copy is necessary for the calculation of the guarantee period.
If it concerns a legitimate guarantee claim, we will render the warranty service within 30 days of the dispatch of the commodity to us.
The freight costs for the return of the goods to us as well as for the return of the goods to you are our responsibility within the framework of the guarantee and will be reimbursed within the scope of the warranty.
However, they also carry the risk of deterioration or destruction on the transport route of the goods sent to us as part of the guarantee or returned to us by you.
Your statutory rights against us, arising from the purchase agreement concluded with us, are in no way limited by this guarantee. In particular, any existing statutory warranty rights remain unaffected by this warranty.
If the purchased item is defective, you could then hold us to the framework of the statutory warranty, regardless of whether a warranty claim is submitted or the guarantee is claimed.
18. Severability Clause
Should provisions of this contract be or become in the course of their duration legally ineffective, invalid and/or void, this does not affect the legal validity and the validity of the remaining provisions. The contracting parties in this case commit to replace the provision which is or became ineffective, invalid and/or void with one that is legally effective and valid and which corresponds in its economic effect to the replaced provision as far as is possible and legally permissible.
19. Contests on Facebook and Instagram
19.1. Participation in a Holzkern contest is only possible by taking into account these conditions of participation. By entering the contest, the participant accepts the contest rules. Holzkern conducts sweepstakes on Facebook and Instagram. The contests are not supported by Facebook and are in no way affiliated with Facebook. Facebook is merely the platform on which Holzkern organizes the raffle.
19.2. All natural and business persons with a minimum age of 14 years can take part. Employees or persons in a business relationship with Holzkern are excluded from participation. The participant agrees with the participation that in case of profit his/her name and/or image will be published on the internet. Participation in the contest is possible during the period mentioned in the posting. The entry deadline is also to be gathered from the contest posting. Participation is only possible within the time frame specified in the contest description. Any recourse to courts of law is excluded.
19.3. Liability Damages claims against Holzkern, which are in connection with the contest, are - within the legally permissible - excluded from the legal ground independent of legal basis, unless Holzkern would have deliberately or violated legal obligations with gross negligence. Furthermore, Holzkern is not liable for damages resulting from the impairment of the availability of the contest-posting, in case of non-controllable technical disturbances and events of force majeure, as well as attacks by third parties against the contest-posting. Holzkern will do everything it can to ensure the reliability and functionality of the contest postings. Furthermore, Holzkern does not guarantee that the contest posting on the respective participant's computer is properly functional.
19.4. Holzkern grants the highest possible data protection standard in the contest and observes all relevant legal provisions in this regard. Holzkern will not forward any personal data to third parties or sell address data. Holzkern stores the personal data of the respective participant exclusively for the purpose of the contest. The participant hereby expressly declares his/her consent to the storage and use of the personal data provided for the purpose mentioned above.
19.5. Severability clause: Should individual provisions of these conditions of participation be ineffective or if a loophole exists, this does not affect the validity of the remaining provisions. The ineffective or missing provisions shall be replaced by a provision which comes closest to the purpose of the contract and the statutory provisions.
19.6. Selection Process: The winner will be selected in the manner announced in the post (coincidence or jury decision). It is not subject to legal recourse.
19.7. Contact: For questions regarding the implementation of this Sweepstake and the processing and use of personal information, please contact: firstname.lastname@example.org
21. Place of Performance / Governing Law
21.1. Place of performance is the seat of the seller.
21.2. Substantive Austrian law is applicable to this contract to the exclusion of the reference norms of international private law (e.g., EVÜ, ROM-I VO) and the UN Convention on Contracts for the International Sale of Goods. This choice of law applies to a consumer only to the extent that it does not restrict any mandatory statutory provisions of the state in which he has his domicile or habitual residence.
22. Place of Jurisdiction
The contracting parties agree on Austrian domestic jurisdiction. If it is not a consumer business, the court having local and subject-matter jurisdiction at the seat of the seller is exclusively responsible for the resolution of all disputes arising from this contract.
23. Final provisions
23.1. All declarations of a legally binding nature based on this contract must be submitting in writing to the address of the respective contracting party last notified in writing. If a declaration is sent to the last address given in writing, this is deemed to have been received by the respective contracting party.
23.2. The title of the headings chosen for the individual chapters is solely for the sake of clarity and therefore cannot be used to interpret this contract.
23.3. The assignment of individual rights and obligations from these terms and conditions is only permitted with the express written consent of the other contracting party.
23.4. The terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Website and the Content and information available on the Website, unless terminated earlier in accordance with the Terms.
23.5. The Terms are final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.