General Terms and Conditions

1) Preamble

1.1) WAKO GmbH is a specialist in the field of 3D design and production; it offers, sells and distributes various services and products, especially in connection with orthopaedic technology, automotives, industry and architecture.

 

2) Definitions

2.1) In future, the following definitions, in addition to those listed in brackets, shall apply to the following general terms and conditions of business (hereinafter referred to as "T&Cs"):

„WAKO“ // WAKO GmbH, FN 486679 f, Granitweg 1, 4202 Kirchschlag
„Website“ // „www.wako3d.com“
„Online Shop“ // „www.cekoon.com“
“Goods” // Services and goods offered by WAKO
“Customer” // Consumers or contractors who are contractual partners of WAKO
“Company stipulation” // A commercial transaction for both contractual partiers.
“Consumer” // As defined in § 1 of the KSchG;
“UGB” // Austrian Commercial Code
“KSchG” // Austrian Consumer Protection Act
“FAGG” // Austrian Remote and External Business Act

 

3) Scope

3.1) These terms and conditions of business form the basis for deliveries and services by, and offers from, WAKO and are binding for all current and future business transactions, even if they are not expressly referred to. They also cover the use of one or more forms of distance communication.

3.2) (Company stipulation) If the contractual partner of WAKO GmbH has, as the basis of its business, T&Cs that differ or are more extensive, these only apply as an integral part of the agreement entered into with WAKO if the latter has expressly agreed to this in writing. No contractual negotiations undertaken by WAKO GmbH within the framework of a contractual relationship with a contractor can be regarded as consent to the deviating or supplementary T&Cs.

3.3) (Company stipulation) These terms and conditions of business also apply as a framework agreement for all other legal transactions between the contractual parties.

 

4) Conclusion of contract

4.1) The presentation of the range on the website, in the online shop or any other depictions provided (flyers, folders etc. in particular) does not constitute a binding offer as defined in § 861 ff of the Austrian Civil Code, rather it represents a non-binding invitation to the customers to make an offer to WAKO in the form of an order.

4.2) Point 4.1. also applies to the non-binding quotations submitted to customers by WAKO.

4.3) The images and illustrations used by WAKO on its website and in its online shop, and other depictions, are purely illustrative. The actual goods ordered may deviate from these illustrations.

4.4) The presentation of the range on the website, in the online shop or any other depictions provided may contain printing errors, misspellings and miscalculations.

4.5) The customer is obliged, when placing an order, to ensure that the details entered (first name, surname, company name, email address, telephone, address and country) are truthful and complete.

4.6) The customer can place an order (an offer for a purchase contract) by post, email, telephone, fax, via the online shop or any other means of communication. When placing an order by email or via the online shop, the customer shall receive notification by email that the order has been received. This is not to be taken as acceptance of the offer, merely confirmation that the order has been received.

4.7) The customer is bound to the offer made to WAKO in the form of an order for a period of 4 weeks, although if a contract is concluded prior to the expiry of this period, this period is extended in any case to cover the complete fulfilment of the purchase contract.

4.8) The contract enters into force after the offer received is checked and accepted by WAKO. This occurs by sending an order confirmation or invoice to the customer by email, fax or post, or at the latest by dispatching the goods ordered to the customer together with an invoice. The order confirmation and the invoice shall list the offers accepted and for which a purchase contract has come into force. WAKO does not accept any offers that are not contained within the order confirmation/invoice, which is why no purchase contract comes into force for these.

4.9) WAKO normally informs the customer that an offer has not been accepted – should this information not be received by the customer for whatever reason, this does not mean that a contract has tacitly come into effect. Any consideration provided by the customer will be reimbursed.

4.10) No liability is accepted for a contract being impossible to fulfil or for the non-acceptance of an offer.

 

5) Price

5.1) The prices are listed in euros and, unless otherwise indicated, are exclusive of VAT, ARA fees, customs duties in third countries and shipping costs.

5.2) WAKO reserves the right to apply a unilateral price change in the event of fluctuations in the price of materials, an increase in tax or an exchange rate fluctuation of up to 5%. The customer shall be provided with evidence of this if the former so requests. The customer is not entitled to withdraw from the agreement in this case.

 

6) Payment conditions and default interest

6.1) The options for paying for goods and services may vary depending on the destination country. Payments can at least be made by VISA and Mastercard to the account indicated by WAKO. Payments in cash require special agreement.

6.2) Unless otherwise agreed, all payments, including VAT and without any deductions, are to made to the account notified by WAKO within 14 days of receipt of invoice. This amount must be on time so that the amount is available to WAKO at the end of the period payment. Payment is only regarded as having been completed once it has arrived in the account indicated by WAKO.

6.3) Any discount deduction requires special agreement.

6.4) It is not permissible to offset payment because of claims against WAKO and in any case this requires special agreement.

6.5) In the event of customer’s payment being delayed, WAKO is entitled to choose between claiming compensation for the actual damages and charging statutory default interest. The default interest rates are as follows: for consumers 4% per year; for contractors: 9.2% percentage points above the base interest rate per year.

6.6) In the case of delayed payment, the customer undertakes to reimburse WAKO for the reminder fees and collection fees incurred. In the case of contractor transactions, the compensation for prosecution costs shall in any case be limited to a lump sum of EUR 40.00 in accordance with § 458 of the Austrian Corporate Code. This does not preclude a claim being asserted for additional damages. In transactions with consumers, WAKO is entitled, without prejudice to further statutory claims, to submit an invoice at least for debtor fees for reminders listed in the Regulation issued by the Minister for Economic Affairs regarding maximum rates collection agencies due reimbursement.

6.7) In the case of delayed payment, WAKO GmbH is entitled to withhold deliveries or services that are still outstanding or to withdraw from the agreement after setting an appropriate extension period.

 

7) Consumers’ right of withdrawal in accordance with § 11 of the FAGG

7.1) The provisions of FAGG apply to customers who qualify as consumers.

7.2) The right of withdrawal pursuant to FAGG is used if the agreement was concluded outside the business premises of WAKO, in particular by way of distance selling via the online shop, email or over the telephone.

7.3) The consumer is entitled to withdraw from the agreement within 14 days without having to state the reasons for this.

7.4) With agreements regarding the delivery of goods, the withdrawal period commences on the day the consumer, or a third party appointed by the latter, and which is not the carrier, obtains possession of the goods. In the case of an agreement for several goods ordered in a collective order and which are delivered separately, the withdrawal period commences on the day that the consumer or a third-party appointed by the latter, and which is not the carrier, obtains possession of the last item.

7.5) A right of withdrawal for the reasons stated in § 18 of the FAGG is excluded, this refers in particular to goods that have been manufactured in accordance with the customer’s specifications, that have been tailored to personal requirements and are not suitable for return due to their very nature.

7.6) The withdrawal declaration need not be made in any specific format, although the withdrawal declaration must be communicated to WAKO in a clear and ambiguous manner, such as by post, over the telephone, by email etc.:
WAKO GmbH
Granitweg 1
Kirchschlag bei Linz, Austria
Phone: 07215 38053; 0664 546 20 70
E-Mail: office@wako3d.com

The consumer can also use the withdrawal form template for consumers provided for this purpose on the website at www.wako3d.com.

7.7) It is sufficient for the withdrawal declaration to be sent within the withdrawal period.

7.8) If the consumer withdraws from the purchase agreement, WAKO GmbH must refund the payments received from the consumer concurrent with the return of the goods or corresponding proof of the return of the goods, including the delivery costs (with the exception of the additional costs that result from the consumer having chosen a form of delivery other than the cheapest standard delivery offered by WAKO) and shall also refund the consumer for the necessary and useful costs. The consumer must return the goods, whereby WAKO reserves the right to deduct or draw up a separate invoice for the customer for an appropriate usage fee – usage which goes beyond a check of the conditions, features and function – or a fee for depreciation. With delivery addresses in non-EU countries, WAKO must also reimburse any consumer taxes/customs duties incurred by the return of the goods.

7.9) The consumer must pay the return costs. If the goods have not been accepted by the consumer, WAKO is entitled to deduct the return costs from the purchase price to be refunded.

8) Delivery date and delivery

8.1) Delivery is ex works. Risks and hazards are transferred to the customer at the time the goods are handed over to the carrier.

8.2) Unless an advance delivery was expressly agreed, WAKO is only obliged to deliver the goods once the customer has complied with its payment obligations and has paid any dispatch costs. In this case, the goods will be sent 1-14 working days after payment has been received.

8.3) The agreed delivery deadline/delivery date may be exceeded by WAKO by 1 week. Only after this is the customer entitled to withdraw from the agreement after setting an appropriate extension period.

8.4) In individual cases – especially with delayed delivery on the part of WAKO’s overseas suppliers - WAKO can exceed the delivery deadline or delivery period by 3 weeks. WAKO shall immediately inform the customer of any delay.

8.5)  The place of performance is the company’s head office (currently Granitweg 1, 4202 Kirchschlag).

 

9 Warranty

9.1) In the case of a consumer transaction, the mandatory statutory warranty provisions apply.

9.2) (Company stipulation) In the event of defects being discovered within the first 6 months of handover, the statutory presumption rule that the defects already existed at the point of handover (reverse onus) does not apply. In general, the right to warranty coverage lapses from the end of 1 year from the date of takeover.

 

10) Damages

10.1) WAKO is only obliged to pay damages in the event of gross negligence and intent. WAKO is only liable for slight negligence in the event of personal injury.

10.2) (Company stipulation) Liability lapses in 6 months from the time the customer became aware of damage and the damaging party.

10.3) WAKO is not liable for indirect damages, lost profits, lost of interest, missed savings, consequential and financial losses and damages resulting from third-part claims.

10.4) In particular, WAKO is also not responsible for damage resulting from improper and/or misuse of the products.

10.5) With regard to the prosthetic covers, WAKO is only responsible for the covers and their attachment to the prosthesis and does not distribute the prosthesis itself, WAKO therefore accepts no liability for damages in connection with the prosthesis. Should attachment of the cover cause damage to the prosthesis, WAKO GmbH shall only be liable in this respect for personal injury and for intentional and grossly negligent conduct by its employees.

 

11) Retention of title

11.1) All goods are delivered by WAKO with retention of title and remain in the possession of the latter until full payment of the purchase price.

11.2) If retention of title is asserted, this can only be regarded as withdrawal from the agreement if this is expressly declared by WAKO. Furthermore, WAKO is entitled to offset the transport charges incurred when taking back the goods.

11.3) In the event of access to the reserved goods by a third party, in particular by means of seizure, there is an obligation to refer to WAKO’s retention of title and to inform WAKO of the access immediately. The customer bears the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

11.4) If the goods delivered are not accepted by the customer, WAKO GmbH is entitled to put these into storage in WAKO's warehouse and to charge a storage fee of 0.1% of the gross invoice amount per day of storage.

11.5) If WAKO withdraws from the agreement for reason of a default of acceptance or for other important reasons, such as default in payment, WAKO shall, in the event of fault on the part of the customer, request damages from the latter amounting to a lump sum of 10% of the gross invoice amount or reimbursement of the actual damages.

 

12) Retention

12.1) (Company stipulation) In the event of a justified complaint, except in cases of rescinded transactions, the customer is only entitled to retain an appropriate proportion of the gross invoice amount, not the entire invoice amount.

 

13) Choice of law and court of jurisdiction

13.1) The contractual language is German.

13.2) The contractual parties agree to be bound by internal Austrian jurisdiction and to an internal Austrian court of jurisdiction. Unless it involves a consumer transaction, the court that has objective jurisdiction over A-4202 Kirchschlag shall be the exclusive local court with authorisation to take all decisions on all disputes arising from this agreement.

13.3) Substantive Austrian law – to the exclusion of national and international law rules (such as IPRG [the Private International Law Act], EVÜ [Law regarding contractual obligations], ROM I-VO [Rome I regulation]) and the UN Sales Convention – shall be applied. With respect to consumers, this choice of law shall only apply insofar as it is not restricted by any compelling statutory provisions of the country in which their domicile or standard residence is located.

 

14) Severability clause

14.1) Should provisions of these terms and conditions be legally invalid, void and/or inadmissible, this shall not affect the validity and legal force of the other provisions. In this event, the contractual parties undertake to replace the legally invalid, void and/or inadmissible provision with one that is valid and has legal force and corresponds - as far as possible and as far as is legally admissible - to its commercial impact.

 

15) Data protection

15.1) The customer grants its consent that the personal data contained in the purchase agreement and/or in the order, namely its name, address and other contact details, will be stored and processed electronically by WAKO as part of its fulfilment of this agreement.

 

16) Final provision

16.1) All declarations are to be sent in writing to the last address the respective contractual partner notified in writing. The customer is obliged to notify WAKO of any changes to its business and/or residential address. If a declaration is sent to the last address notified in writing, it is regarded as having been received by the respective contractual partner.

16.2) The headings for the individual contractual points are chosen solely for the purpose of clarity and are therefore not to be used to for the interpretation of this agreement.