Terms of service
General terms and conditions of sale and delivery for the web shop of GMS GOURMET GmbH
1. Validity of the general terms and conditions
These general terms and conditions of sale and delivery ("GTC") apply in the version valid on the date of the order to all contracts concluded via this web shop https://eshop.gerstner-konditorei.at/ between GMS GOURMET GmbH, which has its registered office at Oberlaaer Straße 298, 1230 Vienna ("Gourmet"), and the customer ("customer").
2. Acknowledgement of the GTC
By activating the GTC checkbox in the ordering process, the customer expressly agrees to these GTC and is bound by them.
Any provisions in the customer's contract forms and other terms and conditions (e.g., conditions of purchase/payment) that conflict with these GTC are invalid, regardless of whether, when and in what form they are brought to Gourmet's attention. Any agreements deviating from individual provisions of these GTC are only valid for these and require the prior express and written confirmation of Gourmet to be valid. Maintaining silence about terms and conditions of the customer is not deemed consent.
3. Contract conclusion
The goods listed in this web shop can be put into the shopping cart without obligation and an entry can be corrected at any time before submitting a binding order by using the correction aids that are provided and explained as part of the order process. After agreeing to the GTC by activating the checkbox, the customer's data must be entered in the next ordering step. The customer is obliged to truthfully fill in the fields provided in the order form. An order can only be placed if all fields (fields marked with an asterisk) are completed. After clicking the “Check order” button, the customer can check the order again and change it if necessary. By clicking the order button ("buy"), the customer places a binding order (offer) of the items contained in the shopping cart and makes his payment by using the desired payment method.
All offers made by Gourmet in this web shop are non-binding and are to be understood as an invitation to the customer to make an offer themselves. A contract is therefore only concluded upon acceptance of the customer's offer. Gourmet is not obliged to accept a customer offer. The customer is bound by his offer for twenty-four hours. The order confirmation approves the acceptance of the offer.
After the order has been placed and payment has been made, Gourmet saves the text of the contract and send the customer an order confirmation by Email, in which the conclusion of the contract is confirmed. With the order confirmation, the customer receives an order overview, the present GTC and the sample withdrawal form. The order confirmation and its attachments can be saved and printed.
The website https://eshop.gerstner-konditorei.at is available in German and English. Contracts can be concluded in German and English.
Gourmet reserves the right to change its service offering at any time. Such changes do not affect contracts already concluded.
The customer can also view orders placed in the past in his customer account, provided he has registered on the website and placed the orders as a logged in user.
4. Prices
All prices in this web shop are quoted in euros and include VAT. If there are any packaging or shipping costs, these will be charged and shown separately.
The price listed in this web shop at the time of the order applies.
5. Terms of payment
The payment methods available are those listed in the web shop. Payments can be made with debit or credit cards.
Online payments are processed via the App Wallee (https://app-wallee.com/) payment partner according to current security standards (integration of the online payment system of App Wallee).
The customer's account will be debited as soon as the contract is concluded.
6. Reservation of title
The goods delivered by us remain the property of Gourmet until full payment of the purchase price including all ancillary charges.
7. Order, terms of delivery
7.1. The delivery or pick-up date is indicated in the web shop. Deliveries are possible only within the territory of the European Union.
Delivery times apply subject to unforeseen obstacles, especially force majeure. The delivery times are extended by the duration of obstacles not attributable to Gourmet, such as unforeseeable operational disruptions, force majeure, transport or customs delays, etc. In any case, claims for damages or cancellation of the contract due to late delivery are excluded.
If there is a delivery option mentioned in the web shop and this option has been selected by the customer, it will be delivered to the address specified by the customer for that order.
a) Contracts with consumers pursuant to Section 1 of the KschG (consumer protection law) in conjunction with Section 7b of the KSchG:
The risk of loss or damage to the goods only transfers to the consumer once the goods are delivered to the consumer or to a third party other than the carrier as specified by the consumer.
However, if the consumer concluded the transportation contract themselves, the risk transfers as soon as the goods are handed over to the carrier.
b) Contracts with entrepreneurs:
If the customer is an entrepreneur, the delivery of the goods is at their risk.
7.2. Purchase of vouchers, Print@Home
Customers can purchase vouchers for the amounts listed in the web shop and they can be downloaded as soon as payment has been made. The customer will also receive an Email with a link to the purchased vouchers. The vouchers are printed by the customer. The customer is responsible for keeping the voucher template confidential. Gourmet is not liable for the misuse of the voucher template. A voucher can be redeemed only once. The vouchers are valid immediately after purchase.
Vouchers purchased in our online shop at https://eshop.gerstner-konditorei.at entitle you to redeem them for goods in this web shop or in our branch at GERSTNER K.u.K Hofzuckerbäcker, Kärntner Straße 51, 1010 Vienna at the nominal value of the vouchers. Vouchers cannot be paid out in cash.
To redeem a voucher, please hand in the voucher to the staff at the cash desk in the above-mentioned branch or enter the voucher code printed on the voucher in the "redeem voucher" section when placing an order in the online shop.
Should a contract for an order for the customer not be concluded, the voucher code will be reactivated and will not lose its validity, or the debited (partial) amount will be credited to you.
8. Warranty and compensation
a) Contracts with consumers pursuant to Section 1 of the KschG (consumer protection law) in conjunction with Section 7b of the KSchG:
The statutory warranty regulations apply vis à vis customers.
b) Contracts with entrepreneurs:
We provide a warranty to entrepreneurs for 6 months from delivery.
The customer must immediately inspect the delivered goods upon delivery in terms of completeness, accuracy and absence of defects in accordance with Section 377 of the Austrian commercial code (UGB) and must report any defects in writing without delay, but at the latest within five working days after receipt of the goods or service. Failure to do so will result in the loss of all claims arising from defects that would have been detected upon proper inspection. The customer must also give written notice of any defects that occur later, otherwise warranty claims and claims for damages for such defects are excluded. Improper storage, handling or preparation of the products after their handover to the ordered excludes any warranty.
Claims for damages against Gourmet are excluded in cases of slight negligence within the scope of legal regulations – especially the provisions of the consumer protection law (KSchG). Liability for damages resulting from injury to life, body and health remains unaffected, or where there is mandatory liability under the product liability law.
9. Right of withdrawal - cancellation clause
There is no right of withdrawal for entrepreneurs.
9.1. Cancellation clause – right of cancellation for consumers
Clients, who are consumers in the meaning of Section 1 of the KSchG, have the right to withdraw from this contract within fourteen days without giving a reason (Section 11 of the FAGG)
The withdrawal period will expire after 14 days
a) from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods. (Section 11 para. 2 no. 2 lit. a) of the FAGG).
b) if you have ordered multiple goods in one order and delivered separately, from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good (Section 11 para. 2 no. 2 lit. b) of the FAGG).
c) in the case of delivery of a good consisting of multiple lots or pieces, from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last lot or piece (Section 11 para. 2 no. 2 lit. c) of the FAGG).
To exercise the right of withdrawal, you must inform us, (GMS GOURMET GmbH, Gerstner K.u.K. Hofzuckerbäcker, Kärntnerstraße 51, 1010 Vienna, Email: konditorei@gerstner.at, Telephone number: +43 (1) 526 13 61) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory (Annex I Part B of the FAGG).
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.
You shall send back the goods or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired. You will have to bear the direct cost of returning the goods.
You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
It is expressly pointed out that according to Section 18 of the FAGG the consumer has no right to withdraw from the contract
- for the delivery of goods that are manufactured according to customer specifications or are clearly tailored to personal needs (Section 18 para. 1 Z 3 of the FAGG);
- for goods that can spoil quickly or whose expiration date would be quickly exceeded (Section 18 para. 1 Z 4 of the FAGG)
- in the case of goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene, if their seal has been removed after delivery (Section 18 para. 1 Z 5 of the FAGG)
- in the case of vouchers for which a specific point in time or period is contractually stipulated for the fulfilment of the contract by the entrepreneur (Section 18 para. 1 Z 10 of the FAGG). There is no right of withdrawal from the contract if you have redeemed the voucher before the expiry of the above-mentioned 14-day period. In case of a withdrawal of vouchers, the code printed on the voucher ceases to be valid. Gourmet will refund the entire unused part of the voucher amount via the payment method used for payment.
Please find the model withdrawal form here.
10. Customer Account
Customers must keep their access data protected and may not pass them on to third parties.
11. Copyright
Gourmet reserves all rights, in particular trademark rights and copyrights, to the entire content of this website, in particular to trademarks, logos, texts, graphics, photographs and layout. Unless usage is expressly permitted by law, any use of the contents of this website, in particular its storage in databases, reproduction, distribution or processing, requires the express written consent of Gourmet.
12. General matters, place of performance, place of jurisdiction
If individual points of these general terms and conditions are wholly or partially invalid due to mandatory legal provisions, this does not affect the validity of the remaining provisions and the contracts concluded on their basis.
In any case, amendments and/or supplements to these general terms and conditions of sale and delivery require the written confirmation and signature of GMS GOURMET GmbH.
Place of performance for deliveries and payment is exclusively Vienna.
The exclusive place of jurisdiction for all disputes arising from or in connection with these general terms and conditions of sale and delivery and the contracts concluded on their basis is the materially competent court in Vienna or, for consumers, the court at their place of residence.
Austrian substantive law applies exclusively to the exclusion of conflict of law provisions. The application of the UN Sales Law and the IPRG (International Private Law Act) is expressly excluded.
Mandatory rights of a consumer under the KschG (consumer protection law) or other provisions are not restricted by these general terms and conditions.
13. Information on alternative dispute resolution
In the event of complaints, please contact us on +43 (1) 526 13 61 or via Email konditorei@gerstner.at.
We commit to participating in the conciliation process of the Internet Ombudsman in case of disputes: https://www.ombudsstelle.at/
For more information on the types of procedures, please visit https://www.ombudsstelle.at/ or see the respective procedural guidelines:
Procedural guidelines of the Internet Ombudsman for alternative dispute resolution according to the AStG (AStG conciliation procedure).
https://www.ombudsstelle.at/fileadmin/daten/Verfahren/Richtlinien_AStG-Verfahren.pdf
Guidelines for the conciliation procedure at the Internet Ombudsman outside the scope of the AStG (standard procedure)
For the resolution of disputes with our company, the online dispute resolution platform can also be used: Link to the ODR platform:
https://ec.europa.eu/consumers/odr
GMS GOURMET GmbH
Last updated: 15/05/2024
