1.1. nako Sirup e.U. (hereinafter ‘nako’) concludes contracts with its customers exclusively on the basis of these terms and conditions (hereinafter ‘Terms’), even without an express reference in each individual case. These Terms also constitute a framework agreement for all future transactions with nako, even if they are not expressly referred to again.

1.2. A customer’s terms that differ from these Terms apply only if separately agreed in writing. If a customer sends differing terms to nako, the customer waives their legal effects when the contract is concluded. The remaining provisions of nako’s Terms remain valid even if individual provisions are invalid (see section 16, ‘Miscellaneous provisions’).

2. Products

2.1. In the course of its business, nako offers customers the following product groups:

2.1.1. Rooibos tea syrup (caffeine-free) 2.1.2. Mate tea syrup (caffeine content: 85 mg–120 mg per litre)

2.1.3. Coffee syrup (caffeine content: 1200 mg per litre)

2.1.4. Seasonal syrup flavours (caffeine-free)

2.1.5. Combinations of syrup flavours (caffeine content varies with the composition, up to a maximum of 150 mg per litre)

2.2. Specific information to be observed when consuming nako’s goods is provided in the product information on individual product labels or packaging. 2.3. The goods offered by nako are perishable goods within the meaning of § 18 FAGG and are sealed for hygiene and health protection reasons. In this respect, the provisions of section 12 of these Terms apply in particular.

3. Conclusion of contract

3.1. Offers from nako are binding only if made in writing and expressly designated as binding; otherwise, they may be amended or withdrawn at any time. nako’s latest binding offer replaces all previous offers.

3.2. Offers (orders) received by nako are accepted only when confirmed in writing, invoiced or actually fulfilled. The customer is bound by their offer (order) for six weeks from its receipt by nako.

3.3. The presentation of goods in nako’s online shop is not a binding offer to conclude a purchase contract; it is merely a non-binding invitation to order goods (invitatio ad offerendum). By selecting the [‘buy’] button, the customer submits a binding purchase offer within the meaning of § 861 ABGB. After receipt, the customer receives an electronic notification acknowledging the order. This acknowledgement does not constitute acceptance of the purchase offer and does not create a contract. A purchase contract is concluded when nako confirms acceptance in accordance with section 3.2 above.

3.4. Unless separately agreed, orders are limited to normal household quantities.

4. Prices

4.1. Prices stated on the product page and at nako’s business premises include statutory VAT. 4.2. Prices on the product page exclude the applicable shipping costs. Shipping costs are as stated in the online shop. 4.3. nako may make minor changes to the content and scope of its contractual services at any time, insofar as objectively justified and reasonable. 4.4. Discounts of any kind, including cash discounts, granted in an individual case do not create entitlement to the same discounts in future.

5. Payment terms and default

5.1. Payment may be made in cash (at nako’s premises and during mobile sales under section 7.6), against an invoice by advance payment, cash on delivery, (by PayPal or direct debit).

5.2. nako determines the payment methods available in each case. In particular, nako reserves the right to offer customers only selected payment methods.

5.3. If the customer defaults on payment, they must pay statutory default interest of 5 (five) percentage points above the base rate; for a business customer under § 1 UGB, the rate rises to 9.2 (nine point two) percentage points above the base rate for the relevant half-year. Each reminder sent after default incurs a fee of €20.00 (twenty euros) to cover nako’s expenses. nako reserves the right to claim any higher loss from the customer.

6. Right of retention and set-off

6.1. In principle, the customer has no right of retention of any kind; however, nako recognises the mandatory provisions of consumer protection law.

6.2. Likewise, in principle, the customer may not set off claims they have against nako; however, nako recognises the mandatory provisions of consumer protection law.

7. Delivery

7.1. Unless expressly agreed otherwise, goods are delivered from nako’s warehouse to the address specified by the customer.

7.2. Delivery is available only within Austria, Germany and Italy.

7.3. If not all ordered products are in stock, nako may make partial deliveries where reasonable for the customer. Any periods, in particular the withdrawal period under section 10 below, start only upon receipt of the final partial delivery.

7.4. If the ordered goods cannot be delivered within 30 days of the day following the order for reasons not attributable to nako, nako may withdraw from the contract even if its conclusion was previously confirmed. In that event, nako will promptly notify the customer of unavailability and refund any payments already made.

7.5. Goods are delivered by the carrier engaged by nako within the period stated in the online shop or, for other orders, within the individually agreed period. In the area around Innsbruck, nako also uses locally available delivery services in particular. nako accepts no liability of any kind for compliance with delivery dates or periods.

7.6. In addition to sales at nako’s premises and online shop, goods are sold through a mobile sales vehicle (‘Piaggio Ape’). It has a mobile cash register, and customers can purchase the goods described in section 2 directly from it at the prices displayed there.

8. Retention of title

8.1. Until full, unconditional payment of a nako invoice, including interest and costs, the delivered goods covered by that invoice (‘goods subject to retention of title’) remain the unrestricted property of nako. The customer must take all steps necessary to preserve ownership and, upon request, promptly provide nako with a list of such goods.

8.2. Resale of goods subject to retention of title in the ordinary course of business is generally permitted with appropriate notice of the retention. On resale to end customers, retention of title ceases and no notice is required. Resale is prohibited in the event of non-payment of a due claim, suspension of payments, opening of insolvency proceedings, enforcement against such goods or withdrawal from the contract. The customer must immediately return all such goods at their own expense. Unless otherwise declared in writing, taking the goods back does not constitute withdrawal from the contract.

9. Goods on consignment

9.1. By separate agreement, nako also supplies goods to customers on consignment.

9.2. When goods are handed over on consignment, the quantities concerned must be settled and their value paid without deduction. If the customer does not use all consigned goods, nako agrees to take back unused goods, subject to sections 9.3 and 9.4 below. In that case, nako undertakes to refund their value; payment arrangements are governed by section 5 of these Terms.

9.3. nako accepts returns only of unused goods in their original, unopened packaging. Goods that have been wholly or partly used will not be taken back, and the customer has no right to a refund of their value.

9.4. Due to the perishable nature of the goods produced and supplied by nako, returns are excluded if the goods do not meet section 9.3 above and the return date is more than six months after delivery.

10. Withdrawal instructions (consumers only)

10.1. If the transaction concluded with nako is not part of the customer’s business activities, the customer is a consumer within the meaning of § 1 Abs 1 Z 2 KSchG and has a right of withdrawal in accordance with the following provisions.

10.2. Right of withdrawal 10.2.1. The customer may withdraw from the contract with nako within fourteen days without giving a reason (§ 11 FAGG).

10.2.2. The withdrawal period is fourteen days from the day the customer, or a designated third party other than the carrier, takes possession of the goods.

10.2.3. If several goods ordered in a single order are delivered separately, the withdrawal period starts when the customer, or a designated third party other than the carrier, takes possession of the last delivered item.

10.2.4. If goods are delivered in several partial consignments, the withdrawal period starts when the customer, or a designated third party other than the carrier, takes possession of the respective partial consignment.

10.2.5. For contracts for regular delivery of goods over a defined period, the withdrawal period starts when the customer, or a designated third party other than the carrier, takes possession of the first delivered item.

10.2.6. To exercise the right of withdrawal, the customer must clearly notify nako of their wish to withdraw. Notify nako by letter to: nako Sirup e.U., Moosgasse 2, 6065-Thaur, or by email: info@nako.tirol.
The customer may use the attached model withdrawal form, but is not required to do so. Sending the withdrawal notice before the period expires is sufficient to meet the deadline (§ 13 FAGG).

11. Effects of withdrawal

11.1. Following the customer’s withdrawal, nako must refund all payments received, including delivery costs (except additional costs resulting from the customer’s choice of a delivery method other than nako’s least expensive standard delivery), without delay and no later than fourteen days after receiving the withdrawal notice. nako uses the same payment method as the original transaction unless an alternative refund arrangement is expressly agreed with the customer. The customer will not be charged fees for the refund (§ 14 FAGG).

11.2. nako may withhold reimbursement until it receives the returned goods or the customer provides evidence that they have been sent back, whichever occurs first (§ 14 Abs 3 FAGG).

11.3. The customer must send or hand the goods back to nako without delay and no later than fourteen days after notifying nako of withdrawal. Dispatch before expiry of the fourteen-day period meets the deadline under § 15 Abs 1 FAGG.

11.4. The customer bears the direct cost of returning the goods.

11.5. The customer is liable for loss in value only where caused by handling beyond what is necessary to establish the nature, characteristics and functioning of the goods (§ 15 Abs 4 FAGG).

11.6. To exercise the right of withdrawal, the customer may complete the following form and return it to nako. Model withdrawal form. To nako Sirup e.U., Höhenstraße 19d, 6020 Innsbruck. Email: info@nako.tirolI/We (*) hereby withdraw from the contract I/we (*) concluded for the purchase of the following goods (*): Ordered on (*)/received on (*). Consumer’s name: Consumer’s address: Consumer’s signature (only for notices on paper): Date: (*) Delete as appropriate.

12. Exceptions to the right of withdrawal

12.1. The goods offered by nako (see also section 2) are rapidly perishable goods, sealed for hygiene and health protection reasons. 12.2. Under § 18 FAGG, the right of withdrawal does not apply 12.2.1. to delivery of goods liable to deteriorate or expire rapidly;

12.2.2. to delivery of sealed goods unsuitable for return for health protection or hygiene reasons, if their seal has been removed after delivery.

12.3. Regardless of whether a right of withdrawal exists, goods should be returned to nako in their original packaging wherever possible, particularly to prevent damage. If the customer no longer has the original packaging or it no longer offers adequate protection, suitable packaging must be used to protect against transport damage, particularly to avoid claims for damages caused by inadequate packaging.

13. Statutory warranty

13.1. Unless expressly agreed otherwise, the customer’s statutory warranty rights are governed by the ABGB (§§ 922 ff ABGB).

13.2. For business customers under § 1 UGB, the warranty period is six months from delivery under section 7 of these Terms. The following additional provisions are also deemed agreed:

13.3. The customer must check goods immediately on receipt for completeness and defects. Obvious damage or shortages must be noted in writing on the delivery note, failing which rights are forfeited. Irrespective of this, defects must in all cases be reported without delay after receipt by registered written notice, failing which rights are forfeited.

nako Sirup e.U. is committed to comprehensive data protection and processes customers’ personal data only lawfully, transparently and in good faith. Further information on the use of personal data is available under ‘ nako.tirol’. On request, nako also provides this information on paper.

1 6. Miscellaneous provisions

16.1. Ancillary agreements to these contractual terms must be in writing to be legally effective. This also applies to any departure from, amendment or cancellation of this written-form requirement.

16.2. If provisions of these Terms or the agreement are or become invalid, or if there is a gap, the remaining provisions remain valid. A reasonable provision is deemed agreed in place of the invalid provision or to fill the gap, reflecting as closely as possible the parties’ presumed intention or what they would have agreed in view of the agreement’s purpose had they considered the matter. nako’s Terms take precedence over customers’ terms in all cases, and the customer waives incorporation of their own terms into this contractual relationship upon concluding the contract with nako.

16.3. If the customer is not a consumer under consumer protection law, all disputes arising from or connected with contracts between the customer and nako are decided by the court with subject-matter jurisdiction for A-6020 Innsbruck. nako may also bring proceedings against the customer at any other legally competent venue.

16.4. Austrian law is expressly agreed, excluding Austrian private international law and the UN Convention on Contracts for the International Sale of Goods. Statutory limits on choice of law and the application of mandatory provisions, particularly those of the country where a consumer customer habitually resides, remain unaffected.

16.5. The European Commission’s online dispute resolution platform for consumers is available at http://ec.europa.eu/consumers/odr/ ; however, nako declares that it is neither willing nor obliged to participate in dispute resolution before a consumer arbitration body.

Last updated: July 2018

( Erstellt von Greiter Pegger Kofler & Partner · Maria-Theresien-Strasse 24 · AT-6020 Innsbruck · Austria Tel +43 (0)512 - 57 18 11 · Fax +43 (0)512 - 58 49 25 · www.greiter.lawfirm.at · office@lawfirm.at )