GENERAL TERMS AND CONDITIONS
Valid from August 16, 2016
1.1. These General Terms and Conditions of Boulesse GmbH, Prinz-Eugen-Straße 2/5, 1040 Vienna, FN 403708p of Commercial Court Vienna (Handelsgericht Wien) conclusively govern the legal relationship between Boulesse and all visitors of the website www.boulesse.com operated by Boulesse, in particular all customers who use the online shop operated at that website (“Boulesse-Webshop”) and conclude purchase contracts with Boulesse by way of the Boulesse-Webshop (“Customers”).
1.2. Any legal relationship based on the use of the Boulesse-Webshop is exclusively governed by these General Terms and Conditions. Any terms and conditions of the Customer and any statements and other communications made by the Customer (e.g. by e-mail) deviating from these General Terms and Conditions of Boulesse do not become part of the contractual relationship with Boulesse.
2. FUNCTIONALITY OF THE BOULESSE-WEBSHOP
2.1. Boulesse offers to businesses within the meaning of section 1 of the Austrian Business Enterprise Code (Unternehmensgesetzbuch – UGB) engaged in the fashion and lifestyle business (“Boutiques”) the possibility to use the Boulesse-Webshop as a marketplace platform for listing their range of goods and presenting it on the Internet by using the design modules provided by Boulesse.
2.2. The Boutiques are only authorised by Boulesse to list their goods in the Boulesse-Webshop. The Boutiques only act as agents of Boulesse towards the Customers, whereas Boulesse is the supplier, seller and provider of all goods in the Boulesse-Webshop. All purchase contracts which are entered into in the course of ordering goods in the Boulesse-Webshop, therefore, are exclusively entered into between Boulesse and the respective Customer. By way of any order Boulesse becomes the sole contractual partner of the Customer and assumes all contractual rights and obligations towards the Customer. Boulesse, therefore, is exclusively entitled to receive the purchase price and shipping fees from the Customer and is solely responsible for the fulfilment of the contract and in particular for the delivery of the ordered goods to the Customer and for any complaints of Customers.
2.3. Boulesse offers to individuals and legal entities worldwide the possibility to buy from Boulesse the goods listed by the Boutiques in the Boulesse-Webshop. Boulesse acts thereby as the seller and in particular manages the order and payment process. In order to use the Boulesse-Webshop and to register (i.e. open a customer account) individuals must have reached legal age and must have contractual capacity. Legal entities must be represented by a person who is of legal age, has contractual capacity and an authorised representative.
3. ORDERING PROCESS AND CONCLUSION OF CONTRACT
3.1. The offering of goods listed in the Boulesse-Webshop is made without obligation and is an invitation to the visitors of the Boulesse-Webshop to make a purchase offer to Boulesse. An order placed over the Boulesse-Webshop is a binding offer of the Customer to Boulesse for the conclusion of a purchase contract with respect to the goods designated in the order.
3.2. If Boulesse accepts an order placed over the Boulesse-Webshop in full or in part, Boulesse sends an order confirmation to the e-mail address specified by the Customer. The purchase contract between the Customer and Boulesse is concluded, with respect to the goods designated in the order confirmation, at the time Boulesse sends the order confirmation to the Customer. On the basis of an order placed over the Boulesse-Webshop no purchase contract exists until the delivery of the order confirmation.
3.3. If Boulesse – for example due to the unavailability of a product – cannot accept an offer in full or in part, this will be immediately communicated to the Customer. Boulesse reserves the right to only partly accept and deliver offers, if not all goods designated in an order are available.
4. TERMS OF PAYMENT
4.1. Upon the conclusion of a contract and delivery of the order confirmation Boulesse has a claim towards the Customer for payment of the purchase price and shipping fees. The Customer may only settle such claim by way of payment to Boulesse of the relevant amount in Euro currency.
4.2. Boulesse offers credit card payment and PayPal as means of payment. Upon delivery of the order confirmation Boulesse charges the credit card or the PayPal account, respectively, of the Customer and sends an invoice to the Customer for the amount charged. The Customer agrees with electronic invoicing as the only way of receiving invoices.
4.3. Payments using an American Express credit card may only be made if the address of the card owner corresponds to the delivery address of the Customer and payments using PayPal may only be made if the delivery address confirmed at PayPal corresponds to the delivery address stated during the buying process, otherwise Boulesse may decline the order at its own discretion.
4.4. If the credit card provider of the Customer or if PayPal declines payment at the time of delivery of the order confirmation, the Customer is liable for statutory default interest from the date of receipt of the order confirmation until the date of full settlement of the claim. Currently, the statutory default interest charged to legal entities/enterprises stands at 9.2% annually above the Austrian base lending rate (Basiszinssatz) and the statutory default interest charged to consumers stands at 4% annually. In the event of payment default, the Customer is also liable for all costs incurred by Boulesse or expedient fees of recovery and collection caused by the Customer’s payment default.
4.5. The Customer is only entitled to a right of offset if its counter claims have been determined by a Court or have not been contested by Boulesse or have been acknowledged by Boulesse explicitly in writing. The Customer may only exercise any retention right if its counterclaim is based on the same contractual relation.
4.6. All goods remain property of Boulesse until full payment has been made.
5. TAXES AND CUSTOMS
5.1. All prices in the Boulesse-Webshop are inclusive of Austrian statutory value added tax (currently 10% for certain goods, otherwise 20%). Depending on the country of delivery the value added tax of that country may apply at the prevailing rate. The rate of the value added tax applicable in accordance with the statutory provisions and the amount of the value added tax is shown during the ordering process and before conclusion of the purchase contract.
5.2. The order of goods for delivery to a place outside the European Union may also be subject to customs and other import duties levied upon delivery of goods to the relevant country. Customs and other import duties as well as fees for customs clearance have to be borne by the Customer.
6. SHIPPING TERMS
6.1. The expected delivery time is specified for each product in the Boulesse-Webshop. Goods in stock usually are dispatched within 2 business days after the order has been confirmed. A shop has 2 business days to confirm an order. Goods which are out of stock and are back-ordered usually are dispatched within 2 business days after receipt. The time of delivery to the Customer depends on the shipping method selected by the Customer.
6.2. Goods are dispatched to the address specified by the Customer. Only one delivery address may be specified for each order. The Customer bears all costs arising from any false, incomplete or unclear specification of address details.
6.3. The Customer is invoiced with a flat rate shipping fee for each Boutique whose goods were ordered over the Boulesse-Webshop. The flat rate shipping fee is the same for each delivery from a Boutique, regardless of the number and weight of the goods to be delivered. The amount of the flat rate shipping fee for each Boutique depends on the shipping method and on the country of delivery. Boulesse reserves the right to change the shipping fees at any time. The current flat rates for shipping can be found here.
6.4. The shipping fees are to be paid to Boulesse together with the purchase price. The available shipping methods and the shipping fees for the order are displayed in the course of the ordering process.
6.5. If Boulesse offers free shipping it only includes the delivery of the order to the first closed door. Any transport beyond the first closed door (e.g. furniture) and any tasks concerning the opening of the packaging, the set-up of the product as well as the subsequent transport and disposal of packaging are excluded from our free shipping promotion. However, Boulesse is happy to offer you the additional services on request for a fee depending on the order and tasks.
6.6. If Boulesse offers free shipping multiple orders going to the same address can be pooled into one parcel for shipping purposes regardless of the orders going to the same recipient or different recipients. Any tax and customs fees arising from pooled shipping have to be borne by the customer. Boulesse reserves the right to pool orders into one parcel without notifying the customer before shipping.
7. RIGHT OF WITHDRAWAL
7.1. Customers who are consumers as defined by the Austrian Consumer Protection Act (Konsumentenschutzgesetz – KSchG) may without giving reasons withdraw their order within 14 days after receipt of the ordered goods. The withdrawal is effective if the withdrawal notice is sent by e-mail (to firstname.lastname@example.org), by post to Boulesse or by means of the withdrawal form in the Boulesse-Webshop within that time period.
7.2. Upon timely receipt of a withdrawal notice from a Customer who is a consumer as defined by the Austrian Consumer Protection Art Boulesse within 14 days after receipt of the withdrawal notice will reimburse the Customer for the purchase price by way of credit towards the credit card or bank account used for payment. Boulesse may withhold all or part of the reimbursement until the goods have been duly returned (Section 7.4) or until the Customer, who is a consumer as defined by the Austrian Consumer Protection Act, has supplied Boulesse with evidence of having shipped the goods for return.
7.3. Reimbursements will be made including the shipping fee for standard delivery. No additional reimbursement will be made if the Customer, who is a consumer as defined by the Austrian Consumer Protection Act, has opted for a type of delivery other than standard delivery.
7.4. The Customer, who is a consumer as defined by the Austrian Consumer Protection Act, without delay and in any event not later than 14 days after submission of the withdrawal notice has to return the received goods in unused and undamaged condition with a shipping method that allows tracking to Boulesse. If the goods were shipped to the Customer with control bands attached the returned goods are only deemed unused and undamaged if the control bands are intact and still attached to the goods.
7.5. Returns have to be addressed to Boulesse GmbH, Stubenbastei 12/12, 1010 Vienna, Austria. No refunds will be made for returns to any other person than Boulesse GmbH or the Boutique whose goods were ordered over the Boulesse-Webshop, e.g. to the manufacturer of the goods.
7.6. Postage for returns and any customs, taxes and fees for customs clearance in connection with returns have to be borne by the Customer. No returns with unpaid postage will be accepted.
7.7. Boulesse charges and deducts from the refund of purchase price an appropriate compensation for depreciation in value for any returned goods which may not be, including the undamaged packaging and any control bands intact, re-sold as new. The same applies to goods returned with accessories missing.
7.8. Customers who are not consumers as defined by the Austrian Consumer Protection Act do not have a right of withdrawal.
7.9. Custom made products are excluded from the right of withdrawal.
7.10. Please note that our return policy applies to consumers in the European Union only. Sales to customers who are not consumers and sales to customers in third countries are final, except in cases of product faults or mistakes caused by Boulesse or the shop from which products were ordered.
8.1. Boulesse will warrant delivered goods in accordance with the statutory provisions. Boulesse does not assume any guarantee or any representation beyond the statutory warranty.
8.2. The quality and properties of goods as required under any purchase contract between Boulesse and a Customer are exclusively determined by the description of the same goods by their manufacturer and in the Boulesse-Webshop at the time the order of such goods is placed by the Customer. Descriptions of goods by their manufacturer, however, are not binding upon Boulesse if Boulesse was not and could not have been aware of them, if such descriptions have been corrected or amended by Boulesse in the Boulesse-Webshop or if such descriptions could not have influenced the conclusion of the purchase contract.
8.3. If a remediable defect cannot be remedied or the goods cannot be exchanged (remedy impossible or inappropriate), the Customer is entitled to a refund or, if the defect is not a minor one, to cancellation of the purchase contract (annulment). Unless the Customer is a consumer as defined by the Austrian Consumer Protection Act, the Customer is not, subject to Section 10 (Liability of Boulesse), entitled to any refund of any consequential damages, other property damages, damages to assets and third-party claims against the Customer.
8.4. Any warranties or guarantees assumed by the manufacturer of the relevant goods remain unaffected. Claims under such warranties or guarantees must be addressed directly to the manufacturer.
9. CUSTOMER ACCOUNT
9.1. Individuals who have reached legal age and have contractual capacity as well as legal entities represented by a person who is of legal age, has contractual capacity and is an authorised representative (each an “Account Holder”), either during the ordering process or on the login page of the Boulesse-Webshop may open a customer account. In order to open a customer account, the full name and a valid e-mail address of the Account Holder must be provided and a password for logging in to the customer account must be defined.
9.3. Account Holders may log on to the Boulesse-Webshop with their e-mail address and their password and benefit from the following advantages offered by their customer account:
a) Address administration
The Account Holder may change and manage its address and delivery data.
b) Order administration
The Account Holder may view its previous orders and request invoices.
c) Newsletter administration
The Account Holder may subscribe for the newsletter of Boulesse and review and amend the subscription.
d) Password administration
The Account Holder may change its password at any time. The password should consist of at least [u] characters and should contain alphanumerical combinations of characters and special characters.
These functions are available upon every log-on to a customer account regardless of the device used for logging on.
9.4. No person may maintain more than one customer account at the same time. If multiple customer accounts are registered for the same person, Boulesse will delete these accounts without prior notice.
9.5. Account Holders may log out of their customer accounts after every visit of the Boulesse-Webshop. It is generally recommended to do so, in particular if a device was used which several people have access to or if a public computer was used. If an Account Holder has logged out, third parties cannot access the customer account without knowing the combination of the e-mail address and password.
9.6. The Account Holder is liable for any misuse of its customer account caused by the Account Holder and in particular for any damages incurred by Boulesse as a consequence of any inadequate storage of the password by the Account Holder of any other access to the customer account by unauthorised persons.
10. LIABILITY OF BOULESSE
10.1. Boulesse is liable to the Customer for intent and gross negligence without limitation and for slight negligence only in case of violation of essential contractual obligations. Essential contractual obligations of Boulesse are such obligations which protect those legal provisions of the Customer which the contract is designed to provide to the Customer according to the content and purpose of the contract. Moreover, those contractual obligations of Boulesse, the fulfilment of which is essential for the proper performance of the contract and upon the fulfilment of which the Customer regularly relied upon and may be relying upon, qualify as essential obligations. This limitation of liability does not affect the liability for delayed deliveries.
10.2. Boulesse is not liable for damages which occur outside its sphere of influence and for other damages not caused by Boulesse, in particular due to disruptions of data transmission networks and of the transport of goods.
10.3. In case of data loss Boulesse is only liable subject to the conditions set out above and in any event only if such loss could not have been avoided by reasonable measures of data backup by the Customer (e.g. secure storage of access data to the customer account).
10.4. Moreover, the liability of Boulesse towards the Customer does not extend to damages which are caused by an improper or incorrect use of the Boulesse-Webshop by the Customer.
10.5. Boulesse is not responsible for third party advertisement and for links to websites featured in the Boulesse-Webshop. Boulesse assumes no liability for contents of such external websites. At the time the links for external websites were included in the Boulesse-Webshop such external websites contained no illegal content. A continuous review of these links by Boulesse is not possible. The link liability according to the Austrian E-Commerce Act (E-Commerce-Gesetz - ECG) applies.
10.6. The liability limitations stated above apply analogously to the benefit of the agents of Boulesse, in particular also to the benefit of the Boutiques.
11. DATA PROTECTION
12. AVAILABILITY AND DATA SECURITY
12.1. Boulesse reserves the right to change the range of services and in particular to change the Boulesse-Webshop and to change the offers of goods listed in the Boulesse-Webshop at any time.
12.2. Due to maintenance work required from time to time Boulesse cannot guarantee that the access to the Boulesse-Webshop will be possible at any time without interruptions.
12.3. The IT-infrastructure used by Boulesse is technologically up to date and, in particular, protected by firewalls. The Customer, however, is aware of the risk for all persons involved, that unauthorised parties may access any data while in transmission. This not only applies to the exchange of information via e-mail, but to any transfer of data. The confidentiality of the data transmitted during the use of the Boulesse-Webshop therefore cannot be guaranteed.
13.1. The entire content of the Boulesse-Webshop, including text, graphics, logos, button-icons, pictures, audio-clips, digital downloads and databases, is the property of Boulesse, of the Boutiques or of third parties who provide content or agreed to its publication in the Boulesse-Webshop, and is protected by Austrian and International copyright laws.
13.2. No parts of the Boulesse-Webshop may be reused or systematically extracted without the explicit written consent by Boulesse. In particular, no data mining, robots and similar data gathering or extraction tools may be used (once or several times) without the explicit written consent by Boulesse to extract any essential part of the Boulesse-Webshop. Furthermore, no own database which contains essential parts of the Boulesse-Webshop (e.g. prices or product information) may be created and/or published without the explicit written consent by Boulesse.
14. GOVERNING LAW AND JURISDICTION
14.1. These General Terms and Conditions, the usage of the Boulesse-Webshop and all legal acts concluded by way of the Boulesse-Webshop are governed by the laws of the Republic of Austria excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.2. This choice of law is subject to mandatory consumer protection laws of the ordinary place of residence of any Customer outside Austria, provided such Customer has its ordinary place of residence in a member state of the European Economic Area (EEA).
14.3. The relationship between Boulesse and Customers who are consumers shall be subject to the non-exclusive jurisdiction of the Courts of the First District of Vienna. Claims by consumers against Boulesse based on mandatory consumer protection laws of the Customer’s ordinary place of residence may be either brought before the Courts of the First District of Vienna or before the Courts of the EU member state where the Customer has its ordinary place of residence.
14.4. The relationship between Boulesse and Customers who are legal entities/enterprises shall be subject to the exclusive jurisdiction of competent Courts in commercial matters of the First District of Vienna. Furthermore, Boulesse is entitled to sue the legal entity/enterprise at its place of general jurisdiction.
15. GENERAL PROVISIONS
15.1. In these General Terms and Conditions all references to individuals are neutral in gender and shall be interpreted equally in the female and male form.
15.2. The ineffectiveness or unenforceability of one or more provisions of these General Terms and Conditions shall not affect the effectiveness or the enforceability of the other provisions of these General Terms and Conditions. Boulesse and the Customer undertake to replace any ineffective and unenforceable provision by an effective and enforceable provision which fulfils the economic purpose of the ineffective and unenforceable provision as close as possible and which is effective and enforceable.
15.3. Boulesse reserves the right to amend these General Terms and Conditions at any time. Any amendment of the General Terms and Conditions will be published by way of a temporary indication on the homepage of the Boulesse-Webshop and by other communication channels (e.g. newsletter). The continued use of the Boulesse-Webshop is deemed to be an acceptance by the Customer of all amendments of these General Terms and Conditions.