GENERAL TERMS AND CONDITIONS

for businesses

(Status January 2021)

Scope

These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all legal transactions between The Natural Gem GmbH, Universitätsring 12/15, 1010 Vienna, Company Register Number 490009 b (hereinafter referred to as “Natural Gem”) on the one hand and domestic and foreign consumers (hereinafter referred to as “Buyer” or “you”) on the other. The legal relationship between The Natural Gem and the Buyer shall be governed by the following contractual and business terms and conditions in the specified order:

The offer underlying the respective individual contract;
These general terms and conditions including the warranty conditions and the shipping costs overview.

Notwithstanding the above order of precedence, these General Terms and Conditions together with the warranty conditions and the overview of shipping costs shall apply exclusively, unless agreed in writing. This means that no other general terms and conditions of the buyer shall apply. This also applies in the event that the buyer bases the conclusion of the contract on his own GTC.
An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
The General Terms and Conditions for legal transactions with entrepreneurs can be found here. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.

Conclusion of contract

A legal transaction between Natural Gem and the respective purchaser is concluded as follows:

Express declaration of acceptance of an order placed by the Buyer via the webshop (thenaturalgem.com) by Natural Gem;
Signature by the Buyer of the offer submitted in writing by Natural Gem.

The conclusion of a contract does not have to take place on the premises permanently used by Natural Gem for its business purposes, but can also take place outside these premises. The rights of withdrawal according to point 10 or point 11 are applicable accordingly in these cases.
The presentation of the objects of purchase in the web shop is subject to change and therefore does not represent a binding offer for the conclusion of a contract by The Natural Gem. The Buyer is merely invited to make an offer by completing the order process (pressing the button “Order with obligation to pay”).
All information on the website of Natural Gem (thenaturalgem.com) is without guarantee of correctness or completeness. Natural Gem reserves the right to make errors and changes.

Object of purchase

The object of purchase is or are one or more gemstones in the quality stated in the respective offer (the enclosed certificate) (in short “object of purchase”). The quality of the object of purchase is determined by the degree of purity.
The Natural Gem does not guarantee any stability of value or increase in value of the object of purchase following the conclusion of the contract.

Fulfilment

Natural Gem has duly fulfilled the contract if it has made the object of purchase available for collection as agreed or if it has shipped the object of purchase to the Buyer as agreed.
Prior to full payment of the purchase price for the respective object of purchase, The Natural Gem is not obliged to make the object of purchase available for collection or to dispatch it. Should this nevertheless take place, point 8 (retention of title) shall apply accordingly.

Shipment, handover, and transfer of risk

If Natural Gem ships the object of purchase, the risk of loss or damage to the goods is transferred to the buyer as soon as the object of purchase is handed over to the carrier.
If the object of purchase is delivered with obvious transport damage, the buyer must complain about this in writing to Natural Gem as soon as possible. The failure of a complaint is regulated in point 9 (notice of defects).
If no other method of delivery or shipment of the object of purchase is agreed, the object of purchase shall be taken over by the Buyer in person at the registered office of The Natural Gem (Universitätsring 12/15, 1010 Vienna) during its opening hours. In this case, the Buyer shall be informed separately about the provision of the object of purchase for takeover. The notification of availability can be communicated or transmitted to the Purchaser by telephone or electronically. The collection period is 15 working days from the day of the notification of readiness.
If a person other than the buyer takes over the object of purchase, the person taking over must present Natural Gem with a written power of attorney. Natural Gem may nevertheless refuse to hand over the goods to a third authorized person if The Natural Gem has justified reasons to believe that the power of attorney presented is false or has not been issued by the buyer. If the collection period according to point 5.4 subsequently expires and the identity is not clarified or the goods are not taken over by the buyer as agreed within 3 working days, the consequences of default shall apply (see point 7.3).

Purchase price, invoicing and terms of payment

All purchase price information is in euros and, unless expressly stated otherwise, exclusive of the statutory value added tax. Any shipping costs, customs duties or other charges are not included. These are shown separately and are to be borne by the buyer. You can find the shipping costs overview here.
Payment of the purchase price is due from the date of the invoice for the purchase price owed by The Natural Gem.
After the corresponding invoice has been issued, payment of the purchase price will be made by electronic transfer to the following bank account: IBAN: AT132025600000926816, BIC: SPSPAT21XXX. The relevant payment period is 14 days from the date of the invoice. This applies both to invoices for down payments and to any remaining purchase price. If the account details on the respective invoice differ from the account details stated in this point, the account details on the respective invoice shall apply.
Upon Natural Gem’s request, the Buyer shall provide the VAT identification number. If the Buyer fails to provide the VAT identification number, Natural Gem is not obliged to issue an invoice until the Buyer has provided the VAT identification number. Natural Gem shall not be liable for any resulting delay.
Cash payment is excluded unless the parties have agreed otherwise in writing. In such a case, the transaction shall be settled step by step, i.e. payment of the purchase price against handover of the object of purchase.
All payments by the buyer shall first be set off against incidental expenses (e.g. shipping costs or customs duties), then against any interest and finally against the purchase price.
Should there be a change in customs duties or other levies applicable to the object of purchase between the conclusion of the contract and the transfer date, Natural Gem may adjust the purchase price accordingly. Natural Gem shall inform the buyer immediately of any price adjustment. If the increase amounts to more than 5 % of the originally agreed purchase price, the Buyer may withdraw from the present purchase contract in writing within 10 working days. In the event of a withdrawal by the Buyer, point 7.2 (refund of the purchase price) shall apply accordingly. If the buyer does not withdraw within the 10 (working) day period, the increased purchase price shall be deemed agreed.

Delay and withdrawal

If the agreed handover date is delayed, the buyer may withdraw from the legal transaction in writing by setting a grace period of at least 15 working days from the originally agreed handover date. Any advance payments or additional charges already made shall be refunded to the Purchaser with interest at a rate of 4 % p.a. without unnecessary delay.
In the event of a delay in payment, Natural Gem shall be entitled to charge the Purchaser reasonable reminder fees and interest on arrears at a rate of 9.2 % p.a. above the base rate of interest on the outstanding purchase price. The default interest shall start to run from (and including) the date of the first reminder until full payment of the purchase price. This claim also includes compound interest. In addition, the buyer undertakes to reimburse the court and out-of-court costs, as well as the reminder and collection expenses necessary for appropriate legal action, in the event of default in payment. In any case, this includes a lump sum of EUR 40 as compensation for collection costs according to § 458 UGB. The assertion of further rights and claims, such as in particular claiming compensation for the damage actually incurred, shall remain unaffected by this.
If the object of purchase is made available for collection and is taken over by the buyer late, Natural Gem may charge the buyer an appropriate custody fee. The safekeeping shall be carried out in accordance with § 373 of the Austrian Commercial Code (UGB) as amended from time to time.
Natural Gem may withdraw from the purchase contract in writing after the fruitless expiry of the collection period; Natural Gem may, at its discretion, set a reasonable period of grace for the collection of the object of purchase. In the event of a withdrawal from the contract, any purchase price already paid less the reasonable custody fee and a reasonable handling fee shall be returned to the Buyer.
In the event of a withdrawal in accordance with point 4, Natural Gem may also charge a flat-rate cancellation fee in the amount of 20 % of the net purchase price, whereby claims for damages in excess of this are not affected.
If there is a delay in acceptance without cancellation by Natural Gem in accordance with point 4, the provisions of § 373 UGB (Austrian Commercial Code) (delay in acceptance) shall apply accordingly.

Retention of title

If the object of purchase has been handed over to the buyer before full payment of the purchase price including any additional expenses (e.g. shipping costs or customs duties), the object of purchase remains the property of Natural Gem until full payment including additional expenses has been made.

Warranty / notice of defects

If the object of purchase does not correspond to what is contractually owed, the buyer is entitled to warranty claims according to §§ 922 ff ABGB (Austrian Civil Code) in connection with § 377 UGB (Austrian Commercial Code) with the following modifications.
After acceptance of the object of purchase by the Purchaser, the Purchaser shall be obliged to notify Natural Gem of the defect within a reasonable period of time, which shall in any case not exceed 14 days. Defects which are obvious at the time of handover must, however, be reported to Natural Gem immediately. The notification of defects is not bound to any form, whereby a verbal notification of defects must be followed by a written notification of defects. The transmission of a notice of defects by e-mail is permissible, whereby the risk of the timely transmission of the e-mail shall be borne by the buyer. The notice of defects must at least describe the alleged defect as precisely as possible.
If the notice of defects is not sent, § 377 para 2 UGB applies accordingly, and the buyer has forfeited his warranty claims.
As a legal remedy for a breach of warranty, the buyer is entitled to the exchange of the object of purchase or a price reduction. A rescission of the legal transaction concerning the object of purchase is excluded.
The warranty period shall be 12 months from the agreed time of handover. The warranty is excluded for used objects of purchase.
The period of presumption of defects according to § 924 ABGB is expressly waived.
Any guarantees granted by Natural Gem on an object of purchase are subject to their own guaranteed conditions. Warranty claims do not limit the warranty rights of the buyer. The respective guaranteed conditions can be found here.

Liability

Natural Gem shall be liable for compensation for damages culpably caused. Liability for merely slight negligence is excluded. In the case of gross negligence, the amount of liability is limited to the value of the object of purchase. Natural Gem shall not be liable for loss of profit, loss of interest, failure to make savings, other consequential damage and damage arising from third party claims. Limitations of liability do not apply, however, to compensation for personal injury.
The buyer must provide proof that any damage incurred by him is due to the fault of Natural Gem. The Buyer must also provide evidence that he is not at fault for any damage that has occurred. This applies to all forms of fault (slight/gross negligence, intent).
Claims for damages must be asserted in court at the latest within six months after knowledge of the damage and the damaging party, otherwise they shall be forfeited.

Exclusion of other challenges

A contestation, dissolution, termination or adjustment of the legal transaction is excluded for reasons of error or cessation of the basis of the transaction. Likewise, the avoidance of the legal transaction due to a reduction by more than half (laesio enormis) is excluded.

Data protection

The processing of personal data, which is necessary for the provision of services by Natural Gem, takes place exclusively on the basis of the relevant legal provisions, such as in particular the General Data Protection Regulation (DSGVO) and the Austrian accompanying laws (e.g. DSG and TKG 2003).
Further information can be found here.

Place of jurisdiction

Insofar as there are no mandatory legal provisions to the contrary, it is agreed that the place of jurisdiction shall be the locally competent court at the location of Natural Gem.

Applicable law

Austrian law shall apply to the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods BGBl. 1998/96, as amended (UN Sales Convention).

Final provisions

The contractual language is German.
Amendments to these GTC must be made in writing. This also applies to the amendment of this point1. Verbal collateral clauses to these GTC do not exist.
The invalidity of individual provisions of these GTC shall not affect the validity of the remaining provisions.
If any provision of these GTC is or becomes invalid, such invalid provision shall be replaced by a valid legal provision which comes as close as possible to the purpose of the invalid provision.
Subsidiarily, the provisions of the General Civil Code and the provisions of the UGB, all as amended from time to time, shall apply to the legal transaction in particular.