General Terms and Conditions
of the Gastros Switzerland AG
I. General, scope of application
1. Offers, the conclusion of all contracts and the processing of deliveries and services, including consulting services, shall be made exclusively based on these General Terms and Conditions of Sale. Deviating terms and conditions of the customer are expressly rejected. These terms and conditions shall also apply to all future contractual relationships with the customer without the need for a new agreement.
2. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in the contract.
II. Conclusion of contract, offer documents
1. Our offers are subject to change, i.e. only to be understood as an invitation to submit an offer, unless otherwise stated in the offer. The customer´s order qualifies as an offer that we can accept within 4 weeks by written order confirmation. For the content of the contract, for the scope of services, only this order confirmation is decisive.
2. We reserve the right to make technical or production-related changes to the illustrations, drawings, descriptions and information from our offer, provided that the delivery item is not deteriorated or significantly changed as a result and insofar as the change is reasonable for the customer.
III. Prices and Conditions of Payment
1. Our prices are net prices plus the statutory value added tax valid at the time of performance. They apply from our central warehouses in Europe plus packaging, freight, shipping and assembly costs, unless otherwise agreed.
2. We reserve the right to change our prices appropriately if, after the conclusion of the agreement, cost reductions or cost increases occur, in particular due to collective bargaining agreements, material price adjustments or taxes.
3. Unless otherwise agreed, our deliveries are payable net within 14 days of the invoice date, unless otherwise stated. We are entitled to demand advance payment or the provision of security if the customer does not comply with the terms of payment or if circumstances become known which impair the creditworthiness of the customer. In this case, we may refuse our performance or preparatory actions until a reasonable advance payment or security has been made.
4. The set-off or retention of payments is only permissible on the basis of recognized, undisputed, decision-ready or legally established claims of the customer.
IV. Delivery, delivery dates, delay
1. Delivery shall be made from our central warehouses in Europe, unless otherwise agreed.
2. Agreed delivery periods shall commence upon conclusion of the contract, at the earliest when the contracting parties have agreed on the details of the execution. In the event of changes or additions to the scope of services after conclusion of the contract, specified delivery dates and deadlines shall become invalid; they shall be extended appropriately, unless a special agreement is made. In the event of force majeure and all unforeseen hindrances occurring after conclusion of the contract for which we are not responsible, the delivery periods shall be extended accordingly – even within a delay – insofar as such hindrances can be proven to have an influence on the provision of the service owed. This also applies if these circumstances occur at our suppliers, carriers, carriers or subcontractors. We will inform the customer of the beginning and end of such obstacles as soon as possible. If an obstacle lasts longer than three months or if it is certain that it will last longer than three months, both the customer and we can withdraw from the contract. In the event of withdrawal, claims for damages by the customer are excluded.
3. If we are in default of delivery because of simple negligence, our liability for damages due to the delay in delivery shall be limited to 0.75% of the net order value for each completed week of delay, but not more than 5% of the net order value. If, in the aforementioned cases, the customer asserts damages instead of performance, this claim for damages shall be limited to 20% of the net order value. The limitations of liability in accordance with sentences 1 and 2 above shall not apply in the event of delay as a result of gross negligence or intent, nor shall they apply in the event of injury to life, limb or health, or in the case of a fixed-date transaction, i.e. in the case of a transaction in which the transaction is to stand or fall with compliance with the fixed performance period.
4. We are entitled to partial deliveries and services.
V. Transfer of risk and acceptance
1. The risk of loss and accidental deterioration shall pass to the customer as soon as the goods have been brought for transport or readiness for dispatch has been notified to the customer. This applies regardless of who bears the transport costs.
2. It is the responsibility of the purchaser to insure the goods at his own expense from the transfer of risk.
3. If the customer is in default with the acceptance of the goods or the payment of the remuneration, we may withdraw from the contract and/or demand damages instead of performance after the fruitless expiry of a reasonable grace period set by us. If the claim for damages is asserted in lieu of performance, we may claim 30% of the net order value as lump-sum damages. The contracting parties are at liberty to prove a higher or lower actual damage. In addition, we are entitled to charge the expenses incurred, in particular storage costs, in the event of default of acceptance by the customer. In the case of storage in our own premises, the local storage costs will be charged.
VI. Retention of title
1. We reserve title to all contractual services until all claims arising from the business relationship with the customer have been fulfilled in full.
2. The purchaser is obliged to treat the reserved goods with care, in particular to insure them adequately at his own expense against fire, water and theft damage at replacement value, and to inform us immediately in the event of seizure, confiscation, damage and/or loss; a breach of this obligation gives us the right to withdraw from the contract. The purchaser shall bear all costs that have to be incurred, in particular in the context of a third-party action for the lifting of a seizure and, if necessary, for the replacement of the delivery items, insofar as they cannot be collected from third parties.
3. In the event of default of payment by the purchaser with a not inconsiderable part of his obligations, we shall be entitled to temporarily take back the reserved goods after giving notice and setting a reasonable deadline. The exercise of the right of redemption does not constitute a withdrawal from the contract, unless we have expressly declared this. The costs arising from the exercise of the right of return, in particular for transport and storage, shall be borne by the customer if we had threatened to take back the goods within a reasonable period of time. We are entitled to dispose of the repossessed goods subject to retention of title and to satisfy ourselves from their proceeds, provided that we have previously threatened to dispose of them within a reasonable period of time.
4. If the reserved goods are combined with other goods by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods plus the processing value. If our ownership expires as a result of combination, mixing or processing, the purchaser shall transfer to us the ownership rights to which he is entitled to the new item to the extent of the invoice value of the reserved goods at the time of combination, mixing or processing and shall keep them in safe custody for us free of charge. The property rights to which we are entitled as a result shall be deemed to be goods subject to retention of title within the meaning of Sec. 1.
5. The purchaser hereby assigns to us the purchase price, wages or other claims arising from the resale or further processing or any other legal reason (e.g. in the event of an insured event, tort or loss of ownership due to connection of the delivery item with a piece of land) with regard to the goods subject to retention of title (including the acknowledged balance from a current account agreement) in the amount of the invoice value of the goods subject to retention of title; we accept the assignment. The assignment of receivables in accordance with sentence 1 serves to secure all receivables - including future claims - arising from the business relationship with the customer.
6. The purchaser is entitled to collect claims from the resale revocable for us in his own name. This collection authorization can only be revoked if the customer does not properly meet his payment obligations. In such a case, at our request, the customer must provide the information required for collection of the assigned claims, provide the relevant documents and notify the debtor of the assignment.
7. If the realizable value of the securities granted to us in accordance with the aforementioned provisions exceeds our claims against the customer by more than 10%, not only temporarily, we shall release securities of our own choice at the request of the customer. The above-mentioned coverage limit of 110% shall be increased by this amount of VAT if we are charged with VAT on the realization of the collateral, which arises from a delivery to us by the customer for VAT purposes.
8. Upon cessation of payments, application for or opening of insolvency proceedings with the Purchaser, the Purchaser´s right to resell and use the goods subject to retention of title as well as the authorization to collect assigned claims shall expire. The statutory rights of an insolvency administrator, including a provisional one, remain unaffected.
9. In the case of a delivery abroad, the customer is obliged to take all necessary measures to maintain the above retention of title provisions or an equivalent security interest under the applicable law (in particular to carry out any registration or to conclude an additional security agreement with us).
VII. Obligations of the customer
1. In the case of a purchase of the goods, the customer must give written notice of defects of any kind - with the exception of hidden defects - immediately after delivery; otherwise, the delivery item shall be deemed to have been approved. By negotiating a complaint, we shall in no case waive the objection of late, insufficient or unfounded notice of defects.
2. The customer undertakes to create all conditions necessary for the performance of our services at his own expense. Additional costs that are attributable to insufficient cooperation on the part of the customer shall be borne by the customer if the cooperation is omitted even after a reasonable deadline has been set for remedial action.
VIII. Material defects
1. We guarantee that the subject matter of the contract has the agreed quality and is not afflicted with defects that impair the suitability for the use assumed under the contract. No rights for material defects shall arise in the event of unsuitable or improper use, operating errors, faulty assembly or commissioning by the customer or third parties commissioned by the customer, natural wear and tear, faulty or negligent handling, chemical, electrochemical or electrical influences, unless they are attributable to fault attributable to us, in cases of force majeure or similar.
2. The limitation period (warranty period) for claims for material defects is generally 24 months. If a replacement delivery of the goods within the granted period becomes necessary, only the goods themselves will be replaced. The customer cannot claim any further costs. This applies in particular to claims associated with the installation and removal of the goods and other expenses.
3. If the subject matter of the contract has a defect, we may, at our discretion, either remedy the defect (rectification) or deliver a defect-free item (replacement delivery) as subsequent performance. Due to an insignificant defect, the customer can only withdraw from the contract with our consent.
4. For damages due to defectiveness of the subject matter of the contract, we shall otherwise only be liable within the limits specified in IX.
1. We shall be liable for damages in accordance with the statutory provisions in cases of intent, gross negligence, in the event of the assumption of a guarantee in accordance with the provisions of the Product Liability Act and in the event of injury to life, limb and health for which we are responsible. If, in addition, we violate an obligation with simple negligence, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (so-called cardinal obligation), the obligation to pay compensation shall be limited to the foreseeable damage typical for the contract. The limitation of liability in the event of delays in delivery in accordance with IV. 3 remains unaffected by this. In all other cases of liability, claims for damages due to the breach of an obligation arising from the contractual obligation as well as due to tort are excluded, so that we are not liable for loss of profit or other financial losses of the customer.
2. Insofar as liability is excluded or limited on the basis of the above provisions, this also applies to the personal liability of our employees, workers, employees, representatives and other vicarious agents.
3. Insofar as we give advice or recommendations without special remuneration, these are based on careful examination; however, any liability for this is excluded, unless we have acted intentionally.
1. If we provide the customer with an offer of devices, data carriers with or without software, cost estimates, drawings, illustrations, etc., these shall remain our property. If these documents are copyrightable, we reserve all copyrights. The purchaser may only use these documents to check our offer, neither copy them nor make them accessible to third parties in any other way.
XI. Data protection and confidentiality
1. The customer agrees that we or companies commissioned by us with the order data processing may store and process personal data in accordance with the data protection laws, insofar as this is appropriate for the execution of this contract.
2. Both contracting parties shall treat as confidential all data, information and documents which become known to them in connection with this contractual relationship and which are recognizable as business or trade secrets under other circumstances for an indefinite period of time and shall not make them accessible to any third party. The contracting parties will also impose corresponding obligations on their employees and agents.
XII. Final Provisions
1. The place of jurisdiction is Zurich. The same place of jurisdiction shall apply if the customer does not have a general place of jurisdiction in Germany, moves his place of residence or habitual abode out of Germany after conclusion of the contract or if his domicile or habitual abode is not known at the time the action is brought. However, we are entitled to sue the customer at his general or special place of jurisdiction.
2. The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between us and the customer to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
3. Should one or more of the above provisions be invalid, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the intended purpose of the invalid provision.