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 are made exclusively on the basis of these general terms and conditions of sale. Deviating conditions of the customer are expressly contradicted. These conditions 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 execution of this Contract, are stipulated in writing in this 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 the offer provides otherwise. The Customer´s order is to be qualified as a contract, which we can accept within max. 4 weeks by written order confirmation. The cancellation of the contract or a withdrawal from the contract are excluded. The written order confirmation alone is decisive for the content of the contract, in particular for the scope of services.
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 and that the change is reasonable for the customer.
III. Prices and Conditions of Payment
1. Our prices are net prices plus the statutory sales tax applicable at the time of the service. They apply from our central warehouses in Rheinfelden (D) or Zurich (CH) 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 contract, there are cost reductions or increases, in particular due to wage agreements, material price adjustments, and currency fluctuations of more than 2% or taxes.
3. Unless otherwise agreed, our deliveries are payable net within 14 days of the invoice date, unless stated otherwise. We are entitled to request advance payment or security if the customer does not comply with the terms of payment or if circumstances become known that affect the customer´s creditworthiness. In this case, we can refuse our performance or preparatory actions until a reasonable advance payment or security has been made.
4. Offsetting or retention of payments is only permitted due to recognized, undisputed, decision-making or legally established claims of the customer.
5. If the customer does not fulfill his payment obligations within the given payment terms set on the invoice, he will be in default without further notice and we will charge a default interest rate of 12% p.a.
IV. Delivery, delivery dates, delay
1. The delivery takes place from our central warehouse in Rheinfelden (D) or Zurich (CH), unless otherwise agreed.
2. Agreed delivery times begin with the conclusion of the contract, at the earliest when the contractual partners have agreed on the details of the execution and when the customer has taught us all the documents and materials to be procured by him. In the event of changes or additions to the scope of services after the conclusion of the contract, the specified delivery dates and deadlines become invalid; they are extended appropriately unless a special agreement is made. In the event of force majeure and all unforeseen obstacles occurring after the conclusion of the contract, for which we are not responsible, the delivery times will be extended accordingly - even within a delay - insofar as such obstacles are demonstrably of influence on the performance of the service owed. This also applies if these circumstances occur with our upstream suppliers, suppliers, carriers or subcontractors. LUZ shall communicate the beginning and end of such impediments to the customer as soon as possible. If the impediment continues for more than three (3) months, or if it is certain that it will continue for more than three (3) months, both the customer and LUZ 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 due to simple negligence, our liability for damages due to the delay in delivery is limited to 0.75% of the order value net for each completed week of the delay, but not more than 5% of the order value net. If the customer claims compensation instead of performance in the named cases, this claim for compensation is limited to 20% of the order value net. The limitation of liability under the foregoing sentences 1 and 1 does not apply in the event of delay owing to gross fault, nor does it apply in the event of injury to life, body or health and in the event of fixed business transactions, i.e. a business transaction which is contingent upon the observance of a firmly determined period allowed for performance.
4. We are entitled to partial deliveries and services.
V. Transfer of risk and acceptance
1. The risk of destruction and accidental deterioration passes to the customer as soon as the goods are brought for transport or the customer is informed that the goods are ready for dispatch. This applies regardless of who bears the transport costs.
2. It is the responsibility of the customer to insure the goods at his own expense from the transfer of risk.
3. If the customer is in arrears with the acceptance of the goods or payment of the remuneration, we can withdraw from the contract after fruitless expiry of a reasonable grace period set by us and / or demand compensation instead of the service. When asserting a claim for damages instead of performance, we can claim 30% of the net order value as flat-rate compensation. The contractual partners are at liberty to prove a higher or substantially lower factual damage. In addition, we are entitled to charge the expenses incurred, in particular storage costs, in the event of delay in acceptance by the customer. If the goods are stored on our own premises, the usual local storage costs will be charged.
VI. Retention of title
1. We reserve ownership of all contractual services until all claims from the business relationship with the customer have been fully met.
2. The customer is obliged to treat the goods subject to retention of title with care, in particular to adequately insure them against fire, water and theft damage at replacement value at his own expense, and to inform us immediately in the event of attachment, seizure, damage and/or loss; a violation of this obligation gives us the right to withdraw from the contract. The customer shall bear all costs which have to be paid, in particular, within the scope of an action in opposition to execution of a judgement, brought by a third party who claims title to the attached property, for the revocation of a pledge and for replacement of the contract items, if they cannot be collected by third parties.
3. In the event of delay in payment by the customer with a not inconsiderable part of his obligations, we are entitled, after giving notice, to set an appropriate period of time to take back the goods subject to retention of title. Exercising the right of return does not constitute a withdrawal from the contract unless we have expressly stated this. The customer bears the costs arising from the exercise of the right of return, in particular for transport and storage, if we have threatened to take it back within a reasonable period. We are entitled to utilise the returned goods subject to retention of title and to satisfy ourselves from their proceeds, provided that we have previously threatened the utilisation with a reasonable period.
4. If the goods subject to retention of title are combined with other goods by the customer, we are entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods plus the processing value. If our property expires due to connection, mixing or processing, the customer transfers the ownership rights to the new item to the amount of the invoice value of the reserved goods at the time of the connection, mixing or processing and stores them for us free of charge. The property rights to which we are entitled are deemed to be reserved goods within the meaning of no. 1.
5. The customer enters the purchase price, wages or other claims arising from the resale or further processing or another legal reason (e.g. in the case of insurance, in the event of an unlawful act or through loss of ownership due to the delivery item being connected to a property) with regard to the reserved goods (including the recognized balance from a current account agreement) in the amount of the invoice value of the reserved goods to us now; we accept the assignment. The assignment of claims according to sentence 1 serves to secure all claims - including future ones - from the business relationship with the customer.
6. The customer is entitled to collect claims from the resale for us in his own name. This authority to collect can only be revoked if the customer does not duly fulfil his payment obligations. In such case and if requested by us the customer has to submit statements required on the assigned claims, has to provide respective documents and has to inform the debtor about the assignment.
7. If the achievable value of the securities allowed according to the above-stated regulations exceeds our claims vis-a-vis the customer more than 10 % not only for a short period of time we will release securities at our discretion if requested by the customer. The above-stated coverage limit of 110% shall be increased by the value added tax amount if we are burdened with value added tax when exploiting the safety subject coming into existence for us with a delivery of the customer with value added tax.
8. With the suspension of payment, application for or opening of insolvency proceedings with the customer, the right of the customer to resell and use the reserved goods and the authorisation to collect assigned claims expires. This shall not affect the statutory rights of a liquidator, including those of a preliminary liquidator.
9. In the case of a delivery abroad, the customer is obliged to take all necessary measures to maintain the aforementioned retention of title regulations or a security right equivalent in accordance with the applicable law (in particular to make a possible registration or to conclude an additional security agreement with us).
VII. Obligations of the customer
1. In the case of a purchase or a contract for the delivery of moving goods to be manufactured or produced, which is a commercial transaction for both parts, the customer must notify defects of any kind - with the exception of hidden defects - in writing immediately after delivery; otherwise the delivery item is considered approved. Hidden defects must be reported in writing immediately after discovery; otherwise, the delivery item is also considered approved with regard to these defects. By negotiating a complaint, we do not waive the objection to late, insufficient or unfounded notice of defects.
2. The customer undertakes to create at his own expense all the conditions necessary for the performance of our services. Additional costs that can be attributed to insufficient cooperation by the customer must be borne by the customer if the cooperation is not remedied even after setting an appropriate deadline.
VIII. Material defects
1. We guarantee that the subject of the contract has the agreed quality and is not subject to defects that affect the suitability for the use required by the contract. No material defect rights arise in the event of unsuitable or improper use, operating errors, incorrect assembly or commissioning by the customer or third parties commissioned by the customer, natural wear and tear, incorrect or negligent treatment, chemical, electrochemical or electrical influences, unless they are attributable to a fault attributable to us, in cases of force majeure or similar.
2. The limitation period for claims for material defects is 24 months.
3. If the object of the contract has a defect, we can choose to either rectify the defect (rectification) or deliver a defect-free item (replacement delivery) at our discretion. If we are not prepared or are not in the position to provide a subsequent improvement/replacement, in particular, if it is delayed beyond a commensurate period of time, for reasons for which we are to be held responsible, or if the subsequent improvement/replacement is otherwise unsuccessful, then the customer, at his/her discretion, shall be entitled to a rescission of contract or the diminution of the purchase price, if he/she finds other attempts of compensation unsatisfactory. A withdrawal of customer from the contract due to negligible defect is only possible with our consent.
4. We shall otherwise only be liable for damages due to defectiveness of the subject matter of the contract within the limits specified in IX.
1. We are liable for damage in accordance with the statutory provisions in cases of intent, gross negligence, assuming a guarantee in accordance with the provisions of the Product Liability Act and in the event of injury to life, body and health for which we are responsible. In addition, if we violate a simple negligence obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner can regularly rely (so-called cardinal obligation), the obligation to pay compensation is limited to the contract-typical, foreseeable damage. The limitation of liability for delays in delivery according to IV. para. 3 remains unaffected by this. In all other liability cases, claims for damages for the breach of an obligation arising from obligations under the agreement and tort are excluded, to the effect that we are not also liable for lost profits or other financial damages of the customer.
2. Insofar as liability is excluded or limited in accordance with the provisions above, this shall also apply to the personal liability of our employees, workers, staff, representatives and other agents. 3. Insofar as we give advice or recommendations without special remuneration, these are based on careful examination; any liability for this is excluded, unless we have acted deliberately.
1. When we provide the customer with an offer, equipment, data carriers with or without software, cost estimates, drawings, illustrations, etc., these remain our property. If these documents are copyrightable, we reserve all copyrights. The customer may only use these documents to check our offer, and may not 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 to process order data store and process personal data in accordance with data protection laws, insofar as this is expedient for the implementation of this contract.
2. Both parties to the contract will treat all data, information and documents which become known to them in connection with this contractual relationship and which are recognisable as business or trade secrets in other circumstances, indefinitely and will not be made accessible to third parties. The contractual partners will also impose corresponding obligations on their employees and agents.
XII. Final Provisions
1. Place of jurisdiction is Zurich (Switzerland), insofar as the customer is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law. The same place of jurisdiction applies if the customer has no general place of jurisdiction within Germany, moves its place of residence or normal abode abroad after conclusion of the contract, or its place of residence or normal abode is not known on the date the legal action is filed. 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 applies to these conditions and the entire legal relationship between us and the customer, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
3. Should one or more of the above provisions be ineffective, this does not affect the effectiveness of the remaining provisions. The contracting parties undertake to replace the ineffective provision with an effective one that comes as close as possible to the purpose intended with the ineffective provision.