General Terms and Conditions of Gastro-Bedarf24 GmbH
§ 1 Scope
1.1 All deliveries, services, and offers of Gastro-Bedarf24 GmbH (hereinafter "Gastro-Bedarf24" or "Seller") are made exclusively on the basis of these general terms and conditions. These are part of all contracts that Gastro-Bedarf24 concludes with its contractual partners (hereinafter also called "buyer") regarding the deliveries or services it offers. They also apply to all future deliveries or offers to the buyer, even if they are not separately agreed again.
1.2 Terms and conditions of the buyer or third parties do not apply, even if Gastro-Bedarf24 does not expressly object to their validity in individual cases. Even if Gastro-Bedarf24 refers to a letter containing or referencing terms and conditions of the buyer or a third party, this does not constitute consent to the validity of those terms and conditions.
1.3 The buyer may only rely on the validity of their terms and conditions in deviation from the above provisions if Gastro-Bedarf24 has expressly agreed to their validity in writing.
§ 2 Offer and Conclusion of Contract
2.1 Gastro-Bedarf24 offers entrepreneurs within the meaning of § 14 BGB – including via its online shop and digital marketplaces – the sale of equipment for catering businesses as well as related services – especially ventilation construction and deliveries. These offers are not directed at consumers within the meaning of § 13 BGB.
2.2 All offers from Gastro-Bedarf24 are non-binding and without obligation unless they are explicitly marked as binding or contain a specific acceptance period. Gastro-Bedarf24 can accept orders or contracts within 14 days of receipt. The presentation of the offered products in the online shop or on digital marketplaces does not constitute a binding offer from Gastro-Bedarf24, but an invitation to submit an offer by the buyer.
2.3 When the buyer places an order in the online shop of Gastro-Bedarf24 or on a digital marketplace, they make a binding purchase offer within the meaning of § 145 BGB by clicking the "order with obligation to pay" button or a similar button. The contract is concluded as soon as Gastro-Bedarf24 accepts the order by an order confirmation or by delivering the goods. The legally required confirmation of receipt of the order (§ 312i para. 1 no. 3 BGB) does not constitute acceptance of the purchase offer.
2.4 For all orders placed outside the online shop or a digital marketplace, the contract is concluded upon sending the order confirmation from Gastro-Bedarf 24 to the buyer. The sending can be done by email, fax, postal mail, or other digital media (e.g., WhatsApp or similar), provided the buyer has contacted Gastro-Bedarf24 via the respective medium and the recipient is clearly identifiable.
2.5 Additions and amendments to the agreements made require written form to be effective. Except for managing directors or authorized signatories, employees of Gastro-Bedarf24 are not authorized to make oral agreements deviating from the written agreement. To preserve written form, telecommunication transmission in text form, especially by email or fax, is sufficient.
2.6 Information from Gastro-Bedarf24 regarding the subject of delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representation of the same (e.g., drawings and illustrations) are only approximately authoritative unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics but descriptions or designations of the delivery or service. Commercially customary deviations and deviations required by legal regulations or representing technical improvements, as well as the replacement of components with equivalent parts, are permitted as long as they do not impair usability for the contractually intended purpose.
2.7 Gastro-Bedarf24 reserves the intellectual property rights or copyrights to all offers and cost estimates it provides, as well as to drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids published in the online shop or on digital marketplaces or made available to the buyer. The buyer may not make these documents accessible to third parties, disclose them, use them themselves or through third parties, or reproduce them without the express consent of Gastro-Bedarf24. Upon request by Gastro-Bedarf24, the buyer must return these documents in full and destroy any copies made if they are no longer needed in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. An exception is the storage of electronically provided data for the purpose of usual data backup.
§ 3 Prices and Payment Terms
3.1 The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services will be charged separately. Prices are in EUR ex works plus packaging, statutory VAT, customs duties, fees, and other public charges.
3.2 Payment processing is carried out – unless otherwise agreed – according to the payment methods specified in the online shop or – in the case of purchase via a digital marketplace – according to its respective guidelines. Additional fees charged by the marketplace operator are borne by the buyer.
3.3 If the agreed prices are based on the list prices of Gastro-Bedarf24 and delivery is to take place more than four months after the contract conclusion, the list prices valid at the time of delivery from Gastro-Bedarf24 apply (each minus the discount, if such was agreed or bindingly promised by Gastro-Bedarf24).
3.4 Invoice amounts are to be paid within fourteen days without any deduction unless a different agreement has been made. The date of payment is determined by receipt at Gastro-Bedarf24. Payment by check is excluded unless separately agreed in individual cases. If the buyer fails to pay when due, the outstanding amounts will bear interest at 5% p.a. from the due date. The assertion of higher interest and further damages in case of default remains unaffected.
3.5 Set-off against counterclaims of the buyer or withholding of payments due to such claims is only permitted if the counterclaims are undisputed, legally established, or arise from the same order under which the respective delivery was made.
3.6 Gastro-Bedarf24 is entitled to execute outstanding deliveries or services only against advance payment or security if, after the conclusion of the contract, circumstances become known that are likely to significantly reduce the buyer's creditworthiness and thereby endanger payment of the outstanding claims of Gastro-Bedarf24 by the buyer from the respective contractual relationship (including other individual orders covered by the same framework agreement).
§ 4 Delivery and Delivery Time
4.1 Deliveries are only possible within Germany and are generally made ex works. Deviating agreements must be explicitly made.
4.2 Deadlines and dates for deliveries and services promised by Gastro-Bedarf24 are always approximate unless a fixed deadline or date has been explicitly promised or agreed upon. If shipment has been agreed, delivery times and dates refer to the time of handover to the carrier, freight forwarder, or other third party commissioned with the transport.
4.3 Without prejudice to its rights due to the buyer's default, Gastro-Bedarf24 may require the buyer to extend delivery and service deadlines or postpone delivery and service dates by the period during which the buyer fails to fulfill its contractual obligations to Gastro-Bedarf24.
4.4 Gastro-Bedarf24 is not liable for impossibility of delivery or delivery delays to the extent that these are caused by force majeure or other events unforeseeable at the time of contract conclusion (e.g., operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures, or failure, incorrect or untimely delivery by suppliers) for which Gastro-Bedarf24 is not responsible. If such events significantly hinder or make delivery or service impossible and the obstruction is not only temporary, Gastro-Bedarf24 is entitled to withdraw from the contract. In the case of temporary obstacles, delivery and service deadlines are extended or delivery or service dates postponed by the duration of the obstruction plus a reasonable start-up period. If acceptance of the delivery or service is unreasonable for the buyer due to the delay, the buyer may withdraw from the contract by immediate declaration in text form (§ 126b BGB) to Gastro-Bedarf24.
4.5 Gastro-Bedarf24 is only entitled to make partial deliveries if
o the partial delivery is usable by the buyer within the scope of the contractual intended purpose,
o the delivery of the remaining ordered goods is ensured, and
o the buyer does not incur significant additional effort or extra costs as a result (unless Gastro-Bedarf24 agrees to cover these costs).
4.6 If Gastro-Bedarf24 is in default with a delivery or service, or if a delivery or service becomes impossible for any reason, the liability of Gastro-Bedarf24 is limited to damages in accordance with § 8 of these General Terms and Conditions.
§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance
5.1 The place of performance for all obligations arising from the contractual relationship is Duisburg, unless otherwise specified. If Gastro-Bedarf24 also owes installation or any other service, the place of performance is the location where the installation or other service is to be carried out.
5.2 The method of shipment and packaging are at the reasonable discretion of Gastro-Bedarf24. Deliveries are made according to the shipping conditions specified in the online shop or on the respective digital marketplace.
5.3 The risk passes to the buyer at the latest upon handover of the delivery item (with the start of the loading process being decisive) to the carrier, freight forwarder, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or Gastro-Bedarf24 has undertaken other services (e.g., shipping or installation). If shipment or handover is delayed due to a circumstance for which the buyer is responsible, the risk passes to the buyer from the day the delivery item is ready for shipment and Gastro-Bedarf24 has notified the buyer.
5.4 Storage costs after the transfer of risk are borne by the buyer. If storage is carried out by Gastro-Bedarf24, the storage costs amount to (0.25)% of the invoice amount of the items to be stored per elapsed week. The assertion and proof of further or lower storage costs remain reserved.
5.5 The shipment is insured by Gastro-Bedarf24 only at the express request of the buyer and at the buyer's expense against theft, breakage, transport, fire, and water damage or other insurable risks.
5.6 If acceptance is to take place, the purchased item is deemed accepted when
o the delivery and, if Gastro-Bedarf24 also owes installation or another service, the installation or other service have been completed,
o Gastro-Bedarf24 has informed the buyer of this with reference to the acceptance fiction according to this § 5 (6) and has requested acceptance,
o twelve working days have passed since delivery or installation/service provision, or the buyer has started using the purchased item (e.g., has put the delivered system into operation), and in this case, six working days have passed since delivery or installation, and
o the buyer has failed to accept within this period for a reason other than a defect reported by Gastro-Bedarf24 that makes the use of the purchased item impossible or significantly impairs it.
§ 6 Warranty, Defects in Quality
6.1 The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to the buyer's claims for damages resulting from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by Gastro-Bedarf24 or its vicarious agents, which are subject to statutory limitation periods.
6.2 The delivered items must be carefully inspected immediately after delivery to the buyer or to a third party designated by the buyer. They are considered approved by the buyer with regard to obvious defects or other defects that would have been recognizable during an immediate careful inspection if Gastro-Bedarf24 does not receive a written or text form (§126 b BGB) complaint of defects within seven (7) working days after delivery. Regarding other defects, the delivered items are considered approved by the buyer if the complaint of defects does not reach Gastro-Bedarf24 within seven (7) working days after the defect became apparent; if the defect was already obvious at an earlier time during normal use, this earlier time is decisive for the start of the complaint period. At the request of Gastro-Bedarf24, a disputed delivery item must be returned freight-free to Gastro-Bedarf24. In the case of a justified complaint, Gastro-Bedarf24 reimburses the cost of the cheapest shipping method; this does not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
6.3 In the case of material defects in the delivered items, Gastro-Bedarf24 is initially obliged and entitled, at its reasonable discretion within an appropriate period, to provide a replacement delivery. If this fails, i.e., if repair or replacement delivery is impossible, unreasonable, refused, or unreasonably delayed, the buyer may withdraw from the contract or reasonably reduce the purchase price.
6.4 If the defect is due to the fault of Gastro-Bedarf24, the buyer may claim damages under the conditions specified in § 8.
6.5 In the case of defects in components from other manufacturers that Gastro-Bedarf24 cannot remedy for legal or practical reasons, Gastro-Bedarf24 will, at its discretion, assert warranty claims against the manufacturers and suppliers on behalf of the buyer or assign them to the buyer. Warranty claims against Gastro-Bedarf24 for such defects exist under the other conditions and according to these general terms of delivery only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example due to insolvency, hopeless. During the duration of the legal dispute, the limitation period for the buyer's relevant warranty claims against Gastro-Bedarf24 is suspended.
6.6 Warranty is void if the buyer changes the delivery item without the consent of Gastro-Bedarf24 or has it changed by third parties, and this makes defect repair impossible or unreasonably difficult. In any case, the buyer must bear the additional costs of defect repair caused by the modification.
6.7 The buyer is advised that the delivered equipment must be installed by qualified professional personnel. Improper installation or use may lead to exclusion of any warranty or liability claims.
6.8 A delivery of used items agreed individually with the buyer is made excluding any warranty for material defects.
6.9 In the event of defects in a work service provided by Gastro-Bedarf24 (e.g., installation or ventilation construction), the buyer's warranty rights are limited to the right of subsequent performance, whereby the buyer retains the right, if subsequent performance fails, to assert the right to reduce the price according to § 638 BGB or, at their choice, to withdraw from the contract for the provision of the work service.
§ 7 Intellectual Property Rights
7.1 Gastro-Bedarf24 guarantees under this § 7 that the delivery item is free from third-party industrial property rights or copyrights. Each contracting party will immediately notify the other contracting party in writing if claims are made against them for infringement of such rights.
7.2 If the delivery item infringes on a third party's industrial property right or copyright, Gastro-Bedarf24 will, at its discretion and at its own expense, modify or replace the delivery item so that no third-party rights are infringed, but the delivery item still fulfills the contractually agreed function, or grant the buyer the right to use it by concluding a license agreement with the third party. If Gastro-Bedarf24 does not succeed within a reasonable period, the buyer is entitled to withdraw from the contract or reasonably reduce the purchase price. Any claims for damages by the buyer are subject to the limitations of § 8 of these General Terms of Delivery.
7.3 In the case of legal infringements by products supplied by Gastro-Bedarf24 from other manufacturers, Gastro-Bedarf24 will, at its discretion, assert its claims against the manufacturers and suppliers on behalf of the buyer or assign them to the buyer. Claims against Gastro-Bedarf24 in these cases exist according to § 7 only if the judicial enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example due to insolvency, hopeless.
§ 8 Liability for Damages Due to Fault
8.1 The liability of Gastro-Bedarf24 for damages, regardless of the legal basis, especially for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and unlawful acts, is limited according to this § 8 insofar as fault is required in each case.
8.2 Gastro-Bedarf24 is not liable for simple negligence of its organs, legal representatives, employees, or other vicarious agents, unless it concerns a breach of essential contractual obligations. Essential contractual obligations are – depending on the content of the concluded contract – the obligation to deliver and install the delivery item on time, its freedom from legal defects, as well as such material defects that impair its functionality or usability more than insignificantly, and advisory, protective, and custody duties intended to enable the buyer to use the delivery item as agreed or to protect the buyer’s personnel’s life or health or the buyer’s property from significant damage.
8.3 To the extent that Gastro-Bedarf24 is liable for damages under § 8 (8.2), this liability is limited to damages that Gastro-Bedarf24 foresaw or should have foreseen at the time of contract conclusion as a possible consequence of a breach of contract when exercising due care customary in business. Indirect and consequential damages resulting from defects in the delivery item are only compensable to the extent that such damages are typically expected with proper use of the delivery item.
8.4 In the case of liability for simple negligence, Gastro-Bedarf24's obligation to compensate for property damage and resulting further financial losses is limited to the amount of the respective net invoice total of the underlying order per damage event, even if it concerns a breach of essential contractual obligations.
8.5 The above exclusions and limitations of liability apply equally in favor of the organs, legal representatives, employees, and other vicarious agents of Gastro-Bedarf24.
8.6 To the extent that Gastro-Bedarf24 provides technical information or advisory services and these do not fall within the scope of services contractually owed by it, this is done free of charge and excludes any liability.
8.7 The limitations of this § 8 do not apply to the liability of Gastro-Bedarf24 for intentional conduct, guaranteed characteristics, injury to life, body, or health, or under the Product Liability Act.
§ 9 Retention of Title
9.1 The delivered goods remain the property of Gastro-Bedarf24 until full payment of all due claims arising from the business relationship between Gastro-Bedarf24 and the buyer.
9.2 In the event of breach of contract by the buyer, especially in case of payment default, Gastro-Bedarf24 is entitled to take back the respective goods. The taking back of the goods does not constitute a withdrawal from the contract unless Gastro-Bedarf24 has expressly declared this. The seizure of the goods by Gastro-Bedarf24 always constitutes a withdrawal from the contract. After taking back the goods, Gastro-Bedarf24 is authorized to realize them; the proceeds from realization shall be credited against the buyer’s liabilities from the purchase, minus reasonable realization costs.
9.3 In the event of seizures of the goods subject to retention of title or other interventions by third parties, the buyer must inform the third party of Gastro-Bedarf24’s ownership and notify Gastro-Bedarf24 immediately in writing so that Gastro-Bedarf24 can file a lawsuit according to § 771 ZPO. If the third party is unable to reimburse Gastro-Bedarf24 for the judicial and extrajudicial costs of a lawsuit under § 771 ZPO, the buyer shall be liable for the loss incurred by Gastro-Bedarf24.
9.4 The buyer hereby assigns all claims from the resale of goods subject to retention of title to GastroBedarf24.
9.5 The retention of title extends to any products resulting from processing, mixing, or combining the delivered goods.
§ 10 Final Provisions
10.1 If the buyer is a merchant, a legal entity under public law, or a special fund under public law, or if the buyer has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between Gastro-Bedarf24 and the buyer shall be, at the choice of Gastro-Bedarf24, Duisburg or the buyer’s registered office. However, for lawsuits against Gastro-Bedarf24, Duisburg shall be the exclusive place of jurisdiction in these cases. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
10.2 The relationship between Gastro-Bedarf24 and the buyer is exclusively subject to the law of the Federal Republic of Germany.
10.3 If the contract concluded between the parties or these General Terms and Conditions contain gaps, the legally effective provisions that the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions, had they known of the gap, shall apply to fill these gaps.