Allgemeine Geschäftsbedingungen (AGB)

General terms and conditions of the company Hendrik Lange

Preamble

The following General Terms and Conditions (GTC) regulate the contractual relationship between Hendrik Lange (hereinafter GastroMonk) and the customer. GastroMonk sells catering supplies exclusively to commercial customers!

General information

1.1 These General Terms and Conditions apply to all orders placed by customers with the online store (www.gastro-monk.at) of the company HENDRIK LANGE, Schloßgasse 5/14 Vienna 1050.

1.2 The customer assures by his registration that he is an entrepreneur in the sense of the ABGB and the European legal regulations and that he uses the goods exclusively for entrepreneurial purposes.

1.3 Our deliveries, services and offers are made exclusively on the basis of these General Terms and Conditions. The General Terms and Conditions also apply to all future business relations, even if they are not expressly agreed again. Terms and conditions of customers or third parties shall not apply, even if GastroMonk does not object to their application in individual cases.

1.4 GastroMonk reserves the right to amend these GTC in the event of unforeseeable changes which GastroMonk did not cause and over which GastroMonk also has no influence and by which the equivalence relationship existing at the time of conclusion of the contract was disturbed to a not insignificant extent, provided that this is reasonable for the customer.
The customers will be informed about the changes immediately. The customer will be sent the amended GTC, highlighting the amended passages. This can also be done by email. If the customer does not object to the amended GTC within six weeks of notification, they shall be deemed to have been approved and shall also apply to existing contracts.
The customer shall be specifically informed of this when being notified of the change.

2. offer and conclusion of contract

2.1 All offers made by GastroMonk are subject to change without notice and are non-binding, unless they are expressly marked as binding. They are to be understood merely as an invitation to the customer to make an offer to GastroMonk. Information given by GastroMonk about dimensions, weights, technical data, etc., as well as representations and illustrations, in particular on GastroMonk's web pages or in catalogs, are likewise non-binding unless their fitness for the contractually agreed purpose requires exact conformity. They do not constitute a guarantee of quality, but merely serve the purpose of description or identification.
Deviations customary in the trade and those which are based on fundamental legal regulations or represent technical improvements are permissible insofar as they do not impair the usability for the contractually agreed purpose and are reasonable for the customer.
The same applies to the replacement of components by technically at least equivalent ones.

2.2 The contract is concluded as follows: The catalog of goods presented on the website does not constitute an offer in the legal sense. With the order, the customer bindingly declares his contract offer. Input errors can be corrected before sending the order using the usual keyboard and mouse functions. By clicking on the order button, the customer submits a binding purchase offer.
Upon receipt of the customer's offer by GastroMonk, the customer will receive an automatically generated e-mail confirming the receipt of the order and listing its details. This confirmation does not constitute an acceptance of the offer by the seller.
An order of the customer is expressly accepted by sending a corresponding order confirmation or implied by execution of the delivery or service.

2.3 GastroMonk retains ownership or copyright of all offers and cost estimates submitted as well as other documents made available to the customer, unless a transfer of ownership or transfer of corresponding rights has been agreed. The customer may not make these documents available to third parties, reproduce them, disclose them, use them itself or have them used by third parties without GastroMonk's consent. The customer is obliged to return these documents to GastroMonk upon request and to destroy any copies made if they are no longer needed in the course of the business relationship.

2.4 The contract text is not stored by us.

3. Prices and payment

3.1 All prices are quoted in EUR ex works plus packaging, the statutory value added tax, in case of export deliveries plus customs duty as well as fees and other public charges. Delivery costs may vary depending on the purchase quantity or destination.

3.2 If the delivery date is more than four months after the conclusion of the contract, GastroMonk is entitled to increase the prices appropriately and to adjust the prices to changed price bases (material, wages, etc.). The prices valid on the delivery date shall then apply.

3.3 The payment is made on account and is to be settled within 14 days after receipt. If we make advance payments, e.g. in the case of a purchase on account, we may obtain a credit check based on mathematical-statistical methods from arvato infoscore GmbH, Rheinstraße 99, 76532 Baden-Baden, Germany, in order to protect our legitimate interests. For this purpose, we transmit the personal data required for a credit check to arvato infoscore GmbH, Rheinstraße 99, 76532 Baden-Baden, Germany, and use the information received about the statistical probability of a payment default for a weighed decision about the establishment, implementation or termination of the contractual relationship. The credit information may include probability values (score values), which are calculated on the basis of scientifically recognized mathematical-statistical methods and in the calculation of which, among other things, address data are included. Your interests worthy of protection are taken into account in accordance with the statutory provisions.

3.4 If you are in default of payment, the purchase price shall bear interest at a rate of 5% above the base interest rate during the period of default. We reserve the right to prove and claim higher and assert a higher damage caused by default. Upon receipt of the 2nd reminder,

an additional fee of 7.50 EUR will be charged.

3.5 A set-off with payment claims of the customer or the retention of payments due to such claims is only permissible with undisputed or legally established claims.

3.6 If, after the conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the customer and which jeopardize the payment of the outstanding claims under the respective contractual relationship, GastroMonk is entitled to effect the outstanding deliveries and services only against advance payment or provision of security.

4 Place of performance, shipment

4.1 Unless otherwise agreed by the parties, the place of performance for all obligations arising from the contractual relationship is the registered office of GastroMonk.

4.2 The method of shipment and packaging are subject to GastroMonk's dutiful discretion.

4.3 The risk shall pass to the customer upon handover of the delivery item to the forwarding agent, carrier or any other third party designated to carry out the shipment. This also applies if partial deliveries are made. If shipment is delayed due to circumstances for which the customer is responsible, the risk passes to the customer at the time when GastroMonk is ready to ship and has notified the customer thereof.

4.4 Storage costs after transfer of risk are borne by the customer. If storage is carried out by GastroMonk, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. GastroMonk reserves the right to claim and prove further or lower storage costs.

5. Delivery

5.1 Deliveries shall be made from the company's registered office in accordance with Incoterms 2010. It is expressly agreed that the delivery shall be made by a transport company selected and commissioned by the Seller.

5.2 Without prejudice to its rights resulting from default of the customer, GastroMonk may request an extension of the delivery and performance periods by the period during which the customer fails to perform its contractual obligations. If the customer is unable or unwilling to accept the goods at the agreed time, GastroMonk may charge the customer separately for all additional costs incurred by the delay in acceptance. In the event of non-performance of the order for reasons for which the customer is responsible, 30% of the order amount shall be deemed agreed as compensation. The customer reserves the right to prove that we have incurred no or significantly lower damages as a result of the non-performance.

5.3 GastroMonk shall not be liable for the impossibility of delivery or performance or for delays in delivery to the extent that they are caused by force majeure or other events for which GastroMonk is not responsible and which were not foreseeable at the time the contract was concluded. If such events make delivery or performance substantially more difficult or impossible for GastroMonk and if the impediment is not only of a temporary nature, GastroMonk is entitled to withdraw from the contract. In the event of impediments of only temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the impediment plus a reasonable start-up period.

5.4 If the customer cannot reasonably be expected to accept the delivery or service due to the delay, it may withdraw from the contract by immediately notifying GastroMonk in writing.

5.5 GastroMonk ist zu Teillieferungen berechtigt, soweit dem Kunden hierdurch kein erheblicher Mehraufwand und/oder zusätzliche Kosten entstehen, die Teillieferung für den Kunden im Rahmen des vertraglichen Bestimmungszweckes verwendbar ist und die Lieferung der restlichen bestellten Waren gesichert ist.

5.6 The customer is obliged to have recognizable transport damages certified by the transport company immediately upon receipt in order to assert claims for compensation against the transport company. GastroMonk will make every effort to assist the customer in dealing with transport damage. Damage that is not externally visible must be reported to the carrier by telephone and in writing as soon as it becomes known. The customer is solely responsible for compliance with the deadline and handling of the transport damage. As the recipient, the customer is entitled to assert claims against the transport company arising from the freight contract in his own name in accordance with § 429ff UGB.

6. Warranty

6.1 The warranty period is one year from delivery.
6.2 Pursuant to Section 377 of the Austrian Commercial Code (UGB), the delivered items must be inspected carefully without undue delay after delivery to the customer or to the third party designated by the customer. They shall be deemed approved if GastroMonk has not received a notice of defect in text form with respect to obvious or other defects which were identifiable upon immediate and careful inspection without undue delay after delivery of the delivery item or otherwise without undue delay after discovery of the defect or the point in time at which the defect was identifiable by the customer during normal use of the delivery item without closer inspection.

6.3 At GastroMonk's request, the item complained of must be returned to it carriage paid. If the complaint is justified, GastroMonk will reimburse the costs of the most favorable shipping method. This does not apply if the costs increase because the item is located at a place other than the place of intended use.

6.4 In the event of material defects, GastroMonk is obligated and entitled to remedy the defect either by repair or replacement, at its option. Subsequent performance is deemed to have failed after the second unsuccessful attempt. In case of failure, impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reasonably reduce the purchase price. If an inspection of the goods carried out as part of the notification of defects shows that the notification of defects was unjustified, we shall be entitled to charge a customary fee for the inspection of the goods as well as the costs of shipment.

6.5 The warranty claim does not apply if the customer modifies the object of purchase or has it modified by a third party without GastroMonk's express consent and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modifications.

6.6 In all other respects, Clause 7 of this Agreement shall apply.

7. Liability

7.1 Liability for damages other than to life, limb or health is excluded, unless the damage was caused intentionally or by gross negligence on the part of GastroMonk, one of its legal representatives or one of its vicarious agents, and the conduct did not constitute a breach of a condition which goes to the root of the contract. Material contractual obligations are obligations the fulfillment of which is essential to the proper performance of the contract and on the observance of which the user may regularly rely.

7.2 In any case, the user is also obliged to limit damage. This includes the timely notification of damage in the context of further damage minimization.

7.3 In any case, the user is also obliged to limit damage. This includes the timely notification of damage in the context of further damage minimization.

7.4 Furthermore, the above exclusions and limitations of liability shall not apply in case of GastroMonk's assumption of express warranties or in case of claims based on lack of warranted characteristics or claims under the German Product Liability Act.

7.5 If improper handling causes damage to the product or the customer, GastroMonk assumes no liability.

8. Retention of title

8.1 The goods delivered by GastroMonk to the customer remain the property of GastroMonk until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place according to this clause are hereinafter referred to as goods subject to retention of title.

8.2 The customer shall store the goods subject to retention of title free of charge for GastroMonk.

8.3 The customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the case of realization arises. Pledges and transfers of ownership by way of security are not permitted.

8.4 If the customer processes the goods subject to retention of title, the processing is carried out in the name and for the account of GastroMonk and GastroMonk immediately acquires ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the goods subject to retention of title - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that GastroMonk does not acquire such title, the customer hereby assigns to GastroMonk by way of security its future title or - in the abovementioned proportion - co-ownership in the newly created item. If the goods subject to retention of title are combined or inseparably mixed with other items to form a single item and if one of the other items is to be regarded as the main item, GastroMonk shall, to the extent that the main item belongs to it, transfer to the customer pro rata co-ownership of the single item in the proportion stated in sentence 1.

8.5 In the event of resale of the goods subject to retention of title, the customer hereby assigns to GastroMonk by way of security the claim against the purchaser arising therefrom - in the event of co-ownership by GastroMonk of the goods subject to retention of title, in proportion to the co-ownership share. The same applies to other claims which take the place of the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims in tort in the event of loss or destruction. GastroMonnk revocably authorizes the customer to collect the claims assigned to GastroMonk in its own name for GastroMonk's account. GastroMonk may revoke this collection authorization only in the event of liquidation.

8.6 If third parties seize the goods subject to retention of title, in particular by way of attachment, the customer shall inform them without undue delay of GastroMonk's title and notify GastroMonk thereof in order to enable it to enforce its property rights. If the third party is not in a position to reimburse GastroMonk for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to GastroMonk for such costs.

8.7 GastroMonk will release the goods subject to retention of title as well as the items or claims replacing them upon request at its discretion, provided that their value exceeds the amount of the secured claims by more than 10%.

8.8 If GastroMonk withdraws from the contract in the event of a breach of contract by the customer - in particular default of payment - GastroMonk is entitled to demand return of the goods subject to retention of title.

9. Claims for damages

9.1 If GastroMonk expressly agrees to the cancellation of a bindingly placed order, the customer must pay 30% of the order amount, even if we do not expressly repeat this at the time of cancellation. The same applies if the customer does not fulfill the contract and in case of cancellation. If the delivery item has already been delivered, the lump sum shall be increased by the costs of transport as well as the costs of reconditioning. The assertion of a higher damage is not excluded. The customer is entitled to prove that we have incurred a lesser damage.

10. Final clauses

10.1 Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.

10.2 Contracts between us and you shall be governed exclusively by Austrian law, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG, "UN Sales Convention").

10.3 If you are a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from or in connection with contracts between us and the customers shall be at our place of business.

10.4 GastroMonk may name the customer as a reference customer after conclusion of the contract. GastroMonk has the right to use the customer's name as a reference for advertising purposes. This also applies to advertising on the Internet. Press releases also require the mutual agreement of the text.

10.5 The place of performance and exclusive place of jurisdiction for all disputes arising from the business relationship between GastroMonk and the customer is Vienna.