“Seller”: Gastro Mammut GmbH, a limited liability company registered at Grosser Markt 9, 947533 Kleve, Germany.
“Buyer” or “Customer”: The individual placing an order with Gastro Mammut GmbH.
“EXW”: The INCOTERM where the Seller makes packaged goods available at an agreed place, and the Buyer is responsible for transportation at their expense and risk.
“Party”: Refers to either the Seller or the Buyer as specified in these terms.
“Tender”: A written or digital offer of Products by Gastro Mammut GmbH subject to these General Terms and Conditions.
“Contract”: Any agreement between Gastro Mammut GmbH and the Buyer, subject to these General Terms and Conditions.
“Product” or “Products”: Tangible goods sold by Gastro Mammut GmbH.
2.1 These General Terms and Conditions constitute the exclusive agreement between the Buyer and Gastro Mammut GmbH unless agreed otherwise in writing.
2.2 Applicable to all Contracts, Tenders, and other transactions between the Seller and the Buyer.
2.3 In situations not covered, Parties interpret matters in line with the spirit of these General Terms and Conditions.
3.1 Tenders are non-binding unless explicitly stated otherwise in writing.
3.2 The Seller can revoke a non-binding Tender within two working days after accepting the Buyer’s acknowledgment.
3.3 A Contract is formed when the Buyer accepts the Tender, confirmed in writing by the Seller or once performance begins.
3.4 Deviations from the Tender terms do not bind the Seller unless explicitly accepted.
3.5 In the absence of a Tender, the invoice substitutes and reflects the Contract terms if no other documentation is provided.
4.1 Gastro Mammut GmbH may amend these General Terms and Conditions, with Buyer acceptance assumed if no objection is received within 14 days.
4.2 Amendments require written agreement and apply exclusively to the relevant Contract. 4.3 After 14 days, the Buyer is considered to have accepted amendments.
5.1 Initiation of Purchase Orders: Buyer is required to submit all purchase orders in written form, using channels such as facsimile, email, mail, or any method accepted by Gastro Mammut GmbH. Placing an order constitutes an offer to purchase Products under the prevailing General Terms and Conditions of Sale.
5.2 Acceptance of Orders: Gastro Mammut GmbH may accept an order either by confirming it in writing, through an invoice, or by delivering the Products, whichever occurs first. No order becomes binding on the Seller unless accepted in accordance with the existing General Terms and Conditions of Sale.
5.3 Seller’s Discretion: The Seller reserves the right to accept or reject any order at its sole discretion.
5.4 Payment Terms: Buyer is obligated to make net payments to the Seller’s bank account, with no deductions allowed, even if the Buyer has raised a claim as outlined in Article 5.7 of the current General Terms and Conditions of Sale. The value date on the Seller’s bank statements is considered the payment date.
5.5 Pricing and Taxes: Products are sold at prices listed in Gastro Mammut GmbH’s current price list. All prices are exclusive of taxes and charges, except those imposed on Seller’s income, revenues, or property. The Buyer is responsible for all associated costs. Late payments accrue interest at the lesser of 8% per month or the highest rate permitted by law.
5.6 Additional Costs: These include but are not limited to expenses related to seizure, bankruptcy petitions, debt collection, legal representation, and other specialists.
5.7 Invoice Objections: Any objections to an invoice must be communicated to the Seller within 10 days of the invoice date. Failure to do so implies acceptance of the invoice, and no further complaints will be entertained.
5.8 Invoicing and Payment Terms: Periodic invoices for all previous period orders are issued by the Seller. Payment is due within 30 days, except for disputed amounts under Article 5.7. Payments are to be made in Euros (EUR) via wire transfer or automated clearing house, following the instructions on the invoice.
6.1 Risk and Delivery: Buyer bears all risks associated with Product delivery, even if Incoterm differs from Ex Works (EXW). In the absence of specific instructions, Gastro Mammut GmbH will use its carrier for delivery following EXW Incoterms®.
6.2 Liability for Transport Issues: The Seller is not liable for tampering, theft, or transport damage; recourse lies with the carrier. Delivery periods are non-binding for the Seller unless stated otherwise in writing.
6.3 Commencement of Delivery Period: The delivery period starts from the latest of order confirmation, fulfillment of technical requirements, or receipt of advanced payment.
6.4 Approvals and Force Majeure: Buyer is responsible for obtaining necessary approvals. Unforeseeable circumstances or events beyond the Seller’s control extend delivery periods. No compensation is provided for damages.
6.5 Product Modifications: The Seller may voluntarily modify product form and configuration for technical, legal, or commercial reasons.
6.6 Supply Discontinuation and Changes: The Seller reserves the right to discontinue any product supply without notice and make changes for improvement or compliance with technical, safety, or commercial requirements.
6.7 Claims Period: Claims for wrong deliveries or evident defects must be submitted within eight working days of Product receipt.
7.1 Ownership Retention: All Products remain the property of Gastro Mammut GmbH until the Buyer fully pays all amounts due for the respective order.
7.2 Restrictions on Product Handling: The Buyer is prohibited from selling, pledging, or encumbering Products under retention of title.
7.3 Care and Identification: The Buyer must maintain and clearly identify Products delivered under retention of title as the Seller’s property.
7.4 Third-Party Involvement: If third parties seize or attempt to enforce rights over Products under retention of title, the Buyer must promptly inform the Seller.
7.5 Immediate Payment Obligation: Upon sale or delivery to third parties or any violation of stipulations in this article, the purchase price becomes immediately due and payable.
8.1 Reservation of Intellectual Property: The Seller asserts exclusive intellectual property rights over the Products, including trademarks, logos, the website, texts, images, and other content of any nature.
8.2 Usage Restrictions: The Buyer is strictly prohibited from reproducing, copying, registering, disclosing, distributing, or utilizing the Products in any manner outside the agreed scope or normal use specified in the agreement.
8.3 Consequences of Violation: Any violation by the Buyer of the stipulations in the preceding section empowers the Seller to demand immediate cessation of the infringement, seek damages based on the nature and scope of the violation, and exercise other legal rights derived from intellectual property rights.
8.4 Indemnification for Custom Products: If the Seller manufactures Products based on design specifications, drawings, or models provided by the Buyer, the Buyer is obligated to indemnify and hold the Seller harmless in case of any violation of proprietary rights. The Buyer must also join corresponding legal proceedings at their expense and conduct the lawsuit in cooperation with the Seller.
9.1 Limited Seller Liability: Except for product liability as the manufacturer, the Seller is not liable for any consequences resulting from the sale and use of the Products by the Buyer.
9.2 Indemnification Obligation: The Buyer is required to indemnify and hold harmless the Seller from legal actions directly or indirectly related to sales violating the specified provisions.
9.3 Limited Liability for Consequential Loss: The Seller is not liable for consequential losses to the Buyer or third parties, including intangible damages, loss of profits, or any other form of indirect damage.
9.4 Information Accuracy: The Seller is not liable for damage resulting from acting upon incorrect or incomplete information provided by or on behalf of the Buyer.
9.5 Buyer’s Indemnification Responsibilities: Subject to the terms and conditions in the General Terms and Conditions of Sale, the Buyer shall indemnify, hold harmless, and defend the Seller against any losses, damages, liabilities, claims, actions, judgments, settlements, and other specified costs arising from various scenarios, including third-party claims related to the Buyer’s acts or omissions, advertising, failure to comply with laws, or breaches of agreements with third parties.
10.1 Standard Product Warranty: The Seller warrants each product according to its standard warranty in effect. Apart from these standard warranties, no express or implied representations or warranties are made for the Buyer’s benefit.
10.2 Warranty Conditions: The Seller’s warranty obligations are void if the Buyer fails to notify the Seller of a non-conformity during the warranty period, misuses the Product, or modifies the Product without proper authorization.
10.3 Restriction on Product Modification: Except as explicitly authorized in the General Terms and Conditions of Sale or a separate written agreement, the Buyer is prohibited from servicing, repairing, modifying, altering, replacing, reverse engineering, or otherwise changing the Products.
11.1 Compliance with National and Local Laws: The Buyer is obligated to consistently adhere to all national and local laws, ordinances, regulations, and orders applicable to the operation of its business, as well as the provisions of the present General Terms and Conditions of Sale. Without limiting the generality of the foregoing, the Buyer shall, at its own expense, acquire and maintain all certifications, credentials, authorizations, licenses, and permits necessary for conducting its business in line with its rights and obligations under the present General Terms and Conditions of Sale.
11.2 Compliance in Resale: In the event of reselling products acquired from the Seller, the Buyer must always comply with all international, national, and local laws, ordinances, regulations, and orders relevant to the operation of its business in the designated resale area. The Buyer shall, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary for conducting its business concerning the exercise of its rights and obligations in the intended resale area.
“Force Majeure” refers to an event or circumstance preventing or hindering a party from fulfilling one or more contractual obligations under the present General Terms and Conditions of Sale. This applies if the party can demonstrate that: [a] the impediment is beyond their control; [b] it could not reasonably have been foreseen at the time of contract formation; [c] the effects of the impediment could not reasonably be avoided or overcome by the affected party.
Until proven otherwise, events affecting a party shall be presumed to satisfy conditions (a) and (b) of this clause, including but not limited to war, civil war, natural disasters, and other specified events.
The party meeting these conditions is released from its duty to perform obligations under these terms and conditions and any liability for damages or other contractual remedies for breach from the time the impediment causes the inability to perform, provided prompt notice is given. If delayed, the exemption takes effect from the time notice is provided.
If the effect of the impediment is temporary, the consequences apply only for as long as the impediment impedes performance. If the duration substantially deprives the parties of what they were reasonably entitled to expect, either party has the right to terminate the contractual relationship with reasonable notice. Unless otherwise agreed, either party may terminate the relationship if the impediment exceeds one hundred and twenty (120) days.
Either party may terminate the contractual relationship for any reason, at any time, with written notice to the other party. Termination becomes effective 30 days following delivery of such notice, unless a shorter period is provided in the present General Terms and Conditions of Sale.
In addition to any remedies in the present General Terms and Conditions of Sale, contractual relationships may immediately terminate upon notice to the Buyer if the Buyer:
(a) fails to pay any amount when due under the present General Terms and Conditions of Sale;
(b) is in material breach, and either the breach cannot be cured or, if curable, is not cured within 15 days after notice;
(c) becomes insolvent or is generally unable to pay its debts;
(d) files for bankruptcy or becomes subject to any bankruptcy or insolvency proceeding; (e) seeks relief with respect to its debts;
(f) makes a general assignment for the benefit of creditors;
(g) has a receiver appointed to take charge of its property or business;
(h) is habitually delinquent in payments;
(i) misrepresents the Products or any warranty thereof;
(j) disparages Products produced by the Seller.
Upon expiration or termination of the present General Terms and Conditions of Sale: (a) All Tenders are automatically terminated;
(b) Amounts owed by the Buyer must be paid in full per the original payment terms; (c) The Seller has no further obligation to the Buyer, including compensation;
(d) If terminated to the exclusive detriment of the Buyer, the Buyer is liable to pay 10% of the order amount to the Seller, without prejudice to any legal action for damages.
The parties shall bear their respective legal, accounting, and other incidental expenses related to the negotiation, preparation of the present General Terms and Conditions of Sale, and the execution of
transactions contemplated by these terms. However, if legal action is required to enforce or interpret the terms, the prevailing party is entitled to reasonable attorneys’ fees and costs, in addition to any other relief available.
15.1 Buyer’s Restrictions: The Buyer may not assign, transfer, delegate, or subcontract its rights or obligations under the present General Terms and Conditions of Sale without the Seller’s prior written consent, except in cases of Change of Control. Any unauthorized assignment or delegation is void and does not relieve the Buyer of its obligations. The Seller may freely assign, transfer, or subcontract its rights or obligations without the Buyer’s consent.
15.2 Change of Control: “Change of Control” refers to the sale or transfer of more than 50% of the Buyer’s stock or assets to a party not currently owning over 50% of the Buyer’s stock or assets.
If any term or provision in the present General Terms and Conditions of Sale is invalid, illegal, or unenforceable in any jurisdiction, it shall not affect the validity or enforceability of other terms or provisions in any jurisdiction. The parties agree to replace any invalid or unenforceable provision with a provision that reflects their original intent.
The Seller’s Cream Chargers & Canisters contain Nitrous Oxide, posing health risks if misused. The Seller reserves the right to refuse sales to those under 18 or suspected of misuse. The Buyer affirms being at least 18 years old, understands the risks, and pledges not to supply to minors or those who may misuse the Goods. The Seller may refuse sales to anyone suspected of misuse.
By purchasing from Gastro Mammut GmbH, the Buyer acknowledges the POTENTIAL RISKS associated with Nitrous Oxide. The Buyer agrees not to tamper with the packaging to conceal safety information and commits to implementing all necessary precautions for the proper storage and transportation of the cartridges.
These General Terms and Conditions, including all potential annexes, schedules, and attachments, are subject to the laws of the Federal Republic of Germany. Any provisions or rules of conflict of laws that would require or permit the application of laws of any jurisdiction other than that of Germany are disregarded.
Each party irrevocably and unconditionally agrees not to commence any legal action, litigation, or proceeding of any kind against the other party in connection with these General Terms and Conditions or any potential annexes, schedules, and attachments in any jurisdiction other than the German courts. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to initiate any legal action, litigation, or proceeding only in these courts. Both parties agree that a final judgment in such a proceeding is binding and may be enforced in other jurisdictions by a lawsuit on the judgment or in any other manner provided by law.