Terms and Conditions
- General terms, scope of application
1.1. These general terms and conditions apply without exception to all – including future – catering contracts between GMS GOURMET GmbH (hereinafter referred to as “caterer”) and the client, unless otherwise expressly agreed.
1.2. Any provisions in the client’s contract forms that conflict with these terms of sale and delivery are invalid, regardless of whether, when and in what form they are brought to the caterer’s attention. Any agreements deviating from individual provisions of these general terms and conditions are only valid for these and require the prior express and written confirmation of the caterer in order to be valid. Maintaining silence about the general terms and conditions of the client is not deemed consent.
1.3. The maintaining of silence “in general” on the part of the caterer expressly does not have explanatory value.
- Offer and contract conclusion
2.1. The offer is subject to change, unless otherwise specified by the caterer in the offer. Offers made verbally, including over the phone, require the written confirmation by the caterer to be valid. The contract is concluded when the caterer has confirmed the order in writing. Contractual amendments require the consent of both contracting parties, unless otherwise specified in these general terms and conditions (see in particular section 7, cancellation conditions).
2.2. The caterer does not assume any liability for the correctness and completeness of the documents and information provided by the client for the preparation of the offer – unless their inaccuracy is not identified by the caterer intentionally or due to gross negligence.
2.3. All documents provided in connection with the offer (e.g. plans, concepts, descriptions) remain the property of the caterer and the caterer may request them to be returned at any time. In this case, they must be returned immediately to the free disposal at the caterer at the expense and risk of the client. These documents are to be treated as strictly confidential, and they may not be reproduced, published or otherwise made available or accessible to third parties or used for any purpose other than the agreed purpose without the written consent of the caterer.
2.4. The products on offer are subject to seasonal changes. If individual items of the offer cannot be procured in time, the caterer reserves the right to exchange them for items of equal value.
- Delivery, transfer of risk
3.1. The risk passes to the client as soon as the shipment has been handed to the client by the caterer or a third party commissioned by the caterer.
3.2. All materials and objects made available by the caterer – with the exception of food and beverages – are only provided to the client on a loan or rental basis. The client must compensate the
caterer for any damage or loss.
3.3. Any outstanding partial deliveries or reported defects will be made good or remedied by the caterer as quickly as possible. Provided that the overall performance is not significantly impaired by this, the customer is not entitled to refuse acceptance.
Warranty, notice of defect
4.1. The statutory warranty periods apply.
4.2. We must be notified of any defects – without this entailing any disadvantageous legal consequences for a customer who is a consumer within the meaning of the consumer protection act (KSchG) – upon delivery if possible or after they become visible.
4.3. If the client is an entrepreneur within the meaning of the Austrian consumer protection law (KSchG), he has to check the delivery immediately after delivery within the meaning of section 377 of the Austrian commercial code (UGB) for completeness, correctness and freedom from defects and to report any defects in writing immediately and in any case no later than five working days after receipt of the goods or service, or else the client loses all claims to which he is entitled due to defects that could have been detected during a proper inspection. Defects that occur at a later date must also be notified in writing by the client – if the client is an entrepreneur within the meaning of the Austrian consumer protection law (KSchG) – or else warranty claims for such defects are excluded.
4.4. Improper storage, handling or preparation of the products after their handover to the client excludes any warranty.
- Prices, terms of payment
5.1. All prices and quotes mentioned in the offer are exclusive of VAT.
5.2. The net invoice amount is payable within 14 days of receipt of an invoice.
5.3. In case of payment default, the statutory default interest rate is hereby agreed.
5.4. The client undertakes to make a downpayment of 75% of the amount of the last valid offer to the account notified in writing by the caterer no later than 6 weeks before the start of the event. Otherwise, the caterer is entitled to immediately withdraw from the contract without notice. In case of cancellations, the downpayment will be set off against the caterer’s claims in accordance with the provisions in section 7. Any remaining balance (when amount cancelled is lower than deposit) will be transferred to the client within 14 days from the cancellation date to the account notified to the caterer in writing or invoiced by the caterer to the client (when amount cancelled is higher than deposit).
Right of set-off and retention
6.1. The client – unless he is a consumer within the meaning of the consumer protection law (KSchG) – is not entitled to set off claims against claims of the caterer, unless the counterclaim is recognised by the caterer or has been determined by a court.
6.2. The client has no right of retention to the objects made available to him. A right of retention to which the customer is entitled within the meaning of the consumer protection law (KSchG) is not excluded by this provision.
The client is entitled to cancel the event and to postpone the date of the event (section 2.1.) only under the following conditions:
7.1. Cancellation of the event:
7.2. Following confirmation of the order, if the client cancels the event within 21 days of the start of the event, the caterer does not charge a cancellation fee.
7.3. Following confirmation of the order, if the client cancels the event between 20 and 14 days before the start of the event, 50% of the amount of the latest version of the offer will be charged.
7.4. Following confirmation of the order, if the client cancels the event between 13 and 3 days before the start of the event, 75 % of the amount of the latest version of the offer will be charged.
7.5. If the event is cancelled following confirmation of the order within 3 days of the start of the event, 100% of the amount of the latest version of the offer will be charged.
7.6. Reducing the number of attendees following confirmation of the order is possible only up to 14 days before the start of the event. In the case of a reduction of the number of attendees, the cancellation fee in section 7.1.2. is taken into account proportionally and charged for.
7.7. Increasing the number of attendees:
An increase in the number of attendees following confirmation of the order can only be taken into consideration up to 14 days before the start of the event, and if the number is increased by more than 10, the approval of the caterer is required.
7.8. Postponing the event:
If the client wishes to postpone the event once the order has been confirmed, this requires the approval of the caterer. Furthermore, if the event is postponed to another day, the caterer is entitled to charge the client a cancellation fee in accordance with sections 7.1.2., 7.1.3. and 7.1.4.
Insurance covers and official permits
8.1. The obtaining of official or other permits that may be required is the responsibility of the client and is only part of the offer if this has been expressly agreed in writing.
8.2. The client is responsible for any insurance covers to be taken out in connection with the event and bears the related costs.
9.1. The cost of delivery and collection of the equipment as well as the cost of delivery of the food and beverages are included in the price.
9.2. Any waste disposal costs are borne by the client.
Within the framework of the statutory provisions – in particular the provisions of the consumer protection law (KSchG) – liability towards the customer for slight negligence is excluded; this does not apply to personal injury.
- Force majeure
Performance interruptions due to force majeure, labour disputes, operational disruptions through no fault of the client, civil unrest and other unavoidable events do not entitle either the client or the caterer to assert claims of any kind whatsoever. The contracting party affected in each case must immediately notify the other party of the occurrence of such an event.
Passing on of employee data:
Compliance with the applicable data protection regulations is very important to us, both vis-à-vis our business partners and customers, and our employees. If there is an increased need for security at your location/your event that makes it necessary for our employees to pass on personal data to you (e.g. name, date of birth, photo for the issuing of an access permit, ID card data, criminal record extract, etc.), note that we can only comply with your request to pass on the personal data under the following conditions:
- Sufficient explanation of the additional safety requirement and verification thereof on our part
- Disclosure of the required personal data of our employees
- Purpose for which you need the personal data
- The planned duration for which the personal data will be stored, or, if this is not possible, the criteria for determining the duration of its storage;
- Disclosure of whether this personal data will be passed on by you to further recipients and to which ones; the passing on of personal data to third parties in general requires our prior consent.
- Confirmation that you have taken all necessary measures to ensure the confidentiality of personal data and the security of data processing in accordance with Art. 32 GDPR
- Only for international organisations or when data is transferred to a third country (according to GDPR): Information according to Art. 46 GDPR
Please provide us with the above information in good time in advance so that we are able to meet our data protection obligations towards our employees. Otherwise, we must refuse to disclose employee data due to legal requirements.
- General matters, place of performance, place of jurisdiction
13.1. Should individual provisions of these general terms and conditions for catering contracts be invalid, this does not affect the validity of the remaining provisions and the contracts concluded on the basis thereof.
13.2. In any case, amendments and/or supplements to these general terms and conditions for catering contracts require the written confirmation of the caterer.
13.3. The exclusive place of performance for both the performance of the caterer and the performance of the client is Vienna.
13.4. The competent court in Vienna has exclusive jurisdiction to decide on all disputes arising from or in connection with these general terms and conditions for catering contracts.
13.5. Any action brought against a consumer within the meaning of the consumer protection law (KSchG) who has his domicile, habitual residence or place of employment in Austria on account of disputes arising from or in connection with these general terms and conditions for catering contracts and the contracts concluded on the basis thereof is subject to the jurisdiction of one of the courts in the district of which the consumer has his domicile, habitual residence or place of employment. For consumers not domiciled in Austria at the time of conclusion of the contract, the statutory places of jurisdiction apply.
13.6. The legal relationship between the caterer and the client is governed by substantive
Austrian law to the exclusion of the reference provisions of Austrian private international law and the UN Convention on Contracts for the International Sale of Goods.
13.7. Mandatory rights of a consumer under the consumer protection act are not limited by these general terms and conditions for catering contracts.
GMS GOURMET GmbH
Last updated: 01/01/2018
Here you can download the updated general terms and conditions