Gefa Produkte Fabritz GmbH, Elbestr. 12, 47800 Krefeld
§ 1 General, Scope of Application, Individual Agreements
(1) These General Terms and Conditions of Sale and Delivery apply to all our business relationships with our customers. They apply only if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.
(2) Our terms of sale apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the customer shall only become part of the contract to the extent that we have expressly agreed to their validity in writing. This requirement of consent applies in all cases, even if we carry out the delivery to the customer without reservation, knowing of the customer's terms and conditions that are contrary to or deviate from our terms of sale.
(3) Individual agreements and statements in our order confirmations take precedence over the General Terms and Conditions of Sale. All agreements made between us and the customer for the purpose of executing this contract are usually made in writing or confirmed in writing by us.
§ 2 Information, Exclusion of Obligation to Advise, Guarantees
(1) Information and explanations regarding our products and services provided by us are based solely on our previous experience. They do not constitute any guarantees regarding our products. The values provided are to be understood as average values of our products.
(2) We only assume an obligation to provide advice if a separate consulting agreement has been agreed upon, which is usually agreed upon in writing.
(3) A guarantee is only assumed by us if we have expressly designated a characteristic and/or a desired outcome as "legally guaranteed," which usually only occurs in writing.
§ 3 Conclusion of Contract, Offer Documents
(1) Our offers are non-binding unless expressly designated as binding or contain expressly binding commitments, or the binding nature has otherwise been expressly agreed upon. They are invitations to place orders. The customer's order constitutes a binding offer. The customer is bound to this offer for 14 calendar days – for electronic orders, 5 working days (each at our registered office) – after receipt of the order by us. This also applies to the customer's repeat orders.
(2) A contract is only concluded when we accept the customer's order within the specified period in writing or in text form (i.e. by fax or email) by sending an order confirmation. The order confirmation is subject to the condition that any outstanding payment arrears of the customer are settled and that a credit check conducted by us regarding the customer remains without negative information. If delivery or performance takes place within the customer's binding period for acceptance of the offer, our order confirmation may be replaced by our delivery, with the dispatch of the delivery being decisive.
(3) We reserve ownership and copyright rights to illustrations, drawings, calculations, and other documents. This also applies to written documents that are marked as "confidential." The customer requires our express written consent before disclosing them to third parties.
§ 4 Delivery Time, Non-Availability of Performance, Delay in Delivery
(1) The delivery period is individually agreed upon or stated by us upon acceptance of the order. If this is not the case, the delivery time is 3-5 days from the conclusion of the contract. The start of the delivery period specified by us is subject to clarification of all technical issues.
(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we will inform the customer immediately and at the same time provide the estimated new delivery deadline. If the performance is not available within the new delivery deadline, we are entitled to withdraw from the contract in whole or in part. We may propose the delivery of a comparable product to the customer. If no comparable product is available or if the customer does not wish to receive a comparable product, we will promptly refund any consideration already provided. Non-availability of performance occurs, for example, in cases of untimely self-supply by our supplier, if we have concluded a congruent cover transaction, in other disruptions in the supply chain due to force majeure, or if we are not obligated to procure in the specific case.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. However, a reminder by the customer is always required. If we are in delay in delivery, the customer may claim lump-sum compensation for the damage caused by the delay. The lump-sum compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total no more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the customer has incurred no damage or significantly less damage than the lump-sum compensation stated above.
(4) The customer's rights under §§ 9 and 10 of these general terms and conditions of sale and delivery and our statutory rights, in particular in the case of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
§ 5 Delivery, Place of Performance, Transfer of Risk, Default of Acceptance
(1) Delivery is "ex works," where the place of performance for delivery and any subsequent performance is also located. At the customer's request and expense, the goods will be shipped to a different destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the method of shipment (in particular transport company, route, packaging) at our discretion.
(2) The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest upon handover. However, in the case of a sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes upon delivery of the goods to the carrier, the freight forwarder, or the person or institution otherwise designated to carry out the shipment.
(3) If the customer is in default of acceptance, fails to perform an act of cooperation, or delays our delivery for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).
§ 6 Prices, Payment Conditions, Set-Off
(1) Unless otherwise agreed upon in individual cases or unless the order confirmation provides otherwise, our current prices at the time of the conclusion of the contract apply, "ex works." The statutory value-added tax is not included in our prices; it will be separately stated on the invoice at the statutory rate on the day of invoicing.
(2) In the case of sale by delivery (§ 5 (1)), the customer bears the transport costs from the warehouse and the costs of any transport insurance requested by the customer. The transport costs will be invoiced separately by us. The buyer shall bear any customs duties, fees, taxes, and other public charges.
(3) The purchase price is due and payable within 30 days from the invoice date and delivery or acceptance of the goods. However, we are always entitled, even within the scope of an ongoing business relationship, to carry out a delivery only against prepayment. We will declare such a reservation at the latest with the order confirmation.
(4) If the above payment deadline expires, the customer is in default. During the delay, the purchase price is to be paid at the respective applicable statutory default interest rate. We reserve the right to assert further damages caused by the delay. In relation to merchants, our claim to commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The customer is only entitled to set-off or retention rights to the extent that the customer's claim has been finally determined or is undisputed. The customer's counterclaims remain unaffected in the case of defects in the delivery.
§ 7 Price Changes
(1) We reserve the right to reasonably change our prices if cost reductions or cost increases occur after the conclusion of the contract, particularly due to wage agreements or material price changes.
(2) We will provide proof of these changes upon customer request.
§ 8 Retention of Title
(1) We retain ownership of the sold goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The customer is obliged to handle the purchased goods with care. If maintenance and inspection work is required, the customer must carry out such work at their own expense in a timely manner.
(3) The goods subject to retention of title must not be pledged to third parties or otherwise encumbered as security before full payment of the secured claims. The customer must notify us immediately in writing if an application for the opening of insolvency proceedings has been filed.
(4) In the event of third-party seizures of the reserved goods or other third-party interventions, the buyer must notify them of our ownership and inform us in writing immediately so that we can enforce our ownership rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this regard, the buyer shall be liable for these costs.
(5) In the event of the customer's contractual breach, particularly non-payment of the due purchase price, we are entitled to withdraw from the contract and/or demand the return of the goods based on the retention of title, in accordance with the statutory provisions. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw. We may exercise these rights only if we have previously set the customer an appropriate deadline for payment, which has expired unsuccessfully, or if such a deadline is dispensable according to the statutory provisions.
(6) The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business until revoked according to (9) below.
(7) The retention of title also extends to products resulting from the processing, mixing, or combining of our goods, up to their full value, and we are considered the manufacturer. If the property rights of third-party goods persist in the event of processing, mixing, or combining with our goods, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same provisions apply to the resulting product as to the goods delivered under retention of title.
(8) The customer already assigns to us all claims arising from the resale of the goods or products to third parties in their entirety or to the extent of our co-ownership share in accordance with the preceding paragraph, as security. The customer also assigns to us any claims arising against them through the connection of the reserved goods with real property. We accept the assignment. The customer's obligations mentioned in paragraphs (3) and (4) also apply with regard to the assigned claims.
(9) The customer remains authorized to collect the claims until revoked in accordance with the provisions below (9). We undertake not to collect the claims as long as the customer meets their payment obligations towards us, is not in default, and we do not assert the retention of title by exercising a right according to paragraph (5). However, if this is the case, we may demand that the customer disclose the assigned claims and their debtors, provide all necessary information for collection, hand over the associated documents, and notify the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer's authorization to further sell and process the goods subject to retention of title.
(10) We undertake to release the securities to which we are entitled at the customer's request, to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is our responsibility.
§ 9 Warranty Claims, Statute of Limitations
(1) The customer's rights regarding defects in the goods and legal defects are subject to the statutory provisions, unless otherwise specified below. The customer's rights arising from separately given warranties remain unaffected.
(2) The basis of our liability for defects is primarily the agreement made regarding the nature and intended use of the goods (including accessories and instructions). If the nature of the goods has not been agreed upon, it shall be assessed according to the statutory provisions whether a defect exists (Section 434 (3) of the German Civil Code).
(3) We are generally not liable for defects that the customer knew about at the time of contract conclusion or did not know due to gross negligence (Section 442 of the German Civil Code). Furthermore, the customer's warranty claims require that they have fulfilled their statutory obligations to inspect and give notice of defects, as well as their reporting obligations (Sections 377, 381 of the German Commercial Code). In the case of building materials and other goods intended for installation or other processing, an inspection must always be carried out immediately before processing. If a defect becomes apparent during delivery, inspection, or at any later time, the customer must immediately notify us in writing. If the customer fails to conduct a proper inspection and/or report a defect, our liability for the defect that was not or not promptly or properly reported is excluded according to the statutory provisions.
(4) If the delivered goods are defective, we may initially choose whether to remedy the defect (rectification) or deliver goods free of defects (replacement). If the type of subsequent performance chosen by us is unreasonable for the customer in an individual case, they may refuse it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(5) We are entitled to make the owed subsequent performance conditional on the customer paying the due purchase price. However, the customer is entitled to withhold a reasonable part of the purchase price corresponding to the defect.
(6) We will bear or reimburse the necessary expenses for examination and subsequent performance, in particular, transport, travel, labor, and material costs, as well as any dismantling and installation costs, in accordance with the statutory provisions and these general terms and conditions of sale and delivery if a defect actually exists. Otherwise, we may demand reimbursement of the costs incurred from the customer due to their unjustified request for defect rectification if the buyer knew or could have recognized that there was no defect.
(7) If a reasonable deadline set by the customer for subsequent performance expires unsuccessfully or is dispensable according to the statutory provisions, the customer may exercise their rights to withdraw from the purchase contract or reduce the purchase price according to the statutory provisions. However, there is no right of withdrawal for insignificant defects.
(8) Claims by the customer for reimbursement of expenses under Section 445a (1) of the German Civil Code are excluded unless the last contract in the supply chain is a consumer purchase (Sections 478, 474 of the German Civil Code).
(9) Claims by the customer for damages or reimbursement of futile expenses (Section 284 of the German Civil Code) exist only in accordance with Section 10 below, regarding defects in the goods.
(10) The statute of limitations for claims by the customer arising from defects in the goods and legal defects is one year from delivery. If acceptance has been agreed, the statute of limitations commences upon acceptance.
§ 10 Other Liability, Limitation of Liability
(1) Unless otherwise provided in these general terms and conditions of sale and delivery, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – regardless of the legal grounds – within the framework of liability for intent and gross negligence. In cases of ordinary negligence, our liability shall be limited to damages resulting from injury to life, body, or health, or from the breach of a material contractual obligation (obligation whose fulfillment enables the proper execution of the contract and on whose compliance the contracting party regularly relies and may rely); in this case, however, our liability is limited to the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph (2) shall also apply to third parties and to breaches of duty by persons (including their representatives) whose fault we are responsible for under statutory provisions.
(4) These limitations of liability do not apply in cases of willful concealment of a defect or assumption of a guarantee for the condition of the goods, or for claims by the customer under the Product Liability Act.
§ 11 Choice of Law, Jurisdiction, Severability Clause
(1) The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(2) If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship is our place of business in Krefeld. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code. However, in all cases, we are also entitled to file a lawsuit at the place of performance of the delivery obligation or at the general place of jurisdiction of the customer. Mandatory legal provisions, particularly regarding exclusive jurisdictions, remain unaffected.
(3) If any provision of these general terms and conditions of sale and delivery is or becomes invalid, the validity of the remaining provisions shall remain unaffected. In place of the invalid provision, the relevant statutory provisions shall apply.
As of: July 2023
*This is a translation of our General Terms and Conditions. Legally, the German GTC apply.