Terms and Conditions

General Terms and Conditions of Sale and Delivery of

Gefa Produkte Fabritz GmbH, Elbestr. 12, 47800 Krefeld

1) General - Scope of application

Our Terms and Conditions of sale and delivery (“Terms and Conditions) shall apply exclusively; we shall not accept any terms and conditions of the Customer which contradict or deviate from our Terms and Conditions unless we have expressly agreed to their validity in writing. Our Terms and Conditions shall also apply if we deliver to the Customer without reservation knowing that the Customer's terms and conditions contradict or deviate from our Terms and Conditions.
All agreements concluded between us and the Customer for the purpose of executing this contract are set out in writing in this contract.
Our Terms and Conditions shall only apply to companies within the meaning of § 310 para. 1 BGB (German Civil Code).

2) Offer - Offer documents

Our offers are non-binding unless they are expressly marked as binding or unless they expressly contain binding commitments or unless the binding nature has otherwise been expressly agreed. Our offers form a request to place orders by Customer. The Customer is bound to his order 14 calendar days - in case of electronic orders 5 working days (each at our registered office) - after receipt of the order by us, unless the Customer must also regularly expect a later acceptance by us (§ 147 BGB). This also applies to subsequent orders placed by the Customer.
A contract is only concluded when we confirm the Customer's order in writing or in text form (i.e. by fax or e-mail) by our order confirmation. The order confirmation is only valid under the condition that any outstanding payment arrears of the Customer are settled and that a credit check of the Customer carried out by us remains without negative information. In case of delivery or performance within the binding period, our order confirmation can be replaced by our delivery, whereby the dispatch of the delivery is decisive.
We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as "confidential". The Customer requires our express written consent before passing them on to third parties.

3) Information - Characteristics of the products

Information and explanations regarding our products and performances are provided by us exclusively on the basis of our previous experience. They do not represent any characteristics or guarantees with regard to our products. The figures stated here are to be regarded as average figures for our products. Unless expressly agreed otherwise, we do not guarantee that our products and/or performances are suitable for the purpose pursued by the Customer.
We shall only assume an obligation to provide advice by virtue of an expressly separate written consulting agreement.
An explicit guarantee shall only be deemed to have been assumed by us if we have designated a characteristic and/or a performance success as "legally guaranteed" in writing.

4) Prices - Terms of payment

Unless otherwise stated in the order confirmation, our prices shall apply "ex works", excluding packaging; this shall be invoiced separately.
Our prices do not include the statutory value-added tax; it shall be listed separately on the invoice at the statutory rate on the date of invoicing.
The Customer may pay for the goods either by credit card (Visa, Mastercard, Amex), PayPal, instant bank transfer or on account. We reserve the right to exclude certain payment methods in individual cases. Your credit card account will be debited upon completion of the order.
The deduction of a discount requires a special written agreement.
Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory regulations concerning the consequences of default in payment shall apply.
The Customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, the Customer shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

5) Price change

We reserve the right to reasonably change our prices if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or changes in material prices. We shall prove the Customer with evidence of these upon request.

6) Delivery time

The start of the delivery period stated by us requires the clarification of all technical questions.
Unless otherwise stated in the offer, the delivery time shall be 3-5 days.
Compliance with our delivery obligation also requires the timely and proper fulfilment of Customer's obligation. We reserve the right to plead non-performance of the contract.
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
Insofar as the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the purchased product shall pass to Customer at the point in time at which the Customer is in default of acceptance or debtor's delay.
If the ordered product is not available due to no or late suppy with this product by our suppliers through no fault of our own, we may withdraw from the contract. In this case we will inform our Customer immediately and, if necessary, suggest the delivery of a comparable product. If no comparable product is available or if Customer does not wish to receive a comparable product, we will reimburse the Customer immediately for any consideration already paid.
We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a firm deal (“Fixgeschäft”) within the meaning of § 286 para. 2 no. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the Customer is entitled to assert that his interest in the further performance of the contract has ceased.
We shall also be liable according to the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault or our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
Otherwise, in the event of a delay in delivery, we shall be liable for each completed week of delay to the extent of a lump-sum compensation for delay amounting to 3% of the value of the delivery, but no more than 15% of the value of the delivery.
Further legal claims and rights of the Customer remain reserved.

7) Delivery - Transfer of risk - Packaging costs

Unless otherwise stated in the order confirmation, delivery "ex works" is agreed.
The risk of accidental loss and deterioration of the goods shall pass to the Customer upon delivery, in case of sales shipment upon delivery of the goods to the freight forwarder, the carrier or any other person or institution designated to carry out the shipment.
Separate agreements shall apply to the return of packaging.
If the Customer wishes, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the Customer.

8) Liability for defects

Claims for defects of the Customer presuppose that the Customer has properly fulfilled his obligations to inspect and give notice of defects according to § 377 HGB (German Commercial Code).
If there is a defect in the purchased product, we shall be entitled, at our discretion, to remedy the defect or to deliver a new defect-free product. In the event of subsequent performance, we shall bear the necessary expenses only up to the amount of the purchase price.
If the supplementary performance fails, the Customer shall be entitled, at his option, to withdraw from the contract or demand a reduction of the purchase price.
We shall be liable according to the statutory provisions if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
We shall be liable according to the statutory provisions if we culpably violate an essential contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage. An essential contractual obligation exists if the breach of duty relates to an obligation of the fulfilment, which the Customer has trusted and may have trusted.
Insofar as the Customer is otherwise entitled to compensation for the damage instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
Unless otherwise stipulated above, liability shall be excluded.
The limitation period for warranty claims is 12 months, calculated from the transfer of risk.

9) Joint liability

Further liability for damages than defined in § 8 is excluded - irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage pursuant to § 823 BGB.
The limitation according to paragraph (1) shall also apply if the Customer requests reimbursement of useless expenses instead of a claim for damages.
Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

10) Force majeure

If, for reasons beyond our control and for which we are not responsible, we do not receive deliveries or performances from our subcontractors for the provision of the delivery or performance which is the subject of this contract and which is owed by us, or if such deliveries or performances are not received or not received correctly or not received in time, or if events of force majeure of not inconsiderable duration (i.e. with a duration of longer than 14 calendar days) occur and despite proper and sufficient coverage prior to conclusion of the contract with the Customer in accordance with the quantity and quality of our contract with the Customer we shall inform our Customer in writing or in text form. In this case we shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part because of the part not yet fulfilled, provided that we have complied with our above obligation to provide information and have not assumed the procurement risk or a delivery guarantee. Force majeure includes strikes, lock-outs, official interventions, energy and raw stop shortages, transport bottlenecks or hindrances for which we are not responsible, operational hindrances for which we are not responsible - e.g. due to fire, water and machine damage - and all other hindrances which, from an objective point of view, were not caused by us.
If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events according to paragraph (1) of this provision, the Customer shall be entitled to withdraw from the contract because of the part not yet fulfilled after a reasonable grace period has expired without result. Further claims of the Customer, in particular claims for damages, are excluded in this case.
The above provision pursuant to paragraph 2 shall apply accordingly if, for the reasons stated in paragraph (1), it is objectively unreasonable for the Customer to continue to adhere to the contract without a contractual delivery date.

11) Securing retention of title

We reserve title to the purchased product until receipt of all payments under the delivery contract. In the event of breach of contract by the Customer, in particular default in payment, we shall be entitled to take back the purchased product. If we take back the purchased product, this shall constitute withdrawal from the contract. After taking back the purchased product, we shall be entitled to sell it; the proceeds of such sale shall be set off against the Customer's liabilities - less reasonable selling costs.
The Customer shall be obliged to treat the purchased product with care; in particular he shall be obliged to insure it adequately at his own expense against damage caused by fire, water and theft at replacement value. If maintenance and inspection work is necessary, the Customer must carry this out in good time at his own expense.
In the event of seizures or other interventions by third parties, the Customer must notify us immediately in writing so that we can institute legal proceedings pursuant to § 771 ZPO (Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for the loss incurred by us.
The Customer is entitled to resell the purchased product in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased product has been resold without or after processing. The Customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim as long as the Customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no petition has been filed for the opening of composition or insolvency proceedings and payments have not been suspended. If this is the case, however, we may demand that the Customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
The processing or transformation of the purchased product by the Customer is always carried out for us. If the purchased product is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the purchased product (final invoice amount including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the purchased product delivered subject to reservation of title.
If the purchased product is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the purchased product (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the Customer's item is to be regarded as the main item, it shall be deemed agreed that the Customer shall transfer co-ownership to us on a pro rata basis. The Customer shall keep the resulting sole ownership or co-ownership in safe custody for us.
The Customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the purchased product with a piece of land.
We undertake to release the securities to which we are entitled at the Customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on us.

12) Place of jurisdiction - place of performance - final clause

If the Customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the Customer at his place of residence.
The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall be excluded.
Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
Should any provision of these General Terms and Conditions be invalid, the remainder of the contract shall remain valid. Instead of the invalid provision, the relevant statutory provisions shall apply.

Version 09/2019