Terms of service

Table of Contents

1. Scope
2. Conclusion of Contract
3. Right of Withdrawal
4. Prices and Payment Terms
5. Delivery and Shipping Terms
6. Retention of Title
7. Defect Liability (Warranty)
8. Liability
9. Redemption of Gift Vouchers
10. Applicable Law
11. Place of Jurisdiction
12. Alternative Dispute Resolution

1) Scope

1.1 These General Terms and Conditions (hereinafter "GTC") of GEMA Sanitär - und Heizungsgroßhandel GmbH (hereinafter "Seller") apply to all contracts for the delivery of goods that a consumer or entrepreneur (hereinafter "Customer") concludes with the Seller with regard to the goods presented by the Seller in its online shop. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed.

1.2 These GTC apply accordingly to contracts for the delivery of vouchers, unless otherwise stipulated in this respect.

1.3 A consumer within the meaning of these GTC is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to their commercial nor their independent professional activity.

1.4 An entrepreneur within the meaning of these GTC is a natural or legal person or a legally capable partnership that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.

2) Conclusion of Contract

2.1 The product descriptions contained in the Seller's online shop do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the Customer.

2.2 The Customer can submit the offer via the online order form integrated into the Seller's online shop. In doing so, the Customer, after placing the selected goods in the virtual shopping cart and going through the electronic ordering process, submits a legally binding contractual offer with regard to the goods contained in the shopping cart by clicking the button that concludes the ordering process. Furthermore, the Customer can also submit the offer to the Seller by email, via the online contact form, by post or by telephone.

2.3 The Seller can accept the Customer's offer within five days,

• by sending the Customer a written order confirmation or an order confirmation in text form (fax or email), whereby the receipt of the order confirmation by the Customer is decisive in this respect, or
• by delivering the ordered goods to the Customer, whereby the receipt of the goods by the Customer is decisive in this respect, or
• by requesting the Customer to pay after the Customer has placed their order.

If several of the aforementioned alternatives are present, the contract is concluded at the point in time at which one of the aforementioned alternatives occurs first. The period for acceptance of the offer begins to run on the day after the customer sends the offer and ends upon expiry of the fifth day following the sending of the offer. If the seller does not accept the customer's offer within the aforementioned period, this shall be deemed a rejection of the offer with the consequence that the customer is no longer bound by his declaration of intent.

2.4 If a payment method offered by PayPal is selected, payment processing is carried out via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to the PayPal Terms of Use, available at https://www.paypal.com/de/legalhub/paypal/useragreement-full or - if the customer does not have a PayPal account - subject to the terms for payments without a PayPal account, available at https://www.paypal.com/de/legalhub/paypal/privacywax-full. If the customer pays using a payment method offered by PayPal that can be selected during the online ordering process, the seller hereby declares acceptance of the customer's offer at the point in time at which the customer clicks the button that completes the ordering process.

2.5 When an order is placed via the seller's online order form, the contract text is stored by the seller after conclusion of the contract and transmitted to the customer in text form (e.g. email, fax or letter) after the customer sends his order. The seller does not make the contract text accessible beyond this. If the customer has set up a user account in the seller's online shop before sending his order, the order data is archived on the seller's website and can be retrieved free of charge by the customer via his password-protected user account by entering the corresponding login data.

2.6 Before bindingly submitting the order via the seller's online order form, the customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better detection of input errors can be the browser's zoom function, with the help of which the display on the screen is enlarged. The customer can correct his entries within the electronic ordering process using the usual keyboard and mouse functions until he clicks the button that completes the ordering process.

2.7 Different languages are available for the conclusion of the contract. The specific language selection is displayed in the online shop.

2.8 Order processing generally takes place automatically by email. The customer must ensure that the email address provided for order processing is correct, so that the emails sent by the seller can be received at this address.

3) Right of withdrawal

3.1 Consumers are generally entitled to a right of withdrawal.

3.2 Further information on the right of withdrawal can be found in the seller's withdrawal policy.

4) Prices and payment terms

4.1 Unless otherwise stated in the seller's product description, the prices indicated are total prices that include the statutory value added tax. Any additional delivery and shipping costs are stated separately in the respective product description.

4.2 The payment option(s) will be communicated to the customer in the seller's online shop.

4.3 If payment in advance by bank transfer has been agreed, payment is due immediately upon conclusion of the contract, unless the parties have agreed on a later due date.

4.4 If a payment method offered via the payment service "PayPal" is selected, payment processing is carried out via PayPal, whereby PayPal may also use the services of third-party payment service providers for this purpose. If the seller also offers payment methods via PayPal for which he makes advance payments to the customer (e.g. purchase on account or installment payment), he assigns his payment claim to PayPal or to the payment service provider commissioned by PayPal and specifically named to the customer. Before accepting the seller's declaration of assignment, PayPal or the payment service provider commissioned by PayPal carries out a credit check using the transmitted customer data. The seller reserves the right to refuse the selected payment method to the customer in the event of a negative check result. If the selected payment method is approved, the customer must pay the invoice amount within the agreed payment period or in the agreed payment intervals. In this case, he can only make payment to PayPal or to the payment service provider commissioned by PayPal with debt-discharging effect. However, even in the event of the assignment of the claim, the seller remains responsible for general customer inquiries, e.g. regarding the goods, delivery time, shipment, returns, complaints, declarations of withdrawal and returns or credit notes.

4.5 If the payment method "Sofortüberweisung" is selected, payment processing is carried out by Klarna Bank AB (publ), Sveavägen 46, 11134 Stockholm, Sweden (hereinafter "Klarna"). In order to be able to pay the invoice amount via "Sofortüberweisung", the customer must have an online banking account that is enabled for participation in "Sofortüberweisung", must identify themselves accordingly during the payment process and confirm the payment instruction. The payment transaction is carried out by Klarna immediately thereafter and the customer's bank account is debited. Further information on the payment method "Sofortüberweisung" can be found by the customer on the Internet at https://www.klarna.com/sofort/ retrieve.

4.6 If a payment method offered via the payment service "Shopify Payments" is selected, payment processing is carried out by Shopify International Limited, Victoria Buildings, 2nd Floor, 1-2 Haddington Road, Dublin 4, D04 XN32, Ireland ("Shopify"). The individual payment methods offered via Shopify Payments are communicated to the customer in the seller's online shop. To process payments, Shopify may use other payment services, for which special payment terms may apply, to which the customer may be separately advised. Further information on "Shopify Payments" can be found on the Internet at https://www.shopify.com/legal/terms-payments/de retrieve.

4.7 If the payment method purchase on invoice is selected, the purchase price becomes due after the goods have been delivered and invoiced. In this case, the purchase price must be paid within 30 days of the invoice date without deduction to Klarna AB, Sveavägen 46, 11134 Stockholm, Sweden (www.klarna.de), unless otherwise agreed. The payment method purchase on invoice requires a successful credit check by Klarna AB. If the customer is permitted to use the payment method purchase on invoice after the credit check, the payment is processed in cooperation with Klarna AB, to whom the seller assigns its payment claim. In this case, the customer can only make payment to Klarna AB with debt-discharging effect. Otherwise, the General Terms and Conditions of Klarna AB apply in this respect, which the customer can retrieve during the ordering process. The seller reserves the right to offer the payment method purchase on invoice only up to a certain order volume and to reject this payment method if the specified order volume is exceeded. In this case, the seller will point out a corresponding payment restriction to the customer in their payment information in the online shop.

4.8 If the payment method "PayPal Invoice" is selected, the seller assigns its payment claim to PayPal. Before accepting the seller's assignment declaration, PayPal carries out a credit check using the transmitted customer data. The seller reserves the right to refuse the "PayPal Invoice" payment method to the customer in the event of a negative check result. If the "PayPal Invoice" payment method is approved by PayPal, the customer must pay the invoice amount to PayPal within 30 days of receipt of the goods, unless PayPal specifies a different payment due date. In this case, the customer can only make payment to PayPal with debt-discharging effect. However, even in the event of the assignment of the claim, the seller remains responsible for general customer inquiries, e.g. regarding the goods, delivery time, shipping, returns, complaints, cancellation declarations and returns or credit notes. In addition, the General Terms of Use for the use of PayPal's invoice purchase apply, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/pui-terms.

5) Delivery and shipping conditions

5.1 If the seller offers to ship the goods, delivery shall be made within the delivery area specified by the seller to the delivery address specified by the customer, unless otherwise agreed. When processing the transaction, the delivery address specified in the seller's order processing shall be decisive.

5.2 For goods delivered by freight forwarder, delivery shall be made "free curb", i.e. up to the public curb nearest to the delivery address, unless otherwise stated in the shipping information in the seller's online shop and unless otherwise agreed.

5.3 If delivery of the goods fails for reasons for which the customer is responsible, the customer shall bear the reasonable costs incurred by the seller as a result. This shall not apply with regard to the costs for the outward shipment if the customer effectively exercises its right of cancellation. For the return costs, if the customer effectively exercises the right of cancellation, the provision made in the seller's cancellation policy shall apply.

5.4 If the customer acts as an entrepreneur, the risk of accidental loss and accidental deterioration of the sold goods passes to the customer as soon as the seller has delivered the item to the carrier, the freight forwarder or the other person or institution designated to carry out the shipment. If the customer acts as a consumer, the risk of accidental loss and accidental deterioration of the sold goods generally passes only upon handover of the goods to the customer or a person authorized to receive them. By way of derogation from this, in the case of consumers too, the risk of accidental loss and accidental deterioration of the sold goods passes to the customer as soon as the seller has delivered the item to the carrier, the freight forwarder or the other person or institution designated to carry out the shipment, if the customer has commissioned the carrier, the freight forwarder or the other person or institution designated to carry out the shipment with the performance and the seller had not previously named this person or institution to the customer.

5.5 If the customer acts as a consumer with its registered office in Germany or as an entrepreneur, the seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. However, this applies only if the non-delivery is not attributable to the seller and the seller has concluded a specific covering transaction with the supplier with the due care required. The seller will make all reasonable efforts to procure the goods. In the event of non-availability or only partial availability of the goods, the customer will be informed without undue delay and the consideration will be refunded without undue delay.

5.6 If the seller offers the goods for collection, the customer may collect the ordered goods within the business hours specified by the seller at the address specified by the seller. In this case, no shipping costs will be charged.

6) Retention of title

If the seller makes advance performance, the seller retains title to the delivered goods until the purchase price owed has been paid in full.

7) Liability for defects (warranty)

Unless otherwise provided by the following provisions, the statutory provisions on liability for defects shall apply. By way of derogation from this, the following applies to contracts for the delivery of goods:

7.1 If the customer acts as an entrepreneur,

• the seller has the choice of the type of subsequent performance;
• in the case of new goods, the limitation period for defect claims is one year from delivery of the goods;
• in the case of used goods, defect claims are excluded;
• the limitation period does not begin anew if a replacement delivery is made within the scope of liability for defects.

7.2 The limitations of liability and shortening of periods set out above do not apply

• to the customer's claims for damages and reimbursement of expenses,
• in the event that the seller has fraudulently concealed the defect,
• for goods that have been used in accordance with their customary intended use for a building and have caused its defectiveness,
• for any existing obligation of the seller to provide updates for digital products, in contracts for the supply of goods with digital elements.

7.3 Furthermore, for entrepreneurs, the statutory limitation periods for any existing statutory recourse claim shall remain unaffected.

7.4 If the customer acts as a merchant within the meaning of § 1 HGB, the commercial duty to inspect and give notice of defects pursuant to § 377 HGB shall apply to him. If the customer fails to comply with the notification obligations stipulated therein, the goods shall be deemed approved.

7.5 If the customer acts as a consumer, he is requested to report delivered goods with obvious transport damage to the carrier and to inform the seller thereof. If the customer fails to do so, this shall have no effect whatsoever on his statutory or contractual claims for defects.

8) Liability

The seller shall be liable to the customer for damages and reimbursement of expenses arising from all contractual, quasi-contractual and statutory claims, including tortious claims, as follows:

8.1 The seller shall be liable without limitation on any legal ground

• in the event of intent or gross negligence,
• in the event of intentional or negligent injury to life, body or health,
• under a guarantee promise, unless otherwise provided in this respect,
• under mandatory liability such as under the Product Liability Act.

8.2 If the customer acts as a consumer with residence in Germany or as an entrepreneur, the following limitations of liability shall apply:

If the seller negligently breaches a material contractual obligation, his liability shall be limited to the contract-typical, foreseeable damage, unless he is liable without limitation in accordance with the preceding clause. Material contractual obligations are obligations which the contract imposes on the seller according to its content in order to achieve the purpose of the contract, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer may regularly rely. Otherwise, the seller's liability shall be excluded, unless he is liable without limitation in accordance with the preceding clause.

8.3 The above liability provisions shall also apply with regard to the seller's liability for his vicarious agents and legal representatives.

9) Redemption of gift vouchers

9.1 Gift vouchers can only be redeemed before the order process is completed. Subsequent offsetting is not possible.

9.2 If the value of the gift voucher is not sufficient to cover the order, one of the other payment methods offered by the seller may be selected to settle the difference.

9.3 The balance of a gift voucher is neither paid out in cash nor interest-bearing.

9.4 The gift voucher is transferable. The seller may make payment with discharging effect to the respective holder who redeems the gift voucher in the seller's online shop. This shall not apply if the seller has knowledge or grossly negligent ignorance of the lack of entitlement, legal incapacity or lack of authority to represent of the respective holder.

10) Applicable law

The law of the Federal Republic of Germany shall apply to all legal relationships between the parties, excluding the laws on the international sale of movable goods. In the case of consumers, this choice of law shall apply only insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has his habitual residence is not withdrawn.

11) Place of jurisdiction

If the customer acts as a merchant, legal entity under public law or special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the seller's place of business. If the customer has its registered office outside the territory of the Federal Republic of Germany, the seller's place of business shall be the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to the customer's professional or commercial activity. In the aforementioned cases, however, the seller shall in any event be entitled to bring an action before the court at the customer's registered office.

12) Alternative dispute resolution

The seller is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.