§ 1 Scope of Application
(1) The present General Terms and Conditions of Business of Schneider Diamantwerkzeuge GmbH, represented by Managing Director Steffen Schneider and domiciled at Gottlieb-Daimler-Straße 18, 76703 Kraichtal-Münzesheim / Germany, apply to any order or inquiry received from an entrepreneur (hereinafter "Business Partner") in the sense of Section 14 of the German Civil Code (§ 14 BGB) through our website, by email, in writing or by telephone insofar as not modified by written agreement between the parties. Deviating or conflicting terms and conditions will not be recognized by us unless expressly agreed to in writing.
(2) Any amendments made to these Terms and Conditions will be communicated to the Business Partner in writing, by fax or by e-mail. When notified accordingly, the Business Partner will also be informed of his right of objection and the legal consequences of not objecting. Should the Business Partner not object to any said amendment within four weeks of receipt of notification thereof, said amendment shall be deemed accepted.
§ 2 Contract Consummation
(1) The presentation of our goods on our website or promotional materials does not constitute a binding offer.
(2) Following receipt of the Business Partner's inquiry, we will submit a binding offer to the Business Partner. This offer may be accepted by the Business Partner within two weeks of its receipt. Acceptance after expiry of this two-week period shall be deemed a new binding offer made by the Business Partner. We may accept this offer within two weeks of its receipt.
(3) After effective acceptance is received, an order confirmation will be sent to the Business Partner in writing or by e-mail.
§ 3 Materials, Samples and Documents Provided
(1) We reserve all rights of ownership and copyright on any materials, samples and/or documents made available to the Business Partner in connection with the order placed, including but not limited to illustrations, drawings, calculations, specifications, prices, etc.
(2) They may not be made available to any third party unless the Business Partner has obtained our express written permission to do so.
(3) In the event no contract is concluded, the Business Partner shall immediately return said materials, samples and documents as well as any reproductions made thereof.
§ 4 Prices and Payments
(1) The prices stated in our offer and order confirmation shall apply. Unless agreed otherwise in writing, our prices are ex works including packing and excluding applicable statutory value-added tax (VAT). Transport, customs duties and other fees incurred will be charged to the Business Partner at cost price.
(2) Payment of the purchase price shall be made exclusively to the account specified on our invoice. The deduction of any discount is permissible only with our express written authorization.
(3) Unless agreed otherwise in writing, the purchase price is payable without deductions within 30 days from the invoice date. The payment period is deemed to have been met if the invoiced amount has been unconditionally credited to our account by the end of this period or, if a different payment period has been agreed on, by the end of said payment period. We accept checks by prior agreement only. In the event of payment by check, the payment is deemed to have been made only when said check has been irrevocably credited to our account.
(4) In the event the Business Partner falls into arrears with payment or if circumstances come to our attention which give reason to doubt the Business Partner's solvency, we shall be entitled to demand immediate payment of all accounts receivable from this and other contracts. In this case we reserve the right to use any payments made by the Business Partner for other purposes to offset these outstanding accounts. Interest on arrears will be charged to the Business Partner at the rate of 9% p.a. over the base interest rate defined in Section 247 of the German Civil Code (§ 247 BGB). We reserve the right to assert claims for higher damages caused by the arrears. Furthermore, in such cases we reserve the right to demand advance payment of the invoice amount on future orders.
§ 5 Delivery Periods and Default of Delivery
(1) The delivery period will be agreed upon between the parties or specified in the order confirmation.
(2) The agreed delivery period shall commence on the date of consummation of the contract, however not before the date on which we have received all documents to be provided by the Business Partner as well as any agreed advance payment. An agreed delivery period is deemed to have been met if, by the point in time of its expiration, we have forwarded the goods from our works or said goods are ready but not able to be forwarded.
(3) If a deadline agreed as binding cannot be met for reasons for which we are not responsible (unavailability of goods or services from suppliers, force majeure, etc.), the Business Partner shall be notified of this without delay and informed at the same time of the anticipated new delivery period. Said unavailability of goods or services in this sense shall include non-timely or defaulted delivery of goods or services in cases in which we have ordered said goods or services by way of a congruent supply agreement entered into prior to receipt of the Business Partner’s order, cases for which neither we nor our suppliers are responsible and cases in which we are not obligated to effect procurement. Should the goods or services still be not available within said new delivery period, we shall be entitled to withdraw from the contract in whole or in part and shall in that case promptly reimburse the Business Partner for the corresponding counter-performance rendered.
(4) Occurrence of default in delivery is determined in accordance with the statutory provisions. In any case, however, the Business Partner shall send a reminder notice and set a reasonable grace period for supplementary performance. In the event said grace period expires to no avail, the Business Partner shall at his volition be entitled to withdraw from the entire contract or from that part of the contract which remains unfulfilled.
(5) Should the Business Partner default in taking delivery or culpably breach any other duty to cooperate, we shall be entitled to assert claims for any resulting damages including additional expenses incurred thereby. We reserve the right to assert further claims or rights. In such a case, the risk of accidental loss or deterioration of the goods passes to the Business Partner at the point in time he defaults in taking delivery or breaches said other duty.
§ 6 Delivery and Passage of Risk
(1) Delivery is made ex our warehouse, which is also the place of performance for delivery and any supplementary performance. On request and at the expense of the Business Partner, we can ship the goods to a destination of his choice (sale by dispatch). Unless agreed otherwise, we shall be entitled to determine the manner of shipment (in particular, the forwarding company, shipment route and packing) as we see fit.
(2) The risk of accidental loss or accidental deterioration of the goods shall pass to the Business Partner at the latest upon receiving them. In the event of sale by dispatch, the risk of accidental loss or accidental deterioration of the goods as well as the risk of delay shall pass upon provision of the goods to the carrier, the freight forwarder or other person or entity carrying out shipment. The aforementioned notwithstanding, in the event acceptance inspection has been agreed on, it is the decisive point in time for passage of risk. Also, in all other respects the statutory provisions concerning contracts for goods and services shall apply to the acceptance inspection inasmuch as agreed on. Default of taking delivery by the Business Partner shall be deemed equivalent to effected delivery and acceptance inspection.
§ 7 Liability for Defects
(1) In as much as not stipulated otherwise below, the rights of the Business Partner pertaining to material defects and defects in title shall be those specified in the statutory provisions.
(2) The primary basis for our liability for defects shall be the agreements made between the parties concerning the quality of the goods or services provided. In the absence of any such quality agreement, the presence or absence of a defect shall be assessed in accordance with the statutory provisions (Section 434 of the German Civil Code (§ 434 BGB)). Non-substantial defects shall not give cause for right of retention on the part of the Business Partner.
(3) Claims asserted by the Business Partner for defects shall be subject to the proviso that he has duly met his obligations to inspect and report defects in accordance with Section 377 of the German Commercial Code (§ 377 HGB). Claims are permissible only if submitted by the Business Partner in writing and substantiated by documentary evidence – in particular the goods claimed – within a period of five days from receipt of said goods. Defects which were not discoverable during this time period despite careful examination must be reported to us in writing immediately after their discovery; such claims shall however be excluded in any event if reported later than 6 months from the date of receipt of said goods. If the goods have been used in spite of a defect which is known to the Business Partner or in spite of a defect which could have been discovered by careful examination, warranty claims of any kind shall be excluded. In the event a defect in the goods purchased does not become apparent until they are used, all use of the goods to be claimed shall cease immediately and we must be informed accordingly without delay.
(4) In the event delivered goods or services are defective, we are entitled to choose whether to render supplementary performance by remedying the defect (remediation) or by delivery of a non-defective item (replacement). If the item is in fact found to be defective, we shall bear the required costs of supplementary performance up to but not exceeding its purchase price. If said item is found not to be defective, we shall be entitled to reimbursement by the Business Partner of any costs incurred due to the unjustified claim for supplementary performance unless the absence of a defect was not recognizable by the Business Partner.
(5) We shall be entitled to render the owed supplementary performance only after the Business Partner has paid the purchase price due. In this event the Business Partner is however entitled in this case to retain a reasonable portion of the purchase price as justified by the defect.
(6) The Business Partner shall allow us the required time and opportunity to render the owed supplementary performance and shall, in particular, provide us the claimed goods for inspection. In the event of supplementary performance by way of replacement, the Business Partner shall return the defective goods to us in accordance with the statutory provisions.
(7) If the supplementary performance has failed or if a reasonable deadline specified to us by the Business Partner for said supplementary performance has expired unsuccessfully or is not required according to the statutory provisions, the Business Partner shall be entitled to withdraw from the contract or reduce the purchase price by a reasonable amount. However, this right of withdrawal shall be excluded in the event of a non-substantial defect.
(8) Claims of the Business Partner for reimbursement of damages or futile expenses, even if relating to defects, are permissible only in accordance with the provisions of Section 7 of these General Terms and Conditions of Business and are otherwise excluded.
§ 8 Other Liability
(1) Unless provided otherwise by these General Terms and Conditions of Business, our liability for any breach of contractual or non-contractual duties shall be as stipulated in the statutory provisions.
(2) We shall be liable for damages – irrespective of their legal grounds – inasmuch as caused with our wilful intent or by our gross negligence. Our liability in cases of ordinary negligence, excepting mitigating circumstances, is as stipulated in the statutory provisions in cases involving
a) damages arising from injury to life, limb or health; or
b)damages arising from a substantial breach of an essential contractual obligation (cardinal obligation), i.e. an obligation the fulfilment of which is an essential pre-requisite for proper contract performance and the fulfilment of which the Business Partner may routinely rely on; in this event our liability is however limited to the foreseeable damages typically occurring in such cases.
(3) Our liability limitations provided by Paragraph 2 above also apply to breaches of duties by or to the benefit of persons for whose culpable actions we are liable in accordance with the statutory provisions. They do not apply in cases in which we have maliciously concealed a defect or have assumed a guarantee for the quality of the goods, nor do they apply to claims of the Business Partner in accordance with product liability law.
(4) In the event of a breach of an obligation which does not result from a defect, the Business Partner is entitled to withdraw from or terminate the contract only in the event we are responsible for this breach. An unrestricted right of the Business Partner to terminate the contract (as stipulated in particular in Sections 651 and 649 of the German Civil Code (§ 651 and 649 BGB)) is hereby excluded. In all other respects, the statutory provisions and their legal consequences apply.
§ 9 Limitation Periods
(1) Any claim asserted by the Business Partner – irrespective of its legal grounds – is subject to a period of limitation ending 12 months after delivery of the item(s) concerned. However, in cases involving willful or malicious intent, injury to life, limb or health or claims pursuant to product liability law, the statutory limitation periods apply instead. The statutory limitation periods apply likewise for defects in a building or structure and furthermore for delivered products used in their normal manner of application in or on a building or structure which cause defects in said building or structure.
(2) Inasmuch as new rights of the Business Partner relating to material defects arise in the course of rectification of defects, any such rights shall become statute-barred at the latest 24 months following delivery of the original item concerned.
§ 10 Rights to Set-off and Retention
The Business Partner shall only be entitled to set off or assert rights of retention on the basis of claims which have been recognized by declaratory judgement or are not disputed by us. The rights of the Business Partner arising from defects in products delivered remain unaffected.
§ 11 Retention of Title
(1) We retain title to the goods sold until all of our claims arising out of the purchase or services contract or the ongoing business relationship (hereinafter: "Secured Claims") have been satisfied in full. This provision also applies to future deliveries even if we do not make explicit reference to it in each case.
(2) The goods subject to retention of title may neither be pledged to third parties nor ceded as security if any Secured Claim has not been paid for in full. The Business Partner shall inform us in writing immediately in the event he files an application to open insolvency proceedings or in the event the goods to which we retain title are subject to intervention (e.g. seizure) by or on behalf of any third party. The Business Partner shall bear all judi-cial and extrajudicial costs, insofar as not reimbursed by third parties, incurred in any ac-tion against said intervention including return transport of seized goods.
(3) Should the Business Partner conduct himself in breach of the contract, in particular by defaulting in payment of the purchase price due, we shall have the right in accordance with the statutory provisions to withdraw from the contract and/or demand the return of the goods involved by reason of our retention of title. Any such demand for return of goods does not necessarily constitute declaration of withdrawal from the contract; on the contra-ry, we are entitled to demand only the return of the goods while reserving the right to withdraw from the contract later. In the event of default in payment of the purchase price due, before asserting such rights we must await fruitless expiration of a reasonable grace period specified to the Business Partner except in cases in which such a grace period is not required by the statutory provisions.
(4) The Business Partner shall be entitled to resell goods subject to retention of title in the course of legitimate business transactions. In this event the Business Partner hereby assigns to us as securities the receivables from the resale of said goods in the amount of our Secured Claim , regardless of whether said resale takes place without or following any processing of goods subject to our retention of title. Notwithstanding our right to collect the claim on our own account, the Business Partner remains authorized as well to collect the assigned claim. We however shall not collect such claims on our own account as long as and insofar as the Business Partner satisfies all payment obligations towards us and is neither illiquid nor has applied to open insolvency or similar proceedings. Insofar as the securities assigned to us exceed the value of the claims secured by an amount of more than 10%, we shall at the request of the Business Partner release securities of our choice amounting to the excess value. The securities released are selected at our discretion.
§ 12 Concluding Provisions
(1) The place of performance is our corporate domicile.
(2) Inasmuch as the Business Partner is an entrepreneur ("Kaufmann") according to the German Commercial Code (HGB), the legal venue for any dispute shall be a court of competent jurisdiction at our corporate domicile in Kraichtal / Germany. We are, however, also entitled to bring action against the Business Partner before competent courts at his domicile.
(3) The laws of the Federal Republic of Germany shall apply exclusively, even in the event the Business Partner is domiciled in another country or the purchased goods are supplied to or used in locations in other countries. The UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded from application.
§ 13 Severability Clause
In the event any provision of these General Terms and Conditions of Business should be or become invalid, unenforceable or incomplete, this in no way affects the validity of the remaining provisions. In this event the parties undertake to replace said provision with a legally valid, enforceable and complete provision which most closely fulfils the economic purpose intended by the original provision.