§ 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 (hereinafter: Schneider Diamantwerkzeuge or we), 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) Our services are directed exclusively to entrepreneurs as defined by § 14 BGB. We may therefore require the business partner to provide us with sufficient proof of its entrepreneurial status prior to the conclusion of the contract, e.g. by providing the VAT ID number or other suitable proof. The data required for the proof shall be provided by the business partner completely and truthfully.
(3) 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 Registration in our Online Shop
(1) The business partner can order goods in our online shop as a registered user. Registration shall be effected by entering a personal user name and a password as well as the full name, address and the voluntary entry of a telephone number. As a registered user, the business partner can log into his customer account in the context of an order with his e-mail address and the password freely chosen by him during registration. The registration alone does not constitute any purchase obligation with regard to the goods offered by us. The business partner is obliged to keep the password secret and not to disclose it to unauthorized third parties under any circumstances.
(2) The business partner can delete his registration at any time under "My Account". Insofar as the Business Partner's personal details change, the Business Partner itself shall be responsible for updating them. All changes can be made online after registration under "My Account".
§ 3 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) By clicking the "Order subject to payment" button in the last step of the ordering process, the business partner makes a binding offer to purchase the goods displayed in the order overview. Immediately after sending the order, the business partner receives a confirmation of receipt of the order, which, however, does not yet constitute an acceptance of the contractual offer. A contract between the business partner and us is concluded as soon as we accept the order by a separate e-mail or send the goods for shipment.
(4) After effective acceptance is received, an order confirmation will be sent to the Business Partner in writing or by e-mail.
§ 4 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.
§ 5 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. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected. Furthermore, in such cases we reserve the right to demand advance payment of the invoice amount on future orders.
(5) The business partner shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the business partner shall remain unaffected, in particular pursuant to § 9 of these GTC.
§ 6 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. As case of non-availability of the goods in this sense is in particular the untimely self-delivery by suppliers, if a congruent hedging transaction was concluded, neither Schneider Diamantwerkzeuge nor its suppliers are at fault or Schneider Diamantwerkzeuge is not obliged to procure in the individual case. 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.
§ 7 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 court and out-of-court costs that have to be incurred in order to stop the seizure or to return the reserved goods, insofar as they are not reimbursed by third parties.
(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.
§ 8 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.
§ 9 Liability for defects
(1) The basis for liability for defects shall be above all the agreement reached on the quality of the goods/work performance. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (§ 434 para. 1 sentence 2 and 3 BGB). Insignificant defects shall not give rise to any right of retention on the part of the business partner.
(2) The delivered goods shall be inspected carefully immediately after delivery to the business partner or to the third party designated by him. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful examination, they shall be deemed to have been approved by the business partner if we do not receive a written notice of defect within 7 (seven) working days after delivery. With regard to other defects, the goods shall be deemed to have been approved by the business partner if we do not receive the notice of defect within 7 (seven) working days after the point in time at which the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. At our request, a delivery item which is the subject of a complaint shall be returned to us carriage paid. In the event of a justified complaint, we shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects in the delivered goods, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. In the event of subsequent performance, we shall bear the necessary expenses only up to the amount of the purchase price if a defect actually exists. Otherwise, we may demand reimbursement from the business partner of the costs incurred as a result of the unjustified request for rectification of the defect, unless the lack of defectiveness was not apparent to the business partner. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the business partner may withdraw from the contract or reasonably reduce the remuneration.
(4) We shall be entitled to make the subsequent performance owed dependent on the business partner paying the remuneration due. However, the business partner shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
(5) If a defect is due to our fault, the business partner may claim damages under the conditions set out in § 10.
(6) In the event of defects of components of other manufacturers which we cannot remedy for licensing or factual reasons, we shall, at our option, assert our warranty claims against the manufacturers and suppliers for the account of the business partner or assign them to the business partner. Warranty claims against Schneider Diamantwerkzeuge do not exist in case of such defects under the other conditions and according to these GTC.
(7) The warranty shall not apply if the business partner modifies the goods or has them modified by a third party without the consent of Schneider Diamantwerkzeuge and the elimination of the defect becomes impossible or unreasonably difficult as a result. In any case, the business partner has to bear the additional costs of defect removal resulting from the modification.
(8) Any delivery of used items agreed with the business partner in individual cases shall be made to the exclusion of any warranty for material defects.
§ 10 Other Liability
(1) The liability of Schneider Diamantwerkzeuge for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 10, insofar as fault is relevant in each case.
(2) Schneider Diamantwerkzeuge shall not be liable unless it is a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver the goods on time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the business partner to use the goods in accordance with the contract or to protect the life or limb of the business partner's personnel or to protect the business partner's property from significant damage.
(3) Insofar as Schneider Diamantwerkzeuge is liable for damages on the merits in accordance with this paragraph 2, this liability shall be limited to damages which Schneider Diamantwerkzeuge foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damages and consequential damages, which are the result of defects of the goods, are furthermore only compensable, as far as such damages are typically to be expected when using the goods as intended. The above provisions of this paragraph 3 shall not apply in case of intentional or grossly negligent conduct of members of the executive bodies or executive employees of Schneider Diamantwerkzeuge.
(4) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of Schneider Diamantwerkzeuge.
(6) Insofar as Schneider Diamantwerkzeuge provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 10 do not apply to the liability of Schneider Diamantwerkzeuge due to intentional conduct, for guaranteed characteristics, due to injury to life, body or health or according to the Product Liability Act.
§ 11 Limitation Periods
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1,76 para. 3, §§ 444, 445b°BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the business partner based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the business partner for damages resulting from injury to life, body or health as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
§ 12 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.
§ 13 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.