of Kardiam Diamantwerkzeuge GmbH, version 04/01/2019
§ 1 Validity of the conditions
The deliveries, services and offers of the seller are made exclusively on the basis of these terms and conditions. These also apply to all future business relationships, even if they are not expressly agreed again. These conditions are considered as accepted at the latest when the goods or services are received. Counter-confirmations by the buyer with reference to his own terms and conditions of business or purchase are hereby contradicted.
Differences from these terms and conditions are only effective if the seller confirms them in writing.
§ 2 Offer and conclusion of contract
The seller’s offers are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of the seller to be legally effective. The same applies to supplements, modifications or subsidiary agreements.
Drawings, illustrations, dimensions, weights or other performance data are only binding if this has been expressly agreed in writing.
§ 3 Prices
Unless otherwise stated, the seller is bound by the prices contained in his offers for 30 days from their date. The prices stated in the seller’s order confirmation plus the respective statutory sales tax are decisive. Additional deliveries and services will be charged separately.
Unless otherwise agreed, prices are ex works, freight collect. The packaging will be charged at cost price and will not be taken back.
§ 4 Delivery and service time
The dates and deadlines specified by the seller are non-binding unless otherwise expressly agreed in writing.
Delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for the seller – this also includes subsequent material procurement difficulties, operational disruptions, strikes, lockouts, lack of personnel, lack of means of transport, official orders, etc., even if they occur at the seller’s suppliers or their sub-suppliers – the seller is not responsible, even in the case of bindingly agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the obstruction plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part that has not yet been fulfilled.
If the obstruction lasts longer than 3 months, the buyer is entitled, after an appropriate period of grace, to withdraw from the contract with regard to the part that has not yet been fulfilled.
If the seller is responsible for the non-compliance with bindingly promised deadlines and dates or is in default, the buyer is entitled to compensation for delay in the amount of 0.5% for each completed week of delay, but in total up to a maximum of 5% of the invoice value of the delay affected deliveries and services. Claims going beyond this, in particular claims for damages of any kind, are excluded.
The seller is entitled to make partial deliveries and partial services at any time.
§ 5 Passing of Risk
The risk passes to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the seller’s warehouse for the purpose of shipment. If shipping becomes impossible through no fault of the seller, the risk passes to the buyer upon notification of readiness for shipping.
§ 6 Warranty
The seller is liable for demonstrable defects caused by him only with replacement delivery or repair at his own discretion within the framework of the statutory provisions.
The repair is always carried out in the supplier’s works. In the case of repair work on the customer’s premises, the latter shall bear the additional costs incurred by the fitter and any assistants. Warranty work in third-party workshops requires the prior approval of the seller.
The warranty expires if the buyer himself or third parties intervene in the purchased item.
If there is reason to complain about a diamond tool, it must be removed from the machine immediately. A segment height of at least 50% is required to protect the interests of the buyer and to be able to carry out a proper check. In the event of non-compliance with these points, claims for compensation are excluded.
§ 7 Retention of title
Until the fulfillment of all (including balance) claims to which the seller and his group companies are entitled against the buyer and his group companies now or in the future for any legal reason, the seller will be granted the following securities, which he will release upon request at his discretion, insofar as their value consistently exceeds the claims by more than 20%.
The goods remain the property of the seller. Processing or transformation is always carried out for the seller as the manufacturer, but without any obligation for him. If the seller’s (co-)ownership expires as a result of fusion, it is already agreed that the buyer’s (co-)ownership of the uniform item shall be transferred to the seller in proportion to the value (invoice value). The buyer keeps the (joint) property of the seller free of charge. Goods to which the seller has (co-)ownership are referred to below as reserved goods.
The buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in delay. Pledges or collateral assignments are inadmissible. The buyer hereby assigns the claims arising from the resale or any other legal reason (insurance, tort) with regard to the reserved goods to the seller in full as a precaution. The seller revocably authorizes him to collect the claims assigned to the seller for his account in his own name. At the request of the seller, the buyer will disclose the assignment and provide the seller with the necessary information and documents.
If third parties access the goods subject to retention of title, the buyer will point out the seller’s ownership and notify the seller immediately. Costs and damages paid by the buyer.
In the event of breach of contract by the buyer – in particular delay in payment – the seller is entitled to take back the reserved goods at the expense of the buyer or, if necessary, to demand the assignment of the buyer’s claims for return against third parties. The taking back and seizure of the goods subject to retention of title by the seller does not constitute a withdrawal from the contract, unless the installment law applies.
§ 8 Payment
Unless otherwise agreed, the seller’s invoices are payable 30 days after invoicing without deduction – or at the customer’s option within 10 days of the invoice date with a 2% discount on the invoice amount.
The seller is entitled, despite the buyer’s provisions to the contrary, to initially offset payments against his older debts. If costs and interest have already been incurred, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
A payment is only considered to have been made when the seller can dispose of the amount. In the case of checks, payment is considered to have been made when the check is cleared.
If the payment deadline is exceeded, interest on the due date will be charged at the interest rate charged by commercial banks for open overdrafts, but at least 5% above the respective discount rate of the Deutsche Bundesbank. The stated interest rate also applies in the event of delay as the contractually agreed minimum damage.
If the buyer does not meet his payment obligations, in particular does not cash a check or stops making payments, or if the seller becomes aware of other circumstances that call into question the buyer’s creditworthiness, the seller is entitled to make the entire remaining debt due, including if he accepted checks. In this case, the seller is also entitled to demand advance payments or security deposits.
The buyer is only entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the seller has expressly agreed in writing or if the counterclaims have been legally established.
The Buyer agrees to set off its claims against and liabilities to the seller and its group companies. Claims and liabilities of the buyer’s group companies can be offset in the same way.
§ 9 Limitation of Liability
Claims for damages due to impossibility of performance, positive breach of contract, culpa in contrahendo and tort are excluded both against the seller and against his vicarious agents or vicarious agents, unless intentional or grossly negligent action is involved.
§ 10 Applicable Law, Place of Jurisdiction, Partial Invalidity
The law of the Federal Republic of Germany applies to these terms and conditions and the entire legal relationship between seller and buyer.
To the extent permitted by law, Ravensburg is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.