General Terms and conditions of DiamondGroup GmbH, 56295 Lonnig
A – Scope of application
These terms of sale exclusively apply to entrepreneurs, legal entities under public law, and special funds under public law in the meaning of § 310 Para.1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
All deliveries and services of DiamondGroup GmbH are made solely on the basis of following terms and conditions.
DiamondGroup GmbH general terms and conditions shall apply exclusively. The general terms and conditions of the contractual partner shall not be applicable.
These terms and conditions also apply to all future transactions with DiamondGroup GmbH, if these are legal transactions of similar nature.
B – Conclusion of a contract
- All offers made by DiamondGroup GmbH are without engagement. Our offers constitute an invitation to the customer to submit a binding offer.
The customer’s offer shall be deemed accepted if not rejected within two weeks after its receipt.
- All orders placed with DiamondGroup GmbH constitute an offer of the customer to close a sales contract of the items specified in the order. The differentiation between mandate and order shall only be made due to internal requirements of DiamondGroup. A contract shall not come into effect until DiamondGroup explicitly accepts the offer. The Customer is put on notice that DiamondGroup shall carry out a credit evaluation through R+V Kreditversicherungs AG, Raiffeisenplatz 1, 65189 Wiesbaden prior to the formation of a contract.
- The conclusion of the contract shall be subject to proper and timely delivery of products by third parties. This shall only apply in the event that we are not responsible for the non-delivery, especially in case of conclusion of a congruent covering transaction with our supplier.
- Minor deviations from any such details describing the product shall be deemed to have been approved provided that they are not unreasonable for the purchaser.
C – Delivery times, partial deliveries
- Delivery times indicated in the written order confirmation from DiamondGroup GmbH are approximates. The general delivery time is 6-8 weeks.
- DiamondGroup GmbH is entitled to make partial deliveries.
- If the purchaser falls into default of acceptance or if it culpably breaches other cooperation duties, DiamondGroup GmbH is entitled to demand compensation for any loss incurred as a result, including any additional expenditures.
DiamondGroup GmbH reserves the right to assert further claims. If the aforesaid conditions are present, the risk of accidental loss or accidental deterioration of the object of purchase transfers to the purchaser at the point at which the purchaser is in default of acceptance or debtor’s delay.
D – Prices and terms of payment
- The agreed prices result from the order confirmation of DiamondGroup GmbH and shall be applied from the distribution center chosen, plus the respective value added tax. All costs and additional expenses of shipment, such as postage, freight, charges for delivery etc., will be charged separately to the contracting party.
- The risk of damage or the loss of delivered goods passes to the contracting party upon leaving the distribution center of DiamondGroup GmbH.
- Unless agreed on prepayment or any other agreed term of payment, all invoices from DiamondGroup GmbH are to be paid pure net without cash discount or other discounts, immediately after issuing, and no later than upon receipt of the delivery of DiamondGroup GmbH. The acceptance of checks shall exclusively be in fulfilment; all collection expenses are borne by the customer. In case of partial delivery according to C2, only the pro rata purchase price is to be paid.
- In case of late payment, DiamondGroup GmbH will invoice interest on arrears in the amount of 8% above the relevant base interest rate of the European Central Bank. It shall be up to DiamondGroup GmbH to furnish proof of higher expenditure and up to the customer to furnish proof of lower expenditure.
- The customer shall only have the right of retention for counterclaims which arise from the same contractual relationship. In case of continuous business relationship, each order is classified as a separate contract. Setoff against claims of DiamondGroup GmbH shall only be allowed if the counterclaim is uncontested or if it is subject of a final court decision.
E – Warranty
- In case of defects of the goods or of the absence of assured qualities, DiamondGroup GmbH is – at their choice – entitled to either subsequently curing the defect or replacing the item.
- The customer must notify DiamondGroup GmbH in writing of apparent defects without delay, but at the latest within two weeks from receipt of the goods. Other defects that cannot be detected within this period in spite of a careful examination are to be notified in writing immediately after its detection, but at the latest within two weeks after its detection. The timeous posting of the notice of defects (postmark) is decisive for the deadline adherence. The obligation of inspection, notification and rejection for merchandisers in accordance with 377 of the German commercial code (HGB) shall remain unaffected.
- Primarily to performing the warranty duties, the customer is obliged to allow DiamondGroup GmbH to examine the claimed item. At the choice of DiamondGroup GmbH this examination can be performed either at the buyer’s place or at the (headquarters of) DiamondGroup GmbH.
Should the customer refuse the examination, DiamondGroup GmbH will be released from its warranty.
- This warranty shall not cover the correction of faults which arise as a result of outside influences.
In the case of modifications or alterations of the delivered goods by the contracting party or unauthorized third parties, no warranty claims can be asserted except where the contracting party is able to prove that any defect was not caused by any such measures.
In case of a removal of defect, DiamondGroup GmbH shall become the owner of the removed components. In case of replacements, DiamondGroup GmbH becomes owner of the contract goods upon receipt at the customer’s.
F – Right of exchange
DiamondGroup GmbH offers the right to exchange the delivered goods (except for color stone jewellery, loose stones with certificates and custom-made products according to customer specifications, as well as goods delivered with GIA- / De Beers- and Solitaire- noble wooden displays) subject to the following conditions:
- The exchanged goods must have been fully paid.
- There are no outstanding debts with the customer from other deliveries of DiamondGroup GmbH.
- The goods to be exchanged are in the same state as they were at the time of the delivery.
- The delivery of the goods to be exchanged is no longer than 12 months ago. This period shall commence from the date of invoice on the invoice sent by DiamondGroup GmbH. After expiry of this period an exchange shall no longer be possible. All rights of exchange are expired.
- In the case of a bad delivery by DiamondGroup GmbH, all returns and exchanges of goods shall correspond to the statutory relevant regulations. The return or exchange of such defective goods does not fall under the above mentioned right of exchange.
G – Liability
- If an obligation which is a substantial part of the contract is breached or if a warranted characteristic is not met, the liability of DiamondGroup GmbH shall be limited to the extent of its general business liability insurance.
This applies also for restitution of indirect damages (e.g. consequential damages, lost profits, including replacement of such damages not caused by the contractual item itself, but through its use, its unsuitability or in any other manners, other devices or persons)
Claims for damages due to tort are excluded. This will not apply if DiamondGroup GmbH or its vicarious agents have acted with gross negligence. In this case, the liability of DiamondGroup GmbH shall also be limited to the extent of its general business liability insurance.
H – Retention of title
- All deliveries of DiamondGroup GmbH are performed under retention of title.
Ownership of the delivered goods and rights (reservation goods) shall first be transferred to the customer, with the fulfillment of all obligations from the entire business relation with DiamondGroup GmbH.
All future claims are also considered to be claims from business relations with DiamondGroup GmbH.
In the event of resale, the customer assigns to DiamondGroup GmbH already in advance all the claims arising against its purchasers, provided that these exceed the value of the claim to be secured by more than 20 per cent (20%). DiamondGroup GmbH accepts this assignment.
In the event of third party seizures of the goods subject to reservation of title, the customer shall be obliged to inform DiamondGroup GmbH in writing and to point out the rights of DiamondGroup GmbH.
- Processing and treatment as well as transformation of the purchased item by the customer, shall always be done on behalf or by order of DiamondGroup GmbH. The expectant right of the customer in the goods purchased will – in this case – continue in the reconstructed object. Insofar as the purchased item is processed with other objects not belonging to DiamondGroup GmbH, DiamondGroup GmbH shall acquire joint ownership of the new product in the proportion of the actual value of the purchased thing to the other processed items at the time of processing. Same shall apply in the case of mixing. Insofar as the mixing occurs in such way that the item of the customer is to be regarded as the main item, it shall be deemed that the customer assigns joint ownership to DiamondGroup GmbH proportionally, and therefore keeps the sole ownership or joint ownership for DiamondGroup GmbH.
- Should the customer be partially or fully in arrears with one or more payments, cease to make payments or insolvency proceedings on company assets have been applied for, the customer is no longer entitled to exert propriety rights over the goods. In this case, DiamondGroup GmbH is entitled to withdraw from the contract, demand the return of retained products or to call off the customer’s authorization to the collection of claims from the resale of these reservation goods. DiamondGroup GmbH will also be entitled to demand information about the recipients of the reservation goods, to notify them of the assignment of the claims and to collect this claim.
- The customer shall treat the item subject to retention of title with care during the period of the retention of title, and shall insure it adequately, at its own expense, against fire, water, theft or breakage and allow DiamondGroup GmbH the examination of the insurance policy upon demand. The customer hereby assigns any insurance claims to DiamondGroup GmbH. DiamondGroup GmbH accepts this assignment and declares re-assignment to the contractual partner on condition that this will be effective as soon as retention of title is forfeited.
I – Export
The customer commits himself to observe regulations of the German and European foreign trade legislation, in the case of export of the contract goods. This also affects deliveries in countries, to recipients or for purposes from which the customer knows or must know that they underlie external controls.
J – confidentiality and protection of data
- The contracting parties shall treat in confidence all company and operational secrets which become available in connection with business relations of the other party and keep them confidential after termination of the business relationship.
- When using personal data gathered from the business relations with the customer, DiamondGroup GmbH will observe the regulations of the Federal Data Protection Act.
K – Other
- German law shall apply.
- For all contracts with registered traders, legal entities established by public law or with public-law special funds, it shall be agreed that the exclusive place of contractual fulfilment is Kobern-Gondorf and the exclusive court of jurisdiction is Koblenz. Exclusive court jurisdiction is also Koblenz, if the domicile of the party to the contract is not known or if he/she has no inland domicile any more when legal action is commenced.
- The customer shall be informed about modifications to the General Terms and Conditions. If DiamondGroup GmbH amends the General Terms and Conditions to the detriment of the customer, the customer shall be entitled to terminate the contractual relationship without notice within one month upon receipt of the notification of change. DiamondGroup GmbH shall draw the customer’s attention to this right of termination. If the customer does not terminate the contract, the changes will apply with the expiry of the last day of that month.
- If individual regulations of this contract are or will be inefficacious, or should a gap in the present contract be found, the validity of the remaining regulations is not affected. The contracting parties undertake to agree a legally appropriate regulation instead of the ineffective provision that comes closest to the economic purpose of the ineffective provision or fills the gap in the contract.
State: July 2019