General Terms and Conditions

General Sale and Delivery Conditions


I. SCOPE OF APPLICATION

1. The following Terms of Delivery alone shall be regarded as agreed upon – even without explicit mentioning – for all deliveries, services, offers, order confirmations and related statements between us, i.e. INDIMANT Industriediamanten GmbH (hereafter also referred to as Seller), and the Buyer/Customer (hereafter referred to as Buyer) also in the course of negotiations,

Our Terms of Delivery apply for all contracts with entrepreneurs, legal entities under public law and special assets under public law and thus also for all future business relationships juristischen Personen des öffentlichen Rechts und öffentlich-rechtlichen Sondervermögen und dabei auch für alle künftigen Geschäftsbeziehungen, even if not again explicitly agreed upon. They shall be regarded as accepted at the latest on the acceptance of the goods.

2. We expressly contradict any General Terms incompatible with or diverging from our terms unless we agreed to them in writing in a particular case.

3. The company reserves the right to make constructional technical alterations as are usual in the trade to the scope of services offered, provided this does not unreasonably prejudice the customer nor affect the fitness for purpose.

4. A buyer's claims resulting from the contractual relationship may not be assigned to third parties without our consent.

5. Exceptions to our Terms of Delivery are possible in certain cases, specific conditions permitting. Should, however, one of the afore-mentioned clauses be ineffective in whole or in part, its ineffectiveness will have no bearing on the other clauses or parts thereof. The ineffective definition is to be replaced by an effective definition which corresponds to the economical sense and the purpose of the contract. Verbal declarations, especially information, recommendations and suggestions, must be executed in written form to become effective. This also applies to any waiver of the necessity of the written form.

II. OFFERS AND PRICES

1. All our offers are non-binding, i.e. they only constitute a request to submit an offer. The buyer is bound to his order for 30 days. The acceptance of an order becomes effective by written confirmation or by executing the order.

2. Our prices shall apply ex works and plus the statutory value-added tax prevailing from time to time. If no prices have been agreed at the completion of contract, our delivery day prices shall be applicable, based on price list specifications.

3. For deliveries by instalments each delivery may be invoiced separately.

III. DELIVERY

1. Delivery time information is approximate and non-binding, unless the binding character has expressly been confirmed. Observance of the agreed time limit assumes timely entry of all documents the Buyer has to deliver, i.e. drawings, models, samples and materials.

2. A time limit for delivery shall be deemed to be complied with if the delivery item has left our premises within the deadline or readiness for dispatch is established or notified.

3. The Terms of Delivery extend adequately in cases of force majeure, i.e. unforeseen circumstances and events beyond our control which could not have been avoided with due diligence of a prudent businessperson, or in the case of unforeseeable operational disruptions (e.g. strikes, lockouts etc.) as well as any other circumstances not imputable to us (e.g. defective or untimely deliveries to the Seller, failure on the part of our suppliers to deliver on time, disruptions to transport etc.), regardless whether these circumstances occur in our company or at our subcontractors. Such cases suspend the parties' contractual obligations for the duration of such disturbance and for the scope of its effect. If the fulfillment of a contract seems unreasonably difficult due to cases of force majeure, both contractual parties shall be entitled to withdraw from the contract with respect to the scope of performance concerned. No other claims shall be asserted.

4. In the event of delay in delivery the Buyer may, following the expiry of an appropriate period of grace to no effect, withdraw from the Contract; in the event of the practical impossibility of supply of goods on our part the Buyer is also entitled to do so without a grace period. Delayed delivery shall equate to impossibility if delivery does not follow after 1 month. Claims for damages shall be excluded, without prejudice to the paragraphs 5 and 6; this applies also to the repayment of expenses.

5. The exemption from liability governed by paragraph 4 shall not apply where an exemption from or limitation of liability for damages arising due to injury to life, limb or health is agreed upon, which is based on a deliberate or negligent breach of duty by the operator, or a deliberate or negligent breach of duty by a legal representative or assistant of the Seller; it shall also not apply where an exemption from or limitation of liability for other damages is agreed upon, which is based on a deliberate or grossly negligent breach of duty by the Seller or on a deliberate or grossly negligent breach of duty by a legal representative or assistant of the Seller. If we culpably infringe any essential contractual obligation or any “cardinal obligation”, liability shall not be excluded but shall be limited to typical foreseeable contractual damage. In the event of reimbursement of expenses the above shall apply accordingly.

6. The limitation on liability pursuant to paragraph 4 and 5 shall not apply if a commercial time bargain was agreed or if the buyer can legitimately assert that he is no longer interested in performing the contract because of our default.

7. Partial deliveries are permitted provided this is not unacceptable to the buyer.

8. The goods are shipped and transported at the expense and risk of the ordering party. Deliveries shall be made freight collect, packaging costs will be charged at cost price. Ordinary mail will be delivered to the addressee carriage and packaging paid. This does not apply to repair orders and, if necessary, client services for which freight and postage shall principally be calculated separately. The Buyer shall take delivery of the supplied goods, even if they are slightly defective, regardless of the rights arising from paragraph VII.

IV. CONDITIONS FOR PAYMENT

1. Invoices are to be paid by the buyer within 10 days of the date of the invoice with the deduction of a cash discount of 2% from the pure value of goods or within 30 days after the invoice date at the latest without deduction, net cash and at no cost to ourselves. Repairs and other services are due in net cash without deduction within 30 days after the invoice date. If the payment is late or deferred, we are entitled to charge the usual bank interest and commission rates.

2. Discountable bills of exchange and cheques are only accepted for payment subsequent to prior agreement and on account of performance. A payment is only considered to have been made once the cheque/bill of exchange has definitively been credited to one of our accounts. Discount and encashment charges, stamp duties and banking charges shall be charged to the buyer entirely. Should the asset position of the Buyer develop unfavourably during the term of an agreed instalment payment or prior to the due date of a bill of exchange, we reserve the right to demand immediate payment of the full amount.

3. Payments shall always be set off against the oldest due invoice. If costs and interest arise, the Buyer has the right, first of all to charge the payment against the costs, then against the interest, and finally against the actual payment.

4. The Buyer is only entitled to offsetting if his counterclaims are confirmed or established by court decision and undisputed or explicitly acknowledged by us. The Buyer shall also only be entitled to exercise a right of retention if the counter-claim of the Buyer is based on the same contractual relationship.

5. If the Buyer is in default for payment, we are entitled to charge interest on arrears at the rate of 8 percentage points annually above the respective base interest rate. In addition, we may prove and charge higher interest damage at any time.

6. If we become aware of facts after conclusion of agreement which conclude as per obligatory commercial discretion that the purchase price claim is endangered through lack of capability of the Buyer, especially non-compliance with the payment terms, arrears or circumstances that challenge the Buyer’s creditworthiness (e.g. information from banks or credit insurers or if an application for the initiation of insolvency proceedings is filed), we are entitled, subsequent to giving an appropriate grace period, to demand advance payment or corresponding security from the Buyer according to his own choice and in case of refusal, to rescind from the contract, whereby the invoices for partial deliveries already effected will become due for immediate payment.

V. RETENTION OF TITLE

1. All delivered goods remain our property until the full payment of all of our current and future claims from the purchase contract. The privileged property acts as a security for the settlement claim on the outstanding invoice.

2. Until further notice, the Buyer shall be entitled to resell the delivered goods in an orderly business transaction. The Buyer here and now assigns all the resulting claims, in particular claims for payment but also other claims related to the resale, processing of the conditional commodity, loss or damage, to the accepting seller – on account of performance. Should the achieved resale price exceed our original claim, we are obliged to retransfer the surplus. The Buyer shall be authorised, until further notice, to collect the receivable accounts. We shall not exercise our withdrawal rights as long as the Buyer properly fulfills his contractual obligations and there is no doubt as to his ability to pay.

3. The Buyer ist is not entitled to pledge the reserved goods, assign them by way of security to third parties or charge them with other rights of third parties. In the event of third-party attachments of the goods subject to reservation of title, in particular levies of execution or other impairments of our rights through third parties, loss or damage, the Buyer shall draw attention to our property, notify us without delay and make all information and documents available which are necessary for the keeping of our rights. Third parties are to be notified of our property.

4. If the reserved goods are combined, processed or mixed with other items, it will always be carried out upon our order, without incurring any obligations to us. We will obtain ownership to the object created in the ratio of the value of the reserved goods to the value of the new object at the time of the processing, combining or blending. Here and now, the Buyer assigns his rights with regard to such finished goods to us and shall keep these items for us with the diligence of a prudent businessman. The new article shall also be considered to be retained goods in the sense of this provision.

5. In case of delayed payment by the Buyer or if we become aware of facts which raise doubts as to his liquidity according to paragraph IV.6, we reserve the right to repossess the items delivered under retention of title, and the Buyer shall be obliged to return said items. The Buyer already and irrevocably allows us, where such conditions arise, to enter his premises. The assertion of the reservation of ownership and the attachment of the delivery items by the Seller do not constitute a termination of the contract, unless expressly declared by us in writing.

6. Should the value of this security exceed our specified claim by more than 10%, we may choose to release the security at the request of the Buyer.

7. If in case of delivery to a foreign country the retention of title may not be agreed with the same effect as in German law, the retention of other rights to the products supplied is allowed, however, the Seller shall be entitled to such rights. The Buyer has to co-operate in every respect.

VI. DEFAULT OF ACCEPTANCE, TAKE-BACK OF GOODS

1. If the Buyer fails to accept delivery or refuses acceptance after expiry of a reasonable period of grace granted to him, the Seller shall be entitled to withdraw from the contract and demand compensation instead of performance from the Buyer, according to paragraph VI. 2.

2. As compensation in lieu of the delivery, we will charge the amount of 15% of the order price without reduction, unless the Buyer proves that no damage has occurred or at least not to the extent of this lump sum. We reserve the right to furnish evidence of higher damage.

3. In case we voluntarily take back goods delivered by us, we are entitled to get full compensation for the actual expenditure incurred by the signed contract, such as transportation and mounting charges as well as for loss of profit amounting to the flat rate of 10 % of the agreed purchase price, unless the Buyer proves that damages have not occurred or are substantially lower than the lump sum.

VII. WARRANTY

1. In so far as diamonds represent natural products and we are not able to check the proper treatment of the diamonds delivered to us, no warranty of any kind can be granted. Therefore, the testing and usage of diamonds is carried out at the risk of the Buyer.

2. The appearance and workmanship of the goods to be delivered are based only on the agreement between the Seller and the Buyer. Specimens and samples provided by us only serve to roughly describe these goods. All agreements between us and the Buyer with regard to the condition of the goods to be supplied by us as well as all our declarations relating to the appearance and workmanship of these goods do not imply any warranty according to section 443 BGB (German Civil Code), unless we have offered the Buyer such a guarantee expressly and in writing.

3. We take the responsibility for defective goods according to the normal fulfillment of the investigation and obligation from § 377 HGB through the Buyer – by way of exclusion of further claims, subject to Section VIII – as follows:

3.1 If the delivered good turns out to be significantly impaired due to circumstances which have originated prior to the passing of risks, we are entitled, at our discretion, to remedy the defect or deliver an object free of defect (subsequent fulfillment). Any such defects shall be brought to our attention in writing and without delay. After notification, the Buyer has to give us the necessary time and opportunity to undertake all improvements and replacement deliveries which seem necessary to us, otherwise we are freed from liability for the consequences arising therefrom. Replaced parts shall become our property. We may refuse to repair or replace the goods in case the contractual partner fails to fulfill total payment in the value of the flawless part of the delivery. Should the defect be insignificant, the Buyer is entitled only to reduce the price resulting from his contractual obligations.

3.2 If the post-performance specified in paragraph 3.1 above fails or turns out to be impossible or disproportionate, the Buyer may either reduce the purchase price accordingly, or rescind the contract in accordance with the statutory regulations; this applies in particular if post-performance is culpably delayed or refused, or if it fails for the second time.

3.3 In so far as nothing to the contrary arises from paragraph VIII, further claims for whatsoever legal cause on the Buyer’s part (in particular claims based on culpa in contrahendo, violation of the principal and secondary obligations under the contract, reimbursement of expenses except in accordance with BGB § 439 (II), tort and other tortious acts) are excluded; this applies in particular to claims for losses beyond the item purchased, and for claims to compensation for lost profits; it also includes claims not resulting from the defect in the item purchased. Claims for compensation as the result of a fault or defect in the goods cannot be acknowledged if the goods have been used, further processed or resold by the Buyer despite being aware of the defect.

3.4 No warranty is given for damages that occur due to the following reasons: unsuitable or improper usage, faulty mounting or commissioning by the Buyer or a third party, natural wear, faulty or negligent handling, inappropriate maintenance, unsuitable operating materials, defective civil works or unsuitable construction ground, chemical, electro-chemical or electrical influences (provided the foregoing are not attributable to the Seller), or improper modification or repairs carried out by the Buyer or a third party without the Seller’s prior consent.

3.5 If it is our fault that the goods supplied cannot be used for their intended purpose as described in the contract as a result of omitted or incorrect realisation of proposals or advice made or provided before or after the contract was signed, or if other subsidiary contractual obligationsare infringed – in particular the instructions for operation and maintenance of the delivered goods – the provisions made under items VII.3 und VIII apply accordingly with the exclusion of any further claims by the Buyer.

VIII. LIABILITY

We accept liability – for whatever legal reasons – (in particular claims arising from negligence in signing a contract, violation of principal or subsidiary contractual obligations, repayment of expenses with the exception of BGB 439, § 2 and unlawful acts as well as other tortious liability) according to the provisions ruled in VII above as well as a) in the event of malicious intent, b) gross negligence of the Seller / proprietor, executive bodies or management staff, c) in the event of culpable damage to life, limb, health, in the event of defects which he has fraudulently concealed or the absence of which he has guaranteed, and in the event of defects in the delivery item, to the extent that there is liability for personal injury or damage to privately used items in accordance with product liability law.

For culpable violation of significant contract obligations, we also bear liability for gross negligence of non-senior employees and simple negligence, in the latter case limited to contract typical, reasonably foreseeable damages. Further claims are ruled out.

IX. LIMITATION OF LIABILITY IN TIME

1.1 All claims of the Buyer to supplementary performance, compensation for damages and repayment of expenses are struck by the statutes of limitation one year after the purchase item is delivered. This shall not apply to items that consistent with their common application are used in buildings and have caused the latter’s defectiveness; in that case claims shall lapse 5 years after delivery. In the case of substitute deliveries and repairs, the statutory limitation period for claims will not commence anew. Rather, the period of limitation will end upon conclusion of the original limitation period for warranty claims.

1.2 In so far as the claim for subsequent performance has lapsed, claims to abatement and the exercise of the right of withdrawal on grounds of a product defect are barred. The Buyer may in this case refuse payment of the purchase price to the extent that he would be entitled to do so as a consequence of withdrawal or abatement. In the event of withdrawal exclusion and subsequent payment refusal, the Seller is entitled to withdraw from the contract.

2. In case of all other damage claims which are not ruled in § IX.1.1, the statutory periods shall apply.

X. CATALOGUES, COPYRIGHT

All drawings in our catalogues and brochures are not binding for the performance of the order. Specifications are subject to change without prior notice. We do not assume any liability for deviations from given measurements, weights etc. We reserve the right to ownership and copyright of all illustrations, drawings, samples and any other documents. Without our approval they may not be passed on to third parties and have to be returned on demand. The Buyer is prohibited from using our technological knowledge and methods or transferring them to third parties, even if they are not protected by copyright or other commercial protection laws.


XI. PLACE OF FULFILMENT AND JURISDICTION


The place of fulfilment and court of jurisdiction is Bargteheide for both parties. In so far as the Buyer is an entrepreneur, a legal entity in public law or a separate estate in public law, the only venue of jurisdiction for all disputes arising from this contract is Ahrensburg. This shall also apply to bill of exchange and cheque proceedings. We shall also be entitled to take legal action at the Buyer’s domicile. The contracting parties have agreed that the law of the Federal Republic of Germany shall be used solely. The provisions of the UN Purchasing Convention do not apply. As per February 04, 2012.