Terms and Conditions

 

General terms and conditions of sale and delivery

1. General, contractual ambit/scope, definition

1.1 The general terms and conditions of trade of DIAMOND MATERIALS GmbH (hereinafter referred to as DIAMOND MATERIALS) shall apply to all offers, orders, contracts of sale, contracts for services and deliveries furnished by us to an ordering party, unless otherwise explicitly agreed. We do not make business with consumers in accordance to § 13 BGB (German law). This general terms and conditions of trade of DIAMOND MATERIALS GmbH, written in English, apply to business with customers beyond Germany.

1.2 We do not accept general terms and conditions of trade of purchasers deviating from those below, even if we have not objected to say terms and conditions explicitly. Terms that deviate from these conditions shall only be considered binding if they have been confirmed by us in writing.

1.3 These terms are considered binding if they have been declared applicable in the offer or in the confirmation of an order. Terms of the ordering party that deviate from these shall only be considered binding if they have been confirmed by DIAMOND MATERIALS expressly and in writing. Our general terms and conditions of sale and delivery shall also apply to future business connections, unless otherwise explicitly agreed.

1.4 The contract goes into force when DIAMOND MATERIALS has given a written order confirmation. Any agreement or legally significant statement of the contracting parties which deviates from these general terms and conditions of trade shall only be valid if made in writing.

1.5 In the event that any provision contained in these general terms and conditions of sale and delivery should prove to be completely or partially invalid, the validity of these general terms and conditions of sale and delivery shall otherwise remain unaffected. The contracting parties shall replace this provision by a new agreement most suited to lead to the legal and economic results intended.

1.6 DIAMOND MATERIALS reserves property rights and intellectual property rights to samples, preliminary cost estimates, designs and any other information of that kind, be it of a tangible or intangible nature, as well as in electronic form; they may not be made available to a third party. DIAMOND MATERIALS agrees not to provide third parties with information and documents that have been classified as confidential in nature by the ordering party without the consent of the ordering party.



2 Scope of Deliveries and Services

2.1 The deliveries and services of DIAMOND MATERIALS shall, upon conclusion, be stated in the order confirmation and its possible enclosures. Any service not stated in these documents will be invoiced separately.



3 Offer, offer documents, technical documents

3.1 Statements made in brochures and catalogues as well as our websites are not binding without an additional agreement. Information contained in technical documents is only considered binding if a warranty is explicitly given.

3.2 DIAMOND MATERIALS reserves all rights to the technical documents given to the ordering party. These documents shall not be made available to third parties, either completely or partially, or be used beyond the purpose for which they have been given to the ordering party, unless DIAMOND MATERIALS has previously given its consent in writing. The ownership of these documents does not entitle the holder to construct machines, installations, components or parts thereof using the technical data.



5 Prices

5.1 Our prices are quoted net ex factory Freiburg, they do not include value-added tax/ sales tax and packaging, and are payable without deductions of any kind. Additional costs of any kind (e.g. freight, insurance, export permit, transit permit, import permit and other permits as well as certifications and registrations) shall be borne by the ordering party. The ordering party shall also pay all kinds of taxes, charges, rates, duties and similar fees that are charged in connection with the contract. The ordering party shall reimburse DIAMOND MATERIALS for these costs after proof of said costs has been given, in the event that DIAMOND MATERIALS has been obliged to make payments belonging to the above categories.

5.2 An appropriate price adjustment will be made if:



6 Terms of Payment

6.1 Payments shall be made in accordance with the conditions stated in the order confirmation or invoice. The obligation to pay is considered fulfilled when the complete price of delivery agreed upon has been paid. If the customer writes DIAMOND MATERIALS a check, DIAMOND MATERIALS will charge a handling fee amounting to 15 €.



4 Confidentiality

4.1 Each contracting party is obliged to maintain strict secrecy regarding the other contracting party’s manufacturing, experience and business secrets that have been made accessible or otherwise known to it. The contracting parties shall not communicate these secrets to any third party, either directly or indirectly, or publish them in any form whatsoever or use them for any other purpose (especially not for the construction of machines, installations, and components as well as of parts thereof).



7 Retention of Title

7.1 The products supplied or sold by DIAMOND MATERIALS shall remain the property of DIAMOND MATERIALS until each and every claim DIAMOND MATERIALS has on the client arising from the respective contract has been paid.

7.2 The retention of title also applies in the case of all claims DIAMOND MATERIALS has on the client in connection with the subject of the contract (e.g. repairs, delivery of spare parts, as well as other services). The aforementioned provision shall not apply if repairs or delivery of spare parts by DIAMOND MATERIALS have been delayed in an unacceptable manner or have failed altogether.

7.3 The objects must not be resold, let, lent, or given to a third party before the aforementioned claims of DIAMOND MATERIALS have been satisfied. The use of the objects as a security or pledge in a financial transaction is prohibited without the consent of the company.

7.4 To the extent the contracting party of the company DIAMOND MATERIALS re-processes the object of purchase, the following applies: Processing or transformation shall only be made for the company DIAMOND MATERIALS as the producer, however, without any obligation for it. In case the (co-)ownership of the company DIAMOND MATERIALS ceases due to association, it is already now deemed to be agreed that the (co-)ownership of the contracting party in the uniform item shall be transferred proportionally in terms of its value (invoice value) to the company DIAMOND MATERIALS. The contracting party deposits the (co-) ownership of the company DIAMOND MATERIALS free of charge. Goods, in which the company DIAMOND MATERIALS possesses (co-) owner-ship, are hereinafter referred to as conditional goods. The contracting party is entitled to process and sell conditional goods in the course of the ordinary business, provided it is not in delay. Any accounts receivable (including any balance claims arising from current account) arising from re-sale or any other legal reason (insurance, wrongful acts) concerning the conditional goods, shall already now be assigned in full to the company DIAMOND MATERIALS. The company DIAMOND MATERIALS revocable authorizes the contracting party to collect the accounts receivable assigned to the company DIAMOND MATERIALS in its own name on the company’s account. This authority to collect may only be revoked in case the contracting party does not obey its payment obligations in due form.

7.5 For the duration of the retention of title, DIAMOND MATERIALS’s client is entitled to the possession and use of the object purchased only as long as he complies with his obligations arising from the contract and these general terms and conditions of trade, and as long as he does not default on payment.

7.6 If DIAMOND MATERIALS’s client defaults on payment or does not comply with his obligations arising from the retention of title, DIAMOND MATERIALS shall be entitled to cancel the contract. DIAMOND MATERIALS may demand the return of the object of contract from its contracting party and make use of it by selling it privately, after setting a reasonable deadline.

7.7 All costs for reclaiming and utilising the object of purchase shall be borne by DIAMOND MATERIALS’s contractual partner.

7.8 The client is obliged to inform DIAMOND MATERIALS forthwith of seizure by third parties, for example in the case of distraint, or if the client is advised to commence an insolvency proceeding, or if such a proceeding is commenced. If there are grounds for. Insolvency, cancellation of the contract is not required to enforce and extend the retention of title.

7.9 DIAMOND MATERIALS’s contractual partner agrees to keep the object of contract in a proper state of repair and to have all necessary maintenance and repairs carried out during the term of retention of title.

7.10 DIAMOND MATERIALS agrees to release the security to which it is entitled if the value of the as yet unsatisfied claims to be secured is exceeded by the aforementioned security rights by more than 10 per cent.



8 Delivery Period

8.1 The delivery period begins when the order confirmation has been dispatched, but not before the ordering party has supplied the necessary documents, permits, and releases he is obliged to supply and not before the agreed payment has been received. The delivery deadline shall be considered met if the notice of the readiness for shipment has been sent to the contracting party by the time the delivery period has expired.

8.2 The ordering party shall be obliged to comply with the contractual obligations as a requirement for the deadline being met.

8.3 The delivery period shall be extended appropriately if there are impediments that DIAMOND MATERIALS cannot avert despite due care, regardless of whether they have occurred at the site of DIAMOND MATERIALS, of the ordering party or of a third party. As soon as the cause for delay has been removed, the delivery period shall be rescheduled in writing.

8.4 The ordering party shall have no rights or claims in case of delay in delivery or services. Above all, he shall not be entitled to cancel the contract. This restriction shall not be valid in cases of wrongful intent or gross negligence on the part of DIAMOND MATERIALS. It shall, however, be valid in cases of wrongful intent or gross negligence on the part of temporary personnel.

8.5 If the delivery is delayed on request of the ordering party, he shall be charged with the monthly costs of the storage (at least 0.5 % of the amount invoiced for each month) one month after being informed about readiness for shipment. After an appropriate period for delivery has been set and expired unsuccessfully, however, the supplier shall be entitled to make other use of the subject of delivery and to send the order to the contracting party within a reasonably extended period.



9 Passing of the risk, Acceptance

9.1 The risk passes to the ordering party after the subject of delivery has left the factory, also if partial deliveries are made or DIAMOND MATERIALS has committed itself to further services/payments, e.g. delivery expenses or delivery and installation. If acceptance is required, this acceptance shall be the main criterion for the passing of the risk. It shall be carried out immediately on the date of accepting delivery, or, alternatively, after DIAMOND MATERIALS’s notice of readiness for acceptance. The ordering party may not deny acceptance due to an insignificant defect.

9.2 Should delivery or acceptance be delayed or not take place as a result of circumstances which are not under the control of DIAMOND MATERIALS, risk shall pass to the ordering party as of the day of the notice of readiness for shipment or acceptance. DIAMOND MATERIALS agrees to take out the insurance policy requested by the ordering party at the expense of the ordering party.

9.3 Partial delivery is admissible if acceptable to the ordering party.

9.4 DIAMOND MATERIALS shall check the deliveries and services before the delivery, as long as this is standard procedure. If the ordering party demands further checks, these shall be agreed upon and paid for separately by the ordering party.

9.5 The ordering party is obliged to check the delivery and the service within an appropriate period and to notify DIAMOND MATERIALS of any possible defects forthwith in writing. Transport damage must be reported within five working days to DIAMOND MATERIALS. If the ordering party fails to report, the delivery and services shall be considered to have been accepted.

9.6 DIAMOND MATERIALS shall repair the defects reported under section 10.2. as quickly as possible, and the ordering party shall give it the opportunity to do so.

9.7 A separate agreement is required in order to carry out an acceptance proceeding and to stipulate the conditions applicable to it.

9.8 With regard to defects of any kind in deliveries and services, the ordering party has no rights or claims apart from those mentioned explicitly in sections 11 and 12 (warranty, liability for defects).



10 Export

10.1 The customer self is responsible for consideration of export instructions. If there are any barriers to export (restrictions on export) DIAMOND MATERIALS is not bound to send the goods.



11 Warranty Claims, Limitation of Action

DIAMOND MATERIALS gives a warranty of merchantable quality of the delivery as follows without any further liability whatsoever:

11.1 All parts that have proven defective due to a circumstance that occurred before the passing of risk shall be repaired or replaced by a defect-free item without charge and at DIAMOND MATERIALS’s discretion. The discovery of any such defect must be reported to DIAMOND MATERIALS forthwith and in writing. Replaced parts become the property of DIAMOND MATERIALS.

11.2 After making arrangements with DIAMOND MATERIALS, the ordering party shall allow DIAMOND MATERIALS the time and opportunity required to repair any defect and to deliver any replacement products considered necessary by DIAMOND MATERIALS. Otherwise, DIAMOND MATERIALS shall not be liable for the consequences resulting from such failure.

11.3 It is not allowed to repair defected goods or to assign a third party to repair defected goods.

11.4 There shall be no claim for defects of the object of the contract under any of the conditions stated below: inappropriate or improper use; faulty installation or faulty start-up on the part of the ordering party or a third party; normal wear and tear; faulty or negligent construction; construction on unsuitable soil; chemical, electrochemical or electrical influences not under the control of DIAMOND MATERIALS.

11.5 If the ordering party or a third party has repaired a defect in a faulty manner, DIAMOND MATERIALS shall not be liable for consequences resulting from such failure. The same is true if an alteration of the subject of delivery has been carried out without the previous consent of DIAMOND MATERIALS.

11.6 Warranty claims for all new objects sold shall become statute-barred one year after delivery of the object. DIAMOND MATERIALS must be notified of obvious defects within 2 weeks of delivery (referring to the dispatch of the notification); otherwise the seller shall be released from the warranty for defects. If the object of contract is defective, DIAMOND MATERIALS ‘s contracting partner shall have the following claims: DIAMOND MATERIALS shall be obliged to provide the required services subsequent to a complaint and shall have the option of repairing the defect or delivering a defect-free item. If these services subsequent to a complaint have not been provided or have been faulty, the contracting party is entitled to cancel the contract or to reduce the purchase price. Cancellation of contract shall not be possible if DIAMOND MATERIALS’s breach of its obligations is of an insignificant nature only.



12 Preclusion of Further Liability

12.1 If the subject of delivery cannot be used by the ordering party in accordance with the contract due to a failure on the part of DIAMOND MATERIALS, due to omitted or faulty implementation of proposals and consultations made before or after the contract goes into force, or due to the breach of other accessory obligations arising from the contract – especially the instructions for operation and maintenance of the subject of delivery – the regulations stated in sections 10 and 11.2 shall apply, precluding any further claims of the ordering party.

12.2 DIAMOND MATERIALS shall be liable for damages other than those to the subject of delivery itself, and irrespective of the legal grounds, only in the case of:

In the event of culpable breach of major contractual obligations, DIAMOND MATERIALS shall also be liable in cases of gross negligence on the part of non-executive personnel or in cases of ordinary negligence; in this case, the liability shall be limited to damage typical of the given type of contract and reasonably foreseeable.

There shall be no other rights and claims.



13 Use of software

Should software comprise part of the delivery, the ordering party shall receive the non-exclusive right of use to the delivered software, including its documentation. Said documentation shall be provided for the use in connection with the relevant items of delivery. It is prohibited to use the software on more than one system.

The ordering party shall be entitled to copy, process, translate or to convert the software from the object code into the source code only to the extent permissible by law (Paragraphs 69 a pp UrHG, short for the German Copyright Act). The ordering party agrees not to remove the manufacturer’s product information – especially notices of copyright – or to alter them without having obtained the previous explicit consent of DIAMOND MATERIALS.

All other rights to the software and the documentation, copies included, shall remain the property of DIAMOND MATERIALS or the software supplier. The granting of sub-licences is prohibited.

14 Sale or return

The customer doesn’t have the right to return ordered goods. Without fail, returned goods will be declined.



15 Applicable Law, Place of Jurisdiction

15.1 The legal relationship between DIAMOND MATERIALS and the ordering party shall be governed exclusively by the law of the Federal Republic of Germany that applies to the relationship of domestic parties.

15.2 The court of jurisdiction shall be the court competent for the DIAMOND MATERIALS headquarters. DIAMOND MATERIALS is, however, entitled to initiate a court case at the court competent for the ordering party’s headquarters.

Important Information

The following disclaimer is to be regarded as part of our web presence.

Addressees

Our web presence and the offers contained therein are intended for Internet users worldwide.

Website Content

We accept no responsibility for the topicality, accuracy, integrity or quality of the information provided on this site. We will not be liable for claims against us regarding damages of any kind arising from the use of this site or information contained therein, including, but not limited to direct, indirect, incidental, punitive, and consequential damages, unless wilful or gross negligence on our part can be proven. Before using any product provided by us, please always refer to the instruction manual provided.



DIAMOND MATERIALS GmbH does not accept any responsibility for external links or banners

Information made available on our Internet pages may contain links to pages which are not maintained by DIAMOND MATERIALS (e.g. "hyperlinks"). DIAMOND MATERIALS cannot be held responsible for the content of such linked pages, unless we were to have full knowledge of incorrect, illegal or criminal content and the technical means to prevent visitors to our site from viewing those pages. All linked pages are checked at the time of publication on our website. However, we cannot be held responsible for subsequent changes or additional links to these pages, which are found to contain incorrect, illegal, or criminal content. Due to the special nature of Internet technology, we cannot warrant the integrity or accuracy of the information contained on our website. Links to external websites (e.g. via hyperlinks or banners) are not our responsibility, but rather the sole responsibility of the operator of the respective linked page. We hereby expressly declare that no illegal content was in evidence on the linked page at the time of establishing the link. We have no bearing on current or future presentations, content or authorship on linked pages. As such we do not wish to be associated with the content of linked pages updated after a link has been assigned to our website. Moreover, we do not endorse the content of external websites.



Offers are subject to Confirmation

All offers are subject to confirmation and are not binding. We reserve the right to alter, extend, or delete parts of or the totality of our product and service offering without prior notice. All offers are subject to availability.



Copyright

We endeavour to respect the copyright of all graphics, sound, video and text we use in our publications. Where possible, we use in-house or licence-free graphics, sound, video and text. All trademarks and trade names on our website are subject to current copyright legislation and the intellectual property rights of the trademark / trade name owner are respected. Even when brand names are referred to on a website, it should not be presumed that the brand has not been registered. The design and layout of our website pages are subject to international copyright provided this does not affect third party law. All unauthorised use, reproduction or distribution of page content without our prior agreement will be pursued legally.



Applicable Law

Our website is subject to German law.

Legal Validity of this Disclaimer

If any sections or individual terms of this statement are found at any point to be non-enforceable or incorrect, the content or validity of the remainder of this document will not be affected.



Privacy Policy

Information concerning Data Protection

Welcome to our website, we are delighted at your interest in our company. In order to ease your mind in regard to how your personal details will be used, we will outline here what will occur with them and which security measures are being taken in order to keep them safe. Furthermore, you will be informed of your legal rights in accordance with the processing of these details.



Personal Information

As a rule, we do not require any personal information from you when you access our website. We only register the name of your Internet Service Provider and the web pages you access through us. Thus you remain anonymous as an Internet user, this information is purely for statistical purposes. Personal information such as sector, type of organisation, HR No., name of the managing director, contact person for purchasing, invoice address (company, name, street, postcode, town, country, telephone, fax, e-mail address, delivery address: see invoice address) are only required if you place an order with us, order a catalogue or subscribe to our newsletter for example. Data is transferred unencrypted when a webpage is called up, thus the possibility of an unauthorised third party accessing the information cannot be ruled out. An encrypted transfer of data (SSL 128 bit) can be initiated by you when calling up pages (https://). There are alternative ways of communication that offer more security (e.g. post or fax).



User profile / acceptance

We will not apply user profiles. IF DIAMOND MATERIALS GmbH will apply user profiles, we will inform you timely when you will visit our website. If you don’t want to, you can inform DIAMOND MATERIALS at any time. Data for advisory, advertising or market research purposes will only be collected, processed or used after you have consented for us to do so. Obviously you can withdraw your consent at any time.

Use and Transfer of Personal Information/ Appropriation

All personal data acquired in the course of you using our website will only be collected, processed and used for the aforementioned purposes. We will make sure that this only occurs within the framework of the applicable statutory provisions, and only once your consent has been given.

Right to Information

If required, DIAMOND MATERIALS can also share, in writing, if and which of your personal information we have saved.



Security Principles

In order to protect our employees/customers/suppliers information from accidental or deliberate manipulation, loss, damage or access by an unauthorised person, we have taken appropriate technical and organisational measures. The security level is continually tested by security experts and adjusted to correspond to new standards in security.



Links to other Providers

Our website contains links to Internet sites of other companies. Although links to other providers' websites are available, we have no influence over their content. Nor can we take liability for or guarantee it. The respective provider or operator is responsible for the content on their page. The linked pages were tested for possible legal violations and recognisable infringements at the time at which they were added. There was no illegitimate content recognisable at the time they were linked. A permanent content control of the linked pages is unreasonable without concrete evidence of infringement. If an infringement becomes apparent then the existing links will promptly be removed.