Terms and Conditions

Terms and Conditions

§ 1 Validity
(1) All deliveries, services and offers of DIABÜ® are subject to these general terms of delivery. These are part of all contracts (hereinafter also referred to as “Customer”) with its authorized partners includes the DIABÜ® about the goods or services offered by DIABÜ®. They also apply to all future deliveries, services and offers to the customer, even if they are not agreed separately again.
(2) Terms and conditions of the Client or third parties shall not apply, even if DIABÜ® its application in individual cases does not separately. Even if DIABÜ® receives a letter containing the terms and conditions of the customer or a third party or refers to, this shall not constitute agreement with those terms.

§ 2 Offer and conclusion of contract
(1) All offers of DIABÜ® are non-binding, unless they are expressly designated as binding or contain a certain acceptance period. Orders or orders may take DIABÜ® within fourteen days of receipt.
(2) Governs the legal relationships between DIABÜ® and the customer is the written purchase agreement, including these general terms of delivery alone. This contract all agreements between the parties to the contract again completely. Verbal commitments of DIABÜ® prior to this Agreement are legally binding and oral agreements between the parties are superseded by the written agreement, provided that in each case not expressly stated in the contract that verbal agreements shall remain in force.
(3) Additions and modifications to agreements, including these General Conditions of Sale shall be effective only in writing. With the exception of managing directors or chief clerk employees DIABÜ® are not entitled to make oral agreements deviating. The written form of the transmission by fax is sufficient, moreover, is of telecommunication, in particular, by e-mail, not sufficient.
(4) Details of DIABÜ® the object of delivery or performance (eg. example weights, dimensions, values​​, resilience, tolerances and technical data) as well as our representations are only approximate thereof (eg. example drawings and pictures), unless usability for the contractually intended purpose requires an exact match. They are not warranted characteristics, but descriptions or identifications of goods or services. Commercial deviations and variations that occur or technical improvements due to legal provisions, as well as the replacement of components by equivalent parts are permitted provided they do not impair the usability for the contractually intended purpose.
(5) DIABÜ® reserves the right of ownership or copyright on all the votes he offers and cost estimates, as well as the customer provided drawings, diagrams, calculations, brochures, catalogs, models, tools and other documents and aids. The customer may not make these items without express permission from DIABÜ® either as such contents to third parties, give them, use them or by third parties or reproduce. He has fully returned upon request of DIABÜ® these objects to these and to destroy any copies when they are no longer needed by it in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 Prices and payment
(1) The prices are for the power and scope of supply listed in the order confirmation. Additional or special services are charged separately. The prices are in EURO from Hirzenhain plus freight, packaging, VAT, Customs for export deliveries as well as fees and other public charges.
(2) If the agreed price, the list prices of DIABÜ® underlying and the delivery is to take place until more than four months after conclusion of the contract, valid at list prices of DIABÜ® (each less an agreed percentage or fixed discount) apply.
(3) Invoices are payable within thirty days without any deduction, unless otherwise agreed in writing. With respect to the date of payment is the receipt by DIABÜ®. Cheques are only accepted for payment and shall after final redemption and credit as payment. If the customer is not made when due, the outstanding amounts from the due date are subject to interest at 5% per annum above the base rate; claiming higher interest rates and other damages in case of default shall remain unaffected.
(4) Offsetting against counterclaims of the customer or the withholding of payments due to such claims is permissible only if the counterclaims are undisputed or legally binding.
(5) DIABÜ® is authorized to execute outstanding deliveries or services only against advance payment or security or payable if circumstances become known to him after the conclusion of the contract, which are suitable to reduce the creditworthiness of customers essential and through which the payment of outstanding claims of DIABÜ® by the customer from the respective contract (including other individual orders, applies the same framework agreement) is at risk.
(6) Unless expressly specified prices are agreed, delivers DIABÜ® prevailing on the date of delivery list prices. If, after the conclusion of the delivery an increase of cost factors such as commodity prices, energy, labor or freight, so DIABÜ® is entitled even if expressly agreed prices, to increase the contract price to a reasonable extent. The price increases by more than 10%, so the customer can withdraw from the contract with immediate written explanation. If only a part of the delivery concerned, withdrawal is permitted only to that part.

§ 4 Delivery time
(1) Deliveries are made from stock Hirzenhain.
(2) Always are approximate from DIABÜ® asked promised deadlines and dates for goods and services, unless that a fixed period or a fixed date has been expressly agreed or agreed. The beginning of a specified DIABÜ® delivery period always presupposes the clarification of all technical questions. If shipment has been agreed, delivery times and dates refer to the time of delivery to the carrier, freight forwarder or other third parties responsible for the transportation. The risk passes to the customer upon dispatch. This also applies to the case of free delivery.
(3) DIABÜ® may – without prejudice to its rights arising from default of the customer – ask for a prolongation of delivery and performance deadlines or a postponement of delivery and service dates to the period in which the customer’s contractual obligations DIABÜ® fails to meet.
(4) DIABÜ® shall not be liable for inability to deliver or for delays in delivery if caused by force majeure or other, at the time the contract is concluded unforeseen events (eg. B. malfunctions of any kind, difficulties in obtaining materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulty in obtaining necessary regulatory approvals, governmental measures or missing, wrong or late delivery by suppliers) is not responsible for the DIABÜ®. If such events DIABÜ® complicate the delivery or performance or impossible and the difficulty not only of a temporary nature is DIABÜ® is entitled to rescind the contract. For temporary obstructions will prolong the delivery or performance dates or shift the delivery or performance dates to the period of the hindrance plus a reasonable start-up period. If the customer has to accept the delivery or performance can not be expected as a result of the delay, he may rescind the contract with immediate written notice to DIABÜ®.
(5) DIABÜ® is only entitled to make partial deliveries, if
– The partial delivery is suitable for the client as part of the contractual purpose,
– The delivery of the remaining ordered goods is ensured and
– The customer does not incur any significant additional costs or additional costs (unless DIABÜ® agrees to assume these costs).
(6) If DIABÜ® with a delivery or service is in default or is it a supply or service, for whatever reason, impossible, as the liability of DIABÜ® for damages under the provisions of § 8 of these General Terms is limited.

§ 5 Fulfillment, shipping, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Eschenburg, unless otherwise stated. Owes DIABÜ® also an installation of performance is the location where the installation is to be made.
(2) The shipping and packaging are subject to the professional judgment of DIABÜ®.
(3) The risk shall pass with the transfer of the delivered item (the start of the loading is decisive) to the carrier, freight forwarder or any specific third party to execute the dispatch to the customer. This applies even if partial deliveries are made or acquired DIABÜ® other services (eg shipping or installation). If shipment is delayed or delivery due to circumstances, the cause lies with the customer, the risk is transferred from the day to the customer when the delivery item is ready and DIABÜ® this has shown to the customer.
(4) Storage costs after the transfer of risk to the customer. When stored by DIABÜ® storage costs amount to 0.25% of the invoice amount of the stored items delivered per full week. Remain the assertion and prove additional or lower storage costs.
(5) The shipment will be insured by DIABÜ® only at the express request of the customer and at his expense against theft, breakage, transport, fire and water damage or any other insurable risks.

§ 6 Warranty, defects
(1) The warranty period for claims of the customer against DIABÜ® because of a lack of delivery or performance is with the exception of the cases of § 438 para. 1 no. 1 and no. 2 BGB and § 634a Abs. 1 no. 2 and no. 3 BGB twelve months from the statutory limitation period. This abbreviation of the warranty period does not apply to damage arising from injury to life, body or health, intentional or grossly negligent breach of duty or a culpable breach of an essential contractual obligation by DIABÜ®. It shall further not apply if DIABÜ® fraudulently concealed the defect or have a guarantee for the quality of delivery or performance applied. Any claims of the customer from § 479 BGB remain unaffected.
(2) The goods supplied must be carefully inspected immediately upon delivery to the customer or a third party appointed by him. They are considered approved if DIABÜ® not a written complaint regarding obvious defects or other defects which were recognized on an immediate, thorough investigation, within seven working days after delivery of the delivery item or otherwise within seven working days, after the discovery of the defect or any earlier date in which the defect the customer during normal use of the delivery item was visible without close examination, in the in § 2 (3) sentence 3 specific manner has been received. At the request of DIABÜ® the alleged delivery item must be returned freight prepaid to DIABÜ®. In case of justified complaint DIABÜ® reimbursed the cost of the cheapest way; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
Due material may DIABÜ® no warranty or guarantee of performance information (especially the average performance) take their diamond tools. Such information is only ever be regarded as approximate values ​​and binding in any case.
(3) In case of defects of the goods supplied is DIABÜ® within a reasonable time after his choice and is apt at first obliged and entitled to repair or replacement. In case of failure, ie the impossibility of unreasonableness, refusal or undue delay in repair or replacement, the customer may cancel the contract or reduce the purchase price accordingly.
(4) In case of defects of components from other manufacturers which DIABÜ® for licensing or factual reasons, can not eliminate DIABÜ® will make his choice after his warranty claims against the manufacturers and suppliers on behalf of clients or assign to the customer. Warranty claims against DIABÜ® exist for such defects under other conditions and in accordance with these General Conditions of Sale only when the judicial enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example, due to insolvency, is hopeless. During the duration of the legal dispute, the limitation of the relevant warranty claims of the customer is inhibited against DIABÜ®.
(5) The guarantee is void if the customer through DIABÜ® change the delivery item without consent or can be modified by third parties and the rectification is thus impossible or unreasonably difficult. In any case, the customer has to bear the costs of the change in costs of remedial measures.
(6) An agreed individually with the customer delivery of used goods is effected without any warranty for material defects.

§ 7 Rights
(1) DIABÜ® is according to this § 7 to ensure that the delivered item is free of industrial property rights or copyrights. Each party will notify the other party immediately in writing if it over any claims of infringement of such rights are asserted.
(2) In the case that the delivered item violates a third party industrial property rights or copyrights, will amend DIABÜ® at its option and at its own expense the delivery item such or replace that no third party rights be violated, the delivery item but still the contractually agreed performs functions, or the customer gain by a license agreement, the right of use. If he manages to do so within a reasonable time, the customer is entitled to withdraw from the contract or reduce the purchase price accordingly. Any claims for damages of the customer subject to the restrictions of § 8 of these General Conditions of Sale.
(3) For violations by DIABÜ® supplied by other manufacturers’ products, DIABÜ® will make his choice after his claims against the manufacturers and suppliers on behalf of clients or assign to the customer, which also accepts this transfer power to these Terms. Claims against DIABÜ® exist in these cases, according to this § 7 only if the legal enforcement of the aforementioned claims against the manufacturer and was unsuccessful or, for example, due to insolvency, is hopeless.
(4) If the customer’s order for the purchase of special shapes and special tools required, the customer TRAIT the costs thereof. Special forms and special tools used DIABÜ® only to orders of the customers. At his request he will destroy them. In these special designs, the customer bears the risk of protection violations.

§ 8 Liability for damages for negligence
(1) The liability of DIABÜ® for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort to the extent it is in matters of fault, according to this § 8 limited.
(2) DIABÜ® is not liable in cases of ordinary negligence of its bodies, legal representatives, employees or other agents as long as it is not a breach of contractual obligations. Essential contractual obligation to make timely delivery and installation of the free of material misstatement delivery item, as well as counseling, protection and care obligations, which should allow the customer the contractual use of the delivery item or the protection of life or health of the customer’s personnel or protection of whose object property from significant damage.
Liable (3) If DIABÜ® pursuant to § 8 (2) reason for the damages, such liability is limited to damages that DIABÜ® has foreseen when the contract as a possible consequence of a breach of contract or the DIABÜ® in applying due diligence should have foreseen. For indirect or consequential damages that result from defects in the delivered goods are not DIABÜ® not liable, as for lost profits or other financial damages, unless expressly provided otherwise in this § 8. In the case of debt of DIABÜ® delay in delivery, the customer is entitled for each completed week of delay 3% of the delivery value for the total delay time but no more than 15% of the delivery value
(4) In the case of liability for simple negligence, the liability of DIABÜ® for property damage and personal injury and resulting loss of damages to an amount corresponding to the current coverage of its liability insurance is limited, which is currently € 2,557,000.00 per case of damage in the area of ​​personal injury and € 1,534,000.00 in the field of property damage. This also applies even if there is a breach of contractual obligations.
(5) The above exclusions and limitations apply to the same extent in favor of the institutions, legal representatives, employees and other agents of DIABÜ®.
(6) If DIABÜ® provides technical information or providing advice and such information or advice not to include the tax which he is contractually agreed scope, this is done free of charge and without any liability.
(7) The limitations of this § 8 shall not apply to the liability of DIABÜ® of deliberate conduct, for guaranteed characteristics, injury to life, body or health or under the Product Liability Act.

§ 9 Retention of Title
(1) The delivered by the contractor to the customer goods until full payment of all claims ownership of DIABÜ®. Goods, as well as under this clause in lieu of, covered by retention of title shall hereinafter be referred reserved goods.
(2) The customer shall store the reserved goods free of charge for DIABÜ®.
(3) The customer is entitled to process the reserved goods to the occurrence of the enforcement event in the ordinary course of business and to sell. By way of security shall not be permitted.
(4) If the reserved goods are processed by the customer, it is agreed that the processing on behalf and for the account of DIABÜ® as manufacturer and contractor property or immediately – if the processing of materials from several owners or the value of the processed item higher than the value of the goods – the co-ownership (fractional ownership) acquires in the newly created object in proportion to the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur by the contractor, the customer already now his future ownership or – in the above ratio – joint ownership of the new item as security to DIABÜ®. If the reserved goods with other objects to form a single or inseparably mixed and is one of the other things regarded as the main item, it transmits the Contractor, insofar as the main item, the customer pro rata ownership of the uniform thing in the mentioned in sentence 1 ratio.
(5) In the case of resale of the reserved goods, the customer hereby assigns by way of security to any resulting claim against the purchaser – in joint ownership of the contractor to the reserved goods in proportion to the ownership share – to DIABÜ® from. The same applies to other claims, which take the place of the goods or otherwise arising with regard to the reserved goods such., Insurance claims or tort claims for loss or destruction. DIABÜ® authorizes the customer to collect the claims assigned to DIABÜ® in his own name. DIABÜ® may revoke this authorization only in a liquidation event.
(6) Access third parties to the reserved goods, in particular by attachment, the customer will point immediately to the property of DIABÜ® and inform DIABÜ® over here to allow DIABÜ® the enforcement of property rights. If the third party is not able DIABÜ® arising in this context, judicial or extrajudicial costs to be reimbursed shall be liable for the customer against DIABÜ®.
(7) DIABÜ® will release the reserved goods, and in its stead items or claims on request at its option, if their value exceeds the amount of the secured claims by more than 50%.
(8) If DIABÜ® breach of contract by the customer – especially in case of default – from the contract (collecting cases), DIABÜ® is entitled to demand the reserved goods.

§ 10 Arbitration Clause
All disputes between DIABÜ® and the customer shall not before the state courts, but only according to the Arbitration Rules of the German Institution of Arbitration eV (DIS) without recourse to the ordinary courts of law.

The place of arbitration shall be Frankfurt am Main.
The number of arbitrators shall be three.
The language of the arbitration shall be German.

The substantive law applicable is the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.

§ 11 Final Provisions
The customer is aware that DIABÜ® stores data from the contractual relationship pursuant to § 28 Federal Data Protection Act for the purpose of data processing and reserves the right data, to the extent necessary to fulfill the contract to provide third parties (eg insurance companies). The conditions are valid and legally binding only in German language. The translation into another language is to maintain the validity of the legal liability of the conditions in German language irrelevant.

Conditions of Purchase

I. Order
(1) Only these Purchase Conditions apply to our orders. Conflicting sale and delivery of our suppliers do not oblige us, if we do not expressly conflict with these terms. Order confirmations must be 10 days after the order is placed in our possession at the latest.
(2) In the event that we determine conditions upon completion of your order and they promptly and credibly explain to the supplier which justify the adoption of a given or future infringement of foreign trade law provisions relating to the specific order, will give us a reasonable period of time for further review the facts given. For the period of this review period of the occurrence of any delay in acceptance is excluded.

II. Supply – decrease
(1) The delivery must be in design, scope and classification of the order or our delivery schedule and shall be completed on time; for quantities, measurements and weights determined by us at the entrance examination shall be decisive. To purchase not agreed partial and multiple deliveries, we are under no obligation. With the handover of the delivery is our property immediately.
(2) In the event that we determine circumstances after delivery and immediately and plausibly explain to the supplier which justify the adoption of a given or future infringement of foreign trade law provisions relating to the concrete delivery, will we hereby mutually agreed reasonable period of time for further review granted. For the period of this review period of the occurrence of any delay in service is excluded. As far as can be ascertained breaches during the inspection period, we reserve the right to refuse service. In this case, a cancellation of the order is, any services provided by the supplier may be counted as part of performance on other orders granted back at our option or.
(3) If the agreed delivery deadlines not met, the supplier has to compensate us for the damage caused by the delay in the context of the legal provisions. When a deadline is exceeded, we are entitled, after a single grace period to cancel the contract. In the event of cessation of payments and in the event of applications for, or the commencement of insolvency proceedings over the assets of the supplier or the implementation of an out-of-court settlement procedure (moratorium), we are also entitled to withdraw from the contract.
(4) For each full week of delay in delivery, the supplier has a default fee of 3% of the goods value but to pay 25% of the value for the total period of delay. The right to claim higher damages by us as well as to prove lower damages for delay by the Supplier shall remain unaffected.
(5) Natural disasters, riots, official measures, transport problems, strikes, lockouts and other malfunctions in our, or our suppliers, which lead to a cessation or limitation of our production or prevent us from transporting the goods ordered, free us for the duration and effect of our purchase obligation, if we can not prevent these disorders or their abandonment by reasonable means is not possible. Demands of our suppliers to return and compensation are excluded in these cases. In obstruction of the removal of the Supplier shall store the goods until its acquisition by us or for us at his cost and risk properly.

III. Defective Delivery – Warranty
(1) The supplier assumes the obligation to provide only those goods which have been subjected to a final inspection in terms of their material-, Subscription, and standard-compliant implementation.
(2) In the case of obvious defects, we are obliged to notify within 15 working days from delivery. With respect to latent defects, we are not tied to meeting deadlines. Hidden defects shall entitle us, moreover, to demand compensation for Applied Material and uselessly expended wages.
(3) In urgent cases we are entitled upon notice to the Supplier to rectify the defects at the supplier or us, if this is not possible, to stock at the supplier with another supplier.
(4) Where in terms of the warranty obligation otherwise specifically agreed, the supplier provides a warranty for its delivery to the statutory provisions.
(5) Non-conformity with the contract goods delivered will be returned at the expense and risk of the supplier. Returned goods remain our property until receipt of a replacement shipment or until the settlement of their equivalent value. If supplies repeatedly not done according to contract, we are entitled to withdraw from the contract after a single deadline.
(6) Machinery and equipment, tools, molds and the like shall be supplied so that the requirements of the accident prevention regulations adopted by the Association of professional associations and the provisions of the Machinery Protection Law of the Federal Republic of Germany are taken into account.
(7) Is based as far as we are taken according to the provisions of the Product Liability Act or otherwise as a manufacturing company and our resulting entry duty due to an erroneous labeling of the product or a defective product the supplier shall indemnify us the supplier of all related claims for damages. This exemption applies in at least internally. In addition, the supplier is obliged on request to seek also to our exemption in the external relationship.

IV. Third party rights
(1) The supplier warrants that his delivery and their recovery by us no domestic patents or other intellectual property rights, for delivery to our non-German locations: any kind will violate the protection provisions of the country or internationally recognized rights.
(2) The same liability assumes the supplier regarding our patents or other proprietary rights.

V. Export Control
(1) The supplier undertakes to us to comply with all applicable European and German as well as any other consideration relevant export control regulations. Furthermore, the supplier, to make his quotations and invoices to the corresponding positions unsolicited information regarding any export license requirements under German, European or other legal obligation. The supplier shall indemnify us hereby internally free of any damage suffered by us due to its non-fulfillment of the above obligations. The scope of reimbursable damage also includes the replacement of all necessary and reasonable expenses incurred by us in this context, in particular costs of any legal defense.
(2) For us there is a right to extraordinary termination of the supplier agreement, if facts justify the suspicion that the supplier can be placed in relation to the provision of contractual services violations listed in Section 1 above to load.

VI. Shipping – Returns – Transfer of risk
We reserve the right to dispatch and the shipment as well as the means of transport and the type of packaging acc. § 315 BGB to determine in its reasonable discretion. For all trade terms INCOTERMS in force at the conclusion of the contract as amended.

VII. Extradition papers
The delivery notes are completed in full and the information must be made in the order included. For each shipment is a delivery and, unless otherwise agreed to issue an invoice for each delivery.

VIII. Billing and Payment
(1) Invoices shall contain the information given in the order included and must be submitted immediately after delivery separately by part number. Late submissions delay the payment.
(2) Payment shall be made, unless otherwise agreed, after receipt of the invoice in 10 days with a 3% discount. The type of payment is left to us.
(3) claims of the supplier to us from our orders may not be assigned to third parties. We are entitled to offset counterclaims against the supplier.

IX. Means of production
(1) Production equipment such as models, patterns, dies, tools, gauges, drawings and the like which are provided by us to the supplier or manufactured to our specifications by the supplier, may not be sold our consent to third parties, pledged or otherwise passed on somehow be used for third parties. The same applies for the articles manufactured using this manufacturing agent; they may only be delivered to us unless we have not told us a different use in writing their agreement.
(2) After completion of our orders are the means of production that are provided by us or prepared for our invoice, return it to us without special request.
(3) items, which we have developed or further developed in collaboration with the supplier may only be delivered to us.

X. Business secret – Advertising
(1) The supplier is obliged to treat our orders and all commercial and technical details as trade secrets.
(2) may only be pointed in the advertising of the suppliers to the business relationship with us, if we have agreed thereto.

XI. Different agreements
Changes to the order are valid only if agreed in writing.

XII. Fulfillment and arbitration clause
Performance for both parties and jurisdiction is Eschenburg.
All disputes between DIABÜ® and the supplier shall not before the state courts, but only according to the Arbitration Rules of the German Institution of Arbitration eV (DIS) without recourse to the ordinary courts of law.

The place of arbitration shall be Frankfurt am Main.
The number of arbitrators shall be three.
The language of the arbitration shall be German.

The substantive law applicable is the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.

The conditions are valid and legally binding only in German language. The translation into another language is to maintain the validity of the legal liability of the conditions in German language irrelevant.