Terms of delivery and payment of the company LACH DIAMANT Jakob Lach GmbH & Co. KG
1.1 For all offers and sales, including all future ones, exclusively the following conditions apply. We do not accept any conflicting terms or conditions of the customer that deviate from our terms of delivery and payment, unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we are aware of contradictory or deviating terms and conditions of the purchaser and deliver to the purchaser without reservation.
1.2 All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
1.3 Our terms and conditions of sale apply only to entrepreneurs within the meaning of § 310 para. 1 BGB.
2. Offers and conclusion of contract
2.1 Our offers are subject to change and can be revoked at any time. The sending of our price list is not to be regarded as an offer. Orders received due to the sending of price lists, newsletters or other offers do not oblige us to deliver. All orders and agreements become binding only upon our written confirmation, unless the goods are handed over and taken over immediately upon conclusion of the purchase.
2.2 If an order qualifies as an offer according to § 145 BGB, we can accept it within 2 weeks.
2.3 Verbal agreements of any kind require written confirmation to be binding.
2.4 Our agents and travellers are not authorised to make binding declarations on our behalf and to accept payments.
2.5 We reserve ownership and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents which are designated as ‘confidential’. The purchaser requires our express written consent before they are passed on to third parties.
2.6. The customer assumes the risk and liability that the use of samples and drawings, samples, patents, utility models and other rights of third parties are not infringed. He indemnifies us internally from all claims to which we are entitled as a result of an infringement of these rights.
3.1 Dimensions, weight, quality and other performance specifications are only approximate and non-binding, unless they have been expressly stated in writing by us as binding or as guaranteed in individual cases. Deviations within the scope of the usual manufacturing tolerances are allowed. The same applies if the goods deviate from the submitted samples.
3.2 Partial deliveries are permitted
4. Delivery periods
4.1 The delivery deadlines specified by us are adhered to as far as possible. The delivery period begins with the final clarification of all execution details. An agreed delivery time is deemed to have been complied with if the goods are dispatched before the deadline expires or if there is no possibility of dispatch.
4.2. Compliance with our delivery obligation also presupposes the timely and proper fulfilment of the obligation of the purchaser. The objection of the non-fulfillment of the contract remains reserved.
4.3 If circumstances occur to us or our suppliers for which we are not responsible and which make the manufacture, quality or delivery of the goods sold impossible or significantly difficult, we shall be released from the obligation to deliver for the duration of the impediment and its after-effects. The above applies in particular in the event of natural disasters, riots, official measures, industrial disputes (strikes and lockouts). Operational disruptions as well as operating restrictions and similar circumstances that result in a reduction in our production or prevent us from transporting the manufactured goods.
4.4. If the purchaser is in default of acceptance or culpably violates other obligations of cooperation, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims are reserved.
4.5 If the requirements of para. (4) are present, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the purchaser at the time when the latter is in default of acceptance or debtor.
4.6 We are liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed transaction within the meaning of § 286 para. 4 BGB or § 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the purchaser is entitled to assert that his interest in the further performance of the contract has ceased.
4.7 We are also liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; the fault of our representatives or vicarious agents is attributable to us. Unless the delivery contract is based on an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage.
4.8 We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation. In this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
4.9 Otherwise, in the event of a delay in delivery, we shall be liable for each completed week of delay within the scope of a lump sum compensation for delay in the amount of 0.5% of the delivery value, but no more than 5% of the delivery value.
4.10 Other legal claims and rights of the purchaser remain reserved.
5. Passing of risk – packaging costs
5.1 Unless otherwise stated in the order confirmation, delivery is agreed “ex works”. Passing of risk upon collection is the handover of the goods to the purchaser. Delivery by supply is at the risk of the purchaser.
5.2 Transport and all other packaging in accordance with the Packaging Regulations shall not be returned; pallets are excluded. The purchaser is obliged to dispose of the packaging at his own expense.
5.3 If the customer so wishes, we will cover the delivery by means of transport insurance. The costs incurred in this respect shall be borne by the purchaser.
6.1 Our prices apply ex works only for packaging.
6.2 In the event of a change in conditions affecting our calculation basis, in particular in the event of a change in raw material prices and/or wages, prices increase accordingly. In the event of a price reduction, we reserve the right to adjust the prices to the costs on delivery days.
6.3 All ancillary and special costs shall be borne by the purchaser, unless expressly agreed otherwise. This applies in particular to any surcharges and additional costs resulting from the introduction or increase of freight rates, insurance premiums, taxes, customs duties, etc. after the tender has been submitted. Should the economic value of the performance and the consideration change between the conclusion and delivery, or should the exchange rate of one of the currencies in which we usually purchase the goods of the type sold or, in a particular case, have already ordered the goods, change to our disadvantage in the currency of our selling price, we may withdraw from the order in whole or in part, without compensation, unless the customer agrees to pay the reasonable price. The same applies if the agreed price is a general list price introduced by us or the manufacturer and this list price generally experiences an increase.
7. Liability for defects
7.1 Claims for defects on the part of the purchaser presuppose that the latter has duly complied with its investigation and complaint obligations under § 377 of the German Commercial Code.
Complaints shall only be taken into account if the customer notifies them in writing within a period of 7 days after receipt of the goods, accompanied by appropriate supporting documents, in particular the objected goods. The deadline does not apply to all worked and unworked diamonds, as well as to all diamond tools, as diamonds are a natural product and we do not have the possibility to verify the proper handling of the delivered goods by the customer. In this respect, we only assume a guarantee if the diamonds or diamond tools have not been tried or used in any way and the complaint is made within a period of 24 hours after receipt of the goods. Defects that cannot be discovered within the time limit, even with the most careful examination, which the Buyer is obliged to do, must be notified immediately after discovery, but at the latest within a time limit of 3 months after receipt of the goods.
7.2 No liability is assumed for damages resulting from natural wear and tear or improper handling. Furthermore, we shall not be liable if the customer has carried out repair work on his own authority.
7.3 Warranty claims of any kind are excluded if the goods, although the defect has been discovered by the purchaser or could have been discovered by careful examination, have been resold, assembled, processed or used in whole or in part.
7.4 Insofar as warranty claims are raised and justified in good time and the assertion under these terms and conditions is not excluded or limited, we are entitled, at our option, to make subsequent performance in the form of rectification of defects or to deliver a new defect-free item. In the event of the defect rectification, we will only bear the expenses up to the amount of the purchase price. If the subsequent performance fails, the purchaser is entitled, at its option, to demand withdrawal or reduction.
7.5 If partial deliveries are defective, the customer is not entitled to refuse further deliveries or to object to the total delivery.
7.6 We shall be liable in accordance with the statutory provisions if the purchaser claims for damages that are based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. As far as we are not charged with intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.
7.7 We are liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
7.8 Insofar as the purchaser is entitled to compensation for the damage instead of the performance, our liability is also within the scope of para. (4) limited to compensation for foreseeable, typically occurring damage.
7.9 Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
7.10 Unless otherwise stipulated above, liability is excluded.
7.11 The limitation period for claims for defects is 6 months, calculated from the transfer of risk.
7.12 The limitation period in the event of a delivery recourse pursuant to §§ 478, 479 BGB remains unaffected; it is five years counted from delivery of the defective item.
8. Total liability
8.1 Any further liability for damages than provided for in § 6 is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at the conclusion of the contract, due to other breaches of duty or due to tortious claims for compensation of material damage pursuant to § 823 BGB.
8.2 Insofar as liability for damages towards us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, employees, employees, representatives and vicarious agents.
9.1 Our sales prices as well as all quotations and calculations are in Euro.
9.2 Payment deadlines must be strictly adhered to. Unless otherwise agreed, the invoice amounts are payable from the invoice date up to the 10th day with a 2% discount or up to the 30th day net. In the event of late payment, the invoice amounts shall be charged by the purchaser with interest at the statutory default interest rate (§ 288 BGB) without prejudice to further rights. The date of receipt of payment shall be the day on which the amount is received by us or credited to our account.
9.3 The risk of the payment method shall in any case be borne by the purchaser.
9.4 Cheques shall be considered as cash payment if they are sent to us in sufficient time to enable them to be redeemed within the payment deadlines. Pre-dated cheques will not be accepted for payment. Bills of exchange and cheques will only be paid subject to the correct receipt of the full amount. The discount costs, exchange taxes, collection costs and default interest incurred by us shall be borne by the purchaser. They are to be paid immediately after giving up. We do not assume any liability for the correct presentation and teaching of protests. We reserve the right to accept third-party or own acceptances in any case.
9.5 If the customer fails to meet all or part of his payment obligations on time or if bills of exchange or cheques protest, any deferral agreements and advance payment obligations on our part shall immediately lapse. We may then, at our option – without prejudice to our other rights and claims for damages – demand advance payment or security in respect of all contracts concluded with the Purchaser, withdraw from these contracts in whole or in part, demand compensation for non-performance or withhold deliveries due. We are entitled to the same rights if the purchaser ceases payment or if there are facts which are equivalent to a cessation of payment, if the purchaser fails to retrieve the goods in due time due to the absence of a term agreement no later than three months after the conclusion of the contract, or if the purchaser otherwise fails to fulfil, in whole or in part, major or ancillary obligations arising from the purchase or not on time.
9.6 If the customer’s economic circumstances deteriorate or his legal circumstances change, we may demand security and, if these are not provided immediately and sufficiently, withdraw from the current contracts in whole or in part without compensation.
9.7 The withholding of payments due to notices of defects, delivery delays or any counterclaims of the purchaser not recognised by us is not permissible.
10. Retention of title
10.1 We reserve ownership of the purchased item until receipt of all payments from the delivery contract. In the event of non-contractual behaviour on the part of the purchaser, in particular in the event of late payment, we are entitled to take back the purchased item. The return of the purchased item by us does not constitute a withdrawal from the contract, unless we have expressly stated this in writing. The seizure of the purchased item by us always constitutes a withdrawal from the contract. After taking back the purchased item, we are entitled to use it, the proceeds of use are to be set off against the obligations of the purchaser – less reasonable costs of use.
10.2 The purchaser is obliged to treat the purchased item appropriately; in particular, he is obliged to insure it at his own expense against fire, water and theft damage sufficiently at the new value. If maintenance and inspection work is required, the purchaser must carry it out on time at his own expense.
10.3 In the event of seizures or other interventions by third parties, the customer must immediately notify us in writing so that we can file a claim in accordance with § 771 ZPO. If the third party is unable to reimburse us for the legal and extrajudicial costs of an action pursuant to § 771 ZPO, the purchaser shall be liable for the loss incurred by us.
10.4 The purchaser is entitled to resell the purchased item in the ordinary course of business; however, he already assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim arising from the resale against his purchasers or third parties, regardless of whether the purchased item has been resold without or after processing. The purchaser remains entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the purchaser fulfils its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of bankruptcy, settlement or insolvency proceedings has been filed or payment has been suspended. However, if this is the case, we may require that the purchaser informs us of the assigned receivables and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
10.5 The processing or transformation of the purchased item by the purchaser is always carried out for us. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. For the goods resulting from processing the same applies as for the goods delivered under reservation.
10.6 If the purchased item is inseparably mixed with other items which do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the purchaser’s item is to be regarded as the principal item, it shall be deemed agreed that the purchaser shall transfer to us pro rata co-ownership. The purchaser shall keep the resulting sole or co-ownership for us.
10.7 The purchaser also assigns to us the claims to secure our claims against him, which arise from the connection of the purchased item with real estate against a third party.
10.8 We undertake to release the securities to which we are entitled at the request of the purchaser to the extent that the realisable value of our securities exceeds the receivables to be secured by more than 10 %; it is our responsibility to select the securities to be released.
11. Final provisions, place of jurisdiction – place of performance
11.1 Should any of the following conditions be legally invalid, this shall not affect the validity and binding nature of the remaining provisions. Instead of the legally invalid provision, the one that comes closest to the will of the parties and is legally possible or practicable shall apply.
11.2 If the purchaser is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the purchaser in the court of his domicile or at the place of his business establishment.
11.3 The law of the Federal Republic of Germany applies exclusively; the application of the UN Sales Law is excluded.
11.4 Unless otherwise stated in the order confirmation, our registered office is the place of performance.