General Terms and Conditions of Buisness Dr. Heinemann Diamond Tools & Parts GmbH
1.1. All deliveries, transactions, services and offers made by the Dr. Heinemann Diamond Tools & Parts GmbH (hereinafter referred to as seller) are performed exclusively on the basis of these general terms and conditions of business. These terms are integral part of all contracts the seller enters with his contractual partners (hereinafter referred to as buyer) for the deliveries and/or transactions and services offered by him. They shall also be valid for all future deliveries, transactions, services and offers without repeated explicit arrangement. These general terms and conditions of business shall apply only if the buyer is an entrepreneur as defined under section 14 of the German Civil Code (§14BGB), a legal entity under public law or a special fund under public law.
1.2. The General Terms and Conditions of Business of the seller shall apply exclusively. Any contrary, different or additional conditions of the buyer do not apply and do not become part of the contract unless the seller explicitly agrees upon their validity in written form. This approval requirement shall apply in any case, for example also if, with the knowledge of the General Business Terms of the buyer, the seller carries out the delivery to the buyer without reservation.
2. Retention of title
2.1. The seller shall retain full title of the goods that have been delivered until the buyer has met all current and future claims arising from the contract and an ongoing business relationship (secured claims).
2.2. The goods supplied under retention of title may not be pawned or pledged to any third parties nor the title transferred to anyone for collateralization. In the event of any third party taking any action against the goods, delivered by the seller under retention of title, the buyer is obliged to inform the seller immediately in writing about such action.
2.3. The buyer is entitled to resell the goods supplied by the seller under retention of title in the course of his regular business operations. The buyer shall already now assign to the seller for collateralization the full extent of all claims arising from the re-sale of the goods held under retention of title (including all balance debts from current accounts). We accept this assignment. The buyer shall retain the right to collect any claims beside the seller. The seller undertakes not to collect these claims himself as long as the buyer fulfills his payment obligations from the collected proceeds, does not get into any payment arrears, no insolvency proceedings against the buyer have been filed and no other deficiencies in the buyer´s performance capacity and solvency have occurred. If any of these events occur, the seller is entitled to demand from the buyer to surrender without delay all information about the transferred claims, the names of the debtors or any other parties liable for claims. The buyer is also obliged to provide the seller all necessary information, to surrender all corresponding documents to the seller and to inform the debtors and parties liable (third parties) about the assignment of the receivables. If the realizable value of the collateral items exceeds our claims by more than 10% the seller shall upon request of the buyer release collateral items at his choice.
3.1. The seller shall be liable for compensation – on whatever legal grounds – only in the case of intent or gross negligence. In the case of ordinary negligence the seller’s liability shall be restricted to:
a) damages arising from injury to life, physical injury or damage to health.
b) damages resulting from a breach of an essential contractual commitment (cardinal obligation), in this case the liability is limited to foreseeable and typical damages.
4. Statute of limitations
4.1 Contrary to the statutory provisions of §438 Article 1. No. 3 of the German Civil Code (BGB) the limitation period for any claims arising from any material defects and deficiencies in title shall be one year commencing with the delivery/acceptance of the goods.
4.2 The above mentioned limitation periods are also valid for any contractual and non – contractual claims from the buyer based on a defect of the goods supplied except if the use of the standard legal limitation period (§195, 199BGB) results in a shorter limitation period in individual cases.
4.3 The limitation periods of the Product Liability Law will remain unaffected in any case.
4.4 In all other respects the statutory limitation period of the Federal Republic of Germany is applicable for any claims for damage made by the buyer.
5. Applicable law and place of jurisdiction
5.1 The contractual relationship between the seller (Dr. Heinemann Diamond & Tools GmbH) and the buyer (contractual partner) is subject explicitly to German law under exclusion of international purchasing law in particular under exclusion of the UN purchasing law.
5.2. In case the buyer is a merchant/entrepreneur within the meaning of the German commercial law, a registered trader or legal entity under public law or a special fund under public law, the exclusive place of jurisdiction – also the place for international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship - is the place of jurisdiction at the location of the seller´s registered office. The seller remains entitled, however, to file a claim or enter other court proceedings in court at the place of jurisdiction of the buyer.