General Terms & Conditions
Our Sales, Delivery and Payment Conditions (hereinafter GT&C) shall apply exclusively; we shall not accept General Terms and Conditions of the Contracting Party that conflict with or deviate from our GT&C. All agreements that are concluded between the Contracting Party and ourselves for the purpose of executing this Contract, are set down in writing in this Contract. Our GT&C shall also apply if we effect delivery to the Contracting Party without reservation, in spite of being aware of the Contracting Party's deviating GT&C. Should deviations from our GT&C have been agreed upon individually, these shall take precedence over the following regulations; this shall apply, in particular, to individual agreements in connection with deliveries of depot/consignment warehouse goods. This shall also apply to sales ex sample inventory.
2. Prices and payment conditions
2.1 Prices offered by us shall only apply to the individual order. Repeat orders shall be considered new orders.
2.2 Should the buyer exceed the payment deadline, it is obligated to reimburse us the damages incurred by the delay in payment. The same shall apply in the event of delayed submission of acceptance.
2.3 Bills of exchange are only accepted on the basis of express agreement and only as payment taking discount charges and other draft fees into account.
2.4 Offsetting against our claims is only permissible if the counter-claims are undisputed and legally determined. Asserting a right to withhold is only permissible if the counter-claim is based on the same contractual relationship.
2.5 In the case of SEPA direct debits, the basic 14-day period for obtaining information on the due date and amount of the outstanding amounts will be reduced to two days before withdrawal of funds.
3. Delivery and return
3.1 Goods are delivered at the buyer's cost, the risk of transportation is borne by the seller. This shall also apply to returns made by the buyer, unless the return is due to a defect in the purchased good. In the latter case, the seller also bears the cost of returning.
3.2 We are entitled to make partial deliveries, insofar as this is reasonable for the buyer. Any additional shipping costs thus incurred shall be borne by us. The buyer's right to the complete delivery of the goods ordered shall not be prejudiced by our right to make partial deliveries. In particular, the buyer can make use of its legal rights.
4. Samples, the release of goods for resale and sale or return/consigned goods and insurance obligations
4.1 In the event of any form of transfer of goods (e.g. samples, release of goods for resale, sale or return/consigned goods) the recipient shall assume full liability for loss or damage. Irrespective of the above, the recipient is obligated to maintain adequate insurance cover for these goods, including loss, destruction and damage, at own cost. This obligation to maintain insurance also extends to the shipping and return of goods. It is hereby agreed that all insurance claims arising herefrom shall be assigned to us and that we hereby accept this assignment. Paragraph 3.1 sentence 2 shall also apply to returns.
4.2 Our GT&C exclusively shall also apply to sample shipments and the release of goods for resale.
5. Notice of defect
5.1 The buyer must notify us of obvious defects immediately after the goods have been received at their destination. Notices of hidden defects must be made in the same way within a deadline of 2 weeks after discovery.
5.2 Should we accept notices of defect, the buyer is only entitled to the removal of the defect or replacement delivery. Should the removal of the defect or replacement delivery fail, the buyer may withdraw from the Contract. Damages can only be asserted by the buyer if the seller is guilty of neglecting to remove the defect or to make replacement delivery. The buyer's rights from Art. 478, 479 BGB [German Civil Code] shall remain unaffected by this.
5.3 Should the delivery of discontinued lines, surplus stock or similar goods be part of the object of the contractual relationship, the buyer can only claim removal of defect. Should removing the defect fail, the buyer may withdraw from the Contract.
6. Consequential damage caused by defects and limitation of liability
We are only liable for consequential damages that are not based on an assurance, and other defects if they were caused by intentional and gross negligent conduct. This limitation of liability shall not only apply to our own conduct, but also to that of employees, co-workers and other vicarious agents. We are not liable for damages that are not typical and therefore not foreseeable if the buyer is an entrepreneur pursuant to Art. 14 BGB. The above mentioned limitations of liability shall not apply in the event of injury to life, limb or health as well as in the event of a breach of essential contractual duties (cardinal duties). Essential contractual duties are those that have to be fulfilled in order to achieve the objective of the Contract, whose breach endangers achieving the objective of the Contract, and which the buyer can normally rely on being adhered to.
7. Retention of title
7.1 The goods delivered remain our property until all claims arising from our business relationship, also in future, have been paid in full, including all ancillary claims, and until all bills of exchange have been discharged and all cheques have been cashed. This shall also apply to the release of goods for resale.
7.2 If the account is balanced to date, our agreed upon retention of title according to the above shall act as security for our claims from the account balance.
7.3 Should payment of the purchase price by the buyer trigger an obligation for the seller under a bill of exchange, the retention of title shall not expire until the bill of exchange is discharged by the buyer as acceptor.
7.4 Pledging retention goods or assigning them as security is not permitted. Should the retention goods be attached or confiscated at the buyer's premises, we must be informed of this in writing immediately by including all documents necessary for an intervention (original of attachment order etc.). In addition, in the event of goods being attached or confiscated, the buyer is obligated to object immediately by citing our rights as supplier. Failing to do so shall render the buyer liable to pay damages to us.
7.5 The buyer is obligated to sufficiently insure the retention goods against any loss, destruction or damage at its expense and to our benefit. It is here agreed that all insurance claims thus arising in terms of the retention goods are now already assigned to us, and we herewith accept this assignment.
7.6 The buyer herewith now already irrevocably assigns all its claims (final invoice amount plus VAT) against third parties accruing in the event of resale or for any other legal reason, as well as its claim for surrender due to retained title. We herewith accept this assignment.
7.7 Our retention of title also extends to new objects created through processing or combining, which should be considered to have been manufactured for us and of which we shall acquire ownership or co-ownership with the processing or combining according to the proportionate value of the retention goods at the time of processing. This shall neither require a separate legal transaction nor put any obligations on us.
7.8 The buyer assigns its ownership or co-ownership rights in the newly created objects to us in advance, as well as the claims to receive payment from its principals arising from processing the delivered goods, corresponding to the value percentage of the processed goods; we herewith accept this assignment.
7.9 The buyer is authorised to collect the claims for us, which accrue or will accrue to us from these provisions, on a trust basis, as long as it properly meets its payment obligations to us.
7.10 Should the buyer default on payment or not meet its obligations from the retention of title, we are entitled to demand a return of the object of purchase.
7.11 We undertake to release our security entitlements from the above provisions at our discretion to the extent that their value exceeds the claims to be secured by 25%, however, on condition that, with the exception of deliveries within true current account transactions, in individual cases a release may only be given for goods that have been fully paid for.
8. Credit check and collection of goods
8.1 Should we learn after conclusion of a contract or after delivery of goods that the buyer is not creditworthy (e.g. bill protest), we are entitled to cancel the contract or to demand immediate payment on delivered goods and goods still to be delivered after advance payment, including cash cover on possibly drawn bills of exchange with immediate due date.
8.2 In the event that we collect the goods, the goods are credited in accordance with their condition, the value of which is to be determined at the request of the buyer and at its costs by an expert to be nominated by us.
9. Data protection
We are entitled to process all data relating to our business relationship with the customer in terms of BDSG [Federal Data Protection Act].
10. Place of fulfilment and legal venue
10.1 The place of fulfilment and the legal venue for all legal disputes arising from the contractual relationship, about its origins and about its validity, also concerning actions on bills and cheques is exclusively Idar-Oberstein for both parties if the contracting party is a merchant.
10.2 The law of the Federal Republic of Germany shall apply, excluding the provisions of the UN Sales Convention (CISG) and the rules of German Private International Law.
HERBERT GILOY & SÖHNE
Notice pursuant to Section 36 of the German Consumers' Dispute Settlement Act (VSBG):
We will not participate in a dispute-settlement procedure before a consumer arbitration body within the meaning of the VSBG and we are not obliged to do so. The competent consumer arbitration body is the Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e. V. Strassburger Str. 8, 77694 Kehl, tel.: +49 7851 79579 40, fax: +49 7851 79579 41; internet: www.verbraucher-schlichter.de; email: firstname.lastname@example.org. However, we declare that we are neither willing nor obliged to participate in a dispute-settlement procedure.
Wir erklären nach bestem Wissen und Gewissen und/oder aufgrund schriftlicher Bestätigung des Lieferanten, dass die hier aufgeführten Diamanten natürlichen Ursprungs sowie unbehandelt sind und dass sie aus legitimierten Quellen stammen und daher mit den UN-Resolutionen 1171, 1173, 1306 und 1343 in Einklang stehen. Die ähnlich lautende englische Vorgabe hierzu lautet: The diamonds herein specified are exclusively of natural origin and untreated, have been purchased from legitimate sources not involved in funding conflict and in compliance with United Nations resolutions, hence being conflict free, altogether based on personal knowledge and/or written guarantees provided by the supplier of these diamonds.