Terms of Service DiaFlux GmbH

(As of December 2019)

Our terms and conditions apply to all sales of goods by DiaFlux GmbH. We do not recognize any terms and conditions of the customer that contradict or deviate from our terms and conditions, unless we have expressly consented to this in writing. Our terms and conditions also apply if we accept orders without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions. All agreements made between DiaFlux GmbH and the customer for the purpose of executing this contract must be set down in writing. The conclusion of the contract is subject to the correct and timely delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery. The customer will be informed immediately about the unavailability of the service. The consideration will be refunded immediately.

Our offers are subject to change and are limited to a maximum of 3 weeks. Orders are only considered accepted with our written order confirmation. Price increases will be communicated as early as possible. We reserve the right to change our prices accordingly if cost increases occur after the conclusion of the contract with the customer, in particular due to changed purchase costs, material costs, etc. This applies, among other things, to the introduction and / or increases in government charges (e.g. customs duties or taxes), increases in transport and / or insurance costs, high and low water surcharges, etc. We will provide evidence of these costs to the customer upon request. For the specific delivery orders, our prices excluding VAT apply on the day of delivery to the customer.

The prices are always plus VAT. Payments are to be made in euros, without any deductions, at the latest within 14 days of delivery (invoice date). Checks and bills of exchange are only accepted on account of payment, the acceptance of bills of exchange requires a special agreement. The discount and bank charges are borne by the customer and are to be paid immediately. Payments are primarily offset against any interest and costs, otherwise against the oldest debt. With the occurrence of default in payment, the customer owes default interest. These are 8 percentage points above the currently applicable base rate. In the event of default in payment, all outstanding, not yet due or deferred claims are due for payment immediately. DiaFlux GmbH is not obliged to deliver any further goods prior to payment for all previous and due deliveries. Withholding payments or offsetting by the customer with counterclaims are only permitted with legally established or recognized counterclaims. If, after the conclusion of the contract, unfavorable information is received about the customer that shows a significant deterioration in his financial circumstances (e.g. insolvency or settlement proceedings), DiaFlux GmbH can, contrary to the agreements made, either demand advance payment or step-by-step payments in cash or withdraw from the contract entirely without the need to set a deadline in advance. In this case DiaFlux GmbH is entitled to compensation. The customer has to adhere to the above-mentioned terms of payment, even if a defect has been reported in writing. Payments may only be withheld by the customer to an extent that is reasonable in relation to the defect that has occurred.

The packaging is charged separately. Insofar as the seller engages a suitable disposal company for disposal in accordance with the current version of the Packaging Ordinance, the buyer is obliged to keep the packaging material ready and to hand it over to the disposal company. If the buyer agrees with the seller to waive his right of return in exchange for a flat-rate disposal fee, he is obliged to hand over the used packaging to a recognized waste disposal company that ensures orderly disposal in accordance with the provisions of the Packaging Ordinance. Reusable packaging is only made available to the buyer on loan. The buyer must notify the seller of the return of the packaging unit in writing within 14 days and provide the packaging. If this is not done, the seller is entitled to demand …% of the purchase price for each week from the 3rd week after a reminder or to invoice the value of the packaging, which is due for payment immediately upon receipt will.

If deliveries are successive deliveries, we undertake to inform the customer in good time of any change that could affect the quality or functionality of the goods. Changes may only be made if the customer has agreed in writing. Additional costs caused by change requests by the customer are borne by the customer.

The delivered goods only become the property of the customer when the customer has fulfilled all of his obligations arising from the business relationship with us, including ancillary claims, claims for damages and cashing of checks and bills of exchange. We are entitled to demand the reserved goods from the customer without setting a grace period and without withdrawing from the contract if the customer is in default of fulfilling his obligations towards us. Taking back the goods subject to retention of title only constitutes a withdrawal from the contract if we expressly declare this in writing. In the case of further processing of our goods by the customer, we are considered the manufacturer and acquire ownership of the newly created goods. If the processing takes place together with other materials, we acquire co-ownership in the ratio of the invoice value of our goods to that of the other materials. If, in the case of the connection or mixing of our goods with an item belonging to the customer, this is to be regarded as the main item, the customer hereby assigns his property rights to the new item to us. The customer is obliged to carefully store the reserved goods for us and to insure them against loss and damage to the extent required by a careful businessman at his own expense. The customer hereby assigns his claims from the insurance contracts to us in advance. As long as the customer duly fulfills his obligations towards us, he is entitled to dispose of the reserved goods in the ordinary course of business. Unless otherwise specified by us, the customer is entitled and obliged to collect the equivalent value for the goods that have been resold and to store them for us separately from the other means of payment. However, this does not apply if and to the extent that a prohibition of assignment with regard to the purchase price claim has been agreed between the customer and his customers. The customer is not authorized to pledge, transfer by way of security or any other encumbrances. In the case of resale, the customer must make the transfer of ownership dependent on full payment for the goods by the buyer. The customer hereby assigns all claims arising from the resale of the reserved goods with all ancillary and security claims including bills of exchange and checks in advance to secure all claims arising for us against the customer from the business relationship. If we believe that the realization of our claims is in jeopardy, the customer must inform his customers of the assignment at our request and provide us with all necessary information and documents. The buyer must inform the seller immediately of any foreclosure measures taken by third parties in relation to the goods subject to retention of title or in the assigned claims, handing over the documents necessary for the objection. If the value of the securities to which we are entitled exceeds our claims to be secured against the customer by more than 20%, we are obliged to release securities at the customer’s request. The selection for the release of securities is done by us.

The customer must carefully check through all reasonable examinations whether the goods delivered are of the contractually agreed quality and are suitable for the intended purpose. If this check is neglected, not carried out to the required extent or if recognizable defects are not reported to us immediately in writing, the goods shall be deemed to have been approved with regard to such defects. Unrecognizable defects are considered approved if they are not reported to us in writing immediately days after their discovery. Notifications of defects can only be taken into account if they are made including the invoice number and batch number and if there is any obvious damage upon delivery, a report of the facts signed by us or our vicarious agent (carrier / forwarding agent) is available. The buyer is obliged to make the object of purchase or a sample thereof available to the seller for the purpose of examining the complaint. In the event of refusal, the guarantee is void. Goods complained about may only be returned with our express consent. We will primarily respond to properly raised and justified complaints by delivering goods free of defects. If the goods delivered by way of replacement delivery are again defective or incorrect or not delivered to us within 14 days of receipt of the immediate notification of defects, the customer has the right to withdraw or reduce the price in accordance with the statutory provisions. Further claims of the customer are, as far as legally permissible, excluded.

DiaFlux GmbH is only liable for damage caused by it, its legal representatives or its vicarious agents with gross negligence or intent. Liability for culpable injury to life, limb or health remains unaffected. The liability under the Product Liability Act remains unaffected. Any further claims for damages, regardless of the legal reason, are excluded. This also applies if, instead of claiming compensation for damage, instead of performance, the buyer demands compensation for wasted expenses. Claims for damages by the customer are limited to the damage that typically occurs. In the case of claims for damages due to delay, non-performance or poor performance, this typical damage is determined at most by the invoice value of the quantity of goods that are not delivered, not delivered on time or not in accordance with the contract. The above limitation of liability applies to contractual as well as non-contractual claims and only applies to the extent that we are not liable without limitation according to mandatory statutory provisions. If tortious claims are asserted against us, the statutory limitation period applies. However, the customer is obliged to assert any tortious claims for damages against us in court within a preclusive period of 1 year after he has knowledge of all the prerequisites for which the claim is based. Insofar as liability is limited according to the aforementioned provisions, this also applies to the personal liability of our employees, salaried employees, representatives and vicarious agents. The statutory statute of limitations apply to liability due to gross negligence and to claims for damages based on injury to life, limb or health. In addition, the limitation periods of 12 months from delivery apply to claims for defects. This does not apply if the law pursuant to Section 438 (1) No. 2 (buildings and items for buildings), Section 438 (3) (fraudulent concealment), Section 479 (1) (right of recourse) and Section 634a (1) No. 2 (construction defects) BGB prescribes longer periods.

We reserve all property rights and copyrights to images, drawings, authorizations and other documents. The supplier is obliged to keep this and information strictly secret and not to use it for any purpose other than the purpose on which the transfer is based. They may only be disclosed to third parties with our express consent. The confidentiality obligation also applies after this contract has been completed; it expires if and to the extent that the information contained in the documents provided has become generally known.

The place of performance and place of jurisdiction for deliveries and payments (including actions for checks and bills of exchange) as well as all disputes arising between the parties, insofar as the buyer is a merchant, a legal entity under public law or a special fund under public law, is the headquarters of the seller. However, the seller is also entitled to sue the buyer at his seat. The relationships between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany, excluding the UN sales law.