General Terms and Conditions

1. Scope

(1) The user of these General Terms and Conditions (GTC) is Geotec Bohrtechnik GmbH, Aspastrasse 26, 59394 Nordkirchen.

(2) These General Terms and Conditions apply to all of our offers, cost estimates, deliveries and services.

(3) Any contradicting General Terms and Conditions or Conditions of Purchase by our customers do not apply and are not accepted, even if we do not explicitly contradict said terms/conditions.

2. Offers and contract conclusion

(1) From a legal perspective, offers made by us are mere solicitations of an offer. The customer’s order alone shall constitute a binding offer. We can accept this offer by means of an order confirmation or through order execution.

(2) The content and scope of the contract are determined by the agreement that is established in our order confirmation. Regarding the intended use, the information contained in our offer shall be decisive.

(3) The customer shall be responsible for the completeness, accuracy and timely receipt of any implementation documents that are to be submitted by the customer.

3. Prices, payment

(1) Our prices are quoted ex works and do not include the applicable VAT. Packaging, transport, loading and shipping costs, the installation of spare parts as well as customs and insurance are not included in our prices and will be charged to the customer.

(2) All invoices shall be due and payable (net) within 14 days from the date of the invoice.

(3) No cash discounts will be granted.

(4) In the event of the payment period being exceeded, including that concerning individual partial services, all allowances granted to the customer (discounts, bonuses, advertising subsidies, etc.) shall be rescinded.

(5) Payments are to be made to our paying agent at no charge for us. We shall be entitled to offset incoming payments against outstanding receivables from our customers at our own discretion. Payment references performed by the customer are not binding for us.

(6) Our customer can only offset such claims that are recognized and undisputed by us or that are legally binding. Our customers shall not be entitled to counter our claims citing their rights of retention, unless such rights result from the same contractual relationship.

(7) The customer shall not be entitled to assign claims and rights from the contract to third parties without our consent.

(8) An increase in the agreed prices shall be permissible if the time period between the conclusion of the contract and the contractual delivery date is longer than 4 months and we are not in delay of delivery at the time of said price increase. The customer shall be entitled to withdraw from the contract in the event of increases of more than 20%.

4. Payment default and default of acceptance

(1) If the customer defaults on payment, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable performance period imposed on the customer. The legal provisions concerning the dispensability of a deadline shall remain unaffected thereby.

(2) If the customer is in default of payment regarding other existing contractual relationships with us, we shall be entitled to suspend the performance of all of our obligations under this contract until the performance by the customer is completed.

(3) In the event of a payment default or of circumstances that become known to us after the conclusion of the contract and that place the creditworthiness of the customer in question (e.g., a request for the opening of insolvency proceedings against the customer’s assets, the introduction of a non-judicial debt settlement process, bankruptcy or other circumstances that significantly reduce the creditworthiness of the customer) and through which our claim to counter-performance is jeopardized, we shall be entitled to declare all amounts immediately due and to only conduct any deliveries and services that might still be outstanding at that time in exchange for advance payment or the provision of collateral. In terms of shipping, we shall be entitled to have the goods shipped on a COD (cash on delivery) basis.

(4) In the event of default of acceptance by the customer, we shall be entitled to store the goods at our warehouse and to charge storage fees pursuant to item 6, para. 6 of these GTC.

5. Scope of delivery

(1) The scope of our delivery shall be stated in the order confirmation. Any additional features or accessories have to be ordered separately by the customer.

(2) Deviations from drawings or from specifications regarding weight, dimensions, consumption or performance up to 5% shall be considered insignificant and shall not constitute defects. We reserve the right to implement changes and improvements to the construction, material usage and design in so far as they do not impair the usefulness of the item to be delivered.

(3) Partial deliveries of accessories shall be permitted.

6. Delivery and performance deadlines

(1) The delivery period stated by us shall begin when all the technical details have been clarified, the customer has fulfilled the technical and legal prerequisites, we have received the agreed advance payments or collateral, and the customer has fulfilled their contractual obligations regarding pre-performance and cooperation. If the customer is in default, the delivery period shall be interrupted for the duration of said default.

(2) The aforesaid delivery period shall be extended if the customer requests modifications or additions to the original order. We shall inform the customer of the new delivery period after notification of the requested modifications or additions to the original order.

(3) Force majeure, such as war, riots, mobilization or similar events such as strikes or lockouts that prevent us from performing a timely delivery without any fault on our part shall lead to an interruption of the delivery period. The interruption of the delivery period shall last for the duration of the event (however, no longer than 4 weeks).

(4) According to the statutory provisions, the customer can only withdraw from the contract if the delay in delivery is attributable to us. The clause above is not associated with a change in the burden of proof to the detriment of the customer.

(5) The customer shall be obliged, at our request and within a reasonable period of time, to declare whether, due to the delayed delivery, the customer intends to withdraw from the contract or whether the customer insists on the delivery.

(6) If the delivery is delayed, at the customer’s request, by more than one month after a notification of readiness for delivery, the customer can be charged a storage fee of 0.1% of the gross invoice amount for each commenced calendar day, up to a maximum amount of 5%. The contracting parties shall be entitled to prove the existence of higher or lower storage costs.

7. Risk and shipment

(1) The risk shall pass to the customer as soon as we have made the purchased item/work product ready for pickup. At this point, an acceptance procedure has to be performed. The customer shall bear any costs for the service of experts. Shipping, loading, unloading and transport shall occur at the risk of the customer.

(2) If we ship the goods to another location at the customer’s request, the risk shall be transferred to the customer upon transfer to the freight forwarder or carrier.

(3) The customer shall approve any appropriate form of delivery. We shall undertake to conclude a transport insurance policy at the request and expense of the customer.

8. Retention of title

(1) The goods that are delivered, assembled or otherwise transferred by us (reserved goods) shall remain our property until all our claims towards the customer resulting from the business relationship are settled. If the value of the collateral that is owed to us exceeds the amount of all secured claims by more than 20%, we shall release a corresponding part of the collateral at the customer’s request.

(2) The customer shall be entitled to resell goods in the ordinary course of business. However, the customer hereby assigns to us all claims with all ancillary rights that might accrue to them from said resale. The customer shall be entitled to collect these claims even after the assignment. This is without prejudice to our right to collect such claims ourselves. We agree to not collect the claims as long as the customer meets their payment obligations properly. We may request that the customer discloses the assigned claims and the relevant debtors within a period of two weeks, as well as that the customer provides all information necessary for collection, hands over related documents, and notifies the debtors of said assignment. If the goods that are subject to the retention of title are resold together with other goods that do not belong to us, the customer’s claim against the party that accepts said goods shall be considered assigned to us up to the delivery price owed to us by the customer.

(3) If our goods or products are processed, we shall acquire title to the newly created product(s) with the exclusion of Section 950 BGB [German Civil Code].

(4) As long as the retention of title is valid, the customer shall be prohibited from pledging or transferring ownership of the goods by way of security.

(5) In the case of attachments, seizures or other dispositions or interventions by third parties, the customer shall refer to our ownership and notify us immediately.

(6) As long as the retention of title is valid, we shall be entitled to insure the reserved goods against theft, breakage, fire, water and other damage at the customer’s expense if the customer is unable to prove that they have concluded such an insurance policy themselves.

9. Industrial property rights of third parties

(1) For delivery items that we manufacture according to customer specifications (e.g., according to design specifications, drawings, models or other specifications), the customer shall assume the exclusive responsibility that industrial property rights of third parties are not infringed by the production of these delivery items. If violations of the industrial property rights of third parties are nevertheless alleged, the following shall apply:

1. a) We will inform our customers immediately of the asserted claims as well as of any established time limits.
2. b) The customer shall be required to notify us within a set time limit as to whether or not the asserted claims of third parties will be recognized or disputed.
3. c) If the claims asserted by the third party are disputed, the customer shall be required to instruct a law office of the customer’s choice within the same period and at the customer’s own expense. In such a case, the customer shall be entitled to make decisions regarding all defensive measures and main settlement negotiations.
4. d) If the customer does not commission a law firm within this period, we shall be entitled to commission a law firm of our choice at the expense of the customer as well as to make decisions about all defensive measures and main settlement negotiations. We shall be entitled to demand advance payments from the customer for the costs thus incurred.

(2) If industrial property rights of third parties are asserted against us, we shall be entitled to cease the production of the delivery items at the risk of the customer until the rights of the third parties are clarified.

10. Our intellectual property

(1) Schedules and related construction documents, plans, design documents, sketches, cost estimates and other documents that are provided by us or that are produced as a result of our contribution shall remain our intellectual property.

(2) Their use, in particular their disclosure, copying, publishing and provision, including only partial copying, as well as their imitation, processing or use, shall require our explicit consent.

(3) The customer shall be obligated to maintain confidentiality.

11. Warranty and liability

(1) The purchaser must inspect the goods immediately after delivery. Any obvious defects are to be indicated to us within two weeks. If defects only become known later, they have to be reported to us within two weeks of their discovery. The deadline for the notification of defects shall be considered as having been met if the customer sends the notification within the time limit. If the customer fails to provide notification of the defect or does not do so in due time, the delivery shall be considered as having been approved.

(2) If there is a defect, we shall first be granted the opportunity to remedy it. At our discretion, we shall be entitled to eliminate the defect or deliver defect-free goods. We shall be entitled to at least two attempts of rectification.

(3) Damage claims by the purchaser due to delayed delivery or damage claims instead of performance shall be excluded in all cases of delayed delivery, even after the expiry of a time limit for delivery that is imposed on us, subject to the exceptions mentioned in paragraphs 4 and 5.

(4) Our liability shall be limited to damages due to intentional or grossly negligent behavior, with the exception of damages resulting from injury to life, limb and health and for the breach of contractual obligations whose fulfillment enables a correct execution of the contract and on compliance with which the contractual partner can regularly rely (cardinal obligations).

(5) The supplier’s liability shall be limited to the damages that are typically foreseeable upon conclusion of the contract, with the exception of damages resulting from injury to life, limb and health, in cases of intentional or grossly negligent behavior and from the breach of contractual obligations whose fulfillment enables a correct execution of the contract and on compliance with which the contractual partner can regularly rely (cardinal obligations). This is also applicable for indirect consequential damages.

(6) Further liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected thereby.

(7) Warranty rights, including damage claims, shall expire within one year. This does not apply if the law according to Sections 438 para. 1 No. 2 (buildings and items for buildings), 479 (recourse) and 634a para. 1 No. 2 (building defects) BGB prescribes longer periods, in the event of damage from injury of life, limb, health or material contractual obligations within the meaning of Item 11 para. 4 and 5 of these General Terms and Conditions, in cases of intentional or grossly negligent behavior, or claims for damages resulting from the ProdHaftG [German Product Liability Act]. In that regard, the respective legislation shall apply.

(8) If a material defect of a machine delivered by us to the customer results in a loss of operation (e.g. during shutdowns), we shall only be liable for this depending on fault. If the material defect of the machine is based on a defect of a component that we have purchased from a sub-supplier, the fault of the sub-supplier shall not be attributed to us. If, in such a case, it turns out that the material defect is due to a defect in a purchased part, the statutory presumption of fault shall not apply. Rather, in such a case the customer must demonstrate and prove our fault.

Furthermore, the burden of proof lies with the customer, who must demonstrate that a shutdown caused damages and that this could not be compensated through reasonable measures being taken or that this has not already been compensated (e.g. through compensatory performance).

(9) The limitation period does not begin anew if another, defect-free item is delivered as subsequent performance.

(10) A free right of termination by the customer (especially according to §§ 651, 649 German Civil Code (BGB)) is excluded.

12. Supplementary provisions

(1) Insofar as Geotec Bohrtechnik has provided a warranty, the customer can only assert claims arising from this if the customer makes the old parts, the replacement of which the customer requests under the warranty, available to Geotec Bohrtechnik. The customer has to send these old parts back to Geotec Bohrtechnik at their own expense.

(2) If Geotec Bohrtechnik has to provide instructional training for the machine according to the contract, it is incumbent upon the customer to ensure the feasibility of this. If such instructional training cannot be carried out on the agreed date for reasons that lie with the customer, Geotec Bohrtechnik shall provide further instructional training only if paid to do so.

(3) Insofar as the parties have not agreed on advance payment in the respective individual contract, Geotec Bohrtechnik GmbH shall make the machine available only upon presentation of a confirmation of financing or other proof of the customer’s ability to pay.

(4) Insofar as the customer commissions Geotec Bohrtechnik to carry out special requests after conclusion of the contract, these are special services which are charged separately.

(5) If the customer brings machines to Geotec Bohrtechnik on which repairs or maintenance are to be carried out, Geotec Bohrtechnik is liable for losses due to theft only in the event of intent or gross negligence.

13. Final provisions

(1) The laws of the Federal Republic of Germany shall apply. The application of the UN Sales Convention is excluded.

(2) The place of performance shall be the headquarters of our company.

(3) If the customer is a merchant, a legal entity under public law, or a special public fund, the exclusive jurisdiction for any disputes directly or indirectly arising under this contract shall be the headquarters of our company. The same applies if the customer has no general legal venue in the Federal Republic of Germany, a customer has moved their place of residence or habitual residence abroad after conclusion of the contract or if the customer’s place of residence or habitual residence is unknown at the time when a complaint is filed.

(4) If one or more provisions of these GTC is invalid, the validity of the entire contract shall not be affected thereby. The appropriate legal regulation shall apply in place of the ineffective regulation.

 

Current as of: 12/2019