General Terms and Conditions
1. Scope of Application
(1) The user of these General Terms and Conditions (GTC) is Geotec Bohrtechnik GmbH, Aspastraße 26, 59394 Nordkirchen.
(2) These GTC apply to all our offers, cost estimates, deliveries, and services.
(3) Our GTC apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer only become part of the contract if and insofar we have expressly agreed to their validity. This requirement for consent applies in all cases, even for example if the Buyer refers to their GTC when placing the order and we make no express objection.
2. Offers, Conclusion of Contract
(1) Offers submitted by us are deemed legally to be mere requests to submit an offer. Only the order of the Customer constitutes a legally binding offer. We can accept this offer by an order confirmation or by execution of the order.
(2) The content and scope of the contract are determined by the agreement fixed in our order confirmation. With regard to the purpose of use, the information in our offer is decisive.
(3) The Customer is responsible for the completeness and correctness as well as the timely receipt of any execution documents that they provide to us.
3. Prices, Payment
(1) Our prices do not include the applicable sales tax and are ex works. Packaging, transport, loading and dispatch costs, the installation of spare parts as well as customs and insurance are not included in our prices and are payable by the Customer.
(2) The purchase price becomes due and payable within 14 days of invoicing and at delivery or acceptance of the goods.
However, we are entitled at any time, even within the framework of an ongoing business relationship, to demand an advance payment before making a delivery in whole or in part. We state such a proviso at the latest with the order confirmation. If the Buyer fails to pay by expiry of the above payment period, the Buyer is in default. During the payment delay, interest at the applicable statutory default interest rate is to be paid on the purchase price.
We reserve the right to assert further damage caused by delay. Our claim to commercial due date interest (§ 353 HGB) [Commercial Code] in relation to merchants remains unaffected.
(3) A cash discount will not be granted.
(4) If the payment deadline is exceeded, also with regard to individual partial services, all remuneration granted to the Customer (discounts, bonuses, advertising cost subsidies, etc.) shall be forfeited.
(5) Payments are to be made to our payment office and must be free of charge for us. At our discretion, incoming payments can be offset against any outstanding claims that we have against our Customers. Any payment commitments made by the Customer are not binding for us.
(6) Our Customers can only offset the claims that are recognized by us, undisputed or legally binding. Our Customers are only entitled to assert rights of retention against our claims if these latter result from the same contractual relationship.
(7) The Customer is not entitled to assign to third parties claims and rights arising from the contractual relationship without our consent.
(8) An increase in the agreed prices is permitted insofar as there is a period of more than 4 months between the conclusion of the contract and the contractual delivery and insofar as we are not in default of delivery at the time of the price increase. In the case of increases of more than 20%, the Customer can withdraw from the contract.
4. Default of Payment and Acceptance
(1) We are entitled to withdraw if the Customer is in default of payment and they have failed to pay within the reasonable payment period set for the Customer. The statutory provisions on the superfluousness of setting a deadline remain unaffected.
(2) If the Customer is in default of payment within the framework of other contractual relationships with us, we are entitled to suspend the fulfilment of all our obligations from this contract until the Customer has made the payment.
(3) In the event of a default in payment or circumstances that become known to us after the conclusion of the contract and that call into question the creditworthiness of the Customer (e.g. an application for the opening of insolvency proceedings against the assets of the Customer, the initiation of out-of-court debt settlement proceedings, a cessation of payment or other circumstances that significantly reduce the creditworthiness of the Customer) and that jeopardize our claim for consideration, we are entitled to make all claims due with immediate effect and to carry out outstanding deliveries and services only against advance payment or security. In the case of dispatch, we are entitled to arrange for cash on delivery.
(4) If the Customer defaults in acceptance, we are entitled to store the goods with us and to charge storage fees in accordance with Section 6, Paragraph 6 of these GTC.
5. Scope of Delivery
(1) Our delivery has the scope specified in the order confirmation. Additional equipment variants and accessories must be ordered separately by the Customer.
(2) Deviations of up to 5% from drawings or in weight, dimension, consumption and service specifications are irrelevant and do not constitute a defect. We reserve the right to make changes and improvements in terms of design, use of materials and design, provided this does not impair the usability of the delivery item.
(3) Partial deliveries are permitted for accessories.
6. Delivery and Service Periods
(1) The delivery period specified by us only begins when all technical details have been clarified, the Customer has created the technical and legal prerequisites, we have received agreed down payments or security deposits and the Customer has fulfilled their obligation of contractual advance payment and cooperation. The delivery period is interrupted for the duration of the payment default of the Customer.
(2) The stated delivery period is extended if the Customer requests changes or additions to the original order. We will inform the Customer of the new delivery period after notification of the desired change or addition to the original order.
(3) Force majeure, e.g. war, riot or mobilization or similar events such as strikes, lockouts that prevent us from delivering on time through no fault of our own, lead to an interruption of the delivery period. The interruption of the delivery period lasts for the duration of the event, but for no more than 4 weeks.
(4) The Customer can only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in delivery. A change in the burden of proof to the detriment of the Customer is not associated with the above regulation.
(5) At our request, the Customer is obliged to declare within a reasonable period of time whether they are withdrawing from the contract due to the delay in delivery or whether they insist on delivery.
(6) If, after notification of readiness for delivery, the Customer requests that the delivery is delayed by more than one month, the Customer can be charged a storage fee of 0.1% of the gross invoice amount for each calendar day or part thereof, but no more than 5%. The contractual parties are free to provide evidence of higher or lower storage costs.
(7) All delivery dates specified by Geotec are carefully planned and calculated. However, there may be postponements due to previously unforeseeable events. Therefore, in such a case, claims for damages by the Customer, in particular those for lost profits, financing costs, personnel or ancillary personnel costs, claims for exemption from contractual penalty claims by third parties or rental costs for a replacement device are excluded. This does not apply if Geotec has caused the delay in delivery intentionally or through gross negligence or has expressly assumed liability for such claims.
7. Transfer of Risk and Dispatch
(1) The risk passes to the Customer as soon as we have the object of purchase/the work ready for collection. The acceptance must take place at this time. The Customer pays the costs of any experts. Dispatch, loading and unloading as well as transport take place at the risk of the Customer.
(2) If the Customer requests that we send the goods to another location, the risk passes to the Customer upon handover to the carrier or transporter.
(3) The Customer approves any appropriate dispatch method. We undertake to take out transport insurance if the Customer requests this and pays for this same.
8. Retention of Title
(1) We reserve retention of title of the goods sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The Buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. attachments).
(3) In the event of violation of contract by the Buyer, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return of the goods does not include a declaration of withdrawal; on the contrary, we are entitled to solely demand the return of the goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously given the Buyer a reasonable deadline for payment that the Buyer has not met or if the setting of a deadline of this kind is unnecessary under the statutory provisions.
(4) Until revoked, the Buyer is authorized under (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the products produced by processing, mixing, or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed, or combined with third-party goods, we acquire share of retention of title in proportion to the invoice value of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible share of retention of title in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer mentioned in Paragraph 2 also apply with regard to the assigned claims.
(c) The Buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim insofar as the Buyer meets their payment obligations towards us, there is no deficiency in their ability to pay and we do not assert the retention of title by exercising a right in accordance with Paragraph 3. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the authority of the Buyer to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the Buyer.
9. Property Rights of Third Parties
(1) For delivery items that we manufacture according to documents of the Customer (e.g. according to design information, drawings, models, or other specifications), the Customer alone guarantees that the production of these delivery items does not infringe the property rights of third parties. If third parties nevertheless claim infringements of property rights, the following applies:
a) We will inform our Customers immediately about the claims asserted and, if necessary, set deadlines.
b) The Customer must inform us within a period of time to be set whether the claims asserted by the third party will be recognized or disputed.
c) If the claims asserted by the third party are disputed, the Customer must commission a law firm of their choice within the same period at their own expense. In this case, they are entitled to make all decisions regarding defensive measures and settlement negotiations to be conducted.
d) If the Customer does not commission a law firm within the deadline, we can commission a law firm of our choice at the expense of the Customer and make decisions regarding any defensive measures and settlement negotiations to be conducted. We are entitled to demand advance payments from the Customer for the costs incurred in this respect.
(2) If property rights of third parties are asserted against us, we are entitled to stop manufacturing the delivery items at the risk of the Customer until the rights of third parties have been clarified.
10. Our Intellectual Property
(1) Delivery plans and related design documents, plans, design documents, sketches, cost estimates and other documents that we have provided or that have arisen as a result of our contribution remain our intellectual property.
(2) Their use, in particular their forwarding, duplication, publication and making available, including copying only in part, as well as their imitation, processing or utilization requires our express consent.
(3) The Customer undertakes to maintain secrecy unless the information concerned has already been disclosed by Geotec or with the consent of Geotec.
11. Warranty and Liability
(1) The Customer must inspect the delivery immediately after it is delivered. Obvious defects must be reported to us immediately, but at the latest within two weeks. If defects only become apparent later, these must be reported to us immediately, but at the latest within two weeks of their discovery. The deadline for notification of defects is deemed to have been met if the Customer sends the notification within the deadline. If the Customer fails to report a defect or fails to report a defect in good time, the delivery is deemed to have been approved.
(2) If there is a defect, we must first be given the opportunity to remedy the defect. We can choose to remove the defect or deliver a defect-free item. We have the right to at least two attempts at supplementary performance.
(3) In accordance with the exceptions mentioned in paragraphs 4 and 5, claims for damages by the Customer due to delay in delivery or claims for damages in lieu of service are excluded in all cases of delayed delivery, even after the expiry of a deadline set for delivery.
(4) With the exception of damages resulting from injury to life, limb, and health as well as from the breach of essential contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligations), this is limited to damages that can be traced back to intentional or grossly negligent conduct.
(5) The liability of the supplier is increased according to the amount, with the exception of damage resulting from injury to life, limb and health, in cases of intentional or grossly negligent behaviour as well as from the violation of essential contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on whose observance the contractual partner may regularly rely (cardinal obligations) is limited to damage that is typically foreseeable at the time of the conclusion of the contract. This also applies to indirect consequential damage.
(6) Further liability under the Liability for Defective Products Act remains unaffected.
(7) Warranty rights and claims for damages expire within one year. This does not apply if the law prescribes longer periods in accordance with §§ 438 Paragraph 1 No. 2 (buildings and items for buildings), 479 (right of recourse) and 634a Paragraph 1 No. 2 (construction defects) BGB [Civil Code] and in the case of damage resulting from the violation of life, limb, health or essential contractual obligations within the meaning of Section 11 Paragraphs 4 and 5 of these GTC, in cases of intentional or grossly negligent behaviour and in the case of claims for damages under the ProdHaftG (Liability for Defective Products Act). In this respect, the respective statutory regulation applies.
(8) If, due to a material defect in a machine delivered by us to the Customer, there is a loss of operation (e.g. downtime), we are only liable for this based on fault. If the material defect of the machine is based on a defect in a component that we bought from a sub-supplier, the sub-supplier is not at fault. Insofar as it turns out in such a case that the material defect is due to a defect in a purchased part, the statutory presumption of fault does not apply. Rather, in such a case, the Customer must explain and prove our fault.
In addition, the Customer bears the full burden of presentation and burden of proof that any downtime caused a damage and that this could not be compensated for by reasonable measures or (e.g. by making up for the service) was compensated.
(9) The statute of limitations does not begin anew if another, defect-free item is delivered as supplementary performance.
(10) A free right of termination of the Customer (in particular according to §§ 651, 649 BGB [Civil Code]) is excluded.
12. Additional Provisions
(1) Insofar as Geotec Bohrtechnik has granted a guarantee, the Customer can only assert claims from this if they provide Geotec Bohrtechnik with the old parts that they request to be replaced under the guarantee. The Customer must bring these old parts to Geotec Bohrtechnik at their own expense.
(2) Insofar as Geotec Bohrtechnik owes instruction in the machine according to the contract, it is the responsibility of the Customer to ensure that this instruction can be carried out. If the instruction cannot be carried out on the agreed date due to reasons that lie within the sphere of the Customer, Geotec Bohrtechnik will only provide further instruction for a fee.
(3) If the parties have not agreed on advance payment in the respective individual contract, Geotec Bohrtechnik GmbH is only obliged to provide the machine upon presentation of a financing confirmation or other proof of the ability of the Customer to pay.
(4) Insofar as the Customer commissions special requests after conclusion of the contract, and Geotec Bohrtechnik fulfils these same, these are considered to be paid special services.
(5) If the Customer brings machines to Geotec Bohrtechnik to carry out repairs or maintenance, Geotec Bohrtechnik shall only be liable for losses due to theft in the event of intent and gross negligence.
13. Final Provisions
(1) The law of the Federal Republic of Germany applies. The application of the UN Sales Convention (CISG) is excluded.
(2) The place of performance is the registered office of our company.
(3) If the Customer is a merchant, a legal entity under public law or a special fund under public law, our registered office is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Customer does not have a general place of jurisdiction in the Federal Republic of Germany, if a Customer moves their domicile or usual place of residence abroad after the conclusion of the contract or if their domicile or usual place of residence is unknown at the time the action is filed.
As of: 05/2023