Section 1 Scope

  1. All deliveries of goods, services and offers from Nordmeyer GEOTOOL GmbH, represented by the managing director Dipl.-Ing. Philip Weichbrodt,Weststraße 6, D-16356 Werneuchen (hereinafter referred to as the “Vendor”) are solely based on these General Terms and Conditions of Delivery. These form a constituent part of all contracts the Vendor makes with its contracted partners (also referred to in the following as “Purchasers”) regarding the goods or services the Vendor provides. They also apply to all future deliveries of goods, services or offers to the Purchaser, even if they have not once more been separately agreed.
  2. The Purchaser’s Terms and Conditions / Conditions of Delivery or those of third parties shall not apply, even if the Vendor does not separately refute their validity in individual cases. Even if the Vendor refers to a written document that contains or makes reference to the Terms and Conditions / Conditions of Delivery of the Purchaser or a third party, this does not amount to an agreement that these Terms and Conditions / Conditions of Delivery apply.

Section 2 Offer and conclusion of the contract

  1. All offers by the Vendor are subject to change and non-binding, unless they are explicitly identified as binding or contain a period of acceptance. The Vendor may accept orders or commissions within ten days after receipt.
  2. The purchase contract concluded in writing is the sole basis for the legal relationship between Vendor and Purchaser, including these General Terms and Conditions of Delivery. This contract completely reflects all agreements between the contracted parties regarding the object of the contract. Oral undertakings by the Vendor before conclusion of this contract are not legally binding and oral agreements by the contracted parties are replaced by the written contract, insofar as it does not explicitly arise from individual agreements that they will continue to apply.
  3. Information from the Vendor regarding the delivery item or service (e.g. weight, dimensions, utility values, load capacity, tolerances and technical data) plus representations of the same (e.g. drawings and illustrations) are only approximately definitive, unless the usability for the intended contractual purpose demands an exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations and deviations made due to legal provisions or that represent technical improvements, plus the replacement of components by parts of equal value, are permissible, insofar as they do not compromise usability for the intended contractual purpose.

Section 3 Prices and payment

  1. The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services are charged separately. The prices are in EUROS ex works plus packaging, statutory value added tax, customs duties for export plus fees and other public levies .
  2. Invoice amounts are to be paid within thirty days without deductions, unless otherwise agreed in writing. The granting of discounts requires a special written agreement. Receipt by the Vendor is decisive for the date of payment. The invoiced amount is payable in cash or by bank transfer. If the Purchaser does not make payment on the due date, interest of 5 % per annum will be charged on the outstanding amounts from the due date; this shall not affect the application of higher interest rates and further damages in the case of arrears.
  3. For dynamic probing rigs, soil investigation rigs, as well as orders with a goods value in excess of 10,000.00 EUR net, 50 % of the invoiced amount is to be paid on conclusion of the purchase contract and 50 % of the invoiced amount on delivery.
  4. Offsetting against the Purchaser’s counter-claims or retention of payment because of such claims is permissible only if the counter-claims are undisputed or legally established.
  5. The Vendor is entitled to carry out or perform outstanding deliveries or services only on advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances that are likely to considerably reduce the credit-worthiness of the Purchaser and which endanger the payment by the Purchaser of the Vendor’s outstanding receivables arising from the relevant contractual relationship (including other individual orders to which the same general contract applies).

Section 4 Delivery and delivery period

  1. Deliveries are ex works.
  2. Periods and deadlines for deliveries and services provided by the Vendor only apply approximately, unless a fixed period or deadline has been approved or agreed. If dispatch has been agreed, the delivery periods and deadlines refer to the time of transfer to the carrier, freight forwarding agent or other third party commissioned for transport.
  3. The Vendor – without affecting its rights arising from the arrears of the Purchaser – may demand from the Purchaser an extension of the delivery or service period or a postponement of delivery or service deadlines by the amount of time in which the Purchaser does not meet its contractual obligations to the Vendor.
  4. The Vendor is not liable for inability to deliver or for delays in delivery if these have been caused by a higher power or other events for which the contractor is not responsible and that could not be foreseen at the time the contract was concluded (e. g. operational disruptions of all kinds, difficulties in obtaining materials or energy, transport delays, strikes, lawful barriers, shortage of workers, energy or raw materials, difficulties in obtaining the necessary official approvals, official measures or the lack of delivery, incorrect delivery or late delivery from suppliers). Insofar as such events make the delivery or service considerably more difficult or impossible for the Vendor and the obstacle is not merely of a temporary nature, the Vendor is entitled to withdraw form the contract. In cases of temporary obstacles, the periods of delivery or services are extended or the deadlines for delivery or services are postponed by the duration of the obstacle plus a suitable start-up period. Insofar as the acceptance of the delivery or service is not reasonable for the Purchaser as a result of the delay, the Purchaser can withdraw from the contract by means of an immediate declaration in writing to the Vendor.
  5. The Vendor is only entitled to make partial deliveries if the partial delivery can be used by the Purchaser within the bounds of the contractual purpose, delivery of the remainder of the ordered goods is assured and no substantially increased expenditure or extra costs are incurred by the Purchaser because of the partial delivery (unless the Vendor declares that it will take on these costs).
  6. If the Vendor should be in default with a delivery or service or is unable to make a delivery or service for whatever reason, the Vendor’s liability for compensation is limited according to the provision in Section 7 of these General Terms and Conditions of Delivery.

Section 5 Place of performance, dispatch, packaging, transfer of risk, acceptance

  1. Place of performance for all obligations arising from the contractual relationship shall be Berlin-Marzahn, unless otherwise agreed. If the Vendor is also responsible for fitting/installation, the place of performance shall be the location at which the fitting/installation is to take place.
  2. The type of dispatch and the packaging shall be at the Vendor’s discretion.
  3. The risk shall be transferred to the Purchaser at the latest at the time of the handing over of the delivery item (which shall be defined by the start of loading) to the carrier, freight forwarder or other third party appointed for the dispatch. The same also applies if partial deliveries are made or the Vendor has taken on other services (e.g. dispatch or installation). If the dispatch or handover is delayed due to circumstances for which the Purchaser is responsible, risk shall be transferred to the Purchaser from the day on which the object of delivery is ready for dispatch and the Vendor has informed the Purchaser of this.
  4. Storage costs after transfer of risk shall be borne by the Purchaser. If storage is arranged by the Vendor, the costs of storage shall be 0.25 % of the invoiced amount of the delivery items to be stored per completed week. The right to claim for and provide proof of further or lower storage costs is reserved.
  5. The goods dispatch will only be insured by the Vendor against theft, damage due to breakage, transport, fire or water, or other insurable risks at the express request of the Purchaser and at the Purchaser’s cost.

Section 6 Warranty, defects in quality

  1. The period of warranty shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to any claims for damages by the Purchaser arising from loss of life, physical injury or damage to health or from deliberate or grossly negligent breaches of duty on the part of the Vendor or its auxiliaries, which shall become time-barred according to statutory provisions.
  2. The delivered items must be carefully inspected immediately after delivery to the Purchaser or the third party determined by the Purchaser. With regard to evident defects or other defects that would have been recognisable during an immediate, careful inspection, the goods are considered approved by the Purchaser unless the Vendor receives a notice of defects in writing within seven working days after delivery. With regard to other defects, the delivered items are considered approved by the Purchaser if the Vendor does not receive a notice of defects within seven working days after the time at which the defect appeared; if the defect could have been recognised by the Purchaser when in normal use at an earlier time, it is this earlier time that defines the start of the period of notice of defects. A delivered item for which a defect has been notified is to be returned to the Vendor carriage paid on the Vendor’s demand. If the notification of the defect was justified, the Vendor shall refund the costs of the most economical method of dispatch; this shall not apply if the costs are increased because the object was in a different location from that given as the place of use according to the contract.
  3. In the event of defects in quality of the delivered items, the Vendor is obliged and entitled to choose within a suitable period initially to rectify the defect or to supply a replacement. In the event of failure, i.e. the impracticality, unacceptability, refusal or unreasonable delay of rectification or replacement delivery, the Purchaser may withdraw from the contract or lower the purchase price appropriately.
  4. The expenditure required for inspection and supplementary performance, in particular transport, road toll, work and material costs (but not  dismantling and installation costs) shall be borne by the Vendor if there is in fact a defect. If this is not the case, the Vendor may demand a refund of the costs arising from the unjustified demand for rectifying the defect (in particular inspection and transport costs) from the Purchaser, unless the absence of defects could not have been recognised by the Purchaser.
  5. If a defect is the fault of the Vendor, the Purchaser may demand compensation under the conditions set out in Section 7.
  6. The warranty will not apply if the Purchaser, without the agreement of the Vendor, changes the object of the delivery or has it changed by third parties, thus making rectification of the defect impossible or unreasonably more difficult. In all cases, the Purchaser is responsible for the additional costs of rectifying the defect that are caused by the change.
  7. If in an individual case agreed with the Purchaser used items are delivered, this delivery shall exclude any warranty for defects in quality.

Section 7 Liability for compensation due to culpability

  1. The liability of the Vendor to pay compensation, for whatever legal reason, in particular impossibility of delivery, delay, defect or wrong delivery, breach of contract, breach of obligations during contract negotiations and unauthorised actions, insofar as the relevant case hinges on culpability, is limited according to the provisions of this Section 7.
  2. The Vendor shall not be liable in cases of ordinary negligence of its organs, legal representatives, employees and other auxiliaries, if this does not involve a breach of essential contractual obligations. Essential contractual obligations are timely delivery and if required fitting/installation of the delivered item, its freedom from defects of title and quality that impair its functionality or fitness for purpose to more than a merely minor extent, as well as duties of advice, protection and care intended to enable the Purchaser to use the delivered item according to the contract, or protect life and limb of the Purchaser’s staff or protect its property from significant damage.
  3. Insofar as the Vendor is liable for damages on the grounds of and according to Section 7 Clause 2, this liability is limited to damage that the Vendor at the time of conclusion of the contract had foreseen as a possible consequence of a breach of contract or which it should have foreseen if customary commercial care was applied. Indirect damage and consequential damage resulting from defects of the delivered item are also only eligible for compensation if such damage is typical of damage to be expected from the intended use of the item.
  4. In the event of liability for ordinary negligence, the Vendor’s duty of compensation for defects in quality is limited to an amount of 3,000,000.00 EUR per incidence of damage (corresponding to the current cover amount of its product liability insurance or liability insurance), even in cases of a breach of essential contractual obligations. For financial loss, the Vendor’s duty of compensation is limited to an amount of 100,000.00 EUR per incidence of damage.
  5. The above exclusions from liability or respectively limitations of liability apply to the same extent for the benefit of the organs, legal representatives, employees and other auxiliaries of the Vendor.
  6. To the extent that the Vendor gives technical information or provides advice and this information or advice is not part of the contractually agreed scope of services owed by the Vendor, this shall be free of remuneration and excluding any liability of whatever kind.
  7. The limitations of this Section 7 do not apply to the liability of the Vendor for intentional behaviour, for guaranteed characteristics, for loss of life, physical injury or damage to health or according to the German Product Liability Act.

Section 8 Reservation of title

  1. The following agreed reservation of title serves to assure all the existing current and future claims of the Vendor on the Purchaser arising from the delivery relationship between the contracted partners (including balance demands arising from the current account relationship limited to this delivery relationship).
  2. The goods delivered by the Vendor to the Purchaser remain the property of the Vendor until full payment of all secured claims. The goods as well as the goods taking their place according to the following provisions, also covered by retention of title, are referred to in the following as “reserved goods”.
  3. The Purchaser will store the reserved goods without remuneration for the Vendor.
  4. The Purchaser is entitled to process and sell the reserved goods in the course of proper business transactions up to the instigation of enforcement (Clause 9). Pledging and assignment as security are not permitted.
  5. If the reserved goods are processed by the Purchaser, it is agreed that the processing shall be in the name of and for the account of the Vendor as manufacturer and the Vendor shall directly acquire the title or – if the processing involves materials from several sources of ownership or the value of the processed item is higher than that of the reserved goods – joint title (co-ownership) to the newly created item in the proportion of the value of the reserved goods to the value of the newly created item. In case no such acquisition of title should arise for the Vendor, the Purchaser as of now transfers its future title or – in the proportion described above – joint title to the newly created item as a security to the Vendor. If the reserved goods are combined with other items to make a homogeneous item or inseparably mixed and if one of the other items is to be considered the main item, the Vendor, if the main item is its property, shall transfer to the Purchaser the joint title to the uniform item in the proportion given in Sentence 1.
  6. In the event of the resale of the reserved goods, the Purchaser as of now assigns to the Vendor as a security the claims against the acquirer arising from the resale – in the case of joint title of the Vendor to the reserved goods, proportionally according to the share of joint title. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as for example insurance claims or claims arising from unauthorised action in cases of loss or destruction. The Vendor grants the Purchaser revocable authorisation to collect the claims assigned to the Vendor in its own name. The Vendor may only revoke this authorisation in the event of enforcement.
  7. If third parties should access the reserved goods, in particular by pledging, the Purchaser will immediately refer them to the title of the Vendor and inform the Vendor to allow it to assert its right of title. Insofar as the third party is not in a position to refund the legal or out-of-court expenses arising in connection with this matter, the Purchaser will be liable to the Vendor for these costs.
  8. The Vendor will release the reserved goods and also the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50%. The Vendor will have the choice of the items to be released according to the above.
  9. If in the event of behaviour by the Purchaser that is contrary to the contract – in particular arrears of payment – the Vendor withdraws from the contract (enforcement), the Vendor is entitled to demand return of the reserved goods.

Section 9 Final provisions

  1. If the Purchaser is a business person, a legal entity or a special fund under public law, or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes that may arise from the business relationship between the Vendor and the Purchaser shall be, according to the Vendor’s choice, Berlin or the headquarters of the Purchaser. However, in cases of suits against the Vendor, Berlin shall be the sole place of jurisdiction. Mandatory legal provisions regarding sole places of jurisdiction remain unaffected by this regulation.
  2. The relations between the Vendor and the Purchaser are subject solely to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11. April 1980 (CISG) does not apply.
  3. If there should be gaps in the regulations of the contract or these General Terms and Conditions of Delivery, it is agreed that those legally effective provisions shall apply to fill these gaps that the contractual partners would have agreed according to the economic aims and the purpose of these General Terms and Conditions of Delivery, if they had been aware of the gap in regulations.
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