Section 1 – Contracting Party and Scope of Application

 

1.1 Contracts are concluded in the name and on behalf of:

GEOTOOL Maschinenbaugesellschaft für Geotechnik mbH
Represented by its Managing Director, Dipl.-Ing. Philip Weichbrodt
Weststraße 6
16356 Werneuchen
Germany

VAT ID No.: DE 251 912 329

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1.2 These General Terms and Conditions ("GTC") shall apply exclusively to all business relationships between GEOTOOL Maschinenbaugesellschaft für Geotechnik mbH (hereinafter referred to as the "Seller") and the customer (hereinafter referred to as the "Customer") in the version valid at the time the order is placed.

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1.3 The Customer's own terms and conditions or those of any third party shall not apply, even if the Seller does not expressly object to their application in an individual case. Reference by the Seller to correspondence containing or referring to the Customer's or a third party's terms and conditions shall not constitute acceptance of such terms and conditions.

 

Section 2 – Offers and Conclusion of Contract

 

2.1 All offers made by the Seller are non-binding and subject to change unless expressly designated as binding or unless a specific acceptance period is stated.

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2.2 The Customer may select products from the Seller's product range (including, but not limited to, dynamic probing equipment, crawler-mounted probing rigs, drilling rigs, Künzel rods, pneumatic dynamic probes and compactors, power hammers and insertion tools) and place them in a virtual shopping cart by clicking the "Add to Cart" button.

By clicking the "Submit Order" button, the Customer submits a binding offer to purchase the goods contained in the shopping cart. Before submitting the order, the Customer may review and amend the entered information at any time. The order may only be submitted if the Customer has accepted these General Terms and Conditions by selecting the checkbox confirming "I have read and accept the General Terms and Conditions", thereby incorporating these terms into the purchase offer.

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2.3 Following receipt of the order, the Seller shall send the Customer an automatic confirmation of receipt by email, listing the details of the order.

This automatic acknowledgement merely confirms that the Seller has received the Customer's order and does not constitute acceptance of the Customer's offer. A contract shall only come into existence when the Seller expressly accepts the order by sending a separate order confirmation by email.

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2.4 The Seller may accept the Customer's offer within ten (10) calendar days by sending an order confirmation or by dispatching the ordered goods. If no acceptance is declared within this period, the offer shall be deemed rejected.

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2.5 Any oral statements or assurances made by the Seller prior to the conclusion of the contract are non-binding. Any oral agreements between the parties shall be superseded by the written contract unless expressly agreed otherwise.

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2.6 Any information provided by the Seller regarding the goods or services supplied (including, but not limited to, weights, dimensions, performance data, load capacities, tolerances and technical specifications), as well as any illustrations, drawings or other representations, are approximate only unless exact conformity is essential for the intended contractual purpose.

Such information does not constitute guaranteed characteristics or warranties but merely descriptions or specifications of the goods or services. Customary commercial deviations, deviations required by law, technical improvements, and the replacement of components by equivalent parts shall be permissible provided that they do not adversely affect the intended use of the goods.

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Section 3 – Prices and Payment

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3.1 Unless otherwise stated in the order confirmation, all prices apply to the scope of goods and services specified therein.

Additional or special services shall be charged separately.

All prices are quoted in EURO (EUR), ex works (EXW), exclusive of packaging, statutory value added tax (VAT), customs duties (for export deliveries), and any other applicable public charges or taxes.

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3.2 Invoices are payable within thirty (30) days from the invoice date without deduction unless otherwise agreed in writing.

Cash discounts shall only apply if expressly agreed in writing.

Payment shall be deemed made on the date the funds are received by the Seller. Payments may be made in cash or by bank transfer. If the Customer fails to make payment when due, outstanding amounts shall bear interest at 5% per annum from the due date. The Seller reserves the right to claim additional damages and higher statutory default interest where applicable.

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3.3 For dynamic probing equipment, crawler-mounted probing rigs, and all orders with a net value exceeding EUR 10,000.00, payment shall be made as follows:

• 50% of the purchase price upon conclusion of the sales contract;

• 50% upon delivery of the goods.

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3.4 The Customer may only offset claims or withhold payments where such counterclaims are undisputed or have been finally determined by a court of law.

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3.5 The Seller shall be entitled to make outstanding deliveries or perform outstanding services only against advance payment or adequate security if, after conclusion of the contract, circumstances become known that are likely to significantly reduce the Customer's creditworthiness and thereby jeopardise payment of the Seller's outstanding claims arising from the respective contractual relationship, including claims arising under other individual orders governed by the same framework agreement.

 

Section 4 – Delivery and Availability

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4.1 If, at the time the Customer places an order, the selected product is unavailable, the Seller shall inform the Customer accordingly in the order confirmation. If the product is permanently unavailable, the Seller shall not accept the Customer's offer. In such case, no contract shall be concluded.

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4.2 All deliveries shall be made ex works (EXW).

 

4.3 Any delivery periods and delivery dates stated by the Seller are approximate only unless expressly agreed as binding.

Where shipment has been agreed, delivery periods and delivery dates shall refer to the time at which the goods are handed over to the freight carrier, forwarding agent or any other party responsible for transportation.

 

4.4 Without prejudice to its rights arising from any default by the Customer, the Seller may request an extension of delivery periods or a postponement of delivery dates for the period during which the Customer fails to fulfil its contractual obligations.

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4.5 The Seller shall not be liable for impossibility of delivery or delays in delivery caused by force majeure or other events unforeseeable at the time of conclusion of the contract and beyond the Seller's reasonable control. Such events include, but are not limited to:

• operational disruptions of any kind;

• shortages of materials or energy;

• transport delays;

• strikes;

• lawful lockouts;

• shortages of labour, energy or raw materials;

• delays in obtaining official permits;

• governmental measures; or

• delayed, incorrect or non-delivery by suppliers.

Where such events substantially impede or render delivery impossible and are not merely temporary, the Seller shall be entitled to withdraw from the contract. Where the impediment is temporary, delivery periods and delivery dates shall be extended accordingly, including a reasonable restart period. If, as a result of such delay, acceptance of the goods can no longer reasonably be expected of the Customer, the Customer may withdraw from the contract by giving immediate written notice to the Seller.

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4.6 The Seller shall be entitled to make partial deliveries provided that:

• the partial delivery can be used by the Customer for its intended contractual purpose;

• delivery of the remaining goods is ensured; and

• the Customer does not incur significant additional expense or cost, unless the Seller agrees to bear such additional costs.

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4.7 If the Seller is in default of delivery or performance, or if delivery becomes impossible for whatever reason, the Seller's liability for damages shall be governed exclusively by Section 7 of these General Terms and Conditions.

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Section 5 – Place of Performance, Shipping, Packaging, Transfer of Risk and Acceptance

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5.1 Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship shall be Werneuchen, Germany.

Where the Seller is also responsible for installation or commissioning, the place of performance shall be the location where such installation or commissioning is carried out.

 

5.2 The method of shipment and the type of packaging shall be at the Seller's reasonable discretion.

 

5.3 The risk of accidental loss or deterioration of the goods shall pass to the Customer no later than upon handover of the goods to the forwarding agent, carrier or other person entrusted with transportation. The commencement of loading shall be decisive. This shall also apply where partial deliveries are made or where the Seller has agreed to provide additional services, such as shipping or installation. If shipment or handover is delayed due to circumstances attributable to the Customer, the risk shall pass to the Customer on the date on which the goods are ready for dispatch and the Seller has notified the Customer accordingly.

 

5.4 Any storage costs incurred after the transfer of risk shall be borne by the Customer. Where the goods are stored by the Seller, storage costs shall amount to 0.25% of the invoice value of the stored goods for each completed week of storage. The Seller reserves the right to claim higher or lower storage costs where appropriate.

 

5.5 The goods shall only be insured against theft, breakage, transport damage, fire, water damage or other insurable risks upon the Customer's express request and at the Customer's expense.

 

Section 6 – Warranty and Defects

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6.1 The warranty period shall be one (1) year from delivery or, where acceptance is required, from the date of acceptance. This limitation shall not apply to claims for damages arising from injury to life, body or health, or from intentional or grossly negligent breaches of duty by the Seller or its agents, which shall be governed by the applicable statutory limitation periods.

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6.2 The Customer shall inspect the delivered goods carefully and without undue delay upon receipt, or upon delivery to a third party designated by the Customer. The goods shall be deemed accepted with regard to obvious defects or defects that would have been apparent upon proper inspection unless the Seller receives written notice of such defects within seven (7) working days after delivery. Hidden defects shall likewise be deemed accepted unless written notice is given within seven (7) working days after their discovery. If the defect should reasonably have been discovered earlier during normal use, the earlier date shall determine the commencement of the notification period. At the Seller's request, goods subject to complaint shall be returned freight prepaid. Where a warranty claim is justified, the Seller shall reimburse the cost of the most economical method of return shipment. This shall not apply where additional costs arise because the goods are located somewhere other than their intended place of use.

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6.3 Where the delivered goods are defective, the Seller shall, at its discretion and within a reasonable period, be entitled and obliged to remedy the defect or provide replacement goods. If subsequent performance fails, is impossible, unreasonable, refused or unduly delayed, the Customer may withdraw from the contract or demand an appropriate reduction of the purchase price.

 

6.4 Where a defect actually exists, the Seller shall bear the costs necessary for inspection and subsequent performance, including transport, travel, labour and material costs. Costs of dismantling and reinstallation are expressly excluded. If no defect exists, the Seller may require the Customer to reimburse all expenses incurred as a result of an unjustified warranty claim, including inspection and transport costs, unless the Customer could not reasonably have recognised that no defect existed.

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6.5 Where a defect is attributable to the Seller's fault, the Customer may claim damages subject to the provisions of Section 7.

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6.6 The warranty shall become void if the Customer modifies the delivered goods or has them modified by third parties without the Seller's prior consent, and such modification renders the remedy of defects impossible or unreasonably difficult. In any event, the Customer shall bear all additional costs arising from such modification.

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6.7 Where the parties expressly agree on the sale of used goods, such goods shall be supplied without any warranty for material defects, unless mandatory statutory provisions provide otherwise.

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Section 7 – Liability

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7.1 The Seller's liability for damages, irrespective of the legal basis, including impossibility of performance, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this Section 7, insofar as liability depends on fault.

 

7.2 The Seller shall not be liable for ordinary negligence on the part of its executive bodies, legal representatives, employees or other agents unless such negligence relates to the breach of an essential contractual obligation. Essential contractual obligations are those whose fulfilment is indispensable for the proper performance of the contract and upon whose observance the Customer may regularly rely. These include, in particular:

• timely delivery and, where agreed, installation or commissioning of the goods;

• delivery of goods free from legal defects and material defects that significantly impair their functionality or suitability for use; and

• advisory, protective and custodial obligations intended to enable the Customer to use the goods as contractually intended or to protect the life, health and property of the Customer or its personnel.

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7.3 Where the Seller is liable for damages pursuant to Section 7.2, such liability shall be limited to losses that were foreseeable at the time of conclusion of the contract as a possible consequence of the breach of contract or that should have been foreseen by exercising reasonable care.

Indirect losses and consequential damages resulting from defects in the goods shall only be recoverable where such losses are typically to be expected from the intended use of the goods.

 

7.4 In cases of liability for ordinary negligence, compensation for damage to property shall be limited to EUR 3,000,000 per event, corresponding to the current coverage of the Seller's product liability or public liability insurance. Liability for pure financial loss shall be limited to EUR 100,000 per event.

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7.5 The exclusions and limitations of liability contained in this Section 7 shall apply equally to the benefit of the Seller's executive bodies, legal representatives, employees and other agents.

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7.6 Where the Seller provides technical information or advisory services that do not form part of the contractually agreed scope of services, such information or advice shall be provided free of charge and without any liability.

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7.7 The limitations of liability set out in this Section 7 shall not apply in cases of:

• intentional misconduct;

• guaranteed characteristics expressly assumed by the Seller;

• injury to life, body or health; or

• liability under the German Product Liability Act (Produkthaftungsgesetz).

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Section 8 – Retention of Title

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8.1 The retention of title agreed below serves to secure all present and future claims of the Seller arising from the business relationship with the Customer, including any current account balance claims.

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8.2 The goods supplied by the Seller shall remain the Seller's property until all secured claims have been paid in full. The goods subject to retention of title, together with any goods replacing them under the following provisions, are hereinafter referred to as the "Reserved Goods."

 

8.3 The Customer shall store the Reserved Goods free of charge on behalf of the Seller.

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8.4 Until the occurrence of an enforcement event as defined in Section 8.9, the Customer shall be entitled to process and resell the Reserved Goods in the ordinary course of business. Pledging the Reserved Goods or transferring them by way of security shall not be permitted.

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8.5 Where the Reserved Goods are processed by the Customer, such processing shall be deemed to be carried out on behalf of the Seller as manufacturer. The Seller shall acquire ownership or, where applicable, co-ownership of the newly created product in proportion to the value of the Reserved Goods. Should such acquisition not occur automatically, the Customer hereby assigns to the Seller, by way of security, all present and future ownership rights or co-ownership rights in the newly created product.

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8.6 Upon resale of the Reserved Goods, the Customer hereby assigns to the Seller, by way of security, all claims arising from such resale, including any insurance claims or other substitute claims. The Customer shall remain authorised to collect such receivables in its own name until such authority is revoked by the Seller.

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8.7 If third parties gain access to the Reserved Goods, particularly through attachment or seizure, the Customer shall immediately notify such third parties of the Seller's ownership rights and shall inform the Seller without delay. If the third party is unable to reimburse the legal or extrajudicial costs incurred in protecting the Seller's rights, the Customer shall be liable for such costs.

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8.8 The Seller shall release securities where their value exceeds the secured claims by more than 50%. The Seller shall decide which securities are to be released.

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8.9 If the Seller withdraws from the contract due to the Customer's breach of contract, particularly default in payment, the Seller shall be entitled to demand immediate return of the Reserved Goods.

 

Section 9 – Final Provisions

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9.1 If the Customer is a merchant, a legal entity under public law, a special fund under public law, or has no general place of jurisdiction in Germany, the place of jurisdiction for all disputes arising from the business relationship shall, at the Seller's discretion, be either Berlin, Germany, or the Customer's registered place of business. However, any legal action brought against the Seller may only be filed before the courts of Berlin, Germany. Mandatory statutory provisions regarding exclusive jurisdiction shall remain unaffected.

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9.2 The contractual relationship between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

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9.3 Should the contract or these General Terms and Conditions contain any gaps or omissions, such gaps shall be filled by legally valid provisions that most closely reflect the economic purpose of the contract and these General Terms and Conditions, as the parties would reasonably have agreed had they been aware of the omission.