General terms and conditions of business
of PRIME DRILLING GmbH of D-57482 Wenden-Gerlingen, Germany
(I) General terms
1.1 Contracts shall be concluded on the basis of the following conditions only, even if we do not quote the said exclusively in case of a permanent business relationship in future.
1.2 Terms of the contractual partner to the contrary or deviating shall be applicable only, if and when the said have been accepted by us in writing. Our general terms shall also apply, if we carry out or accept a delivery without reservations knowing of conditions to the contrary or deviating.
1.3 Our general terms and conditions of business shall apply vis-à-vis businesspersons, if the contract is required for the operation of the commercial business as well as vis-à-vis non-traders, if this is legally permissible.
1.4 These terms shall apply for custom-made machinery only, if nothing to the contrary has been agreed upon. The provision of a CE mark of conformity for custom-made machinery shall require a special written agreement.
1.5 The venue and the place of performance shall be our place of business. The said shall also apply for claims based on bills of exchange and cheques.
1.6 German law shall apply exclusively for deliveries and services. The application of laws on the international purchase of movable goods and on the conclusion of international purchasing contracts for movable goods shall be ruled out.
1.7 If one or several of these provisions should be ineffective or should become ineffective, this shall not affect the effectiveness of the other provisions. The contractual partners shall be obligated to replace the ineffective provision by a provision which comes as close as possible to the economic success intended.
(II) Additional conditions for sale and delivery
The terms of sale and delivery rendered hereinafter shall apply complementary to the general terms and conditions of business rendered in Figure (I).
1.1 Our offers shall be without obligation. With respect to the scope of delivery in particular, we shall be obligated only to our written acknowledgement of order. Modifications and supplement shall have to be made in writing.
1.2 The documents, such as illustrations, drawings, data on weight, measures and other services, shall be approximate only, unless the said have been stated as being binding explicitly. We reserve ownership and copyright in our estimate of costs, drawings and other documents; the said shall not be made accessible to third parties.
1.3 Moreover, the performance data in leaflets shall be binding only in case of written confirmation.
(2) Prices and payment
2.1 Our prices shall be applicable ex works, excluding freight, packaging and value-added tax.
2.2 Invoices shall be payable within ten days after the date of invoice deducting a trade discount of 2 per cent or net within thirty day after the date of invoice. Invoices for repairs shall be payable without deduction within two weeks after the date of invoice.
2.3 In case of default in payment we shall be entitled to charge interest to the amount of the gross interest rate for current account credits according to established bank practice instead of the legal interest in arrears.
2.4 We shall accept bills of exchange in fulfilment only and subject to the discountability of the said. Costs for discounting and collection shall be borne by the ordering party.
2.5 If the ordering party defaults in payment by more than ten days with no insignificant amount, all our claims shall become payable immediately without taking the bills of exchange accepted into consideration. In this case we shall be entitled to deliver goods only against cash in advance or provision of security.
2.6 The ordering party shall not be entitled to withhold or set off payment for whatever cross-claims there are, unless the cross-claims are undisputed, have been accepted by us or have been stipulated legally.
2.7 In case of an unfounded rescission of the contract, 15 per cent of the gross sales price of the article to be supplied shall be claimed as a compensation for damage. In individual cases we reserve the right to substantiate and claim a higher damage which has really occurred.
3.1 The compliance with the delivery date shall require the fulfilment of the contractual obligations by the ordering party. The plea of the unfulfilled contract shall be reserved. In case of date agreements we shall default only upon reminder. Part deliveries shall be permissible.
3.2 The delivery date shall be considered observed, if the goods to be delivered have left the factory when the said has expired or if the readiness of delivery has been stated.
3.3 If we are prevented from delivery in time by acts of God, the delivery period shall be prolonged reasonably. The said shall apply for industrial action as well as for the occurrence of an unforeseeable obstruction which is outside of our sphere of influence, provided such obstructions have demonstrably considerably influence on the completion or shipment of the goods to be delivered. This shall also apply, if the circumstances occur to sub-suppliers. We shall not be responsible either for circumstances mentioned hereinbefore, if they occur during an already existing default. In important cases we will inform the ordering party of the beginning and end of such obstructions as quickly as possible.
3.4 If we default for reasons, for which we are responsible, the liability for damage shall be ruled out in case of simple negligence.
3.5 If an ordering party grants us a reasonable grace period of three weeks or of six weeks in case of custom-made productions after we have defaulted, threatening rejection, the said shall be permitted to withdraw from the contract after a futile expiry of the grace period. Otherwise the liability for damage shall be limited to typical, reasonably foreseeable damage.
The limitation of liability stipulated in the two chapters mentioned hereinbefore shall not apply, if a strictly commercial deal has been struck explicitly and/or the interest of the ordering party in the contract fulfilment no longer exists.
(4) Passing of risk and acceptance
4.1 If the acknowledgement of order stipulates nothing to the contrary, the service shall be agreed to be ex works.
4.2 Objects supplied, even if they have insignificant defects, have to be accepted by the ordering party without prejudice to the rights described in section (7).
(5) Reservation of ownership
5.1 We reserve the ownership in the goods supplied until all claims from the business relationship have been fulfilled.
5.2 The ordering party shall be permitted to sell the goods subject to retention of title only within the framework of the usual business transaction and under reservation of ownership. The ordering party shall transfer the claims arisen from the sale of the goods subject to retention of title shall to us now already. Every other disposition of the goods subject to retention of tile - in particular pledging or mortgaging by chattels - shall be impermissible.
We shall be notified immediately of the seizure, confiscation or other disposition of the object delivered by a third party.
5.3 If the value of our securities exceeds the amount of our claims by more than 20 per cent, we shall be obligated to release securities at our discretion upon request of the ordering party.
5.4 In case of a behaviour of the ordering party in violation of the contract, in case of default in payment in particular, we shall be entitled to take back the goods after reminders, and the ordering party shall be obligated to surrender the goods. The assertion of the retention of title as well as the seizure of the objects supplied by us shall not be considered a withdrawal from the contract.
(6) Express warranty
We shall warrant for defects in the object supplied as follows:
6.1 Without delay we shall have to be notified of any defects detected in writing. Along with the notification, the certificate of receipt which confirms the handover of the accompanying documentation (operating instructions, et cetera) and the expert instructions shall have to be sent. Replaced parts shall become our property.
6.2 Deviating from the legal provisions, the warranty period shall be twelve months.
6.3 If the object supplied has a defect, for which we are responsible, we shall be entitled to remedy or replacement at our discretion. In case of remedy, we shall be obligated only to bear all outlay required for the said, provided they are not increased by the fact that the object supplied has been taken to another location than the place of fulfilment.
6.4 Other claims of the ordering party, in particular a claim for compensation of damage, which has not occurred on the object supplied itself, shall be ruled out. This exemption of liability shall not apply for intent or gross negligence of the proprietor or a managing employee as well as in case of culpable violation of significant contractual obligations. In case of culpable violation of significant contractual obligations, we shall be liable - except in cases of intent or gross negligence of the proprietor or managing employee - for the contractually typical, reasonably foreseeable damage. The exemption of liability shall not apply in cases of the injury of a person, including life, health or body. Moreover, the exemption of liability shall not apply in cases either, in which in conformity with the [German] product liability law liability applies for persons or material damage of privately used objects when the object delivered is faulty. The said shall not apply either, if properties which have been assured explicitly are absent, if the assurance intended in particular that the ordering party is protected against damage which does not occur on the object supplied itself. The exemption from liability shall not apply in case of defects which have been withheld deceitfully or the absence of which the supplier has guaranteed.
(7) Rights in case of impending and/or existing non-fulfilment by the ordering party
7.1 If the ordering party defaults in payment in whole or partially, if a bill of exchange or cheque of the ordering party is not honoured or if facts are revealed, which indicate an aggravation of the pecuniary circumstances of the ordering party or if an application for the institution of insolvency proceedings is filed or if the ordering party suggests an out-of-court settlement to the debtor, we shall have the right to demand the immediate payment of all open and undue or deferred invoices and to request payment in advance for all open deliveries or to withdraw from the contract with respect to a partial or entire delivery without prejudice to other rights due to us without requiring a deadline or grace period in this case. The ordering party can ward off the obligation of premature payment and/or our withdrawal by providing suitable securities. The rights mentioned hereinbefore shall be due to us also, if the company of the ordering party is wound up, liquidated or the business activities are discontinued, significant company divisions are transferred or judicial sale measures are instituted over the assets of the ordering party.
7.2 Claims for damages of the ordering party on the grounds of withdrawal for reasons mentioned hereinbefore shall be ruled out.
(8) Joint liability
8.1 If our liability has been ruled out or limited in keeping with section (7), this shall apply also for the violation of contractual accessory obligations as well as pre-contractual obligation violations and for claims based on product liability in conformity with section 823 of the [German] Civil Code. We shall not be held liable for damage to machines which has been caused by operating faults. For this reason, please observe our operating instructions and training offers.
8.2 The stipulations in keeping with clause 8.1 shall not apply for claims based on the [German] product liability act. The same shall apply in case of initial relative impossibility or by impossibility for which we are responsible.
(III) Additional clauses for purchase
The purchase terms rendered hereinafter shall apply supplementary to the general terms and conditions rendered in Figure (I).
(1) Prices and payment
1.1 The prices agreed upon are set prices and shall contain the costs for shipping, loading and packaging in particular.
1.2 Payment shall be effected within ten days after delivery and receipt of invoice deducting a trade discount of 3 per cent or net within thirty days.
1.3 In case of early delivery, the due date and the beginning of the discount period shall depend on the delivery date agreed upon.
1.4 Claims against us shall be assigned or collected by a third party only upon our written approval. The approval shall not be withheld unreasonably.
(2) Shipment / passage of risk
2.1 The shipment shall be made at the risk of the supplier. The risk shall pass to us after the goods have been unloaded and unpacked on our premises. The supplier shall have to take back the transport packaging.
2.2 Except in the event of obvious defects, section 377 of the [German] Commercial Code shall not be applicable.
(3) Date of delivery / delay of delivery
3.1 The delivery date agreed upon shall be binding. The receipt of the goods on our premises shall be decisive for the observation of the delivery date. If no delivery to our premises has been agreed upon, the supplier shall have to render available the goods in due time. If delivery dates cannot be kept, the supplier shall have to inform us in writing without delay indicating the reasons and probable delay.
3.2 Part deliveries shall be permitted only, if our written approval can be presented.
The supplier shall warrant that his goods delivered are in keeping with the respectively current state of science and technology and provide the technical data agreed upon. Recourse claims against the supplier based on defect claims in keeping with section 478 and 479 of the [German] Civil Code shall be permitted, even if the ultimate customer is not consumer, but entrepreneur.