1. General
These Conditions shall be incorporated in all agreements entered into between TERRATEST GmbH (“the Seller”) and its customer (“the Buyer”) for the sale of any materials or services by the Seller to the Buyer. These Conditions shall apply in place of and prevail over any terms or conditions contained or referred to in the Buyer’s order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by the Seller. Any purported provisions to the contrary are hereby excluded or extinguished. The terms and conditions set out herein shall prevail if any loopholes, contradictions or uncertainties should arise.
2. The Seller’s price lists,
catalogues, instruction leaflets, manuals, drawings, illustrations and specifications do not constitute offers made by the seller, and the seller reserves the right to withdraw or revise the same at any time prior to the order acknowledgement.
3. Prices
3.1. Our prices are based on stable material and labor costs. They also assume the unobstructed execution of our services.
3.2. We reserve the right to charge our prices valid on the day of delivery, unless a fixed price with a specified period has been agreed upon.
3.3. All price indications are net prices, exclusive of the applicable statutory value-added tax (VAT).
3.4. Our prices are ex-works and do not include packaging.
4. Delivery, Delivery Time
4.1. A general period of six weeks from the receipt of the complete falling weight device at TERRATEST GmbH is agreed upon for the execution of the calibration order. If the device is partially or completely lost after shipment, TERRATEST has six weeks from the time of loss to recover the missing shipment. If the device cannot be recovered in whole or in part within these six weeks, TERRATEST will provide compensation in the amount of the current value of the device. The owner of the device is not entitled to a free loaner device during the period in which the owner’s device cannot be located.
4.2. Agreed delivery times are non-binding unless otherwise agreed.
4.3. The delivery period begins on the day on which written confirmation of the order and all technical details between the customer and us is obtained. Adherence to the delivery period is contingent upon the timely receipt of all documents to be provided by the customer, necessary approvals, clearances, the timely clarification and approval of plans, and compliance with the agreed payment terms and other obligations. If these obligations are not met in a timely manner, the delivery period will be extended accordingly. This also applies in the event of subsequent changes to the order. The delivery period is deemed to have been met if the delivery item has left the factory or if notification of readiness for shipment has been provided by the end of this period.
4.4. If delivery is delayed due to circumstances beyond our control, the delivery period will be extended by an appropriate amount, but by no more than three months; in the event of unreasonable delay, both the customer and we are entitled to withdraw from the contract. Circumstances beyond our control include, in particular, unforeseeable obstacles, strikes, lockouts, and untimely delivery by our suppliers.
4.5. If a delivery date is not met due to circumstances within our control, the customer may withdraw from the contract or claim damages for non-performance only if the customer has previously set a grace period of at least six weeks with a threat of rejection and this period has expired without result, unless the customer’s interest in the fulfillment of the contract has ceased. If the customer exercises the right to claim damages for non-performance, such claims are limited to the foreseeable damage at the time of contract conclusion unless willful misconduct or gross negligence on our part is proven.
4.6. If the customer incurs damage due to a delay for which we are responsible, the customer is entitled to claim compensation for delay, excluding further damage claims. Unless willful misconduct or gross negligence on our part is proven, the compensation amounts to 0.5% for each full week of delay, but no more than 5.0% of the value of the portion of the total delivery that is delayed or not provided in accordance with the contract.
5. Validity of Recalibrations
If a recalibration has been agreed upon with the customer at the time of purchase, it must be carried out no later than 12 months after the purchase date of the device. To ensure the precise measurement accuracy of our high-quality devices and to meet the requirements of the testing standard TP BF StB Part B8.3, it is mandatory to adhere to the agreed calibration intervals. The agreed recalibration expires 12 months after the purchase date. It is the customer’s responsibility to send the device to Terratest GmbH within this 12-month period. The purchase date is the date of the invoice.
6. Transfer of Risk and Shipping
6.1. Shipping is always at the customer’s risk, even when freight-free delivery has been agreed. The risk passes to the customer as soon as the goods are loaded onto the transport vehicle, and at the latest when the goods leave our premises.
6.2. Shipping is generally done carriage forward and uninsured. Upon the customer’s written request, transport, breakage, theft, and fire insurance will be arranged at the customer’s expense.
7. Submission Without Order
Before delivering a device or device components for calibration or repair, the customer must submit the corresponding calibration or repair order online. Calibration orders must be submitted at https://light-weight-deflectometer.com/cali/, and repair orders must be submitted at https://light-weight-deflectometer.com/service/. Calibration and repair orders are only accepted online. TERRATEST will refuse to accept any devices for which a corresponding calibration or repair order, as described above, has not been submitted prior to delivery.
8. Storage
For falling weight devices that are not collected by the customer from Terratest GmbH within 30 calendar days of receiving an invoice, despite a completion notification sent by Terratest GmbH via email, a storage fee of €3.50 (net) per calendar day will be charged by Terratest GmbH. The same applies to falling weight devices that cannot be shipped to the customer or collected due to unpaid advance invoices, requiring storage by Terratest GmbH beyond 30 calendar days after the invoice was issued.
A storage fee of €3.50 (net) per calendar day will also be charged for the storage of incompletely returned falling weight devices if the customer fails to send the missing parts despite a request from TERRATEST. The calculation of the storage fee begins 10 days after TERRATEST has requested the submission of the missing parts. The invoice is considered as the completion notification.
Furthermore, a storage fee of €3.50 (net) per calendar day will be charged for the storage of returned falling weight devices if the customer does not respond to a repair estimate request from TERRATEST. The calculation of the storage fee begins 10 days after TERRATEST has requested the submission of the missing parts or the approval for the repair. The total amount of storage fees will be capped at the value of the device.
9. Warranty
9.1 The warranty period is 12 months, starting from the invoice date.
9.2. Only those characteristics that we have explicitly specified in writing shall be considered guaranteed. 9.3. Each delivery must be inspected immediately for defects. Any complaints must be made without delay, and no later than one week after receipt of the goods, via registered mail. Defects that could not be discovered despite careful inspection within this period must be reported immediately via registered mail as soon as they are detected. 9.4. Even in the case of complaints, the customer is obliged to properly store the goods at their own expense until the defect has been resolved. The customer grants us the right to inspect the reported defect on-site. If the customer makes any alterations or repairs to the goods without our consent, they forfeit their warranty rights. 9.5. In the case of justified complaints, we may, at our discretion, remedy the defect free of charge, provide a replacement free of charge, or issue a credit for the defective delivery. In the case of replacement or credit, we are entitled to the return of the defective goods. We are allowed a period of six weeks to carry out the repair or replacement. If the repair fails or the replacement is also defective, we must be given another opportunity to repair or replace the goods within three weeks upon request. Only if we do not fulfill the above-mentioned warranty obligations within the specified period or if the subsequent repair fails, the customer is entitled to demand an appropriate reduction in the purchase price or to cancel the contract. 9.6. TERRATEST GmbH reserves the right to make technical changes in the course of product development. Specifically, in the case of a model change, TERRATEST GmbH may deliver an upgraded version of the ordered model (at no additional cost). 9.7. Unless claims arise due to the absence of a guaranteed characteristic, the customer shall have no further warranty claims beyond those stated above, particularly no claims for damages. 9.8. Stored measurement data must be printed immediately or backed up on an external storage medium immediately after measurement, and the backup must be verified. Terratest is not liable for lost measurement data. All data must be backed up, especially before any calibration, app update, or software update.
10. Defect Rectification
To process complaints, the buyer is required to submit a repair request at https://light-weight-deflectometer.com/service/ and return the device or device component to TERRATEST GmbH. The buyer must properly package the device or components for transport. The return shipment of the device must be carried out by the buyer using a parcel service or freight carrier. The buyer is not entitled to any claims for damages beyond the rectification of defects, except in cases of gross negligence or willful misconduct.
11. Payment and Set-Off
11.1. In the event of exceeding the agreed payment term or in case of default, interest on arrears will be charged at a rate of 6.0% above the respective discount rate of the Deutsche Bundesbank. The right to claim further damages remains reserved. Incoming payments will be applied to the oldest outstanding claims. A cash discount is only permitted if there are no other outstanding claims against the customer. If the customer is in default of any payment obligation towards us, all remaining outstanding claims – including those subject to deferral – shall become immediately due. The same applies in the event of dishonor of checks or bills of exchange, cessation of payments, insolvency proceedings, or bankruptcy of the customer. Bills of exchange and checks are accepted only on account of payment, and the customer bears the associated costs. We do not assume any obligation to present or protest in a timely manner. We reserve the right to reject or return bills of exchange or checks.
11.2. If installment payments are agreed upon and the debtor defaults on any installment, the entire remaining amount becomes immediately due.
11.3. If the customer has liabilities towards TERRATEST GmbH from the current or a previous transaction, TERRATEST GmbH is entitled to assert a right of retention. This applies even if the liabilities arise from different transactions that are not connected and do not have to be based on the same legal relationship.
11.4. The customer is only entitled to offset our claims with counterclaims if these are legally established or recognized by us.
11.5. The customer is not entitled to assert a right of retention. If circumstances arise after the conclusion of the contract that indicate a significant deterioration in the customer’s financial situation, we are entitled to deliver only against advance payment or cash on delivery. If the customer fails to comply with this request within a reasonable period, we are entitled to withdraw from the contract or claim damages for non-performance.
11.6. Payment in advance is considered agreed.
12. Retention of Title
12.1. All goods delivered by us remain our property until full payment has been received, even if claims arise after delivery. This applies even if payment has been made for specific deliveries. In the case of an ongoing account, the retained title serves as security for our respective balance claim.
12.2. The customer may neither pledge nor assign the goods subject to retention of title as security. In the event of a pledge, seizure, or other interventions by third parties on our property or security rights, the customer must notify us immediately. Any costs of intervention shall be borne by the customer.
12.3. The customer is obliged to store the goods subject to retention of title carefully on our behalf, maintain them in proper condition, and carry out necessary repairs immediately. Upon our request, we must be allowed at any time to take inventory and ensure adequate labeling of the goods subject to retention of title at the place of storage. The customer must keep the goods fully insured against usual risks and provide proof of this to us upon request. The customer hereby assigns any potential insurance claims to us within the scope of our entitled claims. We may store, label, or retrieve our goods separately at the customer’s expense and prohibit any disposition of the goods.
12.4. The repossession of goods under retention of title does not constitute a withdrawal from the contract.
12.5. If the customer resells our products in the ordinary course of business, he is authorized to sell the goods subject to retention of title. However, an ordinary course of business does not exist if the assignment of the customer’s claim to third parties is excluded upon resale. The customer’s claims arising from the resale of our goods subject to retention of title, including all ancillary rights, are already assigned to us upon conclusion of the contract, in the amount of the invoice value of our delivery plus a security surcharge of 20.0%. The customer is authorized to collect the claims assigned to us as long as he duly meets his payment obligations to us. However, we are entitled to revoke this authorization and demand payment directly to us if the customer falls into arrears.
13. Advertising
Our customers grant us permission to use their respective company logos for advertising purposes and to showcase our products and services without any special compensation.
14. Place of Performance, Jurisdiction, Applicable Law, Partial Invalidity
14.1. If the contracting party is a merchant, a legal entity under public law, or a special fund under public law, the Amtsgericht Wedding (in Berlin) or the Landgericht Berlin (if the law assigns the dispute to the regional courts) is agreed as the exclusively competent court for all claims arising from or in connection with this contract. The same applies to persons who do not have a general place of jurisdiction in Germany or to persons who, after the conclusion of the contract, have moved their residence or habitual place of abode outside of Germany, or whose residence or habitual place of abode is unknown at the time of the commencement of legal proceedings.
14.2. The place of jurisdiction, including for matters related to bills of exchange and checks as well as for measures to secure claims, is Berlin.
14.3. All disputes shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
14.4. Should any individual provisions of these terms of delivery and payment be invalid, the validity of the remaining provisions shall not be affected.
