Terms & Conditions
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. Quotations. Quotations given by the Seller are confidential. No quotation, estimate or tender given by the Seller shall form an offer capable of acceptance by the Buyer. A binding contract for sale shall only be created upon acceptance in writing by the Seller of the Buyer’s order or other offer to purchase. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, order acceptance, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller. If the Buyer’s order differs in any way from the Seller’s quotation, then the Seller reserves the right to submit a revised quotation to the Buyer to cover any additional costs prior to issuing an Order Acknowledgement. All quotations are made on the understanding that the whole of the quantity quoted for will be ordered; otherwise the Seller reserves the right to revise the quotation.
4. Price. Prices stated in the Seller’s price list are exclusive of the costs of packing, carriage, insurance, installation, training and commissioning and all taxes and duties. Furthermore, the Price agreed is in accordance with the Product Specification outlined in the Seller’s Order Acknowledgement. Any amendments made by the Buyer to the Product Specification post Order Acknowledgement will require a new quotation to be raised by TERRATEST for any additional labour/materials required.
5. Payment Terms. Unless credit facilities have been granted to the Buyer or unless specifically provided in writing, payment is due prior to delivery of the goods.
6. Overdue Accounts. If the Buyer delays payment, he shall be liable without reminder, for default interest at the rate of 6% above the base rate of the Deutsche Bundesbank with effect from the agreed date on which the payment was due.
7. Delivery and Carriage Charges. Whilst we do our best to adhere to any promise of delivery time, the delivery time shall not be deemed to be of the essence of the contract nor shall the delay be grounds for a claim for damages or the cancellation of the order. Part shipments are allowed. Any amendments made to the Product Specification post Order Acknowledgement that impact on the delivery lead time will be highlighted to the Buyer and the delivery lead time will be revised accordingly
8. Import & Export Licences, etc. The Buyer shall in respect of each non-Incoterm consignment:
a. obtain at his own risk and expense any import licence or permit which may be required for the importation and acceptance of such consignment into the country of destination; and
b. bear and pay all costs and charges which may be incurred in obtaining any certificate of origin or consular invoice and any documents other than those previously referred to in this Condition 8 which the Buyer may require for the importation and acceptance of such consignment into the country of destination and where necessary for its passage through any other country;
c. pay for all taxes, duties, charges & levies for the export/import of the Goods.
The Seller’s acceptance of order is conditional on the receipt of any export licence or permit or other documentation that may be required by relevant authorities. If the Buyer intends to export or re-export any item after receipt from the Seller (including deemed exports), the Buyer shall request and obtain all necessary licences for the use and/or export of said items. In complying with applicable export controls the Seller and its suppliers may need to seek an export licence and/or make a rating enquiry to the applicable government(s), which may delay a shipment. The Buyer agrees that in such cases the Seller is not liable for such delay.
9. Quantities Delivered. Invoicing of deliveries is performed according to actual delivery quantity and at the unit price stipulated in the order acknowledgement.
10. Software. Special conditions apply for software. The Seller guarantees that software can be operated under the computer operating systems as specified by the Seller. Subject to the previous statement, the Seller grants no warranty for functionality, completeness, accuracy or timeliness. The purchase of software provides the right to use on one system only. The system may not be reproduced, copied or transmitted in any way whatsoever.
11. Returned Goods. The Seller will accept returned goods only if previous written authority has been expressly given by the Seller. The Seller accepts no returns for any products specifically manufactured for the Buyer. Material received without any prior authorisation will be returned at the Buyer’s expense. A fee for administrative costs and product inspection will be levied on the Buyer.
12. Warranty. Provided no special terms are agreed upon for individual categories or items, the following conditions apply:
The Seller warrants all TERRAEST products to be free from defects in material and workmanship. All such products are warranted under normal use and service. The period of warranty is 12 months from delivery date. When returning items under warranty, said equipment should be returned to the Seller prepaid. It should be suitably packaged by the Buyer to prevent damage in transit. Full details relative to the claim or malfunction shall accompany the shipment. Written express authority from the Seller shall be obtained before the goods are returned for repair under warranty. This warranty is in lieu of all warranties expressed or implied, and of all obligations or liabilities on the part of the Seller for damages following the use or misuse of items supplied. Any unauthorised disassembly or attempt at repair or use of non-TERRATEST parts shall void this warranty.
The Seller shall not be responsible under this warranty if:
a. the Buyer shall not have paid all the invoices for goods and services supplied by the Seller within the agreed time.
b. the Goods have been improperly maintained, installed or operated.
c. the Goods have been altered or modified so as to adversely affect the operation or use or durability or so as to change their intended use.
The Seller’s liability under warranty contained in this clause is limited to the repair or replacement of defective goods and making good defective workmanship.
13. Limitations of Liability. The Seller shall void this warranty for any consequential or indirect loss or loss of profit suffered by the Buyer in relation to goods supplied. The Seller’s total liability to the Buyer for any default act or omission in connection with the contract and the provision of the goods shall be limited to the price paid for the goods. No warranties, representation, guarantees and proposals, oral and written, or other terms or conditions of whatever nature not contained and recorded in these terms shall be of any force or effect or binding on the Seller. No failure by the Seller to enforce any provision herein will constitute a waiver of such provision or affect in any way the company’s rights to require performance of such provision at any time in the future.
14. Claims (complaints). Buyer claims must be submitted in written form. Non receipt of items must be notified to the Seller within 7 days from the expected date of receipt of goods. All goods must be checked for damage upon receipt. On occasion when goods are to be installed by the Seller, goods must also be checked for damage upon receipt and any queries notified to the Seller immediately. In case of goods damaged in transit, notification must be made to the carrier or the Seller within 3 days. The Seller reserves the right to make good claims, as deemed proper, either by replacement, repair or crediting.
15. Retention of Title. Notwithstanding delivery and the passing of risk in the goods or any other provision of these conditions, property of the goods shall not pass to the Buyer until the Seller has received full payment for the goods.
16. Force Majeure. The Seller shall not be liable to the Buyer or be deemed to be in breach of the contract by reason of any delay in performing, or failure to perform, and of the Seller’s obligations in relation to the goods, if the delay or failure is due to any cause beyond the Seller’s reasonable control.
17. Insolvency, Bankruptcy. The Seller has the right to terminate the contract forthwith where the Buyer becomes insolvent or bankrupt, or makes arrangements with its creditors, suffers a receiver to be appointed or enters into liquidation. In any of these cases the Seller shall have no further obligation, and the price for all goods delivered shall become immediately due and payable.
18. Technical Specifications. Unless otherwise specifically agreed upon, brochures, data sheets and catalogues are not binding. Data provided for in documentation are only binding insofar as having been expressly stipulated as such. The Seller reserves the right to modify any specification without notice.
19. Design Ownership. Any information and drawings, which were supplied additionally to the sales documentation, may not be transmitted to any third party. The Buyer may not transmit or make use of any information of the design and functionality in any form whatsoever. In the event of infringement of this clause we retain the right to claim for damages.
20. Law. These conditions shall be governed and construed in accordance with German Law, and all disputes arising in connection therewith shall be submitted to the jurisdiction of the German Courts. All disputes arising out of or in connection with the present contract shall be finally settled under the jurisdiction of the local district court of Wedding in Berlin or the provincial court in Berlin.
21. Installation and Commissioning. The cost of installation and commissioning shall in each case be charged for in addition to the costs of any goods supplied. Unless otherwise agreed in writing with the Seller such work shall be charged at the hourly rate applicable to the personnel engaged. The Buyer shall ensure that adequate accommodation and facilities are available for such installation and commissioning work, and that all equipment is ready, available and in fit state and condition. If the Buyer fails to comply with those requirements, it shall compensate the Seller for all the time wasted by the Seller’s personnel.