General terms and conditions of delivery and service
of PRIME DRILLING GmbH of D-57482 Wenden-Gerlingen, Germany

 

1. Scope of Application

Sales and deliveries of products as well as services (services and work performances) by Prime Drilling GmbH ("Prime Drilling") shall be made exclusively in accordance with the following General Terms and Conditions of Delivery and Service ("Terms of Delivery"), which shall be accepted by Customer by the placing of an order or the receipt of delivery or service. They shall also apply to all future transactions with Customer. The application of Customer's conflicting or supplementary terms and conditions shall be excluded, even if Prime Drilling does not expressly object to such terms and conditions.

 

2. Conclusion of Contract

2.1 Offers by Prime Drilling shall be non-binding. A contract shall only become effective once it has been confirmed by Prime Drilling in a written confirmation of order and shall be governed exclusively by the contents of the confirmation of order and these Terms of Delivery. Verbal agreements or promises shall only be valid if an authorized employee of Prime Drilling has confirmed them in writing.

2.2 The documents forming part of the offer, such as illustrations, drawings, details of weights, dimensions and other performance data, contain only approximate values and are only binding vis-à-vis the Purchaser if this has been expressly confirmed in the offer. Likewise, performance data in brochures are only approximate values which may deviate due to various circumstances and are therefore only binding if confirmed in writing by Prime Drilling.

2.3 Prime Drilling retains all rights in the sales documentation (in particular pictures, drawings, data on weight and size) and samples. These items must not be made available to third parties and must be returned to Prime Drilling without undue delay on demand or destroyed.

2.4 The field staff of Prime Drilling is not authorized to represent the company. In particular, the field staff may not conclude any contracts and may not make any binding promises with regard to the subject matter of the delivery or service or any other terms and conditions.

 

3. Delivery and Performance Dates

3.1 Delivery and performance dates and are only binding if they have been agreed in the contract as binding and Customer has provided Prime Drilling in a timely manner with all of the information or documentation required for the performance of such delivery or performance and Customer has made any advance payments in the manner and amount as agreed upon by the parties. Delivery and performance deadlines agreed upon by the parties shall begin on the date of the confirmation of order. In the event of additional or supplementary contracts entered into at a later date, the delivery and performance deadlines shall be extended or rescheduled accordingly, as applicable. The delivery period shall be deemed to have been complied with if, by the time of its expiry, the delivery item has left Prime Drilling's works or the Customer has been notified that the delivery item is ready for dispatch.

3.2 In the event of delays in delivery or performance or interruptions due to unavoidable events such as force majeure, war, industrial disputes, natural disasters or pandemics or as a result of other unavoidable and serious events beyond the control of Prime Drilling and for which it is not responsible, Prime Drilling shall be released from its contractual obligations for the duration of the disruption and to the extent of its effect. The same applies if these events occur at Prime Drilling's suppliers or subcontractors. Prime Drilling shall inform the Purchaser without delay of the occurrence and termination of an unforeseeable event. The parties are obliged to adapt their mutual contractual obligations to the changed circumstances in good faith.

3.3 With regard to Goods that Prime Drilling does not produce itself, the obligation to deliver shall be subject to Prime Drilling's correct and timely receipt of such Goods from its suppliers.

3.4 If deliveries or performances by Prime Drilling are delayed, Prime Drilling shall only be in default by issuing a reminder, even if deadlines have been agreed. Customer shall only be entitled to rescind the contract if Prime Drilling is responsible for the delay and a reasonable deadline set by Customer for delivery with a threat of refusal of three weeks, in the case of custom-made products of six weeks, has expired to no avail.

3.5 Should Customer be in default of the acceptance of delivery or should he be in breach of any other obligations to cooperate, Prime Drilling shall be entitled, without prejudice to its other rights, to store the delivery item appropriately at the risk and expense of Customer.

3.6 Prime Drilling may make partial deliveries for good reason if and to the extent this is reasonable for Customer.

 

4. Shipment, Passage of Risk, Transport Insurance

4.1 Unless otherwise stated in the order confirmation, performance is agreed ex works Prime Drilling. If shipment is agreed, it shall be effected by an appropriate means of shipment in the customary packaging, unless otherwise stipulated by the Customer. A transport insurance shall be taken out only upon request and at the expense of Customer.

4.2 The risk shall pass to Customer (i) upon delivery of the Goods to the carrier commissioned by Prime Drilling or Customer in case of a contract of sale involving the shipment of goods, (ii) upon handover to Customer if Customer collects the Goods himself, or (iii) upon handover to a third party if a third party authorized by Customer collects the Goods. Should Customer be in default of acceptance, risk shall pass to Customer upon default. If, in case the Goods shall be collected by Customer or a third party authorized by Customer, and delivery is delayed on grounds for which Customer is responsible, risk shall pass to Customer on the date Customer is notified of the readiness of the Goods for shipment.

4.3 Delivery items are to be accepted by the purchaser without prejudice to rights arising from defects.

 

5. Prices, Terms of Payment

5.1 Unless the parties have agreed upon a certain price, the price shall be determined by the price list of Prime Drilling as applicable at the date of the conclusion of the contract. Travel costs, expenses or other ancillary costs as well as out-of-pocket expenses incurred by Prime Drilling for the provision of the contractually owed service will be invoiced additionally and according to expenditure.

5.2 All prices of Prime Drilling for deliveries are ex works, exclusive of statutory VAT in the respective applicable amount and do not include any shipment and packaging costs, which will be charged separately. Customer shall bear any public charges such as possible customs duties that may arise in connection with the import of the Goods.

5.3 If the parties have not agreed on payment terms, invoices for the delivery of products of Prime Drilling are due for payment within 10 days of receipt of the invoice with a 2 % discount or within 30 days without deduction; This does not apply to invoices for drilling systems and repairs or services which are due for payment without deduction within 14 days of receipt of the invoice. After expiry of the respective period, default automatically occurs without the need for a reminder. Payments by Customer are only deemed to have been made when Prime Drilling is able to dispose of the amount.

5.4 In the event that Customer is in default, Prime Drilling shall be entitled to demand default interest in the applicable statutory amount. Any claims for further damages due to the default shall remain unaffected.

5.5 Bills of exchange and checks shall only be taken on account of performance upon special arrangement and without any bank charges or other costs for Prime Drilling.

5.6 Customer is only entitled to a set-off if his counterclaim is uncontested, ready for decision or has been finally adjudicated. In the event of defects in the delivery item, the purchaser's right to offset any rights on account of defects shall remain unaffected.

5.7 Customer is only entitled to assert a right of retention to the extent that his counterclaim is based on the same contract and is uncontested, ready for decision or has been finally adjudicated. In the event of defects in the delivery item, the Purchaser's right of retention on the basis of any rights due to defects shall remain unaffected.

5.8 If Prime Drilling becomes aware of the risk of Customer's impossibility to perform (mangelnde Leistungsfähigkeit) after conclusion of the contract, Prime Drilling shall be entitled to make outstanding deliveries or performances only against prepayment or the provision of security. If such prepayments or security have not been rendered even after the expiry of a reasonable grace period, Prime Drilling may partially or totally rescind individual or all of the affected contracts. Prime Drilling shall remain entitled to assert further rights.

 

6. Retention of Title

6.1 The Goods shall remain the property of Prime Drilling until any and all claims of Prime Drilling arising from its business relationship with Customer have been paid in full. In the case of current accounts, this retention of title shall serve as security for the claim for the balance to which Prime Drilling is entitled.

6.2 Customer shall only be allowed to sell the Goods subject to retention of title ("Products subject to Retention of Title") within normal and proper business transactions. Customer is not entitled to pledge the Products subject to Retention of Title, grant chattel mortgages on them or make other dispositions endangering Prime Drilling's title to such products. Customer hereby assigns its receivables arising from the resale of the products to Prime Drilling, and Prime Drilling hereby accepts such assignment. Should Customer sell the Products subject to Retention of Title after transformation or joining of such products with other products or together with other products, this assignment of receivables shall only be agreed to for an amount equivalent to the price agreed to between Prime Drilling and Customer plus a safety margin of 10 % of this price. Customer is granted the revocable authorization to collect in trust the claims assigned to Prime Drilling in his own name. Prime Drilling may revoke such authorization and the right to resell the products if Customer is in default of the performance of material obligations such as making payment to Prime Drilling.

6.3 Any modification or alteration of the Products subject to Retention of Title by Customer shall always be carried out on behalf of Prime Drilling. If Products subject to Retention of Title are joined with other goods, Prime Drilling shall acquire joint ownership of the new goods in the ratio of the value of the Products subject to Retention of Title to the other processed goods at the time of processing. The new goods created by way of processing shall be subject to the same provisions as applicable to the Products subject to Retention of Title.

6.4 Should the Products subject to Retention of Title be joined with other goods, Prime Drilling shall acquire joint ownership of the new goods in the ratio of the value of the Products subject to Retention of Title to the other goods at the date of joining. Should the joining or mixing of the goods occur in such manner that Customer's goods are to be viewed as the main goods, it shall be deemed to be agreed that Customer assigns proportionate joint ownership to Prime Drilling. Customer shall hold the joint ownership created in such manner in custody for Prime Drilling.

6.5 Customer shall provide Prime Drilling at all times with all desired information concerning the Products subject to Retention of Title or receivables assigned to Prime Drilling under this contract. Customer shall immediately notify Prime Drilling of any attachments of or claims to the Products subject to Retention of Title by third parties and shall provide the necessary documents in this regard. Customer shall at the same time advise the third party of Prime Drilling's retention of title. The costs of a defense against attachments and claims shall be borne by Customer.

6.6 Customer is obliged to treat the Products subject to Retention of Title with care for the duration of the retention of title.

6.7 Should the realizable value of the securities exceed all of Prime Drilling's claims that are to be secured by more than 10 %, Customer shall be entitled to demand a release to such extent.

6.8 Should Customer be in default of material obligations such as payment to Prime Drilling, and should Prime Drilling rescind the contract, Prime Drilling may, notwithstanding any other rights, request surrender of the Products subject to Retention of Title and may make use of them otherwise for the purpose of satisfying its matured claims against Customer. In such case, Customer shall grant Prime Drilling or Prime Drilling's agents immediate access to the Products subject to Retention of Title and surrender the same.

6.9 In the case of deliveries to other jurisdictions in which the foregoing provisions governing the retention of title do not have the same effect as in Germany; Customer shall do everything to create equivalent security rights for Prime Drilling without undue delay. Customer shall cooperate in all measures such as registration, publication, etc. that are necessary and beneficial to the validity and enforceability of such security rights.

6.10 On Prime Drilling’s demand, Customer is obliged to appropriately insure the Products subject to Retention of Title, provide Prime Drilling with the respective proof of such insurance and assign the claims arising under such insurance to Prime Drilling.

 

7. Intellectual Property Rights and Advertising

7.1 Customer shall not perform and may not authorize a third party to perform any act that may endanger the trademarks or other intellectual property rights used by Prime Drilling in relation to the Goods. In particular, Customer may not obscure, alter or remove in any manner the trademarks and/or other distinctive features, whether imprinted or attached, that are part of Prime Drilling's Goods and may not include or attach any other features.

7.2 The entire sales promotional, advertising and sales material ("Advertising Material") provided by Prime Drilling shall remain the property of Prime Drilling. Customer may use this Advertising Material only in accordance with the instructions of Prime Drilling and in relation to the sale of the Goods, and Customer may not authorize any third party to use the Advertising Material.

7.3 Customer may only advertise the Goods and use the Advertising Material and the trademarks of Prime Drilling for this purpose if Prime Drilling has granted its prior express consent in writing. Prime Drilling may withdraw its consent at any time; in such case the entire advertising of Customer must be ceased at Customer's expense according to the instructions of Prime Drilling. Irrespective of Prime Drilling's consent, Customer shall in any event remain responsible for ensuring that all advertising measures or advertisements fulfill the statutory requirements, if any, and do not breach any industrial property rights of third parties.

 

8. Confidentiality

8.1 The parties undertake to keep the trade secrets of the respective other party confidential during the parties' business relationship and thereafter; this shall not apply to information that is part of the public domain. Trade secrets mean in particular all information that in this sense is not generally known such as customer lists, price lists, drawings, process instructions, formulas and inventions. This duty of confidentiality shall not apply to information that had already been known to the receiving party prior to receipt, that the receiving party lawfully received or will receive from a third party without a concomitant confidentiality obligation or that are subject to mandatory disclosure pursuant to applicable law or a governmental or court order (e. g. disclosures to licensing authorities, regulatory authorities, government authorities or advisors bound to professional secrecy). This obligation begins from the first receipt of the documents or knowledge and ends 5 years after the end of the business relationship.

8.2 The information, data, documents and other records provided to Customer by Prime Drilling may exclusively be used for the purposes of the business relationship with Prime Drilling. If in the framework of the business relationship Customer is lawfully provided with trade secrets from Prime Drilling or he obtains knowledge hereof, Customer shall treat the trade secrets confidential and shall carry out reasonable measures in order to guarantee the maintenance of the confidentiality.

8.3 In its dealings with third parties, Customer shall not make any reference to the business relationship with Prime Drilling without Prime Drilling's express written consent.

 

9. Quality, Customer's Rights in case of Defects, Duty to Inspect the Goods

9.1 Upon passing of the risk the Goods shall be of the agreed quality; the quality will exclusively be determined by the specific written agreements concerning the characteristics, features and specifications of the Goods. Minor deviations in structure and color from the agreed quality remain reserved.

9.2 Prime Drilling shall provide services and/or works in accordance with the specifications and in accordance with the recognized rules of technology. Technical or other standards shall only be complied with insofar as they are expressly stated in the specifications of services and shall apply in the version applicable at the time of submission of the offer. Insofar as the specifications contain unintentional gaps or ambiguities, Prime Drilling shall be entitled to adjust the affected content of the specifications at its reasonable discretion, taking into account the interests of Customer.

9.3 Information provided in sales catalogues, price lists and any other informative literature provided by Prime Drilling or any other descriptions of the Goods shall not constitute a guarantee for any specific quality of the of the delivery item or service; such specific durability guarantees must be expressly agreed between the Parties in writing.

9.4 Prime Drilling reserves the right to make minor changes to the delivery item or service with regard to its construction, material and/or design, provided that this does not change the agreed quality.

9.5 Customer's rights in case of defects of the Goods shall require that he inspects the Goods upon delivery without undue delay and notifies Prime Drilling of any defects in writing and without undue delay, but no later than one week following delivery; hidden defects must be notified to Prime Drilling in writing without undue delay upon their discovery.

9.6 In the event of a notification of a defect, Prime Drilling shall have the right to inspect and test the delivery item or service subject to complaint. Customer will grant Prime Drilling the required period of time and opportunity to exercise such right. Prime Drilling may also demand from Customer that he returns to Prime Drilling at its expense the delivery item to which objection was made. Should Customer's notification of the defect prove to be unjustified and provided Customer has realized this prior to the notification of the defect or has not realized it in a negligent manner, Customer shall be obliged to reimburse Prime Drilling for all costs incurred in this respect, e.g. travel expenses or shipping costs.

9.7 Prime Drilling shall, at its own discretion, remedy defects by remedying the defect, or, alternatively, by delivering a replacement, both free of charge to Customer (together "Subsequent Performance"). Customer shall give Prime Drilling the necessary reasonable time and opportunity for the Subsequent Performance. Goods that have been replaced by Prime Drilling shall, upon its demand, be returned to Prime Drilling.

9.8 Customer's rights in case of defects shall be excluded in the following events: (i) natural wear and tear, (ii) defects of the Goods due to reasons for which Customer bears responsibility, such as inappropriate or improper use, the non-observance of the operational instructions, incorrect start-up of operation or faulty treatment (e.g. excessive wear), (iii) incorrect assembly and/or installation by Customer or a third party commissioned by Customer, and (iv) the use of unsuitable accessories or unsuitable spare parts or the performance of inappropriate repair works by Customer or a third party commissioned by Customer.

9.9 Prime Drilling shall bear the transport, travel, labor and material costs incurred for the purpose of a Subsequent Performance insofar as the delivery item is located at Customer's place of business and has not been taken to another place of use. The corresponding additional costs shall be borne by Customer. Subsequent Performance does not include the installation and removal of the defective deliver item in third-party equipment; Customer shall bear the respective installation and removal costs.

9.10 Should the Subsequent Performance fail, should such remedy be unreasonable for Customer or has Prime Drilling refused such remedy pursuant to Section 439 (4) German Civil Code (Bürgerliches Gesetzbuch; "BGB"), Customer may, at its option, rescind the contract in accordance with the statutory provisions or reduce the purchase price and/or claim either damages pursuant to section 10 or the reimbursement of its futile expenses.

9.11 The limitation period for Customer's claims for defects shall be twelve months beginning with the handover of the deliver item to Customer. The provisions on the statute of limitations of Section 445b BGB shall remain unaffected. Unless otherwise agreed, the statutory limitation periods shall apply (a) to Customer’s rights with respect to defects concealed in bad faith or caused intentionally; (b) if and to the extent Prime Drilling has assumed a guarantee; (c) to Customer’s damage claims due to culpably caused personal injuries; (d) to Customer’s damage claims for damages caused by Prime Drilling intentionally or by gross negligence; (e) to Customer’s damage claims due to other reasons than defects of the Goods; as well as (f) to claims under the German Product Liability Act or any other mandatory statutory liability.

9.12 If used Goods are sold, all rights of Customer due to defects shall be excluded, save for Customer's mandatory claims.

 

10. Limitation of Liability, Damage Compensation

10.1 Prime Drilling's obligation to pay damages shall be limited as follows:

(a) For damages caused by a breach of a material contractual obligation, Prime Drilling shall only be liable up to the amount of the typically foreseeable damage at the time of entering into the contract; Prime Drilling shall not be liable for damages caused by a breach of a non-material contractual obligation.

(b) The limitation of liability as set out above shall not apply to damages caused intentionally or by gross negligence, culpably caused personal injuries nor to any liability under the German Product Liability Act and in case of any further mandatory liability. Furthermore, it shall not apply if and to the extent Prime Drilling has assumed a guaranty.

10.2 Customer shall take all reasonable measures necessary to avert and reduce damages.

 

11. Product Liability

If Customer sells the Goods, whether unchanged or changed, whether after processing, transformation or joining with other Products, Customer shall indemnify Prime Drilling in their internal relationship against any product liability claims of third parties if and to the extent Customer is responsible for the defect leading to the liability also within their internal relationship or Customer was liable for the defect leading to the liability towards third parties respectively.

 

12. General Provisions

12.1 Customer may assign the rights arising from the parties' contractual relationship to third parties only with Prime Drilling's written consent. Section 354a German Commercial Code (Handelsgesetzbuch; "HGB") shall remain unaffected hereby.

12.2 Amendments and supplements to the contract and/or these Terms of Delivery and any side agreements must be made in writing. The same shall apply to the amendment of this written form requirement.

12.3 If a provision of the contract and/or these Terms of Delivery is invalid, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby.

12.4 Exclusive venue for any and all disputes arising from or in connection with the parties' contractual relationship shall be the seat of Prime Drilling. Prime Drilling is entitled, however, to sue Customer at any other court having statutory jurisdiction.

12.5 The laws of the Federal Republic of Germany shall apply to these Terms of Delivery and the parties' contractual relationship to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

12.6 These Terms of Delivery have been drafted in the German and English language. The German version shall prevail.