general terms and conditions
TMS-Hamburg Technical Marine Services GmbH
1. Scope of application
Our General Terms, Conditions of Delivery, and Service (“Delivery Terms”) apply to all business relations with our customers. These Delivery Terms, however, only apply if the customer is an entrepreneur within the meaning of sec. 14 BGB (German Civil Code – Bürgerliches Gesetzbuch), a public law corporation or special fund under public law.
These Delivery Terms apply exclusively; the customer’s conflicting, diverging or supplementary terms and conditions are not accepted and do only become part of the contract inasmuch as confirmed by us in writing. Our Delivery Terms also apply when we perform a delivery or a service without reservation in awareness of the customer’s conflicting or diverging terms and conditions.
Unless otherwise agreed these Delivery Terms apply in the edition valid at the time of the customer’s order, respectively, in any event, in the most recently communicated edition to him in text form, also to similar contracts without us being required to indicate the terms in each individual case.
2. Offer and conclusion of the contract
Our offers are subject to change and non-binding. This also applies when we provide the customer with catalogues, technical documents or other product descriptions unless these are expressly marked by us as binding.
The customer’s order of the goods is deemed a binding offer for the conclusion of a contract. Unless otherwise provided in the order we are entitled to accept this offer to conclude a contract within 14 days upon receipt by us.
Particulars provided by us in respect of the subject matter of the delivery or the service (e.g. weight, measures, value in use, durability, tolerances and other technical details) as well as descriptions of same (in particular drawings and images) are of only approximate standard unless the usability for the contractual purpose requires an exact conformity. They are not guaranteed quality characteristics of the goods, but descriptions or markings of the delivery or the service. Discrepancies which are customary in the trade and discrepancies made due to legal requirements or representing technical improvements as well as replacement with parts of identical value are permissible inasmuch as they do not prejudice the use for the agreed contractual purpose.
We reserve title or intellectual property rights in respect of all offers and estimates made by us as well as drawings, images, calculations, prospects, catalogues, models, tools and other documents and other technical aids provided to the customer. A customer is not permitted to make these items as such or their contents available to third parties, publish them, use them or reproduce them himself or through third parties without our express consent. Upon request, he shall return the entire items to us and destroy copies made, if any, if they are no longer needed by him in the ordinary course of business or when negotiations do not lead to the conclusion of a contract. Excluded therefrom is the storage of data provided in electronic form for the purpose of customary data securing.
3. Prices /terms of payment
Our prices are “ex works” plus packaging, statutory VAT, in respect of export deliveries plus customs duties, charges and other public duties.
The purchase price is payable within 30 days from invoicing and delivery of the goods. Upon expiry of the aforementioned payment term, the customer’s payment is delayed. The consequences of the delay are governed by statute. Vis-à-vis merchants our claim for commercial default interest on due payments pursuant to sec. 3 German Commercial Code (HGB – Handelsgesetzbuch) prevails.
If the sale involves a shipment (clause 4.1., second sentence), the customer bears the transportation costs “ex warehouse” as well as the costs of transport insurance if requested by the customer.
The customer is only entitled to a set-off and retention rights if his counterclaim is final and unappealable, undisputed or has been acknowledged by us. Apart from this, the customer is only entitled to exercise a retention right inasmuch as his counterclaim is based on the same contractual relationship.
We are entitled to perform deliveries or services due only against advanced payment or the provision of security, if, after the conclusion of the contract, we become aware of circumstances suitable to significantly reduce the customer’s creditworthiness, putting the payment of unsettled claims by the customer under the respective contractual relation (including single orders to which the same framework agreement applies) at risk.
4. Deliveries; delivery- and service deadlines and dates
Deliveries are made “ex works”. Upon the customer’s request the goods are shipped to a different destination at his expense and risk. In this case, we are entitled to determine the mode of shipment (in particular the transport company, the transport route and the packaging) ourselves. If shipment is agreed, the reference for delivery deadlines and delivery dates is the time of handing over to the freight forwarder, carrier or other third parties instructed with the transport.
Deadlines and dates for deliveries and services indicated by us are only approximate unless a firm deadline or a firm date is confirmed or agreed.
We are not liable for the impossibility of delivery or for delay of delivery inasmuch as these are caused by force majeure or other events which were not foreseeable at the time of the conclusion of the contract (for example operational disturbances of all kind, problems in the provision of material or energy, transport delays, strikes, lawful lock-outs, lack of employees, energy or raw materials, problems in procuring required permits from public agencies, regulatory actions by public agencies, or the missing, wrong or delayed supply by suppliers) for which we are not responsible. If these events render the delivery of the service significantly more difficult or impossible for us and the obstruction is not just of a temporary nature, we are entitled to rescind the contract. If the obstruction is only of a temporary nature, the delivery and service deadlines are extended or the delivery or service dates are being postponed by the duration of the obstruction plus a reasonable warming-up period.
If our delivery or service is delayed or if a delivery or service becomes impossible, regardless for what reasons, our liability for damages is limited in accordance with clause 7 of these Delivery Terms.
We do not take back packaging; the packaging becomes the customer’s property, except for transport packaging pursuant to the Packaging Regulation. Returned transport packaging must be clean, free from alien material and sorted according to different types of packaging.
5. Place of performance; passing of risk
Unless agreed otherwise, place of performance for all obligations under the contract is our business seat. If we also owe the installation or other services in situ, the place of performance is the place where the installation respectively the service concerned is to be carried out.
Risk passes to the customer at the latest at the time of handing over the delivered item (whereby the commencement of the loading operations is decisive) to the freight forwarder, the carrier or other third parties instructed with the shipment. This also applies if part deliveries are made or we have taken over further services (for example shipment or installation). If the delivery or the handing over is being delayed due to circumstances the cause of which lie with the customer, risk passes to the customer from the day the delivery item is ready for shipment and we notified the customer accordingly.
If an acceptance has been agreed, it shall be decisive for the passing of risk. Also in other respects an agreed acceptance is governed by the statutory provisions applicable to a contract for work done.
The customer’s rights in the event of a physical or legal defect are governed by the statutory provisions unless agreed otherwise in the following.
The basis of our warranty liability is, above all, the agreement on the quality of the goods. Inasmuch such agreement has not been made, the decision whether a defect is present shall be made in accordance with the statutory provisions. We are, however, not liable for public proclamations made by a manufacturer or other third parties which the customer has not identified to us as a critical factor for him for the purchase.
The customer shall inspect the deliveries for defects pursuant to sec. 377 HGB. If a defect becomes apparent during the inspection or thereafter, we must be notified in writing thereof immediately. If the customer fails to notify, the goods are deemed accepted. Building materials and other goods destined for installation or further processing shall be inspected in any event immediately prior to installation or processing.
If a defect is present and has been notified timely, we are initially entitled within a reasonable period of time set by the customer, at our choice, to supplementary perform by remedying the defect or by delivering a defect-free item whereby we are entitled to two attempts of supplementary performance. Our right to refuse supplementary performance pursuant to statutory provisions remains.
If the supplementary performance fails or the reasonable deadline for supplementary performance set by the client expires or is unnecessary pursuant to statutory provisions, the customer is entitled pursuant to statutory provisions to claim at his choice payment reduction (reduction) or rescission of the contract (rescission).
Expenditure and claims for damages due to defect may be claimed by the client pursuant to no. 7 of these Delivery Terms.
The general time limit for physical and legal defects is one year counting from delivery or, if an acceptance is required by statute, as from the acceptance.
The time limit pursuant to no. 6.7 above also applies to contractual and non-contractual claims for damages by the client which are based on a defect in the goods unless the application of the statutory limitations (sections 195, 199 BGB) leads to a shorter limitation period in the individual case.
The time limits pursuant to nos. 6.7 and 6.8 above do not apply to claims for damages by the client pursuant to no. 7.2 which prescribes exclusively according to statutory provisions.
Claims for damages against us only exist pursuant to the following terms of this clause 7 and are otherwise excluded.
We are liable pursuant to statutory provisions for personal injury and death and damage to health for which we are culpable and in the event of intent and gross negligence. We are further liable pursuant to statutory provisions if we concealed a defect “mala fide” or guaranteed the quality of the goods. The same applies to the customer’s claims under the Product Liability Act.
Otherwise, our liability for damage is excluded unless we acted culpably in breach of a vital contractual obligation. In this event, however, our liability is limited to the foreseeable damage which typically occurs. Vital contractual obligations are those the performance of which make the proper fulfilments of the contract at all possible and on the compliance of which the contracting party regularly relies upon and is entitled to so rely.
If vital contractual obligations are breached by simple carelessness, our liability for indirect and consequential damage, which are the consequence of a defect of the item delivered, are only compensated for if such damage is typically to be expected when using the item delivered in accordance with its purpose.
Inasmuch as we provide technical information or advise and the information or advice are not part of the scope of services owed by us, any liability is excluded.
The aforementioned exclusions and limitations of liability apply to a similar extent for the benefit of our organs, legal representatives, employees and other agents.
8. Rescission / termination
The customer can only rescind or terminate due to a breach which does not constitute a defect if we are responsible for the breach. An unfettered termination right (in particular pursuant to sect. 651, 649 BGB) is excluded.
9. Retention of title
We retain title to property in the goods delivered by us until receipt of all payments under the entire business relation with the customer.
In the event of a breach by the customer, in particular in the event of delay, we are entitled to recollect the goods delivered. Our demand to hand over of the delivered goods always includes rescinding the contract. We are entitled to utilize the delivered goods upon recollection; the proceeds of utilization are taken into account in respect of the customer’s liabilities less reasonable utilization costs.
The customer is entitled to sell the goods in the ordinary course of business; he does herewith assign to us all claims in the amount of the final invoice (including VAT) which arise out of the sale against the buyer or third parties, irrespective of whether the goods were sold before or after processing. The customer remains authorised to enforce these claims also after the assignment without prejudice to our rights to enforce the claim ourselves. However, we, undertake not to enforce the claims for as long as the customer fulfils his payment obligations towards us, does not fall in delay and no application for compensation or insolvency proceedings has been filed. If this, however, is the case, we are entitled to demand that the customer discloses to us the assigned claims and the respective debtors, provides us with all necessary information for the enforcement, provides the pertinent documents, and notifies the debtors of the assignment.
The processing or transformation of our goods by the customer is always made on our behalf. If our goods are processed together with other items not belonging to us, we acquire co-property in the new items in relation to the value of our goods to the other processed items at the time of processing. Apart from that the same that applies to goods delivered under the retention of title mutatis mutandis applies to items created through processing.
If our goods are inseparably mixed with other items which do not belong to us, we acquire co-title in the new item in relation to the value of our goods to the other admixed items at the time of the admixture. If the admixture is made in such a way that the customer’s item is to be treated as the principal item, it is deemed agreed that the customer transfers co-property pro rata to us. The customer holds the sole property or co-property so created in trust for us.
The customer is under an obligation to always fully maintain insurance against the usual risks and to provide proof thereof to us upon demand. The customer herewith assigns to us all potential insurance claims.
If the value of the security provided to us exceeds our total claims by more than 25%, we are under an obligation to release or retransfer the corresponding securities upon the customer’s demand; the choice of the securities is ours.
10. Jurisdiction; applicable law
These delivery conditions and the contractual relations between the customer and us are subject to the law of the Federal Republic of Germany under the exclusion of international uniform law, in particular UN sales law.
Place of jurisdiction for all disputes under or in connection with this contract including claims in tort, if any, is Hamburg. We are also entitled, however, to commence proceedings in the customer’s general jurisdiction.
TMS - Hamburg Technical Marine