General Purchase Conditions for deliveries and services (GPC)
Marine Service GmbH Mattentwiete 1 20457 Hamburg
1. General, scope of application
1.1. For orders of Marine Service GmbH (hereinafter: „MS“) the following GPC are exclusively applicable. Any amendments as well as any general sales conditions of the contractor, which deviate from these GPC, are only applicable, if they have been confirmed in writing by MS. By receiving these GPC without objection, contractor agrees with their exclusive applicability for the respective order as well as for possible future orders.
1.2. MS herewith objects against the applicability of deviating general sales conditions of the contractor also in case that they are sent to MS in an order confirmation or in any other way.
2. Offer, ancillary agreements, unadmissible promotion
2.1. Unless the contractor does not explicitly provide a time limit for the acceptance of its offer, MS is generally entitled to accept such offer within two weeks.
2.2. In so far as declarations of MS constitute an offer for the conclusion of a contract, such offer is valid for 14 days; however, MS is during that time period entitled to revoke the offer at any time, unless it has not already received an unconditional acceptance of the offer from the contractor; the revocation of an offer of MS is not subject to any form requirements.
2.3. Unless otherwise agreed, Incoterm DDP (Version 2010) is applicable for the order and delivery of goods including software items. The fixed purchase prices include in particular packing, export and import clearance, loading and transport as well as costs of customs clearance. Delivery and transport costs have to be shown separately in the offer and the order confirmation of the contractor.
2.4. Oral side agreements as well as the exclusion, and any changes and/or amendments to these GPC are only valid, if expressly confirmed by MS in writing.
2.5. The use of orders for purposes of reference or promotion is only admissible with prior written consent of MS.
2.6. The offered price is accepted and fixed with MS‘ written order; cost escalations on the side of the contractor, as well as other disadvantageous changes in calculations (for instance price increases in material) do principally not entitle the contractor to increase prices. An increase of prices is only possible, if and in so far as the cost increase amounts to at least 60 % and if in addition the preconditions of § 313 BGB (German Civil Code) – interference with the basis of the business – are fulfilled. Whenever a price increase is possible according to these conditions, MS is entitled to revoke the order.
3. Drawings, technical documentation, tools, production materials
3.1. Technical drawings, documentation, tools, production requirements, production materials etc. supplied by MS remain in the ownership of MS; all trademark-, patent- and other protective rights in that respect remain with MS. The contractor is obliged to return them to MS inclusive of any produced duplicates immediately after fulfillment of the order without being expressly required to do so by MS; in so far, the contractor is not entitled to exercise any right of retention. Contractor is only entitled to use the aforementioned items for the purposes of fulfillment of the order and must not make them available to any un-authorized third parties in any way. Duplication of the aforementioned items is only admissible in so far, as necessary for the fulfillment of the order. Any and all duplicates have to be handed over and ownership in them has to be transferred to MS as per the first sentence without any costs on their part, as soon as the order has been fulfilled or the items are not necessary anymore for the fulfillment of the order, respectively (item 7. is applicable mutatis mutandis). In so far as the value of the duplicates is so high, that a transfer of ownership to MS without remuneration would appear to be inadequate, contractor is entitled to completely destroy the duplicates instead of transferring ownership in them to MS; before contractor destroys a duplicate, he has to offer it for purchase to MS at market conditions.
3.2. If contractor creates the items mentioned in item 3.1, first sentence, according to an agreement with MS wholly or partially at MS’ costs, item 3.1 is applicable mutatis mutandis, whereby MS with the creation of these items becomes co-owner of them in pro rata-relation to its share of the costs of creation. Contractor keeps these items for MS at no cost; MS is entitled at any time to acquire the rights of contractor in respect of the item against reimbursement of not yet remunerated costs, and to claim delivery of the item in question to it.
3.3. Contractor is obliged to care for and maintain the aforementioned items and to make good ordinary wear and tear. If contractor, in the course of the fulfillment of an order, instructs a sub-contractor to create tools and samples, contractor herewith assigns to MS his claims against such sub-contractor for transfer of ownership in the tools and samples in question; MS irrevocably authorizes contractor to raise the assigned claims for transfer of ownership to himself, for as long as the items are necessary for the fulfillment of the order.
4. Materials supplied by MS
4.1. Material supplied by MS remains in its ownership and has to be kept separately from other items and has to be marked as being in ownership of MS by contractor without any costs and with the exercise of due diligence of a proper merchant. Such material may only be used for the fulfillment of MS’ order. Damages to materials supplied by MS have to be reimbursed by contractor.
4.2. If contractor processes or transforms the material supplied by MS, such activities are performed for and on behalf of MS. MS directly acquires ownership in the new things created thereby. If the material supplied by MS only constitutes a part of the created new things, MS acquires co-ownership in the new things to such an extent, which corresponds with the value of the material supplied by MS as contained therein.
4.3. In so far as contractor suffers damages because of the quality of material supplied by MS, MS is only liable for intentional and grossly negligent behavior, as well as for damages resulting from personal injury.
Upon timely previous notice, MS respectively its employees and/or third parties nominated by it have to be granted free access to the production facilities of contractor and/or its sub-contractors during ordinary business hours, in order to examine the status of production, the use of appropriate materials, the employment of necessary qualified employees and the proper performance of the works ordered. Such inspections do not have any legal effect with regard to a potential acceptance of the works ordered; an inspection does not replace an acceptance, nor does it in any way infringe the sole responsibility of contractor with regard to his works. In particular, the performance of such inspections does not give rise to any contributory negligence on the part of MS.
6. Spare Parts
Contractor guarantees, that in respect of each and every order spare parts will be available for a time period of at least 10 years from the end of the warranty period, and that these spare parts in case of need will be offered to MS at market prices and conditions.
7. Delivery and sending of Goods
7.1. Deliveries are to be effected on basis DDP (Incoterms 2010) to the place nominated by MS, unless otherwise agreed, including packing and conservation.
7.2. Before accepting the order, contractor shall examine, whether items contained in the order and/or components thereof are classed as dangerous goods (e.g. paints, glues, chemicals or combustible, oxidizing, explosive, poisonous, radioactive, acid goods or goods prone to self-heating) in the country of origin, the country of destination and/or all transit countries. At latest with the written order confirmation, contractor has to send to MS all binding declarations, correctly issued and validly signed, which are necessary according to legal requirements for the sending of such goods.
7.3. Contractor has to assure a sufficient transport insurance cover, unless it is agreed, that the risk during the transportation of the goods is to be borne by MS.
7.4. Each delivery has to be accompanied by a delivery note, which contains the order number of MS as well as a description of the type and amount of its contents.
7.5. Delivery of goods regularly has to be effected in standard disposable packing as usual in the trade. In case of use of re-usable packing material, contractor has to make available the packing to MS on the basis of lending without charges. Its returning is effected at the cost and risk of contractor. If MS exceptionally agrees to bear packing costs, they have to be charged on the basis of evidenced costs to the contractor only. For damages of contractor because of loss of or damage to re-usable packings, MS is only liable in case of intent or gross negligence.
7.6. In case of apparatus, a technical description and a users manual have to be included in the delivery without additional costs. In case of software products, the delivery obligation is only fulfilled, if and when the complete (technical and user-) documentation has been handed over. In case of software programs specifically created for MS, the source code of the program has to be delivered in addition.
7.7. Contractor is liable for all damages, which result from incorrectnesses in the binding declarations or because of non-observance of existing rules and regulations during the handling (packing, warehousing, sending etc.) of dangerous goods through contractor.
7.8. Contractor is obliged to assure observance of the applicable national and international rules and regulations when packing, marking and declaring dangerous goods.
8. Import- and Export Rules, Customs
8.1. In case of deliveries and services, which originate from an EU member state other than Germany, the EU VAT Id. No. of contractor has to be provided.
8.2. Imported goods have to be delivered customs cleared. Contractor is obliged to provide declarations and information required under regulation (EG) no. 1207/2001 at his cost, to allow inspections ordered respectively effected through customs authorities and to provide necessary official approvals, whereby the lawfulness of the conduct of the authorities is irrelevant.
8.3. Contractor is obliged, to inform MS in detail and in writing about existing approval requirements in case of (re-) exports according to German, European and US-American export- and customs regulations as well as export and customs regulations of the country of origin of the goods or services.
9. Time limits and consequences of exceeding same
9.1. Agreed time limits for the delivery of goods and services are binding. If delays have been encountered or have to be expected, contractor immediately has to notify MS in writing.
9.2. If contractor does not deliver respectively perform also within a supplementary time limit provided by MS, MS is entitled, without prior announcement, to reject acceptance, to withdraw from the contract or to claim damages for non-fulfilment. MS is entitled to withdraw from the contract, even if the delay was not due to any fault on the part of contractor. Additional costs caused to MS through undue delay, particularly through a necessary replacement purchase caused thereby, are for the account of contractor.
9.3. In cases of item 12.3 as well as in any other agreed case, MS reserves the right to claim an agreed contractual penalty because of improper fulfillment (§ 341 BGB) until the final contractual payment is effected.
10. Conditions of payment, payment default
10.1. Unless otherwise expressly agreed in writing, all prices are understood to be on the basis DDP to the place designated by MS according to Incoterms 2010.
10.2. Payment will be effected after complete and proper fulfillment of the contract, particularly after delivery according to item 7. and provision of any necessary documents/certificates according to item 14.2, as well as after proper invoicing.
10.3. In case of agreed advance instalments, the due date is only determined by MS‘ receipt of an invoice, unless the fulfillment of specific deliveries/services and/or the provision of security have been agreed as preconditions. Invoices for deliveries/services, which MS has agreed to render for third parties and which are to be provided by contractor (whereby contractor knows, that the delivery/service is destined for a third party) do only become due, if and in so far as MS itself has obtained remuneration for the deliveries/services or parts thereof from the third party. If advance instalments have been agreed, contractor remains obliged, to itemize and account for any and all deliveries/services in a specific overall final statement of account.
10.4. After the due date, MS only comes into payment default upon an express written payment demand („Mahnung“), but in any case not before the expiry of 60 days since receipt of contractor’s invoice.
10.5. If a payment default of MS has been caused by simple negligence, any default interest is limited to 3 (three) percentage points above the applicable base rate (§ 247 BGB), unless contractor proves, that it has suffered higher damages as a consequence of the default.
10.6. Payments of MS do in no case amount to an acknowledgment of a proper and professional performance in the sense of a formal acceptance („Abnahme“).
11. Set-off, right of detention
11.1. MS is entitled to all rights of set-off and detention applicable as per law.
11.2. Disputes about the amount of the remuneration payable to contractor do not entitle contractor to suspend performance wholly or partially or even temporarily.
12. Delivery time, delayed delivery
12.1. The delivery time mentioned in the order is binding. Premature deliveries and/or partial deliveries are only admissible with express written consent of MS.
12.2. Contractor is obliged to immediately inform MS in writing, if circumstances arise or become recognizable which may lead to a postponement of the delivery time.
12.3. For each commenced working day of delay over the agreed performance time, MS is entitled to claim 0.2 % of the total contract price, however limited to no more than 5 % of the total contract price, as contractual penalty in addition to fulfilment of the contract. Further and other claims because of late performance (including the right to withdraw from the contract and/or to claim damages in lieu of performance) are not excluded thereby. MS’ right to claim the contractual penalty until final invoicing and payment remains unaffected, even if MS has not reserved this right when accepting the delivery/service.
12.4. MS may order a service/delivery not yet effected by contractor to be performed by a third party at contractor’s cost, in addition and regardless of its other rights after expiration of a supplementary time limit provided by MS, or without having posed such supplementary time limit, if performance is of no interest to MS due to delay resulting from the posing of a hypothetical supplementary time limit or in case of imminent danger or in order to avoid further considerable damages. In each case of a replacement performance ordered by MS, contractor at its own cost has to provide MS with all necessary and available information, has to provide documents to MS which are in contractor’s possession, and has to provide license rights to MS in case of existing protective rights in respect of such documents. As far as there are protective rights of third parties instructed by contractor, especially sub-contractors, contractor will exercise all reasonable efforts in order to provide corresponding licensing rights to MS. With conclusion of the contract, contractor declares its consent to the use of its protective rights in the course of a replacement performance through MS or third parties contracted by MS. MS’ claim for payment of a contractual penalty, which has already arisen up to the point in time, when replacement performance is ordered from a third party, has to be fulfilled by contractor anyhow.
13. Passing of risk
13.1. Regardless of the agreed invoice terms, risk passes when the goods are received at the delivery address given by MS, if delivery without erection or construction is owed by contractor. If contractor ows delivery with erection or construction, risk passes, when erection/construction has been completed successfully and has been formally accepted by MS, in so far as such acceptance is necessary according to § 640 BGB, otherwise with successful completion of erection/construction. Taking into use does not substitute a declaration of acceptance on the part of MS, in so far as such declaration is necessary.
13.2. Ownership in delivered goods passes to MS with payment. Any reservation of title of contractor beyond that point in time is expressly excluded.
14.1. Contractor is obliged, to mention the order number of MS as well as any contractually agreed markings on all transport- and delivery documents. Otherwise, possible consequences (e.g. further delays, additional costs) are for the sole account of contractor.
14.2. Contractor is obliged, to provide to MS originals of all documents, which are necessary for the use of the delivered goods or for trading with them, particularly (class) certificates, at latest within 2 weeks from delivery in accordance with item 7.
15. Warranty, notification of defects, recourse
15.1. Contractor warrants, that its deliveries/services will fulfill acknowledged rules and the latest technical standard, as well as all standards, provisions and rules applicable in the country of contractor and in the country of destination (including safety, workers protection and accident prevention provisions) and all agreed qualities, that they will have all guaranteed properties and will be free of factual and legal defects. In so far as the aforementioned standards, provisions and rules (including safety, workers protection and accident prevention provisions) do differ in the contractor’s country and in the country of destination, the requirements in the country of destination are decisive.
15.2. MS is entitled to the legal warranty rights including rights under § 478 BGB (recourse of the ordering party) without any limitations. In any case, MS may at its choice demand remedying of defects or replacement performance from contractor; contractor has to bear all costs which are necessary for remedying defects or providing replacement performance. After respective notice to contractor, MS is also entitled to remedy defects by itself at contractor’s cost, if there is imminent danger or if there is particular urgency or if a supplementary time limit for remedying of defects set previously has expired without success or if a second attempt at performance has failed or if it seems necessary for the mitigation of damages. The aforementioned particular urgency is especially given, if performance would not be of any interest for MS anymore because of the delay connected with a hypothetical supplementary time limit. MS may claim adequate advances from contractor in respect of the necessary costs for remedying defects as aforesaid.
15.3. In so far as MS is entitled to effect the remedying of defects itself as aforesaid, item 12.4 is applicable to the respective obligations of contractor.
15.4. All costs resulting from the remedying of defects, especially for dismantling, assembling, travelling, freight charges, packing, insurances, customs and other public fees, inspections and technical trials, have to be borne by contractor.
15.5. In so far as nothing else has been agreed in writing, MS‘ rights because of defects become time barred after 36 months from the passing of risk (item 13.). If the goods/services are intended for a building, and if they have caused the defectiveness of the building, the time bar is 5 years. Longer legal prescription periods remain unaffected; §§ 438 Sec. 3, 479 and 634 a Sec. 3 BGB also remain unaffected.
15.6. As far and as long as deliveries/services cannot be contractually used due to defect remedying works of contractor, their warranty period is extended by the period of time until contractual use is possible. After the completion of defect remedying works, the parties shall specify the exact length of this extension period in due course by exchanging respective declarations.
15.7. For parts/goods, which have been repaired and/or replaced in the course of contractor’s warranty obligations, the warranty period commences to run anew with the acceptance of the repairs respectively the provision of replacement, but is limited to a total of five, or in case of delivery/services for buildings seven years from the passing of risk.
15.8. Contractor will indemnify and hold harmless MS from any and all claims, which third parties – regardless of their legal basis – raise against MS because of a factual or legal defect or of another defect of a product delivered by contractor, and contractor has to reimburse to MS the necessary costs of related legal proceedings.
16. Product liability, indemnity, insurance coverage
16.1 In so far as contractor is liable for a product defect or for violating legal/official safety provisions, contractor has to indemnify and hold harmless MS in respect of third party claims for damages upon first written demand. In addition, MS may claim reimbursement of all costs, which it has incurred in particular in connection with product recalls having been initiated by MS because of this; MS will, as far as possible and reasonable, inform contractor about product recalls in advance. Further and other legal rights of MS remain reserved.
16.2 The same applies mutatis mutandis, if product defects are due to deliveries/services of sub-contractors of the contractor.
16.3 Contractor is obliged, to insure itself adequately against any liability under the German product liability law (“Produkthaftungsgesetz”) and to prove such insurance coverage to MS upon demand at any time in writing, especially through a respective written confirmation of the contractor’s insurers.
17. Protective rights
17.1. Contractor warrants, that in connection with the fulfillment of MS‘ orders no rights of third parties will be infringed. In case that MS faces claims from third parties, contractor has to hold MS harmless of such claims upon first written demand. The obligation to hold harmless and to indemnify MS extends to all costs, which MS necessarily incurs from or in connection with such claims.
18. Repeated defects and performance
18.1. If contractor, in spite of written notification („Abmahnung“) renders identical or similar deliveries or services again in a defective or delayed way, MS is entitled to immediately withdraw from the contract. MS’s right to withdraw from the contract in such case also encompasses such deliveries and services, which contractor is obliged to provide to MS on the basis of this or another contractual relationship in the future.
19. Safety, environmental protection
19.1. Deliveries and services from contractor have to fulfill the legal requirements, especially the safety and environmental protection provisions including the German regulation of dangerous substances, the ElektroG and the safety recommendations of the competent German professional associations or committees, e.g. VDE, VDI, DIN. Relevant documents, certificates and other written proof have to be delivered to MS without additional costs.
19.2. Contractor is obliged, to examine and fulfill the up to date standards of the applicable guidelines and laws in respect of restricted substances which are relevant for contractor’s deliveries. Substances to be avoided and dangerous substances according to the applicable laws and regulations have to be specified by contractor in the specifications. If applicable, the safety data sheets have to be included with the offers or in the contractor’s first delivery together with the delivery order (at least in German and English language). Notifications about the exceeding of substance restrictions and delivery of prohibited substances have to be communicated to MS immediately.
19.3. In case of deliveries and services, contractor alone is responsible for the observance of accident prevention provisions. Protective devices necessary according to these provisions as well as those resulting from manufacturer’s recommendations have to be delivered from contractor to MS without additional cost.
20.1. Contractor is obliged, to treat confidential all commercial and technical details, which are not obvious and which have become known to it through the business relationship between the parties, and to not pass on such details to third parties.
20.2. Contractor has to obtain the previous written consent of MS, if contractor produces similar goods/services for third parties, if contractor promotes products produced specifically for MS (especially products produced in accordance with plans and drawings or other special requirements of MS), if contractor publicizes orders and deliveries effected for MS or if contractor refers to MS‘ order as against third parties.
21.1. Place of performance is the respective place of delivery as stated by MS.
21.2. Place of jurisdiction is Hamburg, in so far as contractor is a merchant, a juristic person of public law or a foundation subject to public law. However, MS is entitled to sue contractor also at contractor’s seat.
21.3. The contract is subject to German law, excluding the UN Convention on the International Sale of Goods.
21.4. If clauses of these GPC should be invalid wholly or partially, then this does not affect the validity of the other clauses respectively of the other parts of said clauses. In so far as provisions of these GPC are invalid, the parties oblige themselves to agree on a replacement clause, which most closely approximates the intended objective of the invalid clause or part of a clause at the time of the conclusion of the contract.