General Terms and Conditions of Delivery and Services
SeaRenergy Offshore Holding GmbH & Cie. KG (hereinafter referred to as “SeaRenergy”)
1. General Provisions
1.1. These Terms and Conditions (hereinafter the “Terms”) shall apply to all business relations of SeaRenergy with its customers (hereinafter referred to as “Customer”) to the extent no other agreement has been explicitly made in writing. These Terms are applicable only to national or international enterprises covered by Section 14 of the German Civil Code, to legal persons under public law and to special funds under public law covered by Section 310 of the German Civil Code.
1.2. These Terms shall apply exclusively. Any terms and conditions proposed in Customer´s offer, acceptance or in any acknowledgment, invoice, or other form of Customer that add to, vary from, or conflict with the Terms herein are hereby rejected. These Terms shall also apply in the event that SeaRenergy unconditionally makes the delivery or performs services to the Customer despite its knowledge of conflicting or differing or contrary general terms and conditions of the Customer.
1.3. Only orders or changes or additions to the Terms placed in writing shall be binding for SeaRenergy. Oral agreements and collateral agreements are only binding after a written confirmation by SeaRenergy.
2. Conclusion of Agreement
2.1. If not expressly stated otherwise in the offer submitted by SeaRenergy, offers by SeaRenergy are not binding.
2.2. Agreements concluded with SeaRenergy enter into force only after the orders received by SeaRenergy have been confirmed in writing, or the supplies or services ordered have been delivered or performed respectively. The same applies to requests by the Customer aimed at supplementing, modifying or extending an agreement. All orders by the Customer are deemed to be binding. Unless expressly stated otherwise in the offer, SeaRenergy has four (4) weeks from the date of receipt of the offer to accept it.
3. Prices, Payments
3.1. Prices for deliveries are quoted net in EURO ex works plus statutory V.A.T., excluding packaging costs, customs duties in the case of exports and tariffs and other public dues.
3.2. Prices for services provided are quoted net in EURO, plus the applicable statutory V.A.T.. The price calculation for services is based on time and expenses, unless it was agreed to provide the services for a lump sum.
3.3. In the event of deliveries abroad or services provided by SeaRenergy abroad, all taxes, fees and duties charged on the basis of provisions outside the Federal Republic of Germany, together with costs connected with these, are to be borne by the Customer. This shall also apply in the event that the remuneration of SeaRenergy´s personnel to be paid is subject to taxation.
3.4. Invoices are to be settled within fourteen (14) days of receipt of the respective invoice, without deductions. The decisive date for the payment is the date of receipt of payment by SeaRenergy on its bank account.
3.5. In the event of default of payment by the Customer and without prejudice to any other rights or claims, SeaRenergy is entitled to charge interest from the point in time of the start of the delay at a rate of eight (8) percentage points above the respective base interest rate. Prior to full payment of outstanding invoice amounts, including interest accrued, SeaRenergy is not obliged to make any further deliveries or render any further services to the Customer from any ongoing contracts. SeaRenergy reserves the right to receive compensation for additional loss occurring in relation to default of payment.
4. Delivery, Delayed Delivery and Delayed Acceptance
4.1. The parties will agree on the delivery dates or delivery periods or commencement of performance of services individually in writing.
4.2. Provided that nothing to the contrary has been agreed upon, deliveries take place ex works respectively.
4.3. The delivery of the goods is at the cost and risk of the Customer. SeaRenergy is entitled to determine the type of transportation (particularly forwarding companies, dispatch route, packaging, insurance) itself.
4.4. Goods are delivered if the goods have been made ready to be picked up by SeaRenergy before or at the time when the delivery period expires.
4.5. Performance has been carried out when the contractual services have been provided within the agreed time limits or when minor reworking operations are required, provided that the functionality of the object of performance is only minimally impaired by this.
4.6. SeaRenergy is entitled to make partial deliveries and to supply before the delivery date within the agreed delivery period or up until the agreed delivery date, provided they are utilizable by the Customer in the framework of the contractual purpose and do not produce considerable additional expenditure for the Customer. The Customer must be informed in advance in the case of partial deliveries and supplies before the delivery date.
4.7. Delivery periods are extended or delivery dates are postponed by the length of time of the obstruction, plus a reasonable lead time, in the event of force majeure, industrial action, disruption of operations of any kind or other unforeseeable circumstances not under the control of SeaRenergy. Counting as a “circumstance” under the previous sentence are late deliveries by a supplier provided that SeaRenergy has concluded a covering deal in good time. If the obstruction lasts longer than three months, the parties are entitled to rescind the contract, with their statutory rights remaining unaffected by this. This provision shall also apply with regard to deadlines of performance of services.
4.8. In any event SeaRenergy is entitled to stock up on goods of the same kind and quality from different sources than those that might be laid down in the contracts for the performance of the contract.
4.9. If the Customer is in delay in accepting deliveries or services or if it culpably breaches other cooperation obligations, SeaRenergy is entitled to request compensation for loss occurring in this respect, including possible additional expenditure. Further rights or claims are reserved.
4.10. If SeaRenergy is in delay in making a delivery or in providing services or if it becomes impossible, for whatever reason, for SeaRenergy to make a delivery or to provide services, and the Customer has suffered a loss due to this delay, the Customer is entitled to demand compensation for the delay. The Customer is entitled to claim an amount of zero point five (0.5) percent of the net value of the goods or services per week of the delay, in total, however, not exceeding five (5) percent of the net value of the goods or services. Any losses for delay going beyond this are excluded. SeaRenergy is allowed to provide evidence that the Customer did not actually suffer losses due to delay or that losses were lower than the amount mentioned above. SeaRenergy´s liability shall be limited in accordance with Clause 10 of the Terms. SeaRenergy´s statutory rights (e.g. due to impossibility of, or exceptional hardship through, performance and/or rectification) remain unaffected.
5. Passage of Risk, Acceptance
5.1. With regard to deliveries, the risk of accidental destruction and accidental deterioration of the goods and the risk of delay are transferred to the Customer as soon as the goods have been made ready for picking up by SeaRenergy at the place the parties have agreed on. If it has been agreed that the goods should be sent by SeaRenergy, the abovementioned risks are transferred to the Customer with the handing over the goods to the freight forwarder or other persons used to perform the shipping if an agreement for work is involved. If acceptance of the goods to be delivered or services is agreed, the acceptance is the point in time of the passage of risk.
5.2. Deliveries or services shall be accepted only if this was agreed in writing or legally provided for. If acceptance was agreed, SeaRenergy notifies the Customer in writing about the readiness of the deliveries or services for acceptance. Acceptance shall take place within 14 calendar days upon the notification about the readiness for acceptance. Upon expiry of 14 calendar days the deliveries or services are deemed to be accepted if acceptance was not affected before for reasons beyond the Customer´s control. The Customer shall not refuse the acceptance of deliveries and services on account of minor defects.
5.3. The deliveries and services are also deemed to be accepted as soon as the Customer has put the delivered item into use for longer than a week without reporting defects. The aforementioned shall not apply if the usage was unavoidable for the Customer due to special circumstances.
5.4. Customer´s claims are time barred after one year starting from delivery or completion of services to be performed unless the mandatory statutory limitation periods provide a longer limitation period. This does not apply to claims for which SeaRenergy is liable without limitation in accordance with Clause 10.
6.1. In case of a delivery of goods SeaRenergy is only liable for defects (incl. incorrect assembly instructions) in accordance with statutory law, unless there is a provision to the contrary in this Clause 6.
6.2. The defect claims of the commercial Customer require, in the case of a delivery of goods, that the Customer, without delay, but at the latest within seven (7) days, after taking delivery, makes a complaint to SeaRenergy in writing in relation to recognizable defects. Hidden defects are to be the subject of a complaint in writing by the Customer without delay following their discovery (Section 377 German Commercial Code).
6.3. The Customer shall not be entitled to assert any claim for defects, in the event of minor deviation from the agreed condition or in the event of insignificant impairment in the usability or in the event of natural wear and tear.
6.4. In the event of a defect SeaRenergy has the right to remedy the defect at its own discretion and has at least two attempts for rectification for which a reasonable time shall be given by the Customer.
6.5. SeaRenergy shall not bear any additional costs due to a change of the place of delivery. These costs shall be borne by the Customer.
6.6. SeaRenergy shall not be liable for defects which are solely attributable to items or material provided by the Customer or any improper handling by Customer´s personnel.
6.7. If the Customer gives notice of a defect, the Customer shall reimburse SeaRenergy for all costs and expenses incurred, if in fact there is no defect.
6.8. With regard to the time-bar for claims in connection with defects, Clause 5.4 applies.
7. Property Rights
All right over all documents given to or made accessible to the Customer are reserved to SeaRenergy, including in particular all proprietary rights and copyrights. Without the prior written consent of SeaRenergy, documents given by or made accessible by SeaRenergy shall not be used for purposes outside the agreement and shall not be divulged to third parties. Upon request, such documents shall be returned to SeaRenergy.
8. Offsetting and Assignment
8.1. Claims for payment to SeaRenergy shall not be subject to any setoff unless the counterclaim of the Customer is undisputed or based on a decision by a competent court or arbitration which is final and binding or based on a defect of goods delivered to the Customer.
8.2. Subject to Section 354a of the German Commercial Code the Customer shall not assign or transfer (whether voluntarily or involuntarily, by operation of law or otherwise) any or all of its rights or obligations under the agreement without the prior written consent of SeaRenergy.
9.1. The Customer shall provide all relevant certificates, work permits, permits and documents and export licenses according to the requirements of the Bundesamt für Wirtschaft und Ausfuhrkontrolle, if required, and in any event provided that SeaRenergy´s responsibility is not explicitly agreed upon.
9.2. If SeaRenergy provides services abroad, the Customer has to ensure that, at its own costs, SeaRenergy will receive all necessary authorisations for the import and export of tool, equipment and other materials.
9.3. The Costumer shall at its own costs and expense provide SeaRenergy with all information, such as but not limited to soil conditions and weather conditions, which SeaRenergy reasonably requires for the performance of services. In the event the Customer becomes aware of such information in the course of the performance by SeaRenergy, the Customer shall inform SeaRenergy without undue delay about the occurrence or change of information already provided.
10.1. The Customer shall be liable in accordance with the applicable statutory provisions.
10.2. SeaRenergy shall only be liable as set out in this clause and is excluded in the remainder.
10.3. SeaRenergy is liable in the framework of the fulfillment of its obligations under the agreement without limitation for loss of life and damage to health, as well as in the cases of willful misconduct and gross negligence in line with the statutory provisions. The same applies to claims against SeaRenergy under the Product Liability Act. For negligent breaches of fundamental contractual duties, liability is limited to loss which is foreseeable for the type of contract. Fundamental contractual duties are those whereby only with their fulfillment a normal execution of the contract is possible and on the fulfillment of which the Customer has relied and was entitled to rely. In all other cases, SeaRenergy´s liability for negligently causing any damage or loss is excluded.
11. Provision of SeaRenergy’s Materials
11.1. Drawings, blueprints, samples, production regulations, company-internal data, tools, equipment, or any other material provided by SeaRenergy shall remain the property of SeaRenergy. It shall be used for the purposes of the agreement only, and it shall not be reproduced or made accessible to third parties without the written consent of SeaRenergy and it is to be safely stored and maintained in good, workable condition and it shall be plainly marked and adequately identified as SeaRenergy’s material. After the agreement has been fully executed it is to be returned to SeaRenergy including all duplicates made without request or – after written consent – to be destroyed by the Customer.
11.2. In the event that the Costumer processes or transforms materials provided, this shall be carried out for the benefit of SeaRenergy. SeaRenergy shall become the direct owner of the new objects processed or transformed. If the material provided only accounts for part of the new objects, SeaRenergy shall be entitled to the co-ownership of the new objects in the ratio which corresponds with the value of the provided material contained therein.
12.1. “Confidential Information” shall mean all information, knowledge or data (including without limitation financial, business, and product strategy information; product specifications; product designs; procedures; studies; tests; and reports) in written, electronic, tangible, oral, visual or other form, (i) disclosed by, or obtained from, SeaRenergy or (ii) conceived, created, acquired, or first reduced to practice in connection with the agreement. If SeaRenergy furnishes sample products, equipment, or other material to Customer, the material so received shall be used and the information obtained from said material shall be treated as if it were Confidential Information disclosed in connection with the agreement.
12.2. Unless the Customer has received SeaRenergy’s express written consent to the contrary, the Customer shall (i) use the Confidential Information solely for the purposes of the agreement and not for any other purpose (including, without limitation, designing, manufacturing, selling, servicing or repairing equipment for entities other than SeaRenergy; providing services to entities other than SeaRenergy; or obtaining any government or third party approvals to do any of the foregoing); (ii) safeguard the Confidential Information to prevent its disclosure to, or use by, third parties; (iii) not disclose the Confidential Information to any third party; and (iv) not reverse engineer, disassemble, or decompile the Confidential Information
12.3. The agreement shall not restrict the Customer from using or disclosing any information that, as proven by written contemporaneous records kept in the ordinary course of business: (i) is or may hereafter be in the public domain through no improper act or omission of the Customer or a third party; (ii) is received by the Customer without restriction as to disclosure by the Customer from a third party having a right to disclose it; (iii) was known to the Customer on a non- confidential basis prior to the disclosure by SeaRenergy.
12.4. The conclusion of the agreement is to be treated confidentially. Reference may only be made to the business transaction with SeaRenergy in advertising materials of the Customer after obtaining written consent. SeaRenergy and the Customer undertake to treat all non-obvious commercial or technical details, of which they become aware through the business relationship, as business secrets. Sub-suppliers are to be obliged accordingly.
13. Applicable Law
This agreement and all non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with German law under the exclusion of the UN Convention on the International Sale of Goods as well as the standards of conflict of international private law.
14. Place of Jurisdiction
Unless provided otherwise by mandatory statutory provisions the exclusive place of jurisdiction for all disputes from the agreement is Hamburg.