1. Basis of contract

1.1. The following general terms and conditions of DMS Dobler Marine Service GmbH (hereinafter referred to as DMS) shall apply exclusively to all contracts, whether purchase contracts, contracts for work and services or service contracts, also with resellers or processors, all referred to in the following as buyers. The agreement of conflicting terms and conditions of the buyer is contradicted. With the binding order, the acceptance of the service or object or the execution of the commissioned service, the buyer acknowledges these general terms and conditions (GTC) as an integral part of the contract. They shall also apply to all future transactions. The ICC Incoterms in the version valid at the time of conclusion of the contract shall apply only as a supplement and subordinate. Individual agreements shall have priority as a matter of principle.

1.2. Supplementary verbal agreements shall only be effective if they have been confirmed in writing or in text form. Should individual provisions of these GTC be ineffective, the remaining provisions shall remain effective and part of the contractual agreement. Ineffective provisions shall be replaced by the legal regulations.

2. Prices, terms of payment, offsetting

2.1. Offers and cost estimates shall be non-binding unless expressly stated otherwise. Orders or commissions shall only become binding upon DMS’s declaration of acceptance, order confirmation or actual execution. Declarations of intent made by employees who are not authorised to represent the company shall only be effective if a power of attorney is presented or if the declaration is approved in writing or in text form.

2.2. Prices shall generally be net prices without value added tax and shall be for a delivery from the registered office of DMS. Additional services in connection with the deliveries shall be invoiced separately on a time and material basis unless special agreements have been made. The customary local prices valid on the day of delivery or at the registered office of DMS shall be charged. In the event of price and cost increases between the conclusion of the contract and the delivery, the seller shall be entitled to make a corresponding reasonable price adjustment, provided that there is a period of more than three months between the conclusion of the contract and the delivery. Insofar as import tax, value added tax or customs duties are levied, these shall also be borne by the buyer.

2.3. In the absence of other individual agreements, DMS shall be entitled, after binding order placement and before delivery and/or installation of items, to assert appropriate advance payments up to the amount of 95% of the expected total invoice amount and to make the execution of the order or handover of items dependent on the actual payment.

2.4. In the case of service, purchase or work supply contracts (installation of equipment, components, machines and aggregates manufactured by third parties on board), acceptance of the services shall not be required. The payment claim of DMS shall also become due upon completion of definable partial services and upon invoicing. The full final invoice amount shall be paid without deduction within 14 days of the invoice date.

2.5. A set-off or the assertion of a right of retention of the buyer against claims of DMS shall be excluded, unless these claims are undisputed or have been legally established or they are counterclaims from the same contractual relationship.

3. Delivery/Delay/Liability

3.1. Goods shall generally be sold ex works DMS if no delivery, assembly or dispatch has been agreed. The risk of loss or deterioration of the sold goods shall pass to the buyer as soon as DMS has handed over the goods to the forwarding agent, carrier or other person commissioned to dispatch them or has unsuccessfully requested the buyer to collect the goods by setting a deadline. At the buyer’s request, the consignment shall be insured by DMS against theft, breakage, transport, fire and water damage and other insurable risks at the buyer’s expense.

3.2. Information on delivery and assembly times shall be non-binding. Binding dates and fixed transactions shall require express agreement (in writing or in text form). A delay on the part of DMS shall require a written reminder with a reasonable deadline. DMS shall be entitled to commission subcontractors with delivery and assembly activities. If assembly is carried out by order of the buyer to third parties, this shall not create a contractual relationship between the buyer and DMS, even if DMS provides procurement services to third parties.

3.3. If the buyer refuses to make any demanded advance payment or acceptance without justification, if the buyer is in default of acceptance of the item or service, DMS shall be entitled to withdraw from the contract or to terminate it and to demand lump-sum damages / reimbursement of expenses in the amount of 25% of the net order value. The buyer reserves the right to assert a lower damage, DMS reserves the right to assert a higher damage.

3.4. Disturbances in the course of operations or dispatch through no fault of DMS (e.g. force majeure, strike) shall entitle DMS to carry out the delivery or assembly at a later date or to withdraw from the contract because of the part not yet performed. This shall also apply if the necessary cooperation of the buyer (e.g. access to the ship) fails to take place despite a reminder.

3.5. Otherwise, DMS shall be liable in accordance with the statutory provisions only for intent and gross negligence; this shall also apply to the conduct of its representatives or vicarious agents. The liability for damages shall be limited to the foreseeable, typically occurring damage. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.

4. Retention of title/rights of third parties

4.1. DMS shall retain title to the items to be delivered until receipt of all payments under the contract. In the event of breach of contract by the buyer, in particular default in payment, DMS shall be entitled to take back the item even against the will of the buyer. Taking back the goods shall constitute a withdrawal from the contract, which shall also result in the entitlement to utilise the goods. Any additional costs incurred as a result shall be borne by the buyer.

4.2. In the event of seizures, other interventions by third parties or the filing of an insolvency petition, the buyer shall notify DMS immediately in writing so that legal action can be brought in accordance with § 771 ZPO (German Code of Civil Procedure).

5. Services provided by the buyer

5.1. The buyer shall be obliged to cooperate as required. In the case of installations or conversions on ships, the buyer shall, free of charge, provide DMS with any lifting and transport equipment that may be required as well as all necessary auxiliary means, in particular, if applicable, gas, water, electricity, compressed air and lighting.

5.2. Unless otherwise agreed, the buyer shall be obliged to ensure, at its own expense, any necessary preparatory work such as the creation of fastening options, openings and supply lines as well as compliance with the binding safety and insurance regulations for electrical equipment.

5.3. If the acts of cooperation are omitted despite a reminder, DMS shall be entitled to withdraw from the contract or to terminate it and to claim damages/reimbursement of expenses pursuant to Section 3.3.

6. Warranty

6.1. If there is a defect in the object of purchase or the service, DMS shall initially be entitled to subsequent performance / subsequent delivery. If this fails, the buyer shall be entitled, at its option, to withdraw from the contract or demand a reduction of the purchase price.

6.2. The buyer’s warranty rights shall require that it has properly and immediately fulfilled its obligations to inspect and give notice of defects pursuant to § 377 HGB (German Commercial Code). Claims of the buyer for consequential damages as well as for dismantling and installation costs in case of defects of the sold item shall be void if they could have been recognized by professional and proper inspection of the object of purchase prior to installation (e.g. visible damage or non-compliance with the required dimensions and designs).

6.3. The limitation period for warranty/defect claims shall begin with the delivery/installation of the item and shall be one year for new items. There shall be no warranty/defect claims for used goods.

6.4. Within the framework of the concluded contracts, the buyer shall receive a corresponding notice regarding the care and maintenance of the delivered / assembled products as well as any guarantee promises made by the manufacturer. If the care and maintenance instructions and intervals prescribed by the manufacturer or DMS are not observed, liability for material defects/warranty and guarantee shall be void. Guarantees may be given exclusively by the product manufacturer, as the case may be. The buyer shall be obliged to independently secure and assert warranty claims with the manufacturers.

7. Applicable law, place of performance

7.1. The law of the Federal Republic of Germany shall apply exclusively, the validity of the UN Convention on Contracts for the International Sale of Goods shall be excluded. This shall also apply to contracts which provide for the dispatch or installation of goods abroad. The ICC Incoterms in the version valid at the time of conclusion of the contract shall apply only in addition and with subordinate effect.

7.2. Our place of business shall be the place of performance and jurisdiction; however, we shall also be entitled to sue the buyer at its place of jurisdiction (registered office).

8. Data protection

The buyer consents to the processing, use and storage of the company-related data for the purpose of the proper fulfilment of the contract for the duration of the contractual relationship as well as beyond that for the duration of the legal storage periods. In accordance with this consent, external companies, auditors, tax consultants, lawyers and other DMS consultants who are bound to secrecy shall be entitled to process, use and store the buyer’s data insofar as this is necessary for the proper fulfilment of the contract. The buyer reserves the right to information, rectification, restriction and erasure of the data within the framework of the statutory provisions.