General Terms and Conditions
§ 1 Scope
(1) All deliveries, services, activities and offers of DRYNET GmbH (hereinafter the “Contractor”), with the exception ofthe provision of telecommunication services, are exclusively based on these General Terms and Conditions (hereinafter the “DRYNET GTC”). These are an integral part of all contracts concluded by the Contractor with its contractual partners (hereinafter the”Client”) regarding the activities, deliveries or services offered by it.
(2) The DRYNET GTC shall also apply to all future activities, deliveries, services or offers to the customer, even if they are not separately agreed upon again.
(3) Terms and conditions of the Customer or third parties shall not apply, even if the Contractor does not separately object to their application in individual cases. Even if the Contractor refers to a letter thatcontains or refers to terms and conditions of the Client or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the Contractor are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or commissions of the Customer are binding and can be accepted by the Contractor within two (2) weeks after receipt.
(2) The written contract or order (hereinafter the “Contract”), including the DRYNET GTC, is solely authoritative for the legal relationship between the contractor and the client. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract.
(3) Additions and amendments tothe agreements made including these DRYNET GTC must be made in writing to be effective. With the exception of the managing directors and/or authorized signatories authorized to represent the company, the employees of the contractor are not entitled to change the provisions of the contract. The telecommunicative transmission, in particular by telefax or by e-mail, shall be sufficient to comply with the written form.
(4) Oral promises made by the Contractor prior to the conclusion of this Agreement shall not be legally binding and oral agreements of the Parties shall be replaced by the written Agreement, unless expressly agreed in writing between the Parties in each case.
(5) Information provided by the contractor on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 Documents handed over
The Contractor reserves the property rights and copyrightsto all documents provided to the Customer in connection with the placement of the order -also in electronic form -such as calculations, drawings, etc.. These documents may not be made accessible or disclosed to third parties, nor may they be used orreproduced by the Contractor itself or by third parties, unless the Contractor gives the Customer its express written consent to do so. Insofar as the Contractor does not
accept the offer of the Customer within the period from § 2 para. (1), these documents are to be returned immediately. Excluded from this is the storage of electronically provided data for the purpose of usual data backup.
§ 4 Prices and payment
(1) Unless otherwise agreed in writing, prices are ex works Kiel, plus packaging, transport, costs of export handling and, if applicable, plus value added tax at the applicable rate. Any costs incurred for packaging, transport and export handling will be invoiced separately.
(2) The payment of the purchase price or the remuneration has to be made within 14 days after invoicing without any deduction to the following account:
Account holder: DRYNET GmbH
IBAN DE84 2108 0050 0101 7111 00
to be made. The deduction of a discount is only permissible with a special written agreement.
(3) We reserve the right to claim overdue fines, collection fees, interest on arrears and higher damage caused by delay.
(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material, procurement and distribution costs for deliveries made 3 months or more after conclusion of the contract.
(5) Unless otherwise agreed, the Contractor and the Client shall each bear their own bank charges.
(6) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have become res judicata or arise from the same contract under which the activity, delivery and service in question took place.
(7) The Contractor shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Contractor’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
§ 5 Delivery time and delivery
(1) Deadlines and dates for deliveries and services promised by the Contractor shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. The Contractor’s own delivery is always reserved. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport, unless expressly stated otherwise by the Contractor.
(2) The Contractor may -without prejudice to its rights due to default on the part of the Customer -demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the Customer fails to meet or has failed to meet its contractual obligations towards the Contractor.
(3) If the Customer is in default of acceptance or culpably violates other duties to cooperate, the Contractor shall be entitled to demand compensation for the damage incurred by it in this respect,
including any additional expenses. Further claims shall remain reserved. If the above conditions are met, the risk ofaccidental loss or accidental deterioration of the object of sale shall pass to the Customer at the point in time at which the Customer is in default of acceptance or debtor’s delay.
(4) The Contractor shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or thefailure of suppliers to deliver, to deliver correctly or to deliver on time despite a congruent hedging transaction concluded by the Contractor) for which the Contractor is not responsible. Insofar as such events make it significantly more difficult or impossible for the Contractor to provide the delivery or service and the hindrance is not only of temporary duration, the Contractor shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of he hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Contractor.
§ 6 Transfer of risk in case of shipment
If the goods are shipped to the Customer at the Customer’s request, the risk shall pass to the Customer at thelatest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier, shipping service provider or other third party designated to carry out the shipment. If the shipment or the handover is delayed due to a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for shipment and the Contractor has notified the Customer of this. This shall apply regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
§ 7 Retention of title
(1) The contractor retains ownership of the delivered goods until full payment of all claims arising from the delivery contract. This shall also apply to all future goods delivered, even if the Contractor does not always expressly invoke this. The delivered goods as well as the object covered by the retention of title taking its place according to the following provisions shall hereinafter be referred to as “goods subject to retention of title”. The Contractor shall be entitled to demand the return of the reserved goods if the Customer acts in breach of the contract, in particular in the event of default in payment.
(2) As long as ownershiphas not yet passed to him, the customer is obliged to treat the reserved goods with care. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the Customer shall carry this out properly and in good time at its own expense. As long as ownership has not yet been transferred, the Customer shall immediately notify the Contractor in writing if the reserved goods or parts thereof are seized or exposed to other interventions by third parties. Insofar as the third party does not reimburse the Contractor for the judicial and extrajudicial costs, the Customer shall be liable for these.
(3) In the event of resale of the reserved goods to a third party (hereinafter the “Customer”), the Customer shall already assign by way of security upon conclusion of the contract the resulting claim against the third party -in the event of co-ownership of the Contractor in the reserved goods pro rata
in accordancewith the co-ownership share -in the amount of the final invoice amount agreed with the Contractor (including value added tax). The same shall apply to other claims which take the place of the reserved goods or otherwise arise with regardto the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The contractor already accepts the assignment upon conclusion of the contract. This assignment shall apply regardless of whether the reserved goods havebeen resold without or after processing. The Customer shall remain authorized to collect the claim even after the assignment. The Contractor’s authority to collect the claim itself shall remain unaffected. However, the claim shall not be collected as longas the Customer meets its payment obligations from the proceeds collected, is not in default of payment, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
(4) The processing or transformation of the goods subject to retention of title by the Customer shall always be carried out in the name of and on behalf of the Contractor. In this case, the Customer’s expectant right to the reserved goods shall continue in the transformed item.If the reserved goods are processed, the Contractor shall acquire ownership -if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods -or co-ownership (fractionalownership) of the newly created item in the ratio of the value of the reserved goods to thevalue of the newly created item. In the event that no such acquisition of ownership should occur for the Contractor, the Customer shall transfer its future ownership or -in the ratio specified in sentence 3 -co-ownership of the newly created item to the Contractor as security already upon conclusion of the contract. The same shall apply to cases of combination and mixing. If the combination or mixing is carried out in such a way that the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that the Contractor or Customer acquires sole ownership, the party to whom the main item belongs shall transfer to the other party pro rata co-ownership of the uniform item in the ratio specified in sentence 3. In order to secure the Contractor’s claims against the Customer, the Customer shall also assign to the Contractor such claims as accrue to it against a third party as a result of the combination of the reserved goods with a piece of real estate or a ship upon conclusion of the contract; the Contractor shall accept this assignment upon conclusion of the contract.
(5) The Contractor shall release the goods subject to retention of title as well as the items or claims replacing them on a pro rata basis insofar as the Customer requests this and their value exceeds the amount of the claims to be secured by more than 30%.
§ 8 Warranty and notice of defects as well as recourse/manufacturer recourse
(1) The delivered items shall be inspected carefully immediately after delivery to the Customer or to the third party designated by the Customer. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, they shall be deemed approved by the Customer if the Contractor does not receive a written notice of defects within seven (7) working days after delivery. With regardto other defects, the delivery items shall be deemed to have been approved by the Customer if the notice of defect is not received by the Contractor within seven (7) working days after the point in time at which the defect became apparent; however, if thedefect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. At the request of the Contractor, a delivery item which is the subject of a complaint shall be returned to the Contractor carriage paid. Our consent must be obtained prior to any return of the goods. In the event of a justified notice of defect, the Contractor shall reimburse the costs of the most favorable shipping route; thisshall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(2) The warranty period shall be twelve (12) months after delivery of the delivered goods to the Customer. This period shall not apply to claims for damages in case of intent and gross negligence as well as in case of injury to life, body and health, which are based on an intentional or grossly negligent breach of duty by the Contractor or its vicarious agents, for which the statutory limitation period shall apply in deviation from sentence 1. In case of sale of used goods, any warranty for material defects shall be excluded. Insofar as the law mandatorily prescribes longer periods in accordance with § 438 Para. 1 No. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a Para. 1 BGB (construction defects), these periods shall apply.
(3) Should the delivered goods have a defect which was already present at the time of the transfer of risk, the Contractor shall, subject to timely notification of defects, at the Contractor’s discretion either repair the goods or deliver replacement goods. The Contractor shall always be given the opportunity to remedy the defect within a reasonable period of time. Claimsunder a right of recourse shall remain unaffected by the above provision without restriction.
(4) In case of failure of the supplementary performance, i.e. in case of impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the remuneration or the purchase price appropriately.
(5) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of the usability, in the case of natural wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, use of unsuitable operating materials, defective assembly, unsuitable fastening or due to special external influences which are not presupposed according to the contract. If the customer or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
(6) The warranty shall not apply if the Customer modifies the delivery item or has it modified by a third party without the Contractor’s consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.
(7) Claims by the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, including any dismantling and installation costs, shall be excluded insofar as the expenses increase because the goods delivered by the Contractor have subsequently been taken to a place other than the place originally intended by the Customer, unless the transfer is in accordance with their intended use.
(8) In case of defects of components of other manufacturers, which the contractor cannot remedy for licensing or factual reasons, the contractor shall, at his discretion, assert his warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against the contractor exist in case of such defects under the other conditions and according to these DRYNET GTC only if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. During the duration of the legal dispute the limitation period of the respective warranty claims of the customer against the contractor shall be suspended.
§ 9 Liability for damages due to fault
(1) The Contractor’s liability for damages, irrespective of the legal grounds, in particular due toimpossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during
contractual negotiations and tort, shall be limited in accordance with the provisions of this § 9, insofar as fault is relevant in each case.
(2) The Contractor shall not be liable in the event of simple negligenceon the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects which impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations which are intended to enable the Customer to usethe delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as the Contractor is liable on the merits for damages pursuant to § 9 para. (2), this liabilityshall be limited to damages which the Contractor foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose. The above provisions of this paragraph (3) shall not apply in the event of intentional or grossly negligent conduct by members of the Contractor’s executive bodies or senior employees.
(4) In the event of liability for simple negligence, the Contractor’s obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount equal to the value of the order per case of damage, even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Contractor.
(6) Insofar as the Contractor provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 9 shall not apply to the Contractor’s liability for intentionalconduct, forguaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§ 10 Compliance with regulations (“Compliance”)
(1) Health, Safety and Environmental Regulations: Where required by law or regulation, company policy, or at Contractor’s request, Owner will install, maintain, and pay reasonable costs incurred by Contractor for special equipment and protective devices for situations such as high voltage, hazardous materials, heights, industrial activities, offshore or cold water environments, etc.
(2) Data Protection: Customer warrants that it will, whenever required by applicable law, obtain legally binding, effective and transferable consent sufficient for the collection and processing of personal data by Contractor in connection with the Servicesprovided under this Agreement and subject to all other terms and conditions for the handling of personal data set forth in the Agreement. Customer and Contractor agree that (a) Customer will transfer Consent to Contractor when necessary, (b) Consent obtained in accordance with this provision will not exceed the scope and duration necessary for the performance of the Agreement, and (c) Contractor will not exceed the limits of Consent in the performance of the Agreement.(3) Compliance with Laws and Anti-
Corruption: Both Contractor and Client shall comply with all laws, rules and regulations applicable to Contractor, including but not limited to all applicable anti-bribery, anti-corruption and anti-boycott laws, including but not limited to the GermanAnti-Corruption Act, sanctions of the Federal Republic of Germany, sanctions of the European Union, the United Nations Convention against Corruption and anti-boycott regulation of the Organization for Economic Cooperation and Development. If Client uses services on a vessel, Client must comply with all applicable laws of the flag state of such vessel. . Contractor shall not pay any commission or fee or grant any discount to any employee or officer of Customer, nor shall Contractor favor any employee or officer of Customer with any gift or entertainment in excess of nominal value, nor shall Contractor enter into any business arrangement with any employee or officer of Customer without the prior written consent of Customer, unless acting for and on behalf of Customer.
(4) Violations: If Contractor becomes aware that Company has violated any term or condition of thisCompliance Section, including, but not limited to, any investigation of Company by any law enforcement or regulatory agency, Contractor may, effective immediately, suspend the Service or terminate the Contract or any part thereof without liability, provided that Contractor notifies company in writing prior to such suspension or termination, if practical and permitted by applicable law. In the event of such suspension, Company shall continue to pay all amounts due under the Contract. In the event of such termination, Company shall promptly pay to Company any agreed termination fee.
§ 11 Miscellaneous
(1) The relations between the Contractor and the Client shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).
(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from the contract shall be the Contractor’s place of business, unless otherwise stated in the order confirmation.
(3) Insofar as the contract or these DRYNET GTC contain regulatory gaps, those legally effective regulations are deemed to be agreed upon to fill these gaps which the contractual partners would have agreed upon according to the economic objectives of the contract and the purpose of these DRYNET GTC if they had known about the regulatory gap.