TERMS & CONDITIONS
GENERAL TERMS AND CONDITIONS OF SALE & DELIVERY
1. Scope of Application
1.1 These General Terms and Conditions of Sale (hereinafter: GTC) apply to all contracts for the supply of goods and the provision of services between us, DHV Marine GmbH, Bostalstraße 24, 37115 Duderstadt, Germany, Managing Director: Sven Grissmer, District Court Göttingen, HRB 3827, Phone: +49 (0) 5527 999 644, E-mail: sales.team@dhv-marine.de, and you as our customer.
1.2 These GTC apply exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law. We do not enter into contracts with consumers within the meaning of § 13 BGB.
1.3 All agreements made between you and us in connection with the contract arise in particular from these GTC and our quotation. Our order confirmation is additionally decisive for the type, scope and execution of the delivery.
1.4 The version of the GTC valid at the time of conclusion of the contract shall apply.
1.5 We do not accept deviating terms and conditions of the customer. This also applies if we do not expressly object to their inclusion. This also applies if we carry out the delivery without reservation in knowledge of conflicting conditions. The customer's purchasing conditions do not become part of the contract, neither through acceptance of an order without objection nor through reference in order forms, framework agreements or supplier portals.
1.6 These GTC in their respective current version also apply to all future transactions with the customer without the need for us to refer to them again in each individual case.
2. Conclusion of Contract
2.1 Upon receipt of your non-binding inquiry, we will send you an individual quotation by e-mail or provide it to you by other means. We are bound by this quotation for a period of two (2) weeks after its issuance. If the quotation contains a different validity period, this shall take precedence. Interim sale of the quoted items is reserved. Our quotations are intended exclusively for the addressed customer and are confidential within the meaning of Clause 13.
2.2 A contract is only concluded when you accept our quotation by a declaration of acceptance, which may also be made implicitly by payment for the ordered items. Our order confirmation is decisive for the content and scope of the delivery.
2.3 Technical data, illustrations, drawings as well as dimensional and weight specifications in catalogues, brochures and other documents are approximate values and do not constitute a guarantee of quality. The manufacturer reserves the right to make changes in design, materials and form, provided they are reasonable for the customer and do not impair the function of the item.
3. Prices and Terms of Payment
3.1 All prices are net in Euro ex works Duderstadt (EXW, Incoterms 2020), plus the applicable statutory value added tax as well as packaging, shipping, insurance, customs and import costs. For tax-exempt export deliveries and intra-Community deliveries, the customer is obliged to provide the documentation required for tax exemption without delay; otherwise we are entitled to charge the statutory VAT subsequently.
3.2 Shipping costs are stated in the quotation.
3.3 If delivery is made, as agreed, later than four (4) months after conclusion of the contract, we are entitled to adjust the agreed prices reasonably, insofar as our procurement, freight, energy or raw material costs have demonstrably increased after conclusion of the contract. If the increase exceeds 10% of the agreed price, the customer is entitled to withdraw from the contract.
3.4 Unless otherwise agreed, invoices are due for payment within thirty (30) days of the invoice date without deduction. A cash discount requires an express agreement in text form. In the event of default of payment, you owe default interest at a rate of nine (9) percentage points above the base interest rate as well as the flat-rate compensation pursuant to § 288 (5) BGB; the right to claim further damages for default is reserved.
3.5 Payments are to be made in Euro without deduction to the account stated in the invoice. All bank charges and fees of the customer and the correspondent banks involved shall be borne by the customer. If withholding taxes or comparable levies are to be retained on payments, the payment amount shall be increased so that we receive the full invoice amount.
3.6 We are entitled to make deliveries against advance payment or against the provision of security if the customer is a new customer, has its registered office outside the European Union, or if circumstances become known after conclusion of the contract which give rise to concerns about a material deterioration of the customer's financial situation. In these cases, we are also entitled to declare open claims immediately due.
3.7 We are entitled to make partial deliveries insofar as these are reasonable for you. If we fulfil your order through partial deliveries, you will only incur shipping costs for the first partial delivery. If partial deliveries are made at your request, we will charge shipping costs for each partial delivery.
4. Delivery, Shipment and Transfer of Risk
4.1 Delivery is ex works Duderstadt (EXW, Incoterms 2020), unless otherwise agreed in text form. The risk of accidental loss and accidental deterioration passes to the customer upon handover of the goods to the forwarder, carrier or other person designated to carry out the shipment; this also applies if we bear the shipping costs or free delivery has been agreed. We only take out transport insurance at the express request and at the expense of the customer.
4.2 Delivery dates and delivery periods are non-binding unless they have been expressly agreed in text form as binding. A stated delivery date refers to the date of readiness for dispatch ex works; the actual transport time is added and depends on the mode of shipment and destination. Partial deliveries are permitted insofar as they are reasonable for the customer.
4.3 Our delivery obligation is subject to correct, complete and timely self-delivery. If we are not supplied or not supplied in time for reasons not attributable to us, the delivery period shall be extended accordingly; we shall inform the customer without delay and refund any consideration already rendered if delivery definitively fails.
4.4 Events of force majeure – in particular war, embargoes, sanctions, epidemics, natural disasters, strikes, lockouts, operational disruptions, cyberattacks, blocking of transport routes and sovereign measures – release us from the delivery obligation for the duration of the disruption and to the extent of its effect. If the disruption lasts longer than three (3) months, both parties are entitled to withdraw from the unfulfilled part of the contract; claims for damages shall not exist in this case.
4.5 If the customer does not call off the goods within the agreed period or if shipment is delayed for reasons attributable to the customer, the customer shall be in default of acceptance upon receipt of our notification of readiness for dispatch. We are entitled to store the goods at the customer's cost and risk in our warehouse or with a third party. Storage is free of charge for the first four (4) weeks from notification of readiness for dispatch. Thereafter we charge a storage fee of 0.5% of the net value of the stored goods for each commenced week, but not exceeding 10% of the net value. The customer retains the right to prove lower costs; we reserve the right to claim higher proven expenses.
4.6 If the customer fails to accept the goods even after expiry of a reasonable additional period of at least two (2) weeks set by us, we are entitled to withdraw from the contract and to demand damages in lieu of performance. Damages shall be a flat rate of 20% of the net order value of the goods not accepted, unless the customer proves that no damage has been incurred at all or that the damage is substantially lower; the right to claim higher proven damages remains reserved. The right to self-help sale pursuant to § 373 HGB and the claim for reimbursement of additional expenses pursuant to § 304 BGB remain unaffected.
4.7 The payment of contractual penalties for delivery delays or other performance disruptions is excluded, regardless of the cause of the disruption. Claims for damages due to delay are governed exclusively by Clause 10.
5. Set-off and Right of Retention
5.1 You are not entitled to set off against our claims unless your counterclaims have been finally adjudicated or are undisputed. You are also entitled to set off against our claims if you assert defect notices or counterclaims from the same purchase contract.
5.2 As buyer, you may only exercise a right of retention if your counterclaim arises from the same purchase contract.
6. Retention of Title
6.1 The delivered goods remain our property until full payment of all claims arising from the business relationship with the customer (reserved goods).
6.2 The customer is entitled to resell the reserved goods in the ordinary course of business. The customer hereby assigns to us by way of security all claims arising from such resale in the amount of our invoice; we accept the assignment. The customer remains authorised to collect these claims; we may revoke the authorisation if the customer fails to meet its payment obligations.
6.3 Processing, transformation, combination or mixing of the reserved goods is always carried out on our behalf without any obligations arising for us. We acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the value of the other processed items.
6.4 The customer may neither pledge the reserved goods nor transfer them as security. In the event of seizures, confiscations or other third-party access, the customer must notify us immediately and provide all information necessary to protect our rights.
6.5 In the event of default of payment, we are entitled to demand the return of the reserved goods and to enter the storage location for this purpose; this does not constitute a withdrawal from the contract. If the realisable value of the security exceeds our claims by more than 10%, we shall release security of our choice at the customer's request.
6.6 For deliveries into jurisdictions where the retention of title in this form is not effective, the customer shall cooperate in all measures necessary to establish equivalent security.
7. Selection of Goods and Customer's Cooperation Obligations
7.1 The identification of the required spare part is the customer's responsibility. The customer shall in particular provide us with the compressor type, the manufacturer's part number and the data from the nameplate and, upon request, provide corresponding photographs or documentation.
7.2 If we select items based on information provided by the customer, this is done on the basis of the information transmitted. Our technical information and recommendations are non-binding and do not constitute a guarantee of quality or suitability, unless they are expressly designated as a binding quality specification in text form.
7.3 Installation of the delivered items may only be carried out by qualified specialist personnel in compliance with the manufacturer's, maintenance and operating instructions. The customer shall inspect the items for identity, dimensional accuracy and integrity before installation. If a recognisably deviating or damaged item is installed, claims for damage caused thereby shall be excluded.
8. Warranty, Inspection and Notification Obligations
8.1 The quality of the goods is conclusively determined by the product description and our order confirmation. Public statements by third parties, in particular by manufacturers, do not establish any quality beyond this. We only assume guarantees insofar as they are expressly designated as such in text form.
8.2 The customer shall inspect the delivered goods immediately upon delivery and give notice of defects pursuant to § 377 HGB. Obvious defects, transport damage and incorrect or short deliveries must be notified to us in text form within seven (7) working days of delivery; hidden defects without delay, but no later than within seven (7) working days of their discovery. If timely notice is not given, the goods shall be deemed approved.
8.3 The defect notification must contain the document and order number, the affected article and part number, the nameplate data as well as a comprehensible description of the defect and must be substantiated by meaningful photographs. Complained items must be retained and made accessible to us upon request; return shipment shall only be made after prior approval by us. Without our consent, complained items may not be disassembled, processed or repaired unless this is absolutely necessary to mitigate damage.
8.4 In the case of a defect, we shall provide subsequent performance at our choice by repair or replacement delivery. If subsequent performance fails twice, the customer may, at its choice, reduce the price or withdraw from the contract; claims for damages are governed by Clause 10.
8.5 The limitation period for defect claims is twelve (12) months from delivery of the goods. Claims due to intent, fraudulent concealment, injury to life, body or health, claims under the Product Liability Act and recourse in the supply chain pursuant to §§ 445a, 445b BGB remain unaffected.
8.6 Any seller guarantees given by us for certain items or manufacturer guarantees granted by the manufacturers of certain items are in addition to claims for material or legal defects within the meaning of Clause 8.4.
8.7 Defect claims do not exist in the case of natural wear and tear or damage occurring after the transfer of risk due to improper installation, improper handling or storage, operation outside the manufacturer's specifications, use of unsuitable operating materials or oils, non-compliance with maintenance intervals, overloading, corrosion or interference by third parties not approved by us. Wear parts – in particular valves, valve plates, gaskets, piston and oil scraper rings, filters, oil separators, bearings and belts – are subject to operational wear which does not constitute a defect.
8.8 We bear expenses required for the purpose of subsequent performance only up to the amount of the costs of a replacement delivery to the contractually agreed place of destination. We do not bear costs arising from the item being at a location other than the agreed place of destination – in particular travel costs to and from vessels, ports, anchorages or shipyards, costs for service personnel, crane, diving and handling services as well as costs from demurrage, off-hire or route changes.
9. Cancellation, Non-acceptance and Returns
9.1 The customer has no right to cancel or amend an order that has been placed and confirmed by us. If we agree to a cancellation or order amendment in an individual case, the customer is obliged to reimburse us for the expenses incurred up to that point. These amount to a flat rate of 5% of the net order value, at least EUR 50.00, provided the goods have not yet been picked.
9.2 If the goods have already been picked, preserved or packed ready for dispatch at the time of cancellation, we charge a handling fee of 15% of the net goods value, at least EUR 75.00, for unpacking, inspection, re-preservation and re-storage. Freight, packaging, customs and documentation costs already incurred are charged in addition. The customer retains the right to prove lower expenses.
9.3 Items manufactured to customer specifications, special procurements and items we have already ordered from a supplier for the execution of the order and which the supplier does not take back or only takes back against cost participation, cannot be cancelled. In these cases, the customer owes the agreed remuneration less saved expenses; cancellation and re-storage costs charged by our suppliers are passed on at the actually incurred amount.
9.4 Return of non-defective goods is only accepted after prior agreement in text form and does not establish any claim of the customer. Excluded from return are items manufactured to customer specifications, special procurements and items we have specifically sourced for the order.
9.5 Returned goods must be received by us unused, undamaged and in unopened original packaging within fourteen (14) days of delivery. We charge a restocking fee of 20% of the net goods value, but at least EUR 50.00; the return shipping costs shall be borne by the customer. The customer retains the right to prove lower expenses.
10. Liability
10.1 We are liable to you in all cases of contractual and non-contractual liability for intent and gross negligence in accordance with statutory provisions.
10.2 In other cases, we are liable – unless otherwise provided in Clause 10.3 – only for breach of a contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which you as the customer may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage. In all other cases, our liability is excluded, subject to the provision in Clause 10.3.
10.3 Our liability for damages arising from injury to life, body or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.
10.4 Insofar as we are liable under Clause 10.2 for foreseeable, contract-typical damage, our liability per claim is limited to the net value of the order concerned, but not exceeding EUR 250,000.00. Liability is excluded in particular for loss of profit, loss of use and production, off-hire, loss of charter, demurrage, towage, salvage, diversion and port costs as well as for third-party claims against the customer.
10.5 The above limitations and exclusions of liability apply to the same extent in favour of our legal representatives, employees and vicarious agents.
10.6 The above provisions do not involve a change in the statutory burden of proof to the detriment of the customer.
11. Export, Customs and Sanctions Regulations
11.1 Delivery is subject to the proviso that there are no obstacles due to foreign trade regulations of the Federal Republic of Germany, the European Union or – where applicable – the United States of America. The customer shall, upon request, inform us of the end user, the country of destination and the intended use of the goods and provide the required end-use certificates.
11.2 The customer undertakes to comply with all applicable export, embargo and sanctions regulations. The customer warrants that neither it nor the end user is listed on any relevant sanctions list and that the goods will not be supplied directly or indirectly to listed persons, organisations or entities.
11.3 The customer undertakes not to sell, export or re-export delivered goods falling within the scope of Article 12g of Regulation (EU) No 833/2014 directly or indirectly to the Russian Federation or for use in the Russian Federation. The customer shall use its best efforts to ensure that this purpose is not frustrated by third parties in the downstream trade chain, in particular by passing on a corresponding obligation to its buyers. The customer shall notify us without delay of any problems in the application of this obligation and shall provide us with information on compliance within two (2) weeks upon simple request.
11.4 In the event of a breach of Clause 11.2 or 11.3, we are entitled to withdraw from the contract or to terminate it for cause without the customer deriving any claims therefrom. The customer shall indemnify us against all claims, fines and costs arising from such a breach.
11.5 Delays due to required permits, export controls or sanctions checks extend the delivery period accordingly; a delivery delay does not occur in this respect.
12. Certificates and Documentation
12.1 Certificates, mill test reports, declarations of conformity, certificates of origin and classification documents are only provided if they were expressly ordered at the time of placing the order. Subsequent issuance is not possible. The ordering of certificates may extend the delivery time; the resulting costs are charged separately.
13. Intellectual Property, Trademarks and Copyrights
13.1 We supply both original spare parts and functionally equivalent spare parts. The mention of manufacturer names, trademarks, type designations and manufacturer part numbers serves exclusively for the description and identification of the intended use and does not constitute a statement about the origin of the goods. Unless expressly stated otherwise in the quotation, we are not an authorised dealer of the respective manufacturer.
13.2 We hold the copyrights and other intellectual property rights to all images, films, texts, drawings, catalogues, parts lists, item lists and cross-reference lists that we publish or make available to the customer. Use, reproduction or disclosure without our express consent in text form is not permitted; in particular, use for the procurement of corresponding items from third parties is prohibited.
13.3 Quotations, cost estimates, drawings and other documents remain our property and must be returned to us upon request if an order is not placed.
14. Confidentiality
14.1 The parties shall treat all non-public information of the other party obtained in the course of the business relationship as confidential and use it exclusively for the purposes of performing the contract. Confidential information includes in particular our quotations and quotation documents, prices, price lists, discounts, payment and delivery terms, sources of supply, technical documents, drawings, parts lists and cross-reference lists. This information is confidential even if it is not expressly marked as such.
14.2 The customer shall not disclose, publish or make available to third parties, in whole or in part, our quotations and the prices and conditions stated therein. In particular, disclosure to our competitors, use for obtaining comparative or follow-up quotations from third parties and posting on tendering, procurement or supplier portals is prohibited. Disclosure to the end customer or shipowner of the customer to the extent necessary remains permissible, provided that such party is correspondingly bound to confidentiality.
14.3 Disclosure to advisors who are legally obliged to maintain secrecy and to affiliated companies is permissible insofar as this is necessary for the performance of the contract and the recipients are correspondingly obliged. The confidentiality obligation does not apply to information that was demonstrably already publicly known, becomes publicly known without a breach of this agreement, was lawfully known to the recipient prior to the disclosure, or must be disclosed due to a legal or official obligation; in the latter case, the other party is to be notified in advance, where permissible.
14.4 The obligation shall continue for a period of three (3) years after termination of the business relationship. Claims under the German Trade Secrets Protection Act (GeschGehG) remain unaffected. We are entitled, in the case of a culpable violation of Clause 13.2, to demand reimbursement of the damage caused thereby.
15. Data Protection
15.1 We process personal data of the customer exclusively in accordance with applicable data protection regulations, in particular the GDPR, and only insofar as this is necessary for the performance of the contractual relationship. Details are set out in our privacy policy.
16. Applicable Law, Jurisdiction and Place of Performance
16.1 The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
16.2 The exclusive place of jurisdiction for all disputes arising from and in connection with this contractual relationship is Göttingen. We are also entitled to sue the customer at its general place of jurisdiction.
16.3 For customers with their registered office outside the European Union, the European Economic Area and Switzerland, the following applies in deviation from Clause 16.2: All disputes arising out of or in connection with this contractual relationship shall be finally settled under the Arbitration Rules of the German Maritime Arbitration Association (GMAA) to the exclusion of the ordinary courts. The place of arbitration is Hamburg; the language of the proceedings is German or English.
16.4 The place of performance for delivery and payment is Duderstadt.
17. Final Provisions
17.1 Amendments and supplements to this contract, including this clause, require text form. Oral side agreements do not exist.
17.2 The customer may only transfer rights and obligations from this contractual relationship to third parties with our prior consent in text form. § 354a HGB remains unaffected.
17.3 Should individual provisions of these GTC be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that most closely approximates the economic purpose of the invalid provision.
17.4 These GTC are provided in German and, where applicable, in an English translation. In the event of discrepancies between the language versions, the German version shall prevail.