Terms and Conditions of Business for Expert Services regarding Nautical and Freight Matters
Version of 28.07.2014
Subject of Contract
These “Terms and Conditions of Business” are valid for all contractual matters between principal and contractor. Diverging terms and conditions only apply if accepted in writing by the contractor. These business terms in current form also apply to follow-up assignments and to enduring business relations, acceptance of which is declared by principals upon order of assignment. Terms and Conditions of Business remain available for review at contractor’s offices.
Order of Assignment
An assignment is ordered verbally or written, if requested by one contract party. Amendments, alterations or collateral agreements require writing to become valid and contractually binding. This applies especially to agreements/information by principal’s employees or possible consulted experts. If an assignment is ordered by e-mail, a proper confirmation by the contractor will be issued in due time. The confirmation of receipt does not constitute a contractually binding acceptance of the assignment but can be issued combined with/as such.
Execution of Assignment
Execution of any assignment, such as the compilation of expert’s opinion or an estimate of value will be effected with the diligence of a proper expert.
The contractor may conduct usual, necessary inspections, collect information and arrange further investigations, travel, produce photographic or other documentation (or have such produced/compiled by qualified personnel) at the principal’s expense, without obtaining further approval as long as no disproportionate costs or unusual measures are applied. The contractor acts neutrally, without prejudice, to the best of his knowledge and belief, with the diligence of a proper expert. As far as subject of the assignment, all effective standards, rules and regulations of engineering are adhered to.
Services to be rendered by the contractor are defined in writing upon order of assignment – with optional partial delivery/fulfillment. Amendments/alterations to the original assignment developing with assignment already in progress will be manifested/agreed upon by the parties concerned in writing – if possible. If such amendments/alterations prove unjust/unreasonable, principals can withdraw from the contract. By exercising this option, services rendered by contractor up to that point have to be compensated by principals.
The contractor shall retain the right to have the assignment partially or in full concluded by a qualified third party. To fulfill the assignment, contractor may conduct necessary and usual inspections/investigations, gather information, document research/investigation by photographs and/or sketches/drawings (or have such produced/compiled by qualified personnel) as well as travel at the expense of principals without obtaining further approval as long as no overly time-consuming/costly and/or unorthodox measures are applied.
With consulting assignments, all opinions, declarations, hints and/or statements are from contractor are understood as recommendations. Without explicit written consent, contractor does not grant elevated or in any other way specified level of protection/quality for individual or all provided recommendations.
Obligation of Principals
Principals provide the contractor with any and all information/documentation required for fulfillment of assignment and grant full cooperation and support. If assignment requires contractor to represent principals against a third party, contractor is to be authorized in writing, if so required. If no explicit reason is provided or per requirement of the assignment, contractor is not obliged to review documents/information or other services provided by principals for their completeness/integrity/authenticity. Principals are to be informed in due time and without further order about any occurrences, which might affect the assignment in any way.
Without adherence to above-listed items, unless contractor is guilty of contributory negligence, the contract will be fulfilled at all liability/risk lying with the principals. All preparations required for fulfillment of assignment are to be provided by principals at own risk and at own expenses. Objects/facilities to be inspected are to be kept freely accessible and at assessable condition by principals. If the assignment cannot be fulfilled as scheduled due to reasons principals are accountable for, contractor reserves the right to charge for efforts accumulated (contract value less saved expenditure in relation to the appointed due date). Principals retain the right for proof of no or lesser damages. In case of delays in the process of an assignment due to infringement of obligation/negligence of duty by principals, contractor retains the right to charge any additional effort at usual hourly rates.
Services rendered by the contractor will be charged according to current rates and fees of KMR-Marine Surveyors GmbH. In case estimated costs or predetermined charges will be exceeded due to unforeseeable events delaying the fulfillment of the assignment, principals are immediately to be informed. If under such circumstances principals decide to cancel the assignment, costs/efforts accumulated up to that point will be charged by contractor. Contractor invoices are to be balanced by principals within the designated due date; this applies regardless of whether or not the compilation of an expertise required compensation of a third party.
If payment is not settled within due date, principals – differing departments are held jointly liable – will be admonished by KMR-Marine Surveyors GmbH with a service fee of net € 150.00 (in words: One Hundred Fifty 00/100) per reminder. Contractor retains the right to request advance payment and/or issue increment invoices for services rendered. If principals, even at application of a grace period, are in delay of payment, contractor may refuse further proceedings, cancel the assignment or demand compensatory reimbursement.
VAT valid at time of contract conclusion will be listed and charged separately. Checks, Bills of Exchange and Orders of Payment shall be accepted in lieu of performance and only become valid as payment upon redemption. Principals are accountable for usual banking fees. Principals are not privy to set-offs with counterclaims and/or lien of retention unless uncontested or recognition by declaratory judgement.
Utilization of Performance
Services rendered by the contractor shall only be utilized in connection with the ordered assignment. Another utilization needs to be specifically approved of by the contractual parties. Where applicable, contractor retains copyright to all services rendered.
Business and Trade Secrets, Copyright
Any and all business and trade secrets provided are to be kept in strict confidence, not to be disclosed, forwarded or exploited for the duration of the assignment and beyond. Where applicable, the contractor expressly reserves the copyright to any and all output resulting from the assignment. The scope and terms of the assignment shall be defined in writing upon confirmation of order. Services rendered, respectively results achieved incl. any and all pertaining details shall be utilized by principals only in connection with the terms of assignment. Results/achievements may be applied in other ways than in connection with the original assignment only after explicit written consent by contractors.
The primary warranty form for principals shall be revision/rectification/supplementation. If requested revisions/rectifications are not complied with within an acceptable time frame or if rectification/supplementation is unsuccessful, legal provisions shall apply. Faults/defects need to be addressed by principals in writing immediately upon discovery, otherwise foregoing/invalidating the right of warranty. With guaranteed features, principals’ entitlement to damages shall remain unaffected.
Liability of the Contractor
The contractor shall be liable for all damages attributable to him. Contractor’s contractual and non-contractual liability for slight negligence is excluded if principals are a merchant in possession of contract for operating a trading business or if principals are a figure by public law or a public law special asset.
If requirements as per figure 2 do not apply, the contractual liability concerning damages resulting from slight negligence of duty, which are not principal contractual obligations, is limited to five times of the contractor’s compensation. Principal’s rights to claims of warranty shall remain unaffected by this.
Statute of Limitations
If no shorter limitation periods are defined by law, damage claims expire after 3 years, all additional contractual and/or non-contractual claims expire after 1 year, with limitation period beginning at the end of the year of issuance of the final invoice.
All contractual relations of the parties concerned are governed by German Law with exemption of the UN Sales Convention. The seat of the contractor’s registered offices (Bremerhaven, State of Bremen) is the Place of Fulfillment for any and all claims resulting from the assignment. The general place of jurisdiction for settlement of any and all disputes is the seat of the contractor’s registered offices (Bremerhaven, State of Bremen).
If one or more items of these Business Terms and Conditions are or become void or represent an unwanted regulatory gap, all other items shall remain valid. Principals and contractor shall commit to agree upon a substitute stipulation regulating such instance.