I. Applicability
1. These General Terms and Conditions apply exclusively to entrepreneurs who, when concluding the contract, are acting in the course of their commercial or independent professional activities.
2. These terms and conditions apply to all present and future business relationships of HEINRICH HARBISCH Schiffswerft, hereinafter referred to as the "Shipyard". They shall therefore also apply in future without any renewed reference to their inclusion.
3. Deviating declarations and terms and conditions of the Customer shall not bind the Shipyard, even if the Shipyard does not object to them when the contract is concluded. Any confirmations by the Customer containing deviating terms and conditions are hereby rejected.
II. Offer, conclusion of contract and scope of order
1. All offers made by the Shipyard are non-binding. An order shall only be deemed accepted when the Shipyard confirms its acceptance or has provided the ordered delivery. The contract should, wherever possible, be concluded in text form (fax, email). Oral agreements subsequently amending the contract are valid and should be confirmed in text form.
2. The vessel's master and, in his absence, the crew remaining on board shall be deemed authorised representatives of the Customer vis-à-vis the Shipyard.
3. All prices are net prices plus statutory VAT, where applicable. Prices are ex Shipyard and are calculated on the basis that scrap material and removed parts shall become the property of the Shipyard without compensation.
4. During the vessel's stay at the Shipyard, the Customer remains responsible for compliance with all statutory and official regulations relating to the vessel and for its supervision. The Customer shall present the vessel gas-free and in accordance with the applicable port safety regulations at the dock or berth designated by the Shipyard and shall collect it there again. The condition of the vessel required for docking (trim and weight) shall be agreed with the Shipyard and established by the Customer. The Customer shall moor or shift the vessel. Hazardous substances and any special waste arising shall be disposed of by the Customer. Where the Shipyard performs work on behalf of the Customer that falls within the Customer's obligations, the Customer shall bear the costs. The initial and renewed filling with lubricants and hydraulic oils shall be paid for by the Customer unless the Shipyard has assumed these costs.
5. While the vessel is at the Shipyard, only the vessel's crew may remain on board. Work on the vessel by the crew or by third parties may only be carried out with the Shipyard's consent.
III. Performance
1. a) One week after a non-binding date or period has been exceeded, the Customer may request the Shipyard to perform. Upon receipt of this request, the Shipyard shall be in default. In the event of slight negligence on the part of the Shipyard, the Customer shall not be entitled to compensation for damage caused by delay.
If the Customer wishes to withdraw from the contract and/or claim damages in lieu of performance, after expiry of the one-week period pursuant to sentence 1 the Customer must grant the Shipyard a reasonable period for performance of at least one week. In the event of slight negligence on the part of the Shipyard, the Customer shall not be entitled to damages in lieu of performance.
b) If a binding date or period is exceeded, the Shipyard shall be in default as soon as that date or period is exceeded. The Customer's rights shall then be determined in accordance with a), sentences 3 and 4 of this section.
2. The dates and periods referred to in 1 a) and b) of this section shall be extended by the period required by the Customer, following confirmation of the order, to provide the documents, permits and approvals to be obtained by the Customer. Force majeure, operational disruptions occurring at the Shipyard, for example as a result of fire or industrial disputes, as well as official orders which, through no fault of the Shipyard, temporarily prevent the Shipyard from providing the performance on the agreed date or within the agreed period, shall likewise extend the dates and periods referred to in 1 a) and b) by the duration of such disruptions. This shall also apply if these circumstances arise during an existing delay. If such disruptions result in a postponement of performance of more than four weeks, the Customer may withdraw from the contract. Other rights of withdrawal shall remain unaffected.
3. Compliance with deadlines is conditional upon the Customer fulfilling its contractual obligations.
IV. Payment
1. Invoices are due immediately. The Customer shall be in default no later than 10 days after the invoice date. During the period of default, interest shall be payable at a rate of at least nine percentage points above the base interest rate. The right to claim further damages caused by delay is reserved.
2. The Shipyard is entitled to demand reasonable advance payments.
3. If adverse credit information concerning the Customer is received, the Shipyard may demand advance payment for outstanding performance or, following appropriate notice, withdraw from the contract. At the Shipyard's discretion, advance payment may be replaced by the provision of security.
4. The Customer waives the assertion of any right of retention arising from previous transactions. Set-off against counterclaims is permissible only insofar as such counterclaims are undisputed or have been finally determined by a court.
V. Retention of title
1. Deliveries made by the Shipyard shall remain its property until its claims have been paid in full. If the value of the securities held by the Shipyard exceeds its claims by more than 10%, the Shipyard shall be obliged to release securities at the Customer's choice. The Customer is obliged to insure the goods subject to retention of title and to assign the rights under the insurance contract to the Shipyard.
2. In the event of conduct by the Customer in breach of contract, in particular default in payment, the Shipyard shall be entitled to withdraw from the contract without setting an additional deadline and to repossess the goods subject to retention of title. If the Shipyard is additionally entitled to damages in lieu of performance and repossesses the goods subject to retention of title, it shall credit the customary sales value of the goods at the time of repossession. The Customer shall bear all costs of repossession and disposal of the goods subject to retention of title.
VI. Warranty and liability
1. Notices of defects must be submitted without delay in text form, stating the reasons precisely. Notices concerning obvious defects that are not received by the Shipyard within eight days after acceptance, and notices concerning hidden defects that are not received by the Shipyard within eight days after discovery, shall in all cases be excluded and time-barred.
2. In the event of a justified and timely notice of defect, the Shipyard shall initially, at its discretion, provide subsequent performance by remedying the defect or producing an item free of defects. The Customer shall grant the Shipyard a reasonable period for subsequent performance in respect of each individual defect. Parts replaced as part of subsequent performance shall become the property of the Shipyard. Subsequent performance shall be deemed to have failed after the third unsuccessful attempt. If subsequent performance has failed or the Shipyard has refused subsequent performance altogether, the Customer may, at its discretion, demand a reduction in remuneration or withdraw from the contract.
3. The Customer is obliged to give the Shipyard an immediate opportunity to inspect the defect. If this does not occur, all claims for defects shall lapse after a deadline has been set.
4. Warranty is excluded if the defect complained of is attributable to improper handling or if the Customer carries out repair work, or has such work carried out by others, without the Shipyard's prior written consent. The Shipyard also provides no warranty for any worsening of a defect resulting from delayed notification. Wear parts are excluded from the warranty. Unless otherwise agreed, no warranty is provided for used parts.
5. These provisions conclusively govern the warranty for our performance. In the event of defective performance or any other breach of duty by the Shipyard, the Customer may claim reimbursement of wasted expenditure and damages, irrespective of the legal basis, whether contractual or non-contractual, only in respect of damage resulting from an intentional or grossly negligent breach of duty or from a slightly negligent breach of a material contractual obligation by the Shipyard, its legal representative or vicarious agent. In the event of a breach of a material contractual obligation, the Shipyard's liability shall be limited to foreseeable damage. Liability is excluded insofar as the damage is covered by insurance taken out by the Customer for the relevant loss event. To the extent that the Shipyard's liability is excluded, this shall also apply to any personal liability of its legal representatives and vicarious agents. The exclusion of liability shall not apply to any guarantee of quality or durability given by the Shipyard.
Claims arising from injury to life, body or health and claims under product liability law shall remain unaffected by this exclusion of liability.
6. Unless the Shipyard has confirmed specific characteristics and suitability for a contractually specified purpose in text form, any advice, even if given to the best of its knowledge, shall in all cases be non-binding. For advice given or omitted that does not relate to the characteristics and usability of the performance provided, the Shipyard shall be liable only in accordance with VI. 5.
7. Claims by the Customer due to defects and breaches of duty by the Shipyard shall become statute-barred within one year.
VII. Final provisions
1. The Customer may transfer rights and obligations arising from the contract to third parties only with the Shipyard's written consent.
2. All legal relationships and legal acts between the Shipyard and the Customer shall be governed exclusively by the law of the Federal Republic of Germany. The place of performance and jurisdiction shall be Duisburg.
3. Should one or more provisions of this contract be legally invalid, the validity of the remaining provisions of this contract shall not be affected. The parties undertake to replace legally invalid provisions as soon as possible with legally valid provisions that correspond as closely as possible to the intended meaning of the invalid agreements.
