T & C of Sales and Services - SRH Germany GMBH
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions apply to any offers and agreements for the provision of Products and Services by SRH Marine Germany GmbH (hereinafter the “Supplier”), unless expressly agreed otherwise in writing.
These Terms override over any other terms and/or conditions presented or invoked by any other party whatsoever.
In case any of these terms are invalid for whatsoever reason, the remainder of the terms shall remain valid and in full effect.
The Supplier reserves the right to amend any time and at its sole discretion these terms, without prior notice to its customers.
The headings herein are only indicative and do not limit the interpretation of these terms and conditions.
For the purposes of these General Terms and Conditions:
“Client” means the contracting party which orders the sale and/or supply of Products. The Manager of the Vessel shall be deemed as acting for the Vessel’s owner, unless otherwise indicated in writing.
“Confidential Information” means any information of a commercial, technical or financial nature pertaining to Supplier’s business affairs, materials of whatever kind, plans, trade secrets, pricing, software, data, and any other information which may be deemed by its nature or marked as or reasonably assumed to be confidential.
“Ex Works” means the delivery as set out in Incoterms 2010.
“Order” means the order placed in written by the Client with the Supplier for Products.
“Product(s)” means any hardware, equipment or spare parts as well as any or all various types of digital services or electronics aids to navigation based on distribution of data and any supporting documents for their operation, which the Supplier may supply to the Vessel.
“Manufacturer” means the third party that manufactured and distributed the Products to the Supplier.
“Services” mean installation, repairs, commissioning of hardware or equipment on board the Vessel.
“Vessel” means the Client’s vessel, as identified on the Offer or the agreement on which the Products are supplied.
2.1 The Supplier will confirm Order of the Client for the Products through written order confirmation which shall contain details concerning the identity of the Client, the purchase price, invoicing and delivery details.
2.2 Manufacturer’s standard terms of delivery concerning the time of the delivery are applicable.
2.3 Delivery dates shall always be regarded as approximates. The Supplier will use its commercially reasonable endeavours to perform delivery at the quoted delivery dates. Any claim for damages on the ground of Supplier’s failure to deliver at quoted dates is precluded.
2.4 In the event of Ex Works and delivery of Products to the place indicated by the Client, the risk shall pass to the Client when the Products are handed over to the first carrier.
2.5 If the Client’s credibility is reasonably questioned, the Supplier is entitled to require prepayment or security prior to delivery. Client’s failure to prepay or provide security will entitle the Supplier to cancel the delivery without any liability on its part.
2.6 Ordered spares and other pieces of equipment may be returnable, according to the Manufacturer’s cancellation and restocking policy.
3.1 Supplier will use all reasonable endeavours to perform the Services at the specified dates, which shall be given as approximate, unless specifically agreed otherwise in writing and reserves the right to allocate the requested Services to its Clients at its sole discretion as deemed reasonable.
3.2 Testing procedures shall be those specified in this contract or Supplier’s usual testing procedures. In case installation is required, the Client shall be ready in all respects for installation, otherwise it shall reimburse Supplier for any expenses caused by its failure to be ready.
3.3 Transport and shipping costs to and from Client’s sites shall be solely borne by the Client.
3.4 Client will be notified upon completion of testing and/or installation and when the equipment sold are deemed accepted having met the offer’s specifications. The items shall be deemed to meet such specifications, unless notice of any defects is given to Supplier within five (5) days after completion of testing and/or installation.
3.5 Upon Client’s request, Supplier will provide supervision of unpacking, assembly, installation, testing, and adjusting of equipment or inspection thereof at Supplier’s charges then prevailing in its personnel’s base operations area, including overtime hours (more than 8 hours per working day or 40 hours per week) and actual travel and living expenses.
3.6 Any claim against the quality of Services shall be submitted to Supplier in writing, within fifteen (15) days after the completion of the Services, otherwise the rights to claim compensation of whatever nature shall be deemed to be waived.
3.7 Supplier’s engineers service time remains always chargeable regardless of the service outcome, since the Services shall not be executed on “NO CURE - NO PAY” basis.
4. Subcontracted Services (by Service Agents)
4.1 Supplier undertakes to recommend to owners/managers/ charterers/operators of Vessel the qualified/authorized Service Agents who will attend the vessels in the major ports of the world and provide Services. (the “Service Agents”), as well as to co-ordinate, if necessary, the Services.
4.2 Supplier shall issue an invoice to the owners/ managers/charterers/operators of vessels for both its commission fee and the amount due to the Service Agents, which Supplier will collect on behalf of the latter, as authorized by the Service Agents. It is explicitly agreed that by no means this authorization renders Supplier responsible for any omissions or improper or non- performance of the Service Agents.
4.3 All invoices shall be settled within 30 days from the invoice issuance date. In case of dispute between the owners/managers/ charterers/operators of vessels and the Service Agent, if the latter has issued an invoice to Supplier and the dispute has not been resolved within the agreed credit period, the owners/managers/charterers/operators of vessels will settle the said invoice irrespective of the dispute being still unresolved, reserving their right to claim reimbursement from the Service Agent.
4.4 In case the prices quoted to the owners/managers/ charterers/operators of vessels are in currency other than Euro, payment of the invoice shall be made in that currency and the respective value in Euro, as per the exchange rate on the invoice date, will be included in the invoice only for informative purposes.
4.5 Service Agents are authorized to use spare parts (if required), the value of which must not exceed the amount indicated by the owners/managers/ charterers/operators of vessels, which, in any case, shall not exceed 1,000 USD.
4.6 In case the value of the required spares exceeds the amount indicated by the owners/managers/ charterers/operators of vessels, the Service Agent is responsible for contacting the coordination officer of Supplier; in any other case, vessel's Master is responsible for contacting directly the offices of the owners/managers/ charterers/operators of vessels and obtain approval for the spares cost required for the service/repairs.
4.7 Spares recommendation shall not be binding, since equipment malfunctioning problems can only be determined after the replacement of the faulty part, hence each attending engineer is capable to estimate the cause of the problem to a certain extent.
4.8 Supplier shall by no means be liable for any act and omission caused by Service Agents.
4.9 Supplier shall bear no liability whatsoever for any breakdown or failure of the equipment serviced and all relevant disputes or claims shall be addressed by the owners/managers/ charterers/operators solely to the Service Agents.
5.1 Payment of invoices shall be effected within 30 days from the completion of the relevant services and/or from the sale of the items, unless expressly agreed otherwise in writing.
5.2 Prices shall be in the currency stated in the quotation or order confirmation, stated as “ex works and unpacked” from the Manufacturer’s premises, excluding VAT, Customs Clearance Duties, taxes and freight expenses. Any additional expenses, including but not limited to all packing freight, shipping and carrier charges, insurance, customs clearance, taxes, storage in transit and transportation costs, incurred by the Supplier in the course of Products’ supply are payable by the Client.
5.3 In case the prices quoted to the Client are in other currency than Euro, payment of the invoice shall be made in that currency and the respective value in Euro, as per the exchange rate on the invoice date, will be included in the invoice, only for informative purposes.
5.4 Payment for the Products and any other expenses payable by the Client shall be made in full, without set-off, counterclaim, deduction and/or discount, free of bank charges and under the terms of Supplier’s invoices, unless otherwise agreed in writing. VAT application shall be subject to VAT regime of Supplier´s domestic jurisdiction.
5.5 If payment is delayed or not effected in full on due date, legal interest per month or part thereof shall be accrued on the outstanding amount until full payment, without prejudice to any rights or remedies available to Supplier.
5.6 Where Supplier extends any kind of credit to a group of companies, where Client is a part thereof and Client is in default of payments, Supplier reserves the right to cancel the extended credit of the entire group.
5.7 All judicial and extra-judicial expenses incurred in connection with collection of any overdue amounts or arising out of any breach or remedy of breach of these Terms shall be accrued on the overall amount due by the Client.
5.8 Payments effected by the Client shall at all times be credited in the following order: i)costs, ii) interest and iii) any invoices in a chronological order by date if not yet due.
5.9 Unless any dispute is reported to the Supplier within 15 days from the date of issuance of the relevant invoice, such dispute will be considered void and non-existing.
6. Retention of Title & Licenses
6.1 Notwithstanding delivery and the passing of risk, all Products shall remain Supplier’s property until full payment of the invoices. The Products shall remain on the Vessel at Client’s sole risk and expense until such full payment and the Client shall insure them against all risks, the Supplier having also the right to receive the relevant insurance proceeds directly from the insurers.
6.2 Supplier grants to Client the non-exclusive and non-transferable license, without authorization to grant sublicenses, to use the digital services and software included therein. No proprietary rights are granted to Client by the Supplier.
7. Export Compliance
Supplier shall comply with all trade sanctions or restrictions and embargoes, including those imposed by EU, UN, or US, and shall obtain all necessary licenses or permissions for the import or export of the Products, in compliance with all laws or regulations, related to import or export controls. Client shall be responsible for furnishing Supplier with all required information and documentation and for notifying Supplier of any restrictions applicable on the place of delivery. The Client shall be solely liable for any damage or loss suffered as a result of inaccurate information provided to Supplier or omission to notify of any restrictions.
8.1 Client acknowledges that the hardware and/or the software, that are parts or included in the Products, may have been manufactured, produced or developed by a third-party supplier.
8.2Manufacturer’s warranty policy, with respect to the warranty terms, warranty obligations and warranty period, shall be applicable, unless otherwise indicated in writing by the Supplier.
8.3The Supplier reserves the right to abstain from any warranty performance and will specify in the Quotation or Order Confirmation any exclusions from the applicable warranty terms.
8.4 Supplier disclaims all representations and warranties, either express or implied, in respect of the Products, including but not limited to the condition, the merchantability, the performance, the fitness for any particular purpose, the accuracy, or reliability given that the software, which is part of the digital services contained in the Products is provided “as is” and the hardware of any kind is supplied subject to the third party-manufacturer’s warranty policy.
9.1 Under no circumstances shall the Supplier or its servants, subcontractors and/or agents be liable for any kind of damages to the Client or for any loss of revenue or profit, or for any consequential, indirect or incidental damages.
9.2 Without prejudice to any other term herein, the Client shall fully indemnify the Supplier in respect of all damages, losses or expenses, excluding consequential or incidental damages, incurred by the Supplier as a result of any breach of these terms or fault caused by the Client, its employees, officers, servants and/or agents as well as any claims by third parties.
9.3 In no event shall Supplier´s aggregate liability, arising out of or in connection with breach of contract or tort (by wilful misconduct or gross negligence), exceed the total amount payable for the Products or Services.
9.4 Client shall be responsible for keeping its personnel and crew onboard adequately trained and qualified, in compliance with the applicable regulations, as may be in force from time to time, to ensure that the digital services, included in the Products, are operated in a safe and appropriate manner.
9.5 Supplier shall not be liable for the faults or inaccuracies of the digital services or for the inappropriate use of the digital services from Vessel’s crew or for any damage, delay, disruption or marine accident related to the operation or failure to operate of the Digital Services.
11. Intellectual Property
Client acknowledges the Supplier’s exclusive right, title and interest in any and all Intellectual Property rights, which include but not limited to trademarks, copyright, trade secrets, know-how, technical information, software, concepts, processes, materials, documents, drawings, models, designs, samples, and other proprietary rights which are possessed or registered by Supplier or its related entities. Client shall not exploit, use, register or attempt to register any of the Supplier’s trademarks or any design. Nothing herein shall be construed as assignment or transfer or license to use of any intellectual property rights. Client shall notify Supplier of any infringement of Supplier’s intellectual property rights or any third party’s claim of alleged infringement of its property rights.
12. Environmental Awareness
12.1 Client shall be wholly responsible for implementing environmental procedures and waste management policies as well as bearing all associated costs, in compliance with any applicable laws or regulations of any jurisdiction, related to the recycling or waste disposal.
12.2 Client warrants that commercial waste of whatever kind (e.g. paper, glass, electronic or electrical equipment) is appropriately and safely stored until its collection for disposal and recyclable waste is properly managed, by separating paper, glass, metals prior to recycling collection.
12.3 Written confirmation of the compliance with environmental legislation or policies may be provided by Client, upon Supplier’s request. Failure to comply shall give rise to claims for indemnification of any losses or costs incurred by Supplier.
13. Force Majeure
The Supplier shall not be responsible for any loss or damage caused by any delay or failure in the supply of Products and/or the performance of Services (i)because of compliance with any order, regulation or government restriction or any act promulgated by any national or international public authorities, (ii) caused by any disorders, wars, acts of enemies, strikes, lockouts, embargoes or import restrictions, cyber-attacks, pandemics or any act of God or other circumstances beyond Supplier’s reasonable control. The supply of Products and Services shall be deemed suspended during the period of force majeure situation. In the event the force majeure situation lasts longer than a month, either Supplier or Client shall have the right to cancel the supply of Products or Services. In such case, neither party will be liable for damages.
14. Applicable law and Disputes
All sales of Products and performance of Services, which these Terms and Conditions apply to, shall be governed by Supplier’s domestic law. Any dispute arising out of or in connection with the supply of Products shall be referred exclusively to the Courts of Supplier’s venue, unless it is amicably settled. The Supplier reserves its right to initiate any legal proceedings for interim measures against the Client before any Court or authority of any other jurisdiction.