1.1 These General Terms and Conditions shall apply to all services rendered by MARISCON Group. They are an element of all offers and contracts by MARISCON Group.
1.2 Where contractual relations are established between MARISCON Group and any persons other than the principal, the following General Terms and Conditions shall also apply to such third parties.
1.3 General Terms and Conditions of the principal differing from these General Terms and Conditions shall not apply, even if MARISCON Group does not object to them separately. Side agreements shall only be included in the contract if MARISCON Group has expressly agreed to their inclusion in writing. These General Terms and Conditions also apply exclusively if MARISCON Group, in awareness of the principal’s General Terms and Conditions, performs the contract without reservation.
1.4 Statutory rights in favour of MARISCON Group are not excluded by these General Terms and Conditions. MARISCON Group may, at its own option, refer to the statute or to these General Terms and Conditions.
2.1 The kind and scope of services rendered by MARISCON Group are based on the relevant agreements.
2.2 Vessel docking and supervision of repair works shall be performed as described in the offer. The required works shall be conducted according to, amongst others, the producer’s specifications, those of the classification society as well as those of other relevant parties.
2.3 Vessel inspections shall also be conducted as described in the offer. The inspections comprise mere visual and audio inspections in an assembled state. Test runs as well as underwater inspections are generally not included in the scope of services, insofar as malfunctions/deviations/damages or similar are not detectable for by optical and/or acoustic perception.
2.4 MARISCON Group shall generally perform the contractually agreed services through its own staff. MARISCON Group is, however, entitled to consult third parties and to have the contract performed wholly or in part by third parties. Likewise, MARISCON Group is entitled to exchange staff employed on site and during the assignment.
2.5 Insofar as additional costs are incurred by MARISCON Group through consulting third parties or through laboratory examinations, these costs are to be borne by the principal without prior consultation. However, this only applies to costs up to an amount of EUR 250.00 in each individual case, respectively to costs not exceeding a maximum of 10 per cent of the overall volume of the contract. Possible higher costs incurred shall be coordinated with the principal.
2.6 Upon the principal’s request, MARISCON Group shall issue a written report at the former’s cost.
3. Principal’s duty to cooperate
3.1 It is the principal’s obligation to ensure that the services of MARISCON Group can be rendered smoothly and without delay. The principal shall inform MARISCON Group in due time before the start of work of all circumstances and characteristics of the contractual objects relevant to the contract. The principal is particularly obliged to give technical support.
3.2 The principal shall, to the desired extent, grant MARISCON Group unrestricted access to such facilities as are included in the contract between the parties and are relevant to the fulfilment of the contract.
3.3 The principal is obliged to inform MARISCON Group of the details and the extent of the damage truthfully and in as much detail as possible in order to enable a comprehensive claims assessment. The principal is particularly obliged to name previously existing damage in detail.
3.4 MARISCON Group shall not be liable for disadvantages and damages occurring as a consequence of false or incomplete information or information concealed by the principal. The same applies if the principal fails to provide MARISCON Group with documents in time or at all.
3.5 Before MARISCON Group starts work, the principal shall inform MARISCON Group of relevant safety issues and take all necessary safety-related measures to ensure a safe working environment for the persons carrying out the work for MARISCON Group and shall comply with all legal and other safety regulations.
MARISCON Group reserves its unrestricted property rights and copyrights to all images, calculations, descriptions, plans, drawings, technical and other documents (collectively referred to as documents), which HSK hands over to the principal before or after conclusion of the contract. Without prior express written consent by MARISCON Group, the principal is not entitled to reproduce, copy, make available to third parties or otherwise impart the documents. Documents are to be handed back to MARISCON Group immediately upon request.
4.2 The principal shall provide MARISCON Group with all documents required by MARISCON Group for orderly fulfilment of the contract in due time and free of charge. The principal is obliged to indemnify MARISCON Group from claims by third parties based on the infringement of property rights, copyrights and industrial property rights as a consequence of utilisation of the principal’s documents.
4.3 Additional expenses and costs arising from the faultiness of documents or other information provided by the principal, his auxiliary persons or other individual persons or entities in his sphere of influence are to be borne fully by the principal.
5. Respites and time limits
Respites and time limits are only approximate, unless expressly otherwise agreed in writing. In the event of no respites and time limits having been agreed in writing, the time periods estimated by MARISCON Group apply.
5.2 The observance of respites and time limits by MARISCON Group requires complete and timely fulfilment of the principal’s duties to cooperate and obligations. MARISCON Group does not assume responsibility for delay on the principal’s side. This comprises in particular, but not conclusively:
(a) delay due to organisational obstacles on the principal’s side (for example, but not conclusively: missing service orders, missing spare parts, additional class and certificate demands or required access permissions),
(b) delay due to additional works on the part of the classification society,
(c) delay due to works unaccounted for in the tender,
(d) delay due to the crew’s culpability, including damages to the vessel and/or to all units and facilities installed on board,
(e) delay due to the agent employed by the principal.
5.3 Cases of force majeure, particularly governmental or regulatory decrees, strike, lockout, war, insurgency or interruption of operations as well as extreme weather release HSK from its obligation to perform for the duration of their effects and, insofar as they lead to impossibility of performance, completely and do not entitle the principal to damages. This also applies in the event of such circumstances occurring after MARISCON Group has defaulted. Under these circumstances, there is no obligation to pay a possibly agreed contractual penalty or liquidated damages. In the event of performance becoming completely impossible for MARISCON Group due to force majeure, MARISCON Group is completely released from its contractual obligations. In this case also, the principal is not entitled to damages.
5.4 Subsequent requests for alteration or amendment by the principal change the respites according to the required extra time. Besides this, statutory rights and claims by MARISCON Group remain unaffected.
6.1 MARISCON Group may terminate the contract for cause. This is particularly the case if
(a) the principal is in breach of his obligation to cooperate in item 3 or his obligation in item 4.2,
(b) the principal attempts to influence MARISCON Group illegally, whereby the result of the performance of services may be distorted,
(c) the principal defaults,
(d) MARISCON Group realises after acceptance of the order that it lacks the expertise necessary for fulfilment of the order.
6.2 Should MARISCON Group terminate the contract for cause, MARISCON Group is entitled to remuneration for partial performance up to the time of termination. However, this only applies if the partial performance is objectively utilisable for the principal. In all other cases, MARISCON Group is entitled to the contractually agreed remuneration less spared disbursements. Insofar as the principal does not individually prove a higher proportion of spared disbursements, the latter is agreed in the amount of 40 per cent of the remuneration for the services not yet provided by MARISCON Group.
6.3 MARISCON Group is also entitled to terminate the contract in the event of insolvency proceedings being applied for regarding the estate of the principal or the principal suspending payments.
7.1 The contractual parties shall maintain confidentiality with respect to the existence of the contractual relationship. The contractual parties may only refer to the contractual relationship externally after the respective other contractual party has agreed in writing. This obligation shall survive the end of the contract.
7.2 The contractual parties shall maintain confidentiality with respect to all documents and other information which they receive in connection with the contractual relationship. Documents and information may only be passed on to third parties with the respective other contractual party’s prior written consent. This obligation shall survive the end of the contract.
7.3 The aforesaid duty of confidentiality shall not apply to the obligations MARISCON Group has towards flag state administrations and other international organisations or by law or arising out of international conventions.
8.1 For services rendered by MARISCON Group, fees are to be paid in accordance with the daily cost rates and regulations set by MARISCON Group. Alternatively, the fixed price as quoted in the offer applies. In addition thereto, MARISCON Group will charge any extra expenses in connection with the services rendered (e.g. travelling or other expenses and, where applicable, any value added/turnover tax).
8.2 Additional expenses which are incurred, for instance as a result of delay according to item 5.3, poor organisation on the part of the principal or repetition of tests and for which MARISCON Group is not responsible will be charged separately at the respective current cost rates.
8.3 In the event that a contract is terminated by the principal prior to completion, it shall be presumed, in accordance with section 649 3rd sentence of the German Civil Code, that MARISCON Group shall be entitled to at least 10 percent of the remuneration agreed in respect of those services which have not been provided.
8.4 In the event that performance becomes impossible for MARISCON Group through no fault of MARISCON Group, the principal owes remuneration on a pro-rata basis for the services provided up to that point.
9. Payment of invoices
9.1 All claims against the principal are due for payment immediately with service of the bill or partial bill without deduction. The principal is in default without reminder 7 days after service of the bill. The principal has fulfilled his obligation to pay only when MARISCON Group may dispose of the complete amount without reservation.
9.2 MARISCON Group shall generally invoice after completion of the contractually agreed works. MARISCON Group may, however, demand instalments or advance payments at its own discretion.
9.3 On default, MARISCON Group is, without prejudice to any other rights, entitled to charge full default interest and/or to withhold certificates and other documents.
9.4 Any rights of lien or retention in favour of the principal, statutory or otherwise, are hereby excluded. Likewise excluded are any rights of set-off with principal’s counter-claims, unless such counter-claim is undisputed or has been finally adjudicated upon by the courts.
10. Liability for material defects
10.1 Liability of MARISCON Group for material defects shall, in the context of a contract for work and services (“Werkvertrag”), be limited to remedying such defects. The principal shall provide MARISCON Group with sufficient time and opportunity to remedy the defects; otherwise MARISCON Group is released from liability for the resulting consequences.
10.2 In the event that the remedy is ultimately unsuccessful, or if the principal or MARISCON Group may not be expected to remedy, or if the remedy is only possible under incurrence of disproportionately great costs and is thus rejected by MARISCON Group, the principal shall, upon presence of the legal requirements, – without prejudice to possible claims for damages – have the right to claim a proportionate reduction in remuneration payable to MARISCON Group or to withdraw from the contract. Withdrawal is not possible if the defect only affects part of the work.
10.3 Except in case of a breach by MARISCON Group of a material contractual obligation, liability of MARISCON Group shall be limited to five times the obligation to which the breach relates. Maximum liability of MARISCON Group is, irrespective of the number of claimants, limited to an amount of EUR 250,000.00. This limitation of liability shall also apply to claims for damages by the principal based on the tort of negligence on the part of MARISCON Group. In the event of a slightly negligent breach by MARISCON Group of one of its material contractual obligations, the liability of MARISCON Group shall be limited to typical contractual foreseeable damage. In the event of wilful misconduct or gross negligence on the part of MARISCON Group, the liability of MARISCON Group shall be determined as provided for by law. The same shall apply to any case where MARISCON Group is strictly liable by law.
10.4 MARISCON Group shall not be liable for damages whose cause is excluded from the contract’s scope of performance due to a lack of optical/acoustic perceptibility according to item 2.3. This particularly includes causes of damage whose definite identification is only possible in a state of dismantlement and which are thus not perceivable as a result of a visual and audio inspection. Moreover, it includes those causes of damage which are not conclusively identifiable with the aid of the inspection methods available to MARISCON Group.
10.5 Personal liability of the organs or auxiliary persons of MARISCON Group is excluded, except in case of their wilful misconduct or gross negligence.
10.6 To protect himself from the consequences of the above exclusions and limitations of liability, the principal is obliged to cover the respective risks by taking out the required insurance. The principal shall include MARISCON Group as well as MARISCON Group legal representatives and auxiliary persons in the insurance coverage by way of co-insurance.
10.7 Claims by the principal for material defects shall become time barred twelve months after acceptance of performance by MARISCON Group of the obligation in question, insofar as there was no wilful misconduct or fraudulent intent on the part of MARISCON Group.
10.8 Claims for damages outside of defect claims in connection with the contract for work and services, with the exception of tortuous claims and/or those under the German Product Liability Act, become time barred twelve months after the statutory commencement of limitation, insofar as there was no wilful misconduct or fraudulent intent on the part of MARISCON Group.
10.9 Statutory provisions apply instead of the above provisions regarding limitation of liability and time bar insofar as they regard claims for death, personal injury, damage to health or infringement of liberty.
11. Place of performance, jurisdiction, governing law
11.1 The place of performance for all obligations resulting from or in connection with the order for both parties is the seat of business of MARISCON Group, unless stated otherwise in the order.
11.2 The exclusive place of jurisdiction for all disputes resulting from or in connection with this contract is the competent court in Hamburg. MARISCON Group is, however, also entitled to sue the principal in every other legal place of jurisdiction.
11.3 The business relationship between MARISCON Group and the principal are subject to German law. The applicability of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods is excluded.
12. Severability Clause
In the event that individual provisions of the contract between the principal and MARISCON Group or these General Terms and Conditions are or become partly or as a whole ineffective, this will not affect the effectiveness of the remaining provisions.
In the event of ineffectiveness of a provision, the parties are obliged to reach a legally effective agreement which economically comes closest to the ineffective provision. This does not apply if adherence to the contract would place undue hardship on one party. In the event of doubts, the German text of these General Terms and Conditions shall be authoritative.