General Terms of Business
1. General terms – Scope
These following general terms and conditions apply solely to the entire business relationship between S e a r e q, Safety and Rescue Equipment and its customers. Any divergent terms of the customer, which we do not specifically acknowledge are not binding on Seareq, even if in individual cases, we do not raise any objections to them. Divergent subsidiary agreements must be in writing.
These terms and conditions shall also apply to any future transactions with the customer even if no new agreement is reached on their applicability.
2. Conclusion of contract
We are entitled to withdraw from our offers up to the time of acceptance unless an offer has been specified as binding. We shall be bound for two weeks by any offers specified by us as binding. All orders of the customers must be confirmed by us in writing in order to be accepted. We specifically reserve the right, within the framework of technical progress, to make deviations from the articles which are ordered or delivered, in particular in respect of materials and design.
3. Prices and Terms of payment
All prices are quoted in Euro are net ex store of Seareq, exclusive delivery, packaging, insurance and any other secondary performance and are payable without any deduction. The prices are valid for the scope of performance and delivery stated in our confirmations of order. Additional or special performance will be charged for separately. If our costs increase after conclusion of contract, in particular owing to increases in the price of materials or shortages on the supply market, Seareq is entitled to raise the prices accordingly.
3.1 Terms of payment
Orders of the ENOS-system are only valid after a payment of deposit of 50 % of the volume. After the receipt of payment Seareq sends a confirmation of order to confirm the conclusion of agreement. The final payment has to be done after confirmation the date of delivery, all questions of freight, supply of the goods, but prior delivery. All other orders are only carry out against cash in advance. Invoices, commencing on the invoice date, are to be paid directly net cash. Bills of exchange and cheques shall only be deemed to constitute payment upon being cashed in. Payments by way of bills of exchange and cheques must be agreed upon in advance. The customer shall pay all bill, discount and collecting charges. Such charges shall be due immediately. We shall assume no liability for punctual collection or protest, provided that we are guilty of minor negligence only. Should the customer be in default of full or part payment, we shall charge interest on arrears at a rate of 8 % p.a. above the base lending rate of the invoice amount. If the customer is in default for longer than 30 calendar days, if he allows bills or cheques to be protested, or if a petition in bankruptcy is filed against the customer, we shall be entitled to declare all our claims against the customer due immediately, to withhold the delivery of all goods and services and to enforce all our rights under reservation of title. The customer shall be entitled to offset his claims or exercise a retaining lien only against claims which are undisputed or have been established as final by a court of law.
4. Delivery, Time of delivery, Scope of delivery, Delay of delivery, Availability of our own deliveries
The delivery dates stated by Seareq are not binding unless we specifically confirms them in writing as a "binding date of delivery". They refer to the time of dispatch of the consignment and are kept to when the customer is informed that the goods are ready for dispatch. Delivery dates are agreed on the basis of our expected capacities and are agreed subject to the occurrence of any circumstances or events beyond our control, which did not exist at the time of conclusion of contract, or which were either unknown to us or could not be known to us, irrespective of whether these circumstances and events refer to our company or to our supplier. These circumstances and events shall include in particular acts of God, officially imposed measures, industrial disputes, sabotage, scarcity of raw materials on the relevant raw material markets for the production of the goods to be delivered, and delays in material deliveries. In the case of such events, the delivery date shall be extended accordingly, even if they occur during the course of an already sustained delay. In that case, any extension granted by the customer shall also be extended for the duration of the unforeseen event. Should we be in default of delivery for more than 8 weeks, the customer shall be entitled to withdraw from the contract, after granting us a reasonable, written extension. In that case, any claims for compensation on the part of the customer shall be governed by Clause 9 of these General Terms of Business.We reserve the right to withdraw from the contract if a delay in delivery due to reasons beyond our control continues for longer than 8 weeks. We shall be entitled to perform the contract in reasonable part deliveries, bearing in mind that there are frequently supply shortages in our supply markets. If our supplier (finally) fails to supply the goods to us, although our supplier has been chosen with care and our order satisfies the requirements of our delivery obligation, we shall be released from our obligation to perform, provided that we advise our customer that we shall not be able to deliver the goods and, where legally permissible, offer to assign our claims against our supplier to the customer. We shall not accept any responsibility for minor negligence in the selection of our suppliers.
5. Packaging, Dispatch, Transfer of Risk
Our goods are delivered in suitable commercial packaging at the customers expense. Dispatch of the goods takes place from the registered office of Seareq for the account and at the risk of the customer. In the absence of any special agreements, we are free in our choice of the transport company and the means of transport. In this case, the risk is also transferred to the customer when dispatch takes place if freight-free delivery has been agreed. If dispatch is delayed or becomes impossible for reasons beyond our control, risk shall pass to the customer on notification that the goods are ready for dispatch. These provisions governing the passing of risk shall also apply to any return deliveries to the customer after remedy of defects, provision of services against payment, or replacement deliveries. On request by the customer, the consignment can be insured at the customers expense against the risks specified by the customer, provided this is possible with only reasonable effort on our part.
6. Reservation of Title
All goods delivered by Seareq remain his property until the purchase price has been paid in full and until complete settlement of all claims resulting from the commercial relationship (extended reservation of title) have been met in full. Any kind of disposal whatsoever by the customer involving the goods to which title has been reserved is only permitted in the customers ordinary course of business. However, under no circumstances may the goods be transferred to third parties by way of security in the ordinary course of business. In the event of the sale of the goods in the normal course of business, the purchase price paid takes the place of the goods. The customer herewith assigns to Seareq all claims resulting from any possible sale. The customer is authorized to collect the sum due for as long as he fulfils his financial obligations in respect of us. With regard to the extended reservation of title (assignment of future claim in respect of each claim for the purchase price), assignment to third parties, in particular to a financial institution, is contrary to the terms of the contract and hence not permitted. Seareq is entitled to inspect the customer sales documentation at any time and to inform his customer(s) of the assignment. If the customers claim resulting from the resale has been included in a current account, then the customer herewith also assigns to Seareq his claim from the current account in respect of his customer. The assignment is for the sum for which Seareq had charged the customer for the goods to which title had been reserved and which had been resold. In the event of an attachment of the goods on the customer premises, Seareq shall be informed immediately together with a copy of the debt enforcement report and an affidavit that the goods which have been attached are the goods which were delivered by us and to which title has been reserved. If the value of the securities as per the above paragraphs in this clause will exceed by more than 20% and for the foreseeable future the amount of the outstanding claims which they secure, the customer is entitled to call upon Seareq to release securities insofar as the excess exists. The assertion of Seareq rights resulting from the reservation of title does not release the customer from his contractual obligations. The value of the goods at the time they are taken back will only be offset against the existing claim of us against the customer. The processing or transformation of the goods to which title has been reserved takes place for us as manufacturers within the meaning of § 950 BGB (German Civil Code) without binding us. The processed or transformed goods are goods to which title has been reserved within the meaning of this agreement. If the customer processes or transforms the goods with other goods which are not in our possession, we are entitled to co-ownership of the new goods in the ratio of the invoice value of the goods to which title has been reserved to the amount of the invoice value of the other goods used and of the value of the processing or transformation. The customer shall store the new goods for us at his own expense. If the goods to which title has been reserved are mixed with or connected to other objects and in consequence our ownership of the goods to which title has been reserved lapses, then the purchaser's rights in respect of ownership or co-ownership of the mixed stock or the uniform goods shall be transferred to us in the ratio of the invoice value of our goods to which title has been reserved to the sum of the invoice value of the other mixed or connected goods. The customer shall store the goods for us at his own expense.
7. Material Defects
In case of claims regarding material defects lodged by the customer it is assumed that the customer has properly honored his obligations to inspect and give notice of defects. We shall be liable for material defects as
follows: All and any parts or services which exhibit a material defect within the period of limitation, irrespective of the period of operation, shall be repaired free of charge or replacement delivery/ service supplied at
our discretion, provided that the cause of the defect already existed at the time of passing of risk. Claims for material defects shall become statute-barred after 24 month. That period shall begin on delivery of the
goods. The customer is obliged to notify us in writing immediately of any material defects. In case of complaints for defects, the customer shall be entitled to withhold payment only to an extent which is in reasonable
proportion to the defects which have occurred. The customer shall be entitled to withhold payment only when claiming a defect which is justified beyond doubt. If the complaint proves to be unjustified, we are entitled
to demand reimbursement of our expenses from the customer. We must first always be given the opportunity to render subsequent performance (repair or replacement delivery) within a reasonable period. If the
subsequent performance fails, the customer – notwithstanding any claims to compensation in accordance with Clause 9 of these General Terms of Business – shall be entitled to withdraw form the contract or
demand a reduction of the purchase price. The customer shall not be entitled to demand reimbursement of futile expenses. The customer shall not be entitled to complain in case of minor deviations from the agreed
properties, minor impairment in the goods’ fitness for use, natural wear and tear, or in case of damage sustained after passing of risk which is due to incorrect or careless use, excessive strain, use with unsuitable
operating supplies or due to exceptional external influences which are not presupposed under the contract, or due to non-reproducible software faults. We shall not be liable for any damage or consequential damage
due to improper modifications or repair work performed by the customer or a third party. We shall not be liable for any claims filed by the customer for expenses incurred for the purpose of subsequent performance, in
particular cost of transport, carriage, labour and material, if these expenses increase because the delivery object has subsequently been taken to a place other than the customer’s place of business, unless that
transport corresponds to the intended use of the delivery item. The customer shall be entitled to recourse against us only inasmuch as the customer has not entered into any agreements with his customer which go
beyond the statutory rights for defects. Claims for compensation shall otherwise be governed by Clause 9 of these General Terms of Business. We shall not accept any other claims for material defects filed by the
customer against us or our agents in performance, other than those specified in this Article 7.
8. Industrial property rights and copyrights, Defects of Title
Unless otherwise agreed, we shall be obliged to ensure that the goods are free of industrial property rights and copyright of third parties (hereinafter referred to as proprietary rights) only in the country of delivery. If a third party files a justified claim against the customer for the infringement of proprietary rights by any deliveries provided by us and used in accordance with the terms of the contract, we shall be liable to the customer, within the period specified in Clause 7, as follows: We shall at our discretion and at our expense either acquire a licence for use of the goods concerned, or modify the delivered goods so that the proprietary right is no longer infringed, or exchange the goods. If we are unable to do so under reasonable conditions, the customer shall be entitled to his statutory rights to withdraw from the contract or reduce the purchase price. The customer shall not be entitled to demand compensation for futile expenditure. Our obligation to render compensation shall be governed by Clause 9 of these General Terms of Business. Our obligations as above shall apply only if the customer notifies us in writing immediately of the claims asserted by third parties, does not recognise any infringement, so that all possible defences and settlement negotiations are still available to us. If the customer discontinues use of the delivered goods in order to keep damage to a minimum or for other just cause, he is obliged to notify the third party that such discontinuation of use does not constitute acknowledgement of infringement of a proprietary right. We shall not accept any claims by the customer if he is responsible for infringement of the proprietary right. Nor shall we accept any claims by the customer if infringement of a proprietary right is due to any particular specifications of the customer, to use of the delivered goods in a manner which could not be foreseen by us, or because the customer has modified the delivered goods or used them together with other products which were not delivered by us. The infringement of proprietary rights shall otherwise be governed by the provisions of Clause 7 accordingly. In the event of any other defects in title, the provisions of Clause 7 shall apply accordingly. We shall not accept any further claims or claims based on a defect in title other than those specified in this Clause 8 filed by the customer against us or our agents in performance.
We shall not accept any claims filed by the customer for compensation, regardless of the legal grounds, in particular for the infringement of obligations under the law of obligations or for tort. The above shall not apply in cases where we are obliged by law to accept liability, e.g. under the Product Liability Act, in cases of wilful or gross negligence, for physical injury owing to the assumption of a warranty for the existence of a certain property, or the infringement of essential obligations under the contract. If we are guilty of minor negligence in the infringement of an essential obligation under the contract, compensation will be restricted to the foreseeable, typical damage in such cases; we shall consequently assume liability only up to a maximum of twice the value of the delivery. If we ourselves are not liable, the claims to which we are entitled against third parties can be assigned to the customer on request. In case of acts of God, we shall not be liable for compensation in any way whatsoever.
10. Venue, Applicable Law
Place of performance for our obligations under the contract and legal venue for all and any disputes arising from the contract is the registered office of Seareq. We shall further be entitled to take the customer to court at his registered place of business or habitual abode. The contractual relationship shall be governed by German law.
11. Severability Clause
If any individual provisions of these General Terms and Conditions should prove invalid now or in future, this shall not affect the validity of the remaining provisions. The parties are obliged to replace the invalid provision by a valid provision which comes as close as possible to the intended purpose of the invalid provision.
Situation as per January 2015