Terms and conditions of purchase of E-Cap Marine GmbH
These General Terms and Conditions of Purchase („general purchasing conditions“) apply to all purchase contracts, contracts for work and materials and other contracts between E-Cap Marine GmbH (the "Customer") and the Contractor unless otherwise agreed in writing. Provisions deviating from the order or the terms and conditions of purchase shall not become part of the contract and shall be deemed rejected even if they remain uncontradicted.
II. Conclusion of contract
Orders are only binding if they are placed by the customer in writing. Amendments to the contract, the orders and these Terms and Conditions of Purchase must be made in writing, which can also only be waived in writing.
The prices stated in the order are binding and apply free place of performance. They include everything that the contractor has to effect in order to fulfil his obligation to perform as well as all ancillary costs, in particular for packaging, delivery, insurance and customs.
IV. Scope of delivery and services
1. The Contractor shall transfer to the Purchaser ownership of all technical documents prepared within the scope of design and programming services, including those of its subcontractors, and of other documents required for new production, maintenance and operation of the supplies and services. These documents shall be drawn up in German and English and in accordance with the International System of Units SI.
2. The Contractor shall grant the Customer all rights of use required for the use of the supplies and services by the Customer or by third parties, taking into account any patents, supplementary protection certificates, trademarks, utility models, etc.
3. The supplies and services to be provided by the Contractor shall be free from rights of the Contractor and third parties and shall be transferred for the free use of the Customer. This shall include the Customer's right to carry out repairs and modifications to the supplies and services themselves or to have them carried out and to manufacture spare parts for them itself or to have them manufactured by third parties. The Contractor shall indemnify the Customer against all claims of third parties due to possible infringements of property rights.
4. The approval of submitted drawings and technical documents by the Customer or by testing, acceptance or classification society shall not constitute acceptance in the legal sense.
5. The delivery items manufactured according to information, drawings, samples, models or other documents or specifications of the customer may only be delivered to him and may not be made accessible to third parties without the written consent of the customer. All documents, in particular samples, models and drawings, shall remain the property of the Customer. The same shall apply to any existing industrial property rights. The documents are to be treated confidentially and may not be made accessible to third parties without the written consent of the Customer. The documents, together with any copies that may have been made, shall be returned to the Customer without delay and without special request after the Customer's inquiry or order has been completed. Improvements to the delivery item which appear possible to the Contractor during the execution of the contract shall be notified to the Customer. The Customer shall have the exclusive right to apply for industrial property rights for the improvements and to exploit them commercially.
6. In the case of processing orders, processing shall be carried out at any time and to any degree on behalf of the Customer as manufacturer within the meaning of Section 950 of the German Civil Code (BGB). Acquisition of ownership by the contractor is excluded.
7. If the agreed scope of services is to be deviated from, the Contractor shall only be entitled to additional claims or schedule changes if a corresponding written supplementary agreement has been made prior to execution.
The Contractor shall set up and maintain a documented quality assurance system which is suitable in terms of type and scope and which corresponds to the state of the art. He shall keep records, in particular of his quality inspections, and make them available to the Customer upon request. The Contractor hereby consents to quality audits for the purpose of assessing the effectiveness of its quality assurance system by the Client or by a person appointed by the Client.
VI. Dates and delay
1. The dates specified in the order are binding. Performance before the agreed dates entitles the client to reject the performance until the due date.
2. The Contractor shall immediately notify the Client in written form of any reasons leading to a missed deadline. Deadline overruns can lead to considerable damage for the Client due to its own obligations towards its customer.
3. In the event of a delay, the Customer shall be entitled, in case of imminent danger, urgency or in order to avoid further damage, to have the Contractors outstanding delivery/service carried out by a third party at the Contractor's expense without setting a grace period.
4. In the event of default, the Customer shall have a claim against the Contractor for a contractual penalty in the amount of 0.2% of the contract price per calendar day on which the Contractor is in default, but in total not more than 10% of the contract price. The claim to a contractual penalty shall remain valid until the final payment, even if this was not expressly reserved at the time of acceptance of the respective delivery or service. Further rights and claims of the client remain reserved.
VII. Delivery and storage
1. Unless otherwise stipulated in the contract, delivery shall be made to the shipping address specified in Section XIV of these Terms and Conditions of Purchase in compliance with the following provisions:
a) The delivery of the delivery item to a place of receipt other than the place of receipt designated by the Customer shall not lead to a transfer or risk to the Customer, even if this place of receipt accepts the delivery. The Contractor shall bear the Client's additional costs resulting from delivery to a receiving point other than the agreed receiving point.
b) Delivery notes are to be handed over in duplicate upon delivery. The following information must be included: (1) purchase order number of the Customer, (2) supplier number, (3) material number according to the purchase order, (4) item number from the purchase order as well as other additional notes requested in the purchase order. On the day of dispatch of the goods, a dispatch note in triplicate with the same details as shown on the delivery bills, separately for each order, shall be sent to the Customer.
c) Partial deliveries shall be marked as such. Ordered material test certificates and other test documents shall be delivered at the same time as the delivery item.
d) So far as the return of the packaging material is contractually agreed upon, a corresponding and clear indication shall be included in all delivery documents. In the absence of such marking, the Customer shall dispose of the packaging at the Contractor's expense; in this case, the Contractor's claim to the return of the packaging shall lapse. d) Insofar as the return of the packaging material is contractually agreed upon, a corresponding and clear notice shall be included in all delivery documents. In the absence of such marking, the Customer shall dispose of the packaging at the Contractor's expense; in this case, the Contractor's claim for return of the packaging shall expire.
2. The storage of objects of the Contractor which are required for the performance of services on the premises of the Customer may only take place in the assigned storage areas. The Contractor shall bear full responsibility and risk for these items.
VIII. Subcontracting and assignment
1. The Contractor shall not be entitled to transfer the execution of the contract in whole or in part to third parties without the prior written consent of the Customer. If the Customer grants consent, the Contractor shall remain jointly and severally liable for the performance of the contract. Subcontractors of the Contractor shall be named at the request of the Customer.
2. The Contractor is not entitled to assign claims arising from this contract without the prior written consent of the Customer.
1. The Customer shall be entitled to terminate the contract in whole or in part without giving reasons. The Customer shall adequately remunerate the Contractor for all deliveries and services rendered up to that point at the contract price agreed for them, as well as for procured material and work performed. The Customer may take over material and/or semi-finished products including any special operating resources on reasonable terms.
2. Further claims of the Contractor other than those mentioned above are excluded.
X. Invoicing, payment and set-off
1. The same information as on the delivery bill must be provided on the invoice and in all correspondence. The invoice must also contain the following information: (1) the date of delivery or performance of services, (2) the consideration for the delivery or services, and (3) the amount of tax due on the consideration, if applicable.
2. Payments shall only be made after delivery and performance have been completed in full and a proper invoice has been received. The payment date shall be the last working day of each week. Unless otherwise agreed in the contract, the price shall become due after delivery and performance in accordance with the contract and receipt of the invoice in accordance with the contract as follows: with deduction of 3% discount for payment within 30 days or net within 60 days.
3. The Client shall not be in default with the obligation to make payment without the receipt of a reminder.
4. The Client shall be entitled to offset a claim to which the Contractor is entitled against the Client, set off against all claims that the Client has against the Contractor.
5. The Contractor may only set off claims that are undisputed or have become res judicata.
XI. Defect and product liability
1. The Contractor warrants without limitation that its deliveries and services have the agreed quality and fulfil the contractually intended purpose.
2. In deviation from the provision in § 377 HGB (German Commercial Code), the Customer shall inspect incoming deliveries for obvious defects within seven working days and notify the Contractor thereof, in the case of hidden defects calculated from the time of discovery. The timely dispatch of the notification shall suffice.
3. The statutory limitation period for claims based on defects shall apply. The limitation period for claims based on defects shall commence upon acceptance, in the case of delivery items that are part of the complete system, at the earliest upon delivery of the complete system to the Customer's customer, and in the case of operating and machine systems or parts thereof, at the earliest upon commissioning of the system. In all other respects, the limitation period shall commence upon complete provision of the supplies and services free of defects.
4. For repaired and replaced parts, the limitation period for claims due to defects shall start anew after complete elimination of the defect. If the remaining regular limitation period for a defect notified by the Customer is less than six months, the Customer's claims shall expire six months after notification of the defect.
5. The Customer shall be entitled to carry out all necessary measures for the elimination of defects itself at the expense of the Contractor without prior request for subsequent performance if this is necessary for urgent reasons (e.g. meeting deadlines or avoiding damage).
6. The legal rights of the client remain unaffected.
7. Insofar as the Contractor is responsible for product damage, it shall be obliged to indemnify the Client against claims for damages by third parties upon first request to the extent that the cause lies within its sphere of control and organization and it is itself liable in relation to third parties.
XII. Secrecy and data protection
1. The Contractor shall maintain confidentiality vis-à-vis third parties with regard to all operational processes, facilities, equipment, documents, etc. at the Customer and its customers of which it becomes aware in connection with its activities for the Customer, even after the respective offer has been submitted or the contract has been completed. He shall impose corresponding obligations on his vicarious agents and assistants.
2. The client refers according to § 33 BDSG that he will store data of the contractor on the basis of the Federal Data Protection Act.
XIII. Place of performance, place of jurisdiction, applicable law
1. The place of performance for the Contractor's deliveries and services shall be the place of receipt designated by the Customer. The exclusive place of jurisdiction shall be the general place of jurisdiction of the Customer or, at the Customer's option, the general place of jurisdiction of the Contractor, unless mandatory statutory places of jurisdiction exist.
2. All legal relations between the Customer and the Contractor shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980, as amended from time to time.
XIV. Delivery address/ customs regulations
Headoffice - Mail:/ Truck: Blohmstraße 23, 21079 Hamburg, Germany
Opening hours: Mon - Fri 07:00 – 14:30
Registered office of the company – Mail/ Truck: Messerschmittstraße 6, 21423 Winsen (Luhe), Germany
Opening hours: Mon - Fri 07:00 – 14:30