Transport Systems for Industry and Ports
§ 1 Scope of Application
(1) All deliveries, services and offers by SEACOM shall be governed solely on the basis of these General Terms and Conditions of Delivery. They form an integral part of all contracts concluded by SEACOM with its contractual partners (hereinafter also referred to as “Customer”) on the deliveries and services offered by SEACOM. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not expressly agreed upon again separately.
(2) General terms and conditions used by the Customer or a third party shall not apply, even if SEACOM does not expressly object to their application in each individual case. Even if SEACOM makes reference to a document containing the Customer’s or a third party’s general terms and conditions, or makes reference to such general terms and conditions, this shall not be construed as an approval of the application of said general terms and conditions.
§ 2 Offer and conclusion of a contract
(1) All offers submitted by SEACOM are subject to confirmation and are non-binding, unless they have been marked as binding or contain a defined period for the acceptance of such offer. SEACOM may accept orders or assignments within a period of fourteen days of their receipt.
(2) The legal relationship between SEACOM and the Customer shall be governed exclusively by the written purchase contract, including these present General Terms and Conditions of Delivery. This reflects all agreements between the contracting parties comprehensively with regard to the object of the contract. Oral undertakings given by SEACOM prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated therein that they will continue to be binding in that particular case.
(3) Amendments to, and modifications of the agreed arrangements, including the present General Terms and Conditions of Delivery shall only be effective in writing. Employees of SEACOM, with the exception of executive managers and representatives with special authority (“Prokura” under German Law), are not entitled to enter into deviating oral agreements.
The written form is deemed to have been fulfilled when a copy of the signed document is submitted by means of telecommunications, in particular by facsimile or e-mail.
(4) Information by SEACOM on the object of the supply or service (e.g. weights, measurements, tolerances, technical data and other performance data) as well as representations of the same (e.g. drawings and illustrations) are only approximately representative, unless the application for a contractually determined purpose requires exact conformity. They are not guaranteed characteristics but designations or features of the delivery or service. Deviations considered trade customary or made to comply with legal regulations or deviations that constitute technical improvements, as well as the substitution of equivalent components is acceptable, as long as the intended function provided for in the contract are not compromised.
(5) SEACOM retains the ownership or copyright for all offers and cost estimates issued as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources made available to the Customer. Without express agreement by SEACOM, the Customer may not make these objects, or the content of them, accessible to third parties or make them known to third parties, or have them used or reproduced, either by himself or by third parties. On request of SEACOM he must return these objects to him in their entirety and, where applicable, destroy any copies made of them, if they are no longer needed by him in the proper course of business or if negotiations do not result in the signing of a contract.
§ 3 Prices and payment
(1) The prices apply for the scope of supply and performance stated in the order confirmation. Additional or special performances are charged for separately. The prices are indicated in EURO ex works plus the statutory rate of value-added tax, customs duty in the case of exports and fees and other public costs.
(2) Unless otherwise agreed, the purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. SEACOM is entitled at all times, even in the context of an ongoing business relationship, to demand advance payment of all or part of the total amount. SEACOM will declare a corresponding proviso at latest with the order confirmation.
(3) SEACOM shall accept cheques only upon specific arrangement and only on account of performance. Any fees for cheques shall be at the expense of the Customer and immediately payable.
(4) Upon the expiration of the payment period, the Customer shall be in default. During the payment default, interest will be charged on the sales price in conformity with the legal default interest rate (§§ 288, 247 BGB). SEACOM reserves the right to claim further default damages.
(5) The Customer shall be entitled to rights to offset or retention only to the extent that its entitlement has been determined final and binding or is undisputed. In case of defects to the delivery, opposing rights of the Customer, in particular § 6 para. 4 sentence 4 remains unaffected.
(6) Should it become apparent after conclusion of the contract that the claim for the purchase price is threatened due to customer's lack of ability to honor its commitments (e.g. due to an application for the opening of an insolvency proceeding), SEACOM shall be entitled, according to the statutory provisions, to refuse performance and – if applicable, after affixing a deadline – to rescind the contract (§ 321 BGB). With contracts for the manufacture of non-fungible goods (custom-built products), SEACOM may declare the rescission immediately; the statutory regulations regarding the dispensability of the setting of a deadline remain unaffected.
§ 4 Delivery and Delivery Time
(1) Delivery shall take place ex works in Kościan or Wronki, Poland, unless otherwise agreed upon.
(2) Delivery times and deadlines and services proposed by SEACOM shall be seen as approximations, unless a specific time limit or deadline has been mutually agreed upon. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods.
(3) SEACOM may - without prejudice to its rights resulting from the default of the Customer - request the Customer to accept an extension or postponement of the delivery periods by that period of time in which the Customer has failed to meet its contractual obligations towards SEACOM.
(4) SEACOM is not liable for impossibility of delivery or for delays in delivery where these are caused by force majeure or other circumstances that were not foreseeable at the time of the conclusion of the contract (e.g. all forms of disruption in operations; difficulties in obtaining material and energy; delay in transit, strikes or lawful lockouts, lack of manpower, energy or raw materials, difficulties in procuring necessary official approvals, measures taken by the authorities or non-delivery or incorrect or late delivery by suppliers), for which SEACOM is not responsible. Where these events make it difficult or impossible for SEACOM to supply the goods or services and the delay is not only transitory, the SEACOM reserves the right to withdraw from the contract. If the delay is perceived to be transitory, the delivery or supply period is deemed to be put back by the same period as the delay plus an appropriate period for adjustment to the changed circumstances. If the Customer cannot, as a result of the delay, be expected to take delivery of the products or services, he is entitled to withdraw from the contract by means of an immediate declaration in writing to SEACOM.
(5) SEACOM has a right for partial delivery, if
- the Customer can use the partial delivery as part of the contractually intended purpose,
- the delivery of the rest of the ordered products is ensured and
- the Customer incurs no major additional effort or additional costs (unless SEACOM agrees to bear such costs).
(6) If SEACOM is accountable for for failing to observe agreed deadlines and dates or is in default, the Customer shall be entitled to a compensation for delay of 0.5% for every week completed, however, in the aggregate to a maximum of 5% of the value as per invoice of the delivery and performance affected by the delay. Any further claims are excluded unless the delay is caused at least by gross negligence on the part of SEACOM.
SEACOM shall have the right to prove that no or only a significantly lower damage has occurred to the Customer.
The above shall not restrict the rights according to § 8 of these General Terms and Conditions of Delivery.
§ 5 Place of performance, shipment, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from this contract is Leonberg, unless agreed to the contrary. Should SEACOM also be in charge of the installation or commissioning, the place of performance is the location where installation or the commissioning is to take place.
(2) Shipping and packaging are subject to the due discretion of SEACOM.
(3) Risk shall pass to the Customer at latest upon handover of the goods (whereby the start of loading procedure shall be decisive) to the forwarding agent, the carrier, or any other person charged with the execution of the shipment. This also applies if partial deliveries are made or if SEACOM is in charge of other services (e.g. delivery or installation). If the delivery or handover is delayed due to circumstances within the sphere of the Customer, risk shall pass to the Customer on the day SEACOM declares readiness for shipment and informs the Customer of this.
(4) After transfer of the risk, storage costs shall be borne by the Customer. In case of storage by SEACOM, the cost shall be 0.5 % of the price of the objects to be stored per month completed. This shall be without prejudice to the right to prove and claim higher or lower storage costs.
(5) Solely upon the request of the Customer and at his cost, SEACOM will insure the shipment against theft, breakage, loss during shipment, fire loss and water damage as well as other insurable risks.
(6) Should acceptance be necessary, the item purchased is considered to have been accepted when
- the delivery and, if SEACOM is also in charge of the installation, the installation has been completed, and
- SEACOM has informed the Customer of his acceptance of delivery duties in accordance with § 5 para. 6 and has requested acceptance, and
- either twelve working days have elapsed since the delivery or installation, or the Customer has commenced to use the item purchased (e. g. has started operation of the plant delivered) and six working days have elapsed since delivery or installation, and
- Customer refuses to take acceptance of the delivery within the stipulated period of time for reasons other than a defect notified to SEACOM that would render use of the item purchased impossible or considerably impairs such use.
§ 6 Rights of the customer in the event of defects
(1) Statutory liability for defects shall last one year starting from the time of delivery or, if applicable, acceptance. This preclusion shall not be applicable to any claim for damages arising from wrongful death, personal injury or health impairment or an intentional or grossly negligent breach of duty of SEACOM or one of its agents, in which case a claim shall become statute-barred in accordance with the legal provisions.
(2) The delivered goods are to be examined carefully and promptly following delivery to the Customer or his designee. They shall be deemed to be approved by the Customer if SEACOM has not received a written notification of defects pertaining to visible defects or other defects visible in the course of a prompt, thorough examination within one week from delivery. Other defects shall be deemed to be approved by the Customer if SEACOM has not received a written notification of defects within two weeks of discovery of the defect or from the time in which the defect could be recognized by the Customer in normal use without closer inspection.
Upon demand and choice of SEACOM, the objected item shall either be sent back to SEACOM carriage paid or made accessible in situ to a staff member of SEACOM for inspection and repair / remedy, if necessary.
In case of shipment and where complaints are justified, SEACOM shall reimburse the costs for the cheapest method of shipment; however this shall not apply if such costs are increased due to the fact that the goods are located at a place other than the place of their intended utilization.
(3) In the event of material defects to delivered goods, SEACOM shall, at its own discretion and within a reasonable period, be obliged and entitled to either rework the delivered goods or make a delivery of replacement goods. In the event of the failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay with regard to the rework, the Customer can withdraw from the contract or make a reasonable reduction to the purchase price.
SEACOM is entitled to make the subsequent performance dependent on the payment of the purchase price due by the Customer. However the Customer shall be entitled to retain a portion of the purchase price which is reasonable in the ratio to the defect.
(4) If a defect is caused by a fault of SEACOM, the Customer shall have the right to request payment of damages subject to the prerequisites provided for in § 8 below.
(5) Claims for defects shall be excluded if the operating or maintenance instructions by SEACOM are not followed, if the products are modified, if parts are replaced or if consumables are used which do not comply to the original specifications. However, the customer retains the right that the defect would also have occurred if he had followed the instructions by SEACOM. The Customer shall have to bear the additional costs for the supplementary performance in any case.
(6) If a delivery of used objects has been agreed with the Customer in an individual case, all warranties for defects shall be excluded.
(7) Any liability for normal wear and tear shall be excluded.
(8) Claims for defects against SEACOM shall only be the prerogative of the direct Customer and are not assignable.
§ 7 Property rights
In accordance with this § 7, SEACOM declares that the delivered goods shall be free of third party industrial property rights and/or copyrights. Each contracting partner will immediately inform the other contracting partner in writing in the event that claims are made against him due to the infringement of such rights.
(2) In the event that the item supplied infringes a third party industrial property right or copyright then, SEACOM will, at its choice and at his own costs, either alter or exchange the item supplied in such a way that it no longer infringes any third party rights, but so that the item supplied continues to fulfil the functions contractually agreed, or procure the right of use for the Customer by concluding a licence contract. If SEACOM does not manage to do this within an appropriate period, the Customer is entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims for damages by the Customer are subject to the limitations in § 8 of these General Terms and Conditions of Delivery.
(3) In case of infringements of products from other manufacturers supplied by SEACOM then, SEACOM will, according to its choice, make its claims against the manufacturer and previous supplier on the Customer’s account or transfer this title to the Customer. In this case Claims against SEACOM shall only exist in accordance with this § 7 if legal enforcement of the abovementioned claims against the manufacturer and previous supplier has been unsuccessful or is futile, for example, because of insolvency.
§ 8 Liability for damages in case of default
(1) The liability of SEACOM for damages, regardless of the legal basis but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties during contract negotiation and action in tort is, as far as they are subject to fault, limited in accordance with this § 8.
(2) SEACOM shall not be liable in the event of simple negligence by his agents, legal representatives, employees or other servants, in so far as this does not amount to an infringement of obligations that are essential to the contract. Essential contractual obligations shall be the obligation for a delivery and installation of the item in a timely manner, free from defects of title and defects in quality affecting its functionality or suitability for use to more than an inconsiderable degree, the duties of consultation, protection and custody, which are to facilitate the contractual use for the Customer of the item delivered or which or whose purpose is to protect life and limb of the staff of the Customer or to prevent his property from considerable damage.
3) If SEACOM is liable for damages in accordance with § 8 para. 2, this liability shall be limited to damage which SEACOM has foreseen as a possible consequence of a contractual infringement at the time of the conclusion of the contract or which SEACOM should have foreseen, applying due diligence. Furthermore, indirect damage and consequential damage resulting from defects of the item delivered shall only be eligible for compensation to the extent to which such damages may typically be expected when the object delivered is used for its intended purpose
(4) In case of liability for simple negligence, the obligation of SEACOM to replace or reimburse physical damage and resulting loss of profits shall be limited to the amount of EUR 3.000.000 per case, even if this is a case of infringement of obligations essential to the contract.
(5) The above liability exclusions and limitations apply to the same extent in favor of the agents, legal representatives, employees and other servants of SEACOM.
(6) If SEACOM provides technical information or acts as an adviser and this information or advice is not part of its contractually agreed scope of services, such services are offered free of charge and with any liability excluded.
(7) The limitations of this § 8 do not apply to SEACOM’s liability on account of deliberate actions, for guaranteed characteristics, on account of injury to life, limb or health or under the German Product Liability Act.
§ 9 Reservation of title
(1) The reservation of title hereinafter agreed serves to safeguard all of SEACOM's current and future claims against the Customer from the delivery relationship between the contracting parties (including outstanding balance claims from a current account agreement).
(2) The goods delivered by SEACOM to the Customer shall remain SEACOM’s property up until complete payment has been effected for all secured claims. The goods as well as goods replacing them and which also are subject to the reservation of title, shall hereinafter be referred to as “reserved title goods”.
(3) The Customer shall keep the reserved title goods for SEACOM free of charge.
(4) The Customer shall have the right to process and sell the reserved title goods during the normal course of business, up until the occurrence of a case of liquidation (para 9). Pledging as collateral and transfer by way of security are inadmissible.
(5) If the reserved title goods are processed by the Customer then it is agreed that the processing is done in the name and on behalf of SEACOM as manufacturer and SEACOM directly acquires the ownership or – if the processing is carried out with materials from a number of owners or the value of the processed objects is higher than the reserved title goods – the co-ownership (fractional ownership) of the newly produced objects in relation of the value of the reserved title goods to the value of the newly produced objects. In the event that SEACOM does not acquire ownership, the Customer hereby transfers by way of security his future title to, or – in the aforementioned relation – co-ownership in the newly created goods to SEACOM.
Should the reserved title goods be combined with other goods to form a uniform object, or should it be compounded with inseparably, and should one of the other goods have to be regarded as the main object, SEACOM, if being the owner of the main object, hereby transfers co-ownership in the uniform object to the Customer on a pro rata basis, in the relation stipulated in sentence 1.
(6) In the event that the reserved title goods are sold on, the Customer hereby transfers the resulting claim against the purchaser – or in case of co-ownership of SEACOM of the reserved goods in proportion to the proportion of co-ownership – to SEACOM by way of security. The same applies for other claims which take the place of the reserved title goods or which arise with reference to the reserved title goods, such as insurance claims or tort claims in case of loss or destruction. SEACOM herewith grants the Customer revocable authorization to collect the claims transferred to SEACOM in his own name on behalf of SEACOM. SEACOM may only revoke this power of collection in the case of an enforcement event (i.e. default of payment).
(7) If a third party lays claim to the reserved title goods, in particular by attachment, the Customer will immediately point out SEACOM’s ownership to him and inform SEACOM of this, in order to ensure assertion of the latter's proprietary rights. In the event that the third party is unable to indemnify SEACOM for the legal or out of court expenses incurred in connection with such proceedings, the Customer shall compensate SEACOM for such costs.
(8) SEACOM will release the reserved title goods as well as replacing goods or claims accordingly, as far as their value exceeds the secured claims by more than 50 %. SEACOM may select the items to be released.
(9) Should SEACOM withdraw from the contract due to a breach of contract by the Customer, particularly in the event of a default in payment, (case of recovery) SEACOM shall be entitled to demand delivery of the reserved title goods.
§ 10 Final provisions
(1) If the Customer is a merchant, a legal entity under public law or a public special asset or without legal domicile in Germany, at the choice of SEACOM, either the courts of Stuttgart, Germany, or the courts at the domicile of the Customer shall have exclusive jurisdiction for all disputes arising from the business relationship between the Customer and SEACOM.
For claims made against SEACOM, the courts of Stuttgart, Germany, shall be the exclusive legal venue. Mandatory legal provisions concerning the exclusive place of jurisdiction for disputes shall not be affected by this provision.
(2) The relationship between SEACOM and the Customer is exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) In so far as the contract or these General Terms and Conditions of Delivery are found to be incomplete, the resulting gap shall be filled with such valid provisions that come closest to what the Parties would have agreed according to the commercial aims of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the incomplete provisions.
SEACOM Trailer Systems GmbH, June 2017