TERMS AND CONDITIONS FOR THE PERFORMANCE OF WORKS
Profil Containerservice GmbH, Hamburg, Germany
(Commercial Register B No. 48735 of the Hamburg Local Court, Germany)
TERMS AND CONDITIONS FOR THE PERFORMANCE OF WORKS
(hereinafter referred to as the "terms of repair")
—Version: February 2019—
Note: For freight forwarding transactions,
the German Freight Forwarders' Standard Terms and Conditions (Allgemeine Deutsche Spediteurbedingungen - ADSp) shall apply exclusively!
The following terms and conditions (hereinafter referred to as "terms of repair") apply to the performance of works by Profil Containerservice GmbH, in particular for repair, alterations, maintenance, and assembly on containers and related equipment (hereinafter referred to as "containers"), also in the event that only a part of a container is concerned:
1. Cost estimates and contract conclusion
1.1 All of Profil Containerservice GmbH offers/cost estimates are subject to change. They may be revoked by the principal at any time up to the receipt of the written order placement.
1.2. In the event that the principal orders a cost estimate from Profil Containerservice GmbH for repair work, Profil Containerservice GmbH is to be reimbursed for the costs incurred by preparing the cost estimate. The costs to be reimbursed include, in particular but not exclusively, the costs incurred by the movement of containers, Profil Containerservice GmbH employees, third party companies, and investigations conducted. The costs are not to be reimbursed if the principal has ordered from Profil Containerservice GmbH the services that were the subject matter of the cost estimate.
1.3 The conclusion of a contract becomes effective if the principal confirms in writing the cost estimate by Profil Containerservice GmbH.
1.4 Verbal agreements and promises made by Profil Containerservice GmbH during contract negotiations, but which were not confirmed in writing, shall lose their validity when the order is placed.
1.5 General contractual terms and conditions of the principal that deviate from these terms and conditions are not valid, unless Profil Containerservice GmbH has given its express consent thereto in writing. The performance of the contract shall not mean our consent to the principals General Terms and Conditions.
2. Prices and terms of payment
2.1 Subject to divergent provisions under Numbers 2 and 3, the stipulated prices in accordance with the cost estimate by Profil Containerservice GmbH shall apply.
2.2 Offered prices are calculated by Profil Containerservice GmbH taking into account that incidental scrap shall pass into Profil Containerservice GmbH property free of charge. If costs are incurred for the necessary disposal of contaminated scrap, such costs are to be borne separately by the principal.
2.3 Payments are due immediately, in full, and without deductions upon acceptance and/or delivery of the container, at latest however after notification of release by Profil Containerservice GmbH and the invoice has been handed over or sent.
2.4 Payments by check/draft are only permitted subject to special written agreement. Checks are accepted only as conditional payment. All costs and expenses incurred due to payment by check and draft are to be borne by the principal.
2.5 Payment default commences automatically 10 days after the invoice date. As of the day on which default commences, Profil Containerservice GmbH is entitled to charge the statutory or —inasmuch as they are higher— demonstrated interest.
2.6 The principal is only entitled to exercise a right of retention on the basis of claims that are uncontested or have been established res judicata. The principal is only entitled to offsetting with claims that are uncontested or have been established res judicata.
3. Services and deadlines
3.1 Generally, the services that are covered in the cost estimate by Profil Containerservice GmbH shall apply.
3.2. In individual cases, Profil Containerservice GmbH shall determine the scope and purpose of the ordered work independently and divergent from the contract in accordance with the cost estimate. In particular, Profil Containerservice GmbH is entitled to reasonably expand the scope of the performed work after order placement, inasmuch as this becomes necessary due to circumstances that were not visible upon a simple visual inspection at the time the offer was made. If possible, Profil Containerservice GmbH should inform the principal about an expansion of the order before beginning the work that is necessary within the scope of the expansion.
3.3 Unless otherwise stipulated in writing, the principal is to deliver the container to Profil Containerservice GmbH at Profil Containerservice GmbH’s business premises. The principal is to provide Profil Containerservice GmbH with all of the information that is necessary to properly perform the service or necessary for Profil Containerservice GmbH in connection therewith. This applies especially for the contents or former contents of the container (e.g., hazardous goods), in particular repair instructions, cooling and other regulations to be observed in connection with the container.
3.4 All stated deadlines are not binding, unless expressly stipulated in writing.
3.5 In cases of force majeure, disruptions to operations, strikes, lockouts, lack of raw materials, or similar events that impede the performance of the order, the delivery time shall be extended correspondingly, also if such event occur with Profil Containerservice GmbH's suppliers and subcontractors.
3.6 Profil Containerservice GmbH is entitled to terminate the contract if and insofar as Profil Containerservice GmbH`s suppliers do not in whole or in part fulfil their obligations of their supply agreements for reasons outside Profil Containerservice GmbH`s responsibility. Profil Containerservice GmbH`s liability is stipulated in clause 5, if any.
4. Complaints and warranty
4.1 Upon delivery of the container, the principal or a third party contracted by the principal is to examine the work by Profil Containerservice GmbH without delay and to lodge specific complaints with regard to visible defects without delay, i.e., within three working days, in writing or via email. Failing that, or if the defects are remedied without Profil Containerservice GmbH itself having the chance to have the defects examined within a reasonable period of time and, if necessary, to remedy them, warranty claims on the grounds of such defects are excluded.
Complaints with regard to defects, which cannot be immediately detected even upon careful examination, are to be lodged without delay in writing and specifically upon their discovery.
4.2 In the event of an acceptance, which is free of objections, by an expert, it is irrefutably assumed that Profil Containerservice GmbH is not responsible for defects discovered later.
4.3 If the work performed by Profil Containerservice GmbH is defective, the principal is —subject to immediate examination and after proper lodging of a complaint in accordance with Number 4.1— entitled to demand subsequent performance within a reasonable period of time. In the event that subsequent performance fails finally, the principal is entitled to the statutory warranty rights, taking into account the limitations of liability provided for in Number 5 hereof.
5. Liability and limitations of liability
5.1 Profil Containerservice GmbH is liable for intentional or grossly negligent conduct by its statutory organs, legal representatives, and officers.
5.2 Any claims for damages —on whatever legal grounds— due to slightly negligent breach of nonessential contractual obligations by the statutory organs, legal representatives, and agents of Profil Containerservice GmbH are excluded.
5.3 In the case of a slightly negligent breach of essential contractual obligations by the statutory organs, legal representatives, and agents of Profil Containerservice GmbH, as well as of the intentional or grossly negligent breach of material contractual obligations by Profil Containerservice GmbH's simple agents, Profil Containerservice GmbH is liable —under any legal viewpoint— only for foreseeable damages typical to the contract and not for remote consequential damages.
5.4 The liability pursuant to the German Product Liability Act (Produkthaftungsgesetz - ProdHaftG), the liability for damages resulting from the culpable injury to life, limb, and health, as well as the provisions of Section 444 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) and the liability from other guarantees remain unaffected by the provisions above.
5.5 All further contractual and non-contractual claims of the Principal are excluded.
5.6 The principal is liable for all damages that result from the breach of obligations to cooperate.
5.7 In the event of property damages, Profil Containerservice GmbH is liable only for damages caused directly. Liability for lost profits is excluded. The liability is limited to twice the remuneration contractually stipulated for the work.
6. Limitation period
All warranty claims of the principal shall become time-barred in one year after delivery, at latest after notification of release by Profil Containerservice GmbH, unless the defect was fraudulently concealed by Profil Containerservice GmbH. In this case, the statutory limitation period shall apply.
7. Extended lien
7.1 On the basis of its claims from the order, Profil Containerservice GmbH is entitled to a contractual lien on the containers that come into its possession on account of the order.
7.2 The contractual lien can also be invoked for claims from previously performed work, deliveries of spare parts, and other work performed, inasmuch as they relate to the subject matter of the order.
7.3 The contractual lien for other claims from the business relationship only applies, inasmuch as such claims are uncontested or established res judicata and the container is owned by the principal.
8. Final provisions
8.1 Verbal arrangements ancillary to the order for repair were not stipulated. Unless otherwise provided for in these terms and conditions, amendments or supplements must be made in writing to be legally valid. This also applies to a waiver of written form requirement itself.
8.2 In the event that one or more of these provisions are invalid, the parties to the contract shall agree on a replacement provision that is legally valid and comes as economically close to the invalid provision as possible, without having an effect on the applicability of the other provisions.
8.3 German material law applies to all legal disputes arising under this contract. If the buyer is a businessman in the meaning of the German Commercial Code or a public corporation the place of jurisdiction is Hamburg, Germany (Landgericht Hamburg), or —at the discretion of Profil Containerservice GmbH— where the principal is located.