General sales and delivery terms and conditions for trade

§ 1 Scope and validity of terms

1. All deliveries, services and offers from Magellan Maritime Services (henceforth referred to as MMS) are made exclusively on the basis of these terms of business, which shall apply to all further business transactions even if they have not been specifically agreed upon by the parties. These terms are to be regarded as accepted on acceptance of the goods or services at the latest. Contrary representations on the part of the Buyer with reference to the Buyer's general terms of business or purchasing terms are expressly excluded.

2. Additional oral agreements only apply if confirmed in writing by MMS. If purchased goods (equipment) are to be used, the protection rights of third parties are to be observed; these are excluded from sale.

§ 2 Offer and contract conclusion

1. All offers submitted by MMS are subject to subsequent alteration and are not binding. Orders are only binding for MMS where MMS has confirmed the order in writing, or corresponds to the order with a delivery.

2. Sales employees of MMS are not authorised to reach any additional oral agreements or issue any oral assurances that extend beyond the scope of the written contract.

§ 3 Range of deliveries

1. Order confirmation by MMS shall govern the range of delivery. For the period in which the Buyer is overdue on settling payment owed, also applying to earlier business transactions, MMS shall be entitled to deny service.

2. Delivery dates or notice periods that have been agreed upon in a binding or non-binding fashion require the written form.

3. MMS shall not bear responsibility for delivery or service delays due to force majeure or other events, especially strike, lockout, instructions from public authorities, etc., that significantly and not only temporarily hinder or prevent MMS from delivery, and also in cases where these circumstances affect MMS's direct or indirect suppliers. Such circumstances shall entitle MMS to postpone delivery or service by the duration of the hindrance in addition to a commensurate period for preparation, or to withdraw partly or completely from the corresponding part of the contract that has not yet been fulfilled. The customer shall have no recourse to other claims, in particular to compensation for damages.

4. If the hindrance should last longer than three months, the Buyer shall be entitled to withdraw from that part of the contract that has not yet been fulfilled after setting a reasonable period of notice. If the delivery period is extended and MMS is released from its responsibilities, the Buyer may not derive any claims for compensation. MMS may only refer to the circumstances named if it has immediately advised the Buyer accordingly.

5. If MMS is responsible for the non-fulfilment of the agreed delivery date to which it is bound or is delayed in delivery, the Buyer shall be entitled to claim compensation for delayed delivery at 1.5% of the purchase price for each completed week up to a total of 5% of the contract value of the deliveries or services affected by the delay. The Buyer shall not have recourse to any further claims unless the delay is the result of at least grave negligence on the part of MMS.

§ 4 Price and transfer of risk

1. Unless otherwise agreed in writing, all prices quoted are EXW from the storage depot of MMS (which also includes external storage facilities used by MMS) without packaging and without GST/VAT.

2. The risk is transferred to the Buyer as soon as the consignment is transferred to the person shipping the consignment or has left the MMS storage depot as previously described for the purpose of shipment. If the delivery is delayed at the request of the Buyer, the risk will be transferred on the announcement of shipment readiness to the Buyer.

§ 5 Payment

1. Unless otherwise agreed, payment is due immediately after receipt of the invoice from MMS and is payable strictly net cash.

2. If the Buyer falls into arrears on payment, MMS shall be entitled to charge interest at 8 percentage points above the base rate of the European Central Bank from the corresponding time point. MMS may claim compensation for higher damages at its own discretion.

3. In cases of delayed payment where there is reason to doubt the Buyer's creditworthiness or ability to pay, MMS shall, other rights notwithstanding, be entitled to demand collateral or advance payment. Additionally, MMS shall be entitled to declare all other claims arising from the business commitment as due.

4. The Buyer shall only be entitled to offset, retain or reduce payment if a title to the counterclaims has been awarded in a court of law or the counterclaims have not been disputed; this also applies to claims arising from objections to faults or other counterclaims.

§ 6 Retention of title

1. Until all of the claims have been settled (including all claims on current account balances) to which MMS is entitled from the Buyer now or in the future for any legal reason, MMS shall be granted the following security that shall be released on request at the discretion of MMS as soon as the security's value exceeds 20% of the claims after receipt. 

2. The goods shall remain the property of MMS. Any processing or alteration shall be made for MMS as the manufacturer without incurring any duties on the part of MMS. If MMS's (part) ownership should be eliminated through combination of the goods with the property of another party, the Buyer agrees herewith to assign the corresponding part of the object by value percentage (value as per invoice) to MMS. The Buyer shall maintain safe keeping of the (part) property of MMS without charge. Goods to which MMS is entitled (part) ownership are referred to henceforth as reserved goods.

3. The Buyer is entitled to process and sell reserved goods in ordinary business as long as the Buyer is not overdue on payment. Liens and assignments on the goods are not permitted. The Buyer shall, for the purposes of security, herewith assign all claims resulting from further sale or any other legal reason with reference to the reserved goods (including all claims on current account balances) to MMS. MMS shall authorise the Buyer to collect all claims assigned to MMS in the Buyer's name and on the Buyer's account. This authorisation may be revoked, but only if the Buyer does not fulfil payment obligations in the proper manner.

4. If any third party should launch any claims to reserved goods, especially liens, the Buyer shall inform the third party of MMS's ownership of the goods and immediately advise MMS for MMS to be able to exercise its own ownership rights to the goods. If the third party is not in a position to compensate MMS for the costs of settlement in and out of court, the Buyer shall be held liable for these costs.

5. If the Buyer should act in breach of the contract, in particular through overdue payment, MMS shall be entitled to withdraw from the contract and demand the return of the reserved goods.

§ 7 Guarantee

1. New goods are delivered free of all production and material defects. The guarantee period in which the Buyer may launch a claim due to defects shall be one year beginning with goods delivery.

2. The Buyer shall immediately inspect the goods delivered on receipt. The Buyer shall advise MMS of any defects immediately, within three days at the latest, in writing or by telex. If the Buyer should fail to inform MMS, the delivery shall be regarded as accepted unless the defect is a concealed defect. The same applies to shortfalls in the scope of delivery.

3. Used goods shall be sold "as seen", or in the condition in which they could have been seen. The Buyer shall have no rights arising out of defects in used goods regardless of the time of occurrence. MMS shall undertake no guarantees.

4. If the Buyer should advise MMS of a defect in the goods supplied by MMS, MMS shall, at its own discretion and cost, demand that

a) the defective goods be returned to MMS for repair and subsequent return to the Buyer;

b) the Buyer keep the goods available while a service technician of MMS is sent to the Buyer to carry out the repair.

5. If the Buyer demands that the repair work be carried out at a certain location determined by the Buyer, MMS may accommodate this request. Replaced parts will not be charged; however, MMS will charge for labour hours and travelling expenses at MMS's standard rates.

6. If the repair work should fail to achieve the desired result after a reasonable period, the Buyer may, at his discretion, demand a discount from payment or withdraw from the contract.

7. MMS shall accept no liability for normal wear and tear.

8. Claims arising from defects against MMS may only be launched by the Buyer directly, and may not be assigned to a third party.

§ 8 Liability

1. MMS shall not accept any claims to compensation for damages regardless of the type of non-fulfilment of obligations, including unauthorised activity, unless intent or grave negligence is involved.

2. In breach of major contractual obligations, MMS shall accept liability for every case of negligence, but only up to the foreseeable level of damages. Claims to loss of earnings, expenses saved, from claims from third parties as well as other indirect and consequential damages may not be launched unless the claim involves qualities guaranteed by MMS that were specifically intended to protect the Buyer from such damages.

3. The exclusions in the liability limitations described in the two preceding paragraphs do not apply to claims arising from deceptive behaviour of the Seller, liability applying to guaranteed qualities, according to the product liability law of Germany, or damage to health, injury to persons, or death.

4. All liability of the Seller that is excluded or limited applies equally to the employees, representatives and vicarious agents of the Seller.

§ 9 Obligations of the Buyer

Unless otherwise agreed, all goods are sold without customs settlement. The Buyer assures and guarantees the Seller that the Buyer may assume disposal rights over the goods without obligations to pay customs and excise, import VAT and/or other similar charges or payments. The Buyer shall indemnify MMS from all payments to customs or other authorities.

§ 10 Miscellaneous terms

1. The law of the Federal Republic of Germany shall apply to all terms of business and the entire legal relationship between the Buyer and MMS. The terms of the UN Convention on the International Sale of Goods (CISG) shall not apply.

2. Inasmuch as the Buyer is a legal entity according to public law or is represented by publicly owned assets, jurisdiction relating to any dispute indirectly or directly arising from the contractual relationship shall be exclusive to Hamburg.

3. Any invalid provision in these terms of business or in any other agreement now or in the future shall not affect the validity of the other terms.