Unless otherwise expressly agreed in writing the following conditions shall apply to all contracts, orders and deliveries between Möller & Böttger GmbH and ist business partners. Any conﬂicting purchasing conditions (or similar) of the Customer shall be deemed to have been rejected by the Möller & Böttger GmbH unless expressly accepted in writing.
(2a) The Customer shall communicate as soon as reasonably practicable to the Möller & Böttger GmbH his order or orders.
(2b) Provided the prevailing circumstances reasonably permit, the Möller & Böttger GmbH shall supply and deliver to the Customer the Goods or Services as ordered at the time and place stipulated by the Customer insofar as the Möller & Böttger GmbH has agreed to do so and such Goods or Services are available at the agreed port or port-area.
(3a) The Möller & Böttger GmbH’s responsibility for transport of the Goods shall end at the nearest point to the Vessel that the delivery vehicle(s) may, with the necessary authority, reach (“the Point of Delivery”).The cost of transportation of Goods to the Point of Delivery shall be agreed in advance or otherwisecharged at cost to the Möller & Böttger GmbH.
(3b) Should the Möller & Böttger GmbH expressly agree to transport/handle the Goods beyond the Point of Delivery as defned in paragraph 3a the costs of such additional delivery/handling shall be agreed in advance.
(3c) If delivery is requested outside the normal hours of the agreed port or port-area or on Saturdays, Sundays or religious or national or legal holidays, expenses incidental to such delivery shall be payable by the Customer as additional costs. Transport Costs shall be invoiced and payable by the Customer.
(3d) The Goods shall be deemed delivered on the arrival of the Goods at the stipulated time at the Point of Delivery. The responsibility, cost and risk of unloading the delivery vehicle(s) and delivering on board are for account of the Customer. Risk in the Goods (but not property therein) shall, in all respects, pass to the Customer upon delivery.
(3e) The Customer shall pay to the Möller & Böttger GmbH any costs or expenses incidental to any waiting period beyond areasonable time.
(3f) All orders and receipt notes will be signed by the master or his authorised representative.
(3g) Where the Möller & Böttger GmbH is requested to deliver Goods other than to the Vessel responsibility rests with the Customer to ensure that the person responsible for accepting delivery gives a full and proper receipt for the Goods delivered. Signed receipt by that party shall constitute acceptance oft the delivery by and tot he Customer.
(4a) Subject to the following provisions of this Condition 4, in respect of the Goods or Services supplied by the Möller & Böttger GmbH, the Möller & Böttger GmbH shall charge to the Customer the prices current at the relative port or port-area at the time of delivery.
(4b) Where requested to do so the Möller & Böttger GmbH shall submit a quotation to the Customer. Where the Customeraccepts that quotation, the Möller & Böttger GmbH shall charge the Customer the sum quoted, subject to any necessary adjustment for reasonable variations in the quantities actually delivered.
(4c) Where the Customer seeks to place an order for only some of the items for which Möller & Böttger GmbH has quoted, the Möller & Böttger GmbH shall be at liberty to decline the request to supply.
(4d) The Möller & Böttger GmbH may, if requested by the Customer, send to the Customer a list stating the prices of Goods and the period for which such prices are to apply. If such a list has expired and not been renewed, Condition 4a shall apply. Goods which cannot be oﬀered at a price fxed in advance shall be clearly so marked on any such list and in this case Condition 4a shall apply.
(4e) Where the Möller & Böttger GmbH gives the beneft of a quantifed discount (whether in percentage terms, in a stated sum or otherwise) then the Customer’s entitlement to such discount is strictly conditional upon paymentof the Möller & Böttger GmbH’s invoice within the agreed payment period. Where payment is not made within the agreed period the Möller & Böttger GmbHs invoices shall be deemed to be adjusted to exclude any such discount.
(5) The Goods shall be of standard or prime quality as rated at the time and place of delivery. The Goods shall be supplied in the packing customary at the time and place of delivery. At the time of placing his order, the Customer shall inform the Möller & Böttger GmbH of any special packing requirements in view of the destination of the ship and/or Goods. Any additional expenditure incurred in complying with such requirements shall be chargeable to and payable by the Customer.
(6a) Returnable packing material and containers supplied by the Möller & Böttger GmbH shall be clearly marked as such on the receipt-note and shall be returned by the Customer to the Möller & Böttger GmbH as soon as reasonably practicable.
(6b) Returnable packing material and containers shall be charged separately at the prices current at the time and place of delivery. The amounts so charged shall be refunded by the Möller & Böttger GmbH to the Customer, provided such packing material and containers are returned undamaged within a reasonable period.
(7) Subject only to Condition 8 below, by taking delivery of the Goods and signing the accompanying receipt-note, the Customer shall be deemed to have approved and accepted
the Goods in every respect.
(8) Any claims with regard to the conformity or quality of the delivered Goods must be notifed in writing to the Möller & Böttger GmbH within 3 days from delivery and in the absence of such notifcation the Customer shall be deemed to have approved and accepted the Goods in every respect. Exception is made in the case of fresh products and perishable Goods, for which claims must be notifed in writing at the time of delivery or as soon as practicable thereafter. Where a claim is made in accordance with the provisions of this paragraph and where such claim is accepted by the Möller & Böttger GmbH the Customer shall be entitled to a refund of the price of the aﬀected Goods upon inspection of said goods by the Möller & Böttger GmbH or as otherwise agreed in writing by the Parties.
(9) In the event of a claim pursuant to paragraph 8 the Customer shall be required to prove that, since delivery, the Goods were continuously handled, treated and stored by the Customer as a prudentadministrator in keeping with the nature of the Goods and their propensity to deteriorate and that any alleged defciency is not attributable to the Customer’s fault or negligence. The Customer shall be required to make the Goods under claim available for inspection.
(10) Save for claims for death or personal injury any damages/compensation shall be strictly limited to a refund of the price paid to or charged by the Möller & Böttger GmbH for the aﬀected Goods or Services. The Möller & Böttger GmbH shall not under any circumstances whatsoever including the Möller & Böttger GmbH’s negligence be liable for any claim for consequential loss, damage or injury arising out of the supply, or late supply or failure to supply, of any Goods or Services. The Möller & Böttger GmbH shall not be liable for the fnancial consequences arising from any delay to the Vessel or any period that the Vessel may be oﬀ-hire or otherwise unable to earn.
(11) Any complaint by the Customer with regard to the Möller & Böttger GmbH’s invoice will be absolutely barred unless lodged in writing by the Customer with the Möller & Böttger GmbH at the Möller & Böttger GmbH’s usual business address within 3 days of delivery of the invoice.
(12a) The Customer shall pay, prior to the Vessel’s departure the invoiced amount or amounts in the currency stipulated, or by the express agreement of the Möller & Böttger GmbH at a later stipulated date.
(12b) Notwithstanding paragraphs 7 to 11 herein the Customer shall not be entitled to withhold payment of any sums after they have become due in the ordinary course for payment by reason of any claim, right of set-oﬀ or counterclaim which the Customer may allege or for any reason whatsoever.
(12c) If payment is not made within the stipulated period the Customer shall pay the Möller & Böttger GmbH interest on all overdue or unpaid sums at a rate of 1.5% per month or part thereof, or the equivalent to the commercial prime lending rate customarily charged at the time by the Möller & Böttger GmbH’s bank in the Möller & Böttger GmbH’s country, whichever may be the higher. Interest shall be calculated from the due date until actual date of payment.
(12d) Regardless of any allocation stipulated by the Customer upon making any payment, the Möller & Böttger GmbH shall be entitled to apply payments received from the Customer in any way that it considers appropriate, including allocation frstly to interest that has accrued in accordance with 12c or costs incurred in accordance with 12e.
(12e) Te Möller & Böttger GmbH shall be entitled to recover from the Customer any and all costs and/or expenses which may be incurred by the Möller & Böttger GmbH in recovering or seeking to recover from the Customer any overdue or unpaid sums whether or not formal legal steps (including but not limited to the arrest of a Vessel) have been undertaken. Such costs include both internal costs and costs and expenses incurred to external advisers, lawyers or debt collectors instructed for such purpose. Such costs shall be payable by the Customer to the Möller & Böttger GmbH upon demand on a full indemnity basis and may be included in the claim for which a Vessel is arrested.
(12f) Where the Möller & Böttger GmbH has granted credit to the Customer and the Customer is in default in payment of any sums due by the Customer the Möller & Böttger GmbH shall be entitled to give immediate notice of the withdrawal of credit, entitling the Möller & Böttger GmbH to treat all unpaid charges for Goods and Services provided to the Customer as due for immediate payment. Interest shall accrue on such sums from the date of the notice, and the Möller & Böttger GmbH shall be entitled to take immediate legal action to recover the sums due.
(12g) Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the Möller & Böttger GmbH until the Möller & Böttger GmbH has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other Goods and/or Services supplied by the Möller & Böttger GmbH to the Customer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer.
(13a) The Möller & Böttger GmbH may agree to handle Customer’s own goods (hereafter “Customer’s Goods”), including arranging custom’s clearance, inland or international carriage, storage and delivery to a nominated Vessel. In the absence of any contrary terms agreed between the Möller & Böttger GmbH and Customer in relation to such activity this Condition 13 sets-out the terms upon which such Services are provided.
(13b) When the Möller & Böttger GmbH instructs any third party in connection with the clearance, handling or movement of Customer’s Goods it does so strictly as agent for the Customer and the Customer authorises the Möller & Böttger GmbH to act as its agent and to contract on the usual terms of those third parties.
(13c) The Customer is responsible for fully and accurately declaring, describing and documenting the contents of any package or packages passed to the Möller & Böttger GmbH for handling, such declaration, description and documentation being appropriate for the place at which the Möller & Böttger GmbH is required to handle the Customer’s Goods.
(13d) All Customer’s Goods shall be properly and adequately packaged for the period of transit and storage envisaged. The Möller & Böttger GmbH shall not be responsible for inspecting said packaging, or taking any remedial steps in relation to defciencies. Te Möller & Böttger GmbH shall not be responsible for inspecting the condition of the contents of any packages for loss or damage. The Customer shall remain at all times responsible for compliance with the ISPS Code as concerns the acceptance of goods on board vessels.
(13e) Where the Customer’s Goods require particular handling or care the Möller & Böttger GmbH shall only be required to provide such handling and care if it has agreed in writing to do so, in advance of the Goods being consigned to them.
(13f) It is envisaged that the Möller & Böttger GmbHs charges shall be agreed in advance of goods being consigned to them. Where no such agreement is in place the Möller & Böttger GmbH shall be entitled to charge a reasonable sum, consistent with similar work for similar clients.
(13g) The Customer shall insure the Customer’s Goods for all carriage and storage risks during the period that they are under the custody, care or control of the Möller & Böttger GmbH on terms that the insurer waives any rights of subrogation or recourse against the Möller & Böttger GmbH. Te Möller & Böttger GmbH has no obligation or requirement to insure Customer’s Goods.
(13h) The Möller & Böttger GmbH shall not be liable for loss or damage to Customer’s Goods otherwise than by its own negligence or default. Any claims in respect of Customer’s Goods lost or damaged whilst in the custody of third parties instructed on behalf of the Customer by the Möller & Böttger GmbH shall be made directly to the relevant third party, who details the Möller & Böttger GmbH shall provide.
(13i) Where the Möller & Böttger GmbH is liable in respect of Goods lost or damaged then its liability shall be strictly limited to 2 SDRs per kilo of the weight of the Customer’s Goods lost or damaged, and such limits shall apply in all cases including loss or damage caused by the Möller & Böttger GmbH’s breach of contract or negligence. The Möller & Böttger GmbH shall not be liable for any other losses, claims or damages and for the avoidance of doubt shall not be liable for losses arising from a failure to deliver or a delay in delivery of the Customer’s Goods, including losses arising from delay to the vessel, including detention, demurrage or periods oﬀ-hire.
(13j) The Möller & Böttger GmbH shall have a right of general lien over Customer’s Goods and any documents related thereto in respect of any sums due from the Customer, whether related to the Customer’s Goods under lien or any other Contract.
(13k) Where Customer’s Goods are (i) held under lien; or (ii) held for a period of more than 60 days without instructions for their delivery or forwarding the Customer shall be entitled to sell or dispose them, upon 5 days’ notice to the Customer of an intention to do so, and may apply the proceeds to any sums due from the Customer.
(13l) The Customer shall immediately upon written demand from the Möller & Böttger GmbH fully indemnify the Möller & Böttger GmbH for all costs, expenses, penalties, fnes, taxes, duties or other dues arising from the handling and delivery of Customer’s Goods including those arising from the Customer’s incorrect or false declaration of the content of any package.
(14) If the Möller & Böttger GmbH is unable to make delivery, or to make delivery in good time, owing to force majeure (which shall include all or any circumstances or conditions for which the Möller & Böttger GmbH cannot be held responsible and as a consequence whereof it is not reasonably possible to make delivery in good time or at all) then the Möller & Böttger GmbH’s obligation to deliver shall cease or if appropriate be suspended for the duration of such force majeure.
(15a) The Möller & Böttger GmbH retains ownership of the performance object up to receipt of all payments from the established business relationship with the Customer. For outstanding accounts, the retained property also serves as security for any respective balance claims.
(15b) The Customer shall be entitled to retail the purchase object in the ordinary course of business; however, the business partner shall assign to the Möller & Böttger GmbH already before placing the order any and all claims accruing to him from the resell to his buyer or to any third party in the amount of our final invoice (incl. Value added tax), irrespective of whether the purchase object was resold without or und any agreement.
(16) Hamburg ist he place of jurisdiction for all disputes related to the business relationship.