G E N E R A L T E R M S A N D C O N D I T I O N S O F T R A D E
H A M B U R G P O R T S E R V C E S G M B H
Our General Terms and Conditions of Trade shall apply to all business transactions with our customers, hereinafter referred to as “clients”. These General Terms and Conditions of Trade shall automatically be accepted by the client when the order is issued or confirmed. They shall apply for the entire duration of the business relationship.
§2 PLACEMENT OF ORDERS AND PERFORMANCE
The business relationship shall be based on the relevant consultancy and/or service contract or the client’s written order as issued to us, in which the scope of performance and the remuneration shall be set out.
The client may issue orders to us by the following means:
by telephone, mail, fax or e-mail.
We also accept informal orders. After receipt of an order and the subsequent making of an offer, the client shall receive an order confirmation. With this order confirmation, the order shall be deemed to have been accepted, and the consultancy and/or service contract shall be deemed to have come into effect. The date of performance shall be as indicated in the order confirmation.
Where specifically required, we also make use of consultants/service providers known to us as a result of the good cooperation that has developed between us. Where this is the case, the business relationship shall, save as otherwise agreed, continue to be between ourselves and the client.
Updates and amendments to offers and orders shall be established by both parties in writing and shall form part of the contractual relationship between ourselves and the client as an additional agreement.
Save as otherwise agreed, orders relating to consultancy services shall generally be remunerated according to the time required.
All-inclusive prices may be agreed in writing for specific projects and orders. Other services shall be remunerated according to the price list of Hamburg Port Services GmbH or on the basis of the price indicated in the offer. All services performed by us, which are not expressly indicated as being included in the price, shall be deemed to constitute ancillary services which shall be remunerated separately. Moreover, where services are not carried out at the registered office of HPS GmbH, any additional costs associated with such services (e.g. travel expenses, other costs and any VAT/turnover tax due) shall be invoiced.
All prices shall be deemed to be net prices without deductions plus statutory VAT.
§4 PAYMENT AND DUE DATE
Our entitlement to payment of the price shall arise for each individual service as soon as it has been provided by us.
The price shall be due for payment as soon as the client receives the invoice.
The client shall be deemed to be in default where payment of the invoice is not rendered within 30 days of its becoming due and being received, including where no reminder is issued by us. In this case, we shall be entitled to claim delayed-payment interest in accordance with the statutory interest rate.
The client shall only be entitled to the setting-off and retention of claims in hand where these are legally enforceable and undisputed. In the event of disparate claims, a right to retention shall be restricted to claims arising out of the same contractual relationship.
§5 TIME LIMITS AND DEADLINES
Save as otherwise agreed, time limits for performance shall be nothing other than indicative times or forecast deadlines which shall be given to the best of our knowledge and belief. It shall be our concern to provide our services after confirmation of the receipt of the order in accordance with the deadlines indicated in the order.
Failure to meet a deadline shall entitle the client to enforce its statutory rights only where it has granted us an appropriate grace period.
§6 OBLIGATION TO COOPERATE ON THE CLIENT’S PART
The client shall provide us with all the documents, information and materials necessary to carry out the order.
§7 CONFIDENTIALITY CLAUSE
We are obliged to maintain confidentiality in respect of all commercial, business-related and private matters of which we become aware in the context of our consultancy activities. This obligation shall apply equally to our agents. The obligation to maintain confidentiality shall continue to apply after termination of the contract and may be lifted solely with the client’s written consent. We are also obliged to keep any documents supplied for the purposes of consultancy or service activities carefully and to protect them against being consulted by third parties. None of the papers, documents, etc. we receive from the client shall be returned to the client.
Hamburg Port Services GmbH shall be liable for the proper and timely performance of services in accordance with the requirements of the contract. Liability for the success of the services in economic or other terms as envisaged by the client shall be excluded.
In the event of losses, Hamburg Port Services GmbH shall be liable solely in cases of intent or gross negligence in accordance with statutory provisions. For losses arising out of minor negligence, Hamburg Port Services GmbH shall be liable solely in respect of foreseeable losses which are typical for the contract.
Hamburg Port Services GmbH shall, however, be liable for injury to life, body or health in accordance with statutory provisions. The limitation of liability under § 8.2 of these terms and conditions shall expressly not apply in such cases.
The provisions of the above paragraphs shall cover compensation in addition to performance, compensation instead of performance and any claim for compensation for wasted expenditure, irrespective of the legal basis, including liability for delay or impossibility of performance.
§9 NOTIFICATION OF DEFECTS
Where the client fails to inform us within 14 days of completion of the order or acceptance of any obvious defects, the contract shall be deemed to have been performed in full.
Where the client challenges a provided service in its entirety, such a complaint shall be substantiated by means of a serious expert report drawn up by a third party. Agreement on which expert shall draw up this report shall, as far as possible, be achieved.
In the event of a defect being notified, we must be granted the opportunity to rectify it. If we demonstrably fail to do so, the client shall be entitled to a reduction in the price. In all cases, liability shall be limited to the value of the order in question. We shall not assume liability based on an infringement of copyright or third-party rights.
Where the performance deadline has been missed by an unreasonable period of time – assessed in relation to the individually agreed deadline – and we are unable to meet an appropriate additional deadline notified to us in writing by the client, the client shall be entitled to withdraw from the contract.
§10 SEVERABILITY CLAUSE
Where a provision of these General Terms and Conditions of Trade is or becomes invalid, this shall not affect the other provisions thereof. Instead of the invalid provision, a provision shall be applied which, as far as legally permitted, meets the wishes and interest of the parties as closely as possible.
§11 APPLICABLE LAW
German law shall be solely applicable to the legal relations between the client and ourselves.
§12 PLACE OF PERFORMANCE AND COURT OF JURISDICTION
Save as otherwise agreed, the place of performance shall be the registered office of our company in Hamburg. The court of jurisdiction for all disputes directly or indirectly arising between ourselves and the client, provided the latter is acting on behalf of its commercial enterprise or is a legal person, shall be the court with territorial jurisdiction for our registered office in Hamburg.
Hamburg, 11 January 2010