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General Standard Purchase Terms & Conditions
Article 1: General, Scope of Application
1.1 The following exclusive General Standard Purchase Terms and Conditions (GSPTC) shall govern the entirety of business relations - with the exception of ChartWorld's General Standard License Terms and Conditions (GSLTC) that will extend these GSPTC as applicable - between ChartWorld and the Customer.
1.2 ChartWorld will deliver products and services (Products) only in accordance with these GSPTC. ChartWorld does not recognise any purchase terms, general standard terms or other stipulations made by the Customer. This shall apply even if the Customer makes counter confirmations with reference to the Customer's own terms and conditions. Such terms and conditions shall not become part of the business relations even if ChartWorld remains silent thereon or effects delivery of the Products. These GSPTC shall apply, as well, if ChartWorld effects delivery of Products without reservation of rights, although being aware of the Customer's terms and conditions are at variance with these GSPTC.
1.3 Deviations from these GSPTC are effective only if they have been agreed upon and confirmed by ChartWorld in writing. An oral waiver of this requirement is not allowable.
1.4 All deliveries of Products will be stipulated in ancillary contracts (Ancillary Contracts), to be concluded exclusively on the basis of these GSPTC. Amendments or alterations to the Ancillary Contracts must be in writing. An oral waiver of this requirement is not allowable.
1.5 ChartWorld and its Suppliers retain all intellectual property rights, for example but not limited to, copyright, to any information, for example, quotations, illustrations, drawings, calculations or any other documents, provided to the Customer prior to, during or after performance of an Ancilliary Contract.
1.6 The contracting parties undertake not to poach or to aid third parties to poach current or former employees of the respective other party, neither during nor after performance of an Ancillary Contract.
Article 2: Conclusion and Terms of Ancillary Contracts
2.1 Ancillary Contracts (e.g., Purchase Contracts), even if entered into via Internet, shall not become legally effective unless ChartWorld confirms the Customer's order (e.g. purchase order via Internet) in writing, by telefax or via electronic transmission (e.g. e-mail).
2.2 In the event Customer should order Products via Internet, ChartWorld's acknowledgement of receipt of Customer's order and - especially - Customer's admission to download Products shall be deemed to be a 'confirmation' for the purposes of Art 2.1. In this case, an explicit acceptance of such order by ChartWorld shall not be necessary.
2.3 Offers, prices quotas, delivery dates, time limits, product descriptions and other product condition Products must be confirmed by ChartWorld in writing to become effective. Unless confirmed in writing, they are always, especially without being limited to, if made in brochures, advertisements, internet pages or other publications, non-binding and subject to change without notice.
2.4 If ChartWorld grants Customer a right to update purchased Products free of charge, ChartWorld shall be entitled to determine the period of time for which such update service shall be granted. ChartWorld may abridge such period, especially, without being limited to, if the Customer is in breach of any Ancillary Contract, these GSPTC or ChartWorld's GLSTC.
2.5 In the event Customer asks ChartWorld to submit a recommendation for a route for a planned or carried out voyage by the Customer, such recommendation shall be considered in any and all circumstances simply as an act of courtesy, made free of charge and independent and unattached to ChartWorld's contractual obligation for any product or service and therefore not creating, causing or constituting a contractual obligation whatsoever, especially, without being limited to, a contractual liability for defects, damages or losses. Art. 10 shall apply mutatis mutandis to claims given by operation of law. However, if Customer heeds ChartWorld's recommendation, Customer still shall still be acting on the Customer's own risk.
Article 3: Prices, Advance Payments and Payment Offset
3.1 The prices for the delivery of Products will be stipulated in the Ancillary Contracts. All prices are quoted ex business premises of ChartWorld plus value added tax at any applicable statutory rate.
3.2 ChartWorld shall be entitled to increase any regularly recurring user fees upon three months prior written notice. Should such fees be increased by more than ten (10) Percent, Customer may give notice within two (2) weeks, whether the respective Ancilliary Contract shall be terminated upon expiration of the previously agreed upon period of cancellation; or if no period of cancellation had been agreed upon, a period of three (3) months. In the event the respective contract had been cancelled by Customer, the than agreed upon user fees shall remain valid until expiration of the previously agreed period of cancellation.
3.3 ChartWorld will charge for Products, carriers and media, and any other associated services or accessories at its current list prices.
3.4 Costs for special services or performances of ChartWorld ascribable to incorrect or incomplete information provided by Customer, to indicated defects not verifiable, or to inappropriate handling of Products by the Customer shall be borne by the Customer.
3.5 ChartWorld may demand advanced payment of the agreed upon price, especially, without being limited to, in the event of a purchase order via Internet.
3.6 If, in the aftermath of the conclusion of an Ancillary Contract, ChartWorld shall become aware of circumstances, which lead to reasonable doubts about Customer's solvency, ChartWorld shall be entitled to refuse any performance of outstanding obligations unless a reasonable advance guarantee payment is made or security is deposited. If Customer fails to respond within a reasonable period to a justified demand for advance payment or the deposition of security, ChartWorld shall be entitled to rescind from contract.
3.7 Customer may offset his debts to ChartWorld only with counter accounts receivable which have been finally ruled upon in a court of law, which are ripe for judgement or which are not in dispute. The foregoing shall apply likewise to Customer's rights of retention.
3.8 If payment is made by cheque ChartWorld will add an extra fee of €20 to the invoice.
Article 4: Payment in Arrears
4.1 Due dates for Customer's payments are those agreed upon in any Ancilliary Contract or in any event, at the latest, at the time risks passes to the Customer according to Art.6.
4.2 If Customer's payments are in arrears, Customer shall return upon ChartWorld's request any Products supplied by ChartWorld without delay.
4.3 Furthermore, when Customer's payments are in arrears, ChartWorld shall be entitled to charge interest on all arrears as provided by statute.
4.4 If ChartWorld suffers damage and loss as result of the Customer's payment arrears, ChartWorld shall be entitled to claim these damages and losses with out prejudice to any other rights or claims that ChartWorld may have against the Customer.
Article 5: Reservation of Title
5.1 Products covered by the Ancillary Contract shall remain property of ChartWorld until ChartWorld has received full payment of the agreed upon price. The foregoing shall apply to copies of Products and to any provided accompanying materials, such as media carriers, as well. Any additional objects supplied by ChartWorld for test purposes (such as products carriers, accompanying materials etc.) shall remain property of ChartWorld in any event.
5.2 Customer shall not be entitled to pledge or assign the Products covered by Ancillary Contract to a third party. If a third party should seize ChartWorld's property, especially in cases of attachment, Customer shall make known to the third party that ChartWorld is owner of property and shall notify ChartWorld of the seizure without undue delay. Customer shall be responsible for all caused costs, losses and damages caused by such assignment or seizure.
5.3 Should Customer be in breach of contract, particularly if Customer is in arrears with payments, ChartWorld shall be entitled to terminate and services and to recover any Products, or any other property belonging to ChartWorld at the Customer's expense or, if such should be the case, to demand the assignment of Customer's rights to recover possession from a third party. Neither repossession nor attachment of the property by ChartWorld shall constitute cancellation of the Ancillary Contract, subject to the proviso, that ChartWorld does not indicate or mandatory legal regulations dictate otherwise.
Article 6: Method of Delivery, Passing of Risk, Insurance
6.1 Products, may, as applicable and as the Customer chooses, be retrieved remotely via "ftp-server" or may be dispatched on product media carriers of mutually agreed specifications.
6.2 If Customer wishes to retrieve Products remotely via "ftp-server", then ChartWorld will set up a personal internet account for Customer. When full payment has been received by ChartWorld, ChartWorld will give Customer an access code number with which Customer may the access the Products. Customer is obliged to retrieve any Products made available by ChartWorld for remote access via "ftp-server" within the time period permitted by ChartWorld in the Ancilliary Contract. Risks of accidental destruction and loss of the Products shall pass to Customer upon the beginning of the remote retrieval of the Products by the Customer.
6.3 If Products are provided on specified Products carriers, delivery will be made via a forwarding agent. Risks of accidental destruction and accidental loss shall pass to Customer as soon as ChartWorld has handed out the goods to the forwarding agent. If previously, however, forwarding should be delayed or should become impossible due to circumstances beyond ChartWorld's control, risks of accidental destruction and accidental loss shall pass to Customer as early as dispatch of the notification of readiness for forwarding.
6.4 ChartWorld shall be entitled to make partial delivery of Products.
6.5 Insurance will be taken out only at Customer's expressed written request and Customer's expenses, which shall be paid in advance.
Article 7: Time of Delivery, Delay in Performance by ChartWorld
7.1 All delivery dates agreed upon are subject to the proviso that ChartWorld itself receives any required supplies correctly and on time from its suppliers.
7.2 ChartWorld shall be in arrears with performance only, if Customer's written notice granting a grace period for performance of at least four (4) weeks had been of no avail. In this case, Customer shall be entitled to compensation in the amount of 0.5 % for every full week ChartWorld being in arrears, up to a limit of 5 % of the invoice value of the deliveries and services which are in arrears.
7.3 Any other rights and claims of Customer whatsoever shall be excluded, unless provided otherwise in these GSPTC.
Article 8: Customer's Duty to Cooperate and Breach of such Duty
8.1 The Customer undertakes to cooperate fully with ChartWorld and create, free of charge, the necessary preconditions for the successful delivery and performance of the Products agreed upon in the Ancillary Contract.
8.2 Should Customer fail to fulfil its duties to cooperate, ChartWorld may refuse performance. However, if Customer is in breach of such duties notwithstanding an appointment of a performance date and a warning of withdrawal by ChartWorld, ChartWorld may withdraw from the respective Ancillary Contract. In this event, ChartWorld shall cease to be bound to perform duties under the Ancillary Contract and, Customer shall bear ChartWorld's expenses, damages and losses ascribable to the withdrawal of contract.
Article 9: Liability for Defects
9.1 Customer's strict compliance with inspection and notice obligations as set forth in Sec. 377 Handelsgesetzbuch (German Commercial Code) shall be precondition for any and all of Customer's rights and claims in case the delivered Products should be defective.
9.2 Current technology is such that faults in the Products, especially in digital maritime charts and online services, can never be completely ruled out. Customer hereby takes notice of and accepts this fact.
9.3 ChartWorld shall not be liable for defects of or ascribable to Products which ChartWorld obtained from third parties. Products which ChartWorld obtained from third parties are checked by ChartWorld's in-house quality assurance service. However, ChartWorld assumes no further liability or liability for defects which have remained undetected by such quality assurance service.
9.4 Furthermore, ChartWorld shall not be liable for defects in the Products ascribable to incorrect employment, such as, without being limited to, the unauthorised alteration of or the unauthorised link to software, programs, program elements or products, or ascribable to the use of unsuitable resources or to an unusual or non-standard operating environment.
9.5 In case and to the extent that the objects of the Ancillary Contract are digital maritime charts that have been created by ChartWorld from analogue data, such as sea maps, the following shall apply, as well: The analogue data which were made the basis for the digital maritime charts have been obtained in good faith by ChartWorld from the respective institutes or companies which produced the sea-maps. Any liability of ChartWorld shall be restricted to the best possible transfer of these sea-maps into the digital format according to the standard of technique at the time of transfer. It is pointed out that the products derived from such sea-maps and – as a consequence – the digital maritime charts as well have solely been prepared and processed with the accuracy possible from a point of view of science, technique as well as an economic and personal aspect at the time of their preparation. The digital maritime charts may not replace official navigation products, such as, for example, official paper charts,ENCs or other official navigational publications that are required by law for safe navigation.
9.6 ChartWorld shall not be liable if the software applied by Customer to process or use the delivered Products cannot process or use the Products, for the reason that the usability of the delivered Products had been limited by such software.
9.7 In case of and to the extent of a Products defect being covered by ChartWorld's liability, ChartWorld shall be entitled to subsequential performance. ChartWorld may thereto choose – at its own discretion – either to remedy the defect or to supply new and defect-free Products. If ChartWorld chooses to remedy the defect, ChartWorld shall bear all thereto necessary costs, especially without being limited to, costs of transportation, labour and materials, unless such costs were incurred because the defective Products were replaced at another place other than the originally agreed upon place of delivery stipulated in the Ancilliary Contract.
9.8 In the event that ChartWorld declines subsequential performance without being entitled to, or ChartWorld's subsequential performance had been of no avail, or reasonably unacceptable for Customer, Customer shall be entitled to either claim damages as set forth in Art. 10 or to reduce the agreed upon price for the Products. Customer shall not be entitled to any other or further claims or rights against ChartWorld or its suppliers.
9.9 The period of limitation for Customer's rights and claims in case of a defect of the delivered Products shall be one (1) years, whereas such period shall begin when risks passed accordingly to Art. 6.
Article 10: Exclusion of Liability
10.1 Except as stated otherwise in Article 7.2, Article 9 and the following provisions of this Article, ChartWorld's liability for damages and losses shall be excluded, whatsoever cause in law such liability may have and of whatsoever nature such damages and losses may be. Such exclusion of liability shall apply especially to, without being limited to, direct, indirect and consequential damages and losses, to claims based on fault prior to conclusion of contract ("culpa in contrahendo; Sec. 311 subsec. 2 Bürgerliches Gesetzbuch; German Civil Code), to claims based on breach of contractual duties and obligations not being related to Products defects, to tortious claims based on property damages and to claims for vain expenses.
10.2 ChartWorld shall be liable in accordance with German Law if Customer claims damages and losses based upon ChartWorld's, its agents' or servants' intent or gross negligence. Inasmuch as ChartWorld is not held liable by Customer for intentional breach of contract, ChartWorld's liability for damages and losses shall be limited to the reasonably foreseeable and typically incurable damages and losses.
10.3 Furthermore, ChartWorld shall be liable in accordance with German Law if ChartWorld is at fault with a breach of an essential contractual obligation ("cardinal obligation"). However, liability shall be limited in this case to the reasonably foreseeable and typically incurable damages and losses, as well.
10.4 ChartWorld's liability for faulty injury of life, body or health remains unaffected as well as its liability in accordance with product liability laws.
10.5 In case ChartWorld may be held liable, liability for the loss of Customer's Products shall be limited to the reasonable costs of recovery of such Products which would have been incurred if a backup copy of such Products would have been made at reasonable intervals.
10.6 Insofar and inasmuch as ChartWorld's liability is limited or excluded, such limitation or exclusion shall apply to ChartWorld's members of staff, employees, servants, resellers, agents, and suppliers as well.
Article 11: Assignment of Rights
11.1 Customer may not assign to third parties Customer's rights and claims under the Ancillary Contract unless ChartWorld has given prior approval in writing.
11.2 ChartWorld shall be entitled to assign to third parties ChartWorld's rights and claims under the Ancillary Contract. ChartWorld shall furthermore be entitled to transfer the contractual relationship entered into by way of Ancillary Contract in its entirety with all duties there under to a third party.
Article 12: Term of Contract, Cancellation
12.1 Should the Ancillary Contract by its purpose be arranged for a definite or indefinite period of time, Customer undertakes in the event of the expiration of the contract term, as well as in the event of cancellation of such contract to forbear using the delivered Products and the accompanying materials upon termination of the Ancillary Contract and to return the delivered Products, Products carrier and the accompanying materials free of charge without undue delay.
12.2 Furthermore, Customer shall delete irrevocably any and all copies of the delivered Products and the accompanying materials upon termination of the respective Ancillary Contract.
Article 13: Obligation to Limit Liability
Should Customer be entitled by law or by prior written approval of ChartWorld to sell the Products, goods and services covered by Ancillary Contract, Customer undertakes to limit Customer's liability at least to the extend as set forth in Art. 9 and Art. 10 of these GSPTC.
Article 14: Duty to Avoid Unauthorized Access to Products
Customer shall undertake all necessary precautions to prevent unauthorized access to the Products, goods and services covered by Ancillary Contract, especially, without limitation to, by third parties. Furthermore, Customer shall assure, that Customer's members of stuff, employees, servants, agents, work-groups, subsidiary companies and branch-offices obey such duty, as well.
Article 15: Place of Performance, Jurisdiction and Governing Law
15.1 In the event, that a provision contained in the Ancillary Contract, ChartWorld's GLSTC, or these GSPTC should be or become fully or in part invalid or unenforceable, the validity or enforceability of the remaining provisions of the Ancillary Contract, ChartWorld's GLSTC, and this GSPTC as well as the validity or enforceability of the Ancillary Contract, ChartWorld's GLSTC, and this GSPTC itself shall not be affected or impaired in any way. In such an event, the parties shall undertake to replace in writing the invalid or unenforceable provision by a provision which best meets the purpose, particularly the aspired economic and legal purpose of the replaced provision.
Same shall apply in the event that the execution of the Ancillary Contract, ChartWorld's GLSTC, or these GSPTC should reveal an omission, which the parties would have avoided, if they would have perceived such omission.
15.2 Place of performance for all deliveries, services and obligations under the Ancillary Contracts, ChartWorld's GLSTC, or this GSPTC shall be the Hamburg, Germany, domicile of ChartWorld, unless explicitly stated otherwise in such contracts.
15.3 ChartWorld's principal place of business shall be the exclusive place of legal jurisdiction if Customer has the status of a merchant pursuant to the Handelsgesetzbuch (German Commercial Code) or if Customer should relocate Customer's domicile or place of abode after conclusion of the Ancillary Contract out of the area of application of the Zivilprozeßordnung (German Code of Civil Procedure) or if Customer's domicile or place of abode should be unknown at the moment the action was brought to court. ChartWorld, however, shall be entitled to prosecute its rights and claims in Customer's local court, as well.
15.4 The Ancillary Contracts, ChartWorld's GLSTC, and these GSPTC shall be governed by the laws of the Federal Republic of Germany without regard to conflict of law provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods.