General Terms and Condition
1. Definitions und Scope of Application
a. Any legal relation between the Principal or Third Parties and Intermediate Havarie-Beratung GmbH (hereinafter INTERMEDIATE) are governed exclusively by these General Terms and Conditions (hereinafter GTC), provided that mandatory legal provisions or special contractual terms prevail.
b. These GTC prevail over any other Terms and Conditions of Principals or Third Parties. Any other or inconsistently general terms and conditions of the principal or third parties do not apply.
c. Any agreement which deviates from these GTC needs to be concluded between INTERMEDIATE and the Principal or Third Party in particular in writing, otherwise the deviation from these GTC is invalid.
d. These GTC do not apply between INTERMEDIATE and consumers. INTERMEDIATE accepts instructions only from non-consumers.
e. In case of doubt the German wording of these GTC are decisive only.
a. Any and all Services to be provided by INTERMEDIATE are divided into the following service sectors (2 b to 2 d), unless otherwise agreed in writing with the Principal. Additional services are governed by these GTC as well. INTERMEDIATE is not responsible to provide a certain success but INTERMEDIATE will only provide services. INTERMEDIATE is generally authorised by the Principal to engage services of third parties in order to fulfil its own contractual duties.
b. Survey Services and Claims Services
INTERMEDIATE will provide Survey and Claims Services to the best of their knowledge and belief in an objective and impartial way on basis the documents and investigation results at hand and INTERMEDIATE will summarize its finding as to cause and quantum of loss in the Survey Report or Investigation Report. The responsibility of INTERMEDIATE at Preload Surveys and Super Cargo Services is limited to record the loading, storage or discharging operation for the Principal in writing and by photographs. INTERMEDIATE will inform involved parties about obvious errors and omissions but INTERMEDIATE is not responsible to make a binding recommendation to involved parties. In any case INTERMEDIATE will not be responsible for loading, securing, packaging, storing or discharging operations. Unless otherwise agreed in writing between the Principal and INTERMEDIATE, INTERMEDIATE will not control or take care for any time limits in connection with the particular assignment.
c. Claim Handling and correspondence with claimants
Within the scope of claim handling services INTERMEDIATE will instruct Experts and Surveyors in order to obtain information on cause and quantum of loss if instructed by the Principal. INTERMEDIATE will carry out correspondence and negotiations with claimants on behalf of the Principal in accordance with the instructions received from the Principal. INTERMEDIATE will also defend the position of the Principal and reject responsibility for unjustified claims. Unless otherwise agreed in writing between the Principal and INTERMEDIATE, INTERMEDIATE will not control or take care for any time limits in connection with the particular assignment.
d. Recoveries Services
INTERMEDIATE will negotiate settlements with responsible parties on best possible terms with due respect to the facts at hand and INTERMEDIATE is entirely free to decide on basis of economic aspects and facts whether or not they want to start, continue or stop any recovery action at any time unless the Principal gives to INTERMEDIATE right from the beginning a written instruction to enforce the claim via a Lawfirm. In that case any costs in connection with the handling of the recovery case will have to be borne by the Principal and any expenses and outlays made by INTERMEDIATE have to be reimbursed by the Principal upon submission of invoice or reimbursement notice by INTERMEDIATE.
e. Settlement Services
Within the scope of settlement services INTERMEDIATE will to the best of their knowledge and belief in an objective way check the insured cover and the amount of claim on basis the insurance documents, information and claim documentation. The result of the check will be summarized in a Settlement Note by INTERMEDIATE. Provided that no special contractual agreement or inconsistent agreement exists between INTERMEDIATE and the Principal, INTERMEDIATE will submit the Settlement Note to the insurer for final decision about coverage and payment of a claim. Unless otherwise agreed in writing between the Principal and INTERMEDIATE, INTERMEDIATE will not control or take care for any time limits in connection with the particular assignment.
The Principal guarantees to INTERMEDIATE, that the bank account of the payment receiver is not on any sanctions list. The Principal holds INTERMEDIATE harmless from any claims of third parties which may accrue in connection with the payment on such a bank account that is on a sanctions list.
3. Instruction and Acceptance of Instruction
a. Any Instructions are to be made to INTERMEDIATE in writing or have to be confirmed by INTERMEDIATE latest by the end of the following working day after receipt of the instruction.
b. INTERMEDIATE has no duty to perform services unless INTERMEDIATE confirms the acceptance of an instruction.
c. Assignments and instructions which are urgent need to be submitted not only in writing but also by telephone call in which the Principal points out that the instruction in question is of outmost urgency. Any claims against INTERMEDIATE are excluded if the Principal omits to point out the urgency of the instruction during the telephone call.
4. Duties of the Principal
a. The Principal has the duty to provide any information or documents in respect of the case to INTERMEDIATE.
b. Also, the Principal has to support INTERMEDIATE so that INTERMEDIATE may provide services.
c. Any documents or reports issued by INTERMEDIATE in connection with the instruction are exclusively for the Principal. The use and utilization of INTERMEDIATE documents and reports by any other party than the principal need to be authorized and permitted by INTERMEDIATE.
d. Any services provided to the Principal by INTERMEDIATE need to be verified and checked immediately after Service was received by the Principal and any insufficiency needs to be noticed in writing to INTERMEDIATE latest within 4 weeks after Service was received. Otherwise the Services provided by INTERMEDIATE are accepted by the Principal so that any demands and claims against INTERMEDIATE are excluded.
e. The Principal must not assign any rights against INTERMEDIATE to third parties, unless INTERMEDIATE gave prior written and explicit authorization to assign any rights. This does not apply to monetary claims of the Principal.
5. Payment of Fees and Expenses
a. Any Fees for Survey / Claims / Preloading Survey / Super Cargo Services / Claim Handling and correspondence with claimants are based on current hourly rates of INTERMEDIATE.
b. Recoveries Services will be provided either on basis the current “No Cure-No Pay” feescale or on basis the current hourly rates of INTERMEDIATE.
c. Any VAT is to be borne by Principals. Also, any expenses made by INTERMEDIATE in particular if INTERMEDIATE has instructed third parties to provide services in connection with the instruction are to be borne by Principals and payments or reimbursements are due upon submission of expenses notice or invoice for expenses by INTERMEDIATE to Principal.
d. The currency of the invoice is due. Any currency conversion is a non-binding indication only.
e. Any claims or demands against INTERMEDIATE may be set off against demands of INTERMEDIATE only if the demands/claims of the Principal are undisputed or confirmed to be valid and enforceable by the competent court.
6. Termination of the Contract
Any instruction or contract may be terminated by the Principal or by INTERMEDIATE at any time immediately if written notice is given to the other party. The Principal bears, however, any costs and expenses for those services rendered by INTERMEDIATE until receipt of written notice of termination of the contract or instruction.
a. Any claims for damages or claims for reimbursement of expenses against INTERMEDIATE are limited to a maximum of EUR 25.000,- per incident, provided that mandatory legal provisions do not provide for a different liability limitation. INTERMEDIATE is not liable for any consequential damages or for those damages which were typically not foreseeable at the time when INTERMEDIATE received instruction from Principal.
INTERMEDIATE is not liable for those claims which were caused by simple negligence unless the damage had been caused by simple negligent breach of duties which are of the essence for the performance of the contract (material contractual obligation (cardinal obligation). Cardinal obligations are obligations which principally enable the fulfilment of the proper enforcement of the contract and on which the contractual partner can trust and is allowed to trust for compliance.
b. The afore mentioned liability restrictions and exclusions do not apply if the damaqe or loss was caused by direct intention or by gross negligence of senior management staff of INTERMEDIATE or if damage was caused to Principals life, body and health by negligent or intentional breach of duty on the side of INTERMEDIATE.
c. INTERMEDIATE is liable for claims only, however strictly on basis the aforementioned exclusions and limitations of liability, if the claimant proves that INTERMEDIATE was in breach of their duties and that INTERMEDIATE caused the damages at least negligent.
d. In case INTERMEDIATE involves third parties for providing Services to the Principal, INTERMEDIATE shall be responsible only for gross negligent or intentional breach of duties in connection with the selection of the third party.
e. The liability limitations and exclusions apply to the benefit of all employees, directors, subcontractors of INTERMEDIATE.
8. Time Bar Limit
Any Claims against INTERMEDIATE, it’s employees, directors or third parties involved by INTERMEDIATE become time barred after elapse of 12 months starting with the finalization of the instruction which is notified by INTERMEDIATE in writing to the Principal.
9. Law and Jurisdiction
a. Exclusive Jurisdiction, to the exclusion of any other court or Jurisdiction, for any claims against INTERMEDIATE, it’s employees and directors is Bremen, Germany. German law shall apply exclusively.
b. The Principal place of business for providing services or for the fulfilment of any contractual duties by INTERMEDIATE is Bremen, Germany.
c. The CISG (UN Convention on Sales of Goods) is excluded.
10. Salvatory Clause
Should any clause of this agreement, in whole or in part, be declared invalid, this shall not affect the validity of the remaining clauses. The parties undertake to replace the invalid clause with a valid clause coming closest to the original but invalid clause.