General terms of business of TIKO Marine + Cargo Surveyors SRL for the occupation of marine, cargo and warranty surveyors

Last updated: June 2012

  1. Area of application

    These terms of business shall be the only applicable and valid terms. A client’s general terms of business shall apply only insofar as TIKO Marine + Cargo Surveyors SRL – hereinafter referred to as “agent” – has agreed to them expressly and in writing. These general terms of business shall be applicable in business operations with entrepreneurs. Entrepreneurs as defined in these terms shall be all natural or legal persons or private companies vested with legal capacity which, upon closing a legal transaction with the agent, carry out a commercial or self-employed occupational activity. These terms shall also be applicable to all future business transactions between the contractual parties.

  2. Closing of contract

    1. (1) A contract between the agent and the client shall be closed by verbal or written assignment of a mission by the client’s management or persons specially authorised accordingly by the client.

    2. (2) Changes or amendments of the contract shall be made by the client’s management or persons specially authorised accordingly by the client. Verbal agreements or declarations by other persons shall be valid only if confirmed in writing by the client’s management.

  3. Agent’s duties/responsibilities

    1. (1) The agent shall owe the completion of the mission assigned verbally or in writing by the client within the scope of the services undertaken (such as issuing of a report or presenting an assessment of loss or value). The assignment shall be executed with the diligence of a respectable surveyor. The agent shall be entitled to, at the expense of the client, carry out the required and normal research and investigations, make inquiries, travel and carry out surveys and to produce photos and other documents or to have those produced without requiring special approval from the client, as long as these costs are not unusually high and the measures not out of the ordinary.

    2. (2) The agent shall explicitly be authorised to have the accepted mission carried out in full or in part by qualified third parties.

  4. Client’s duties

    The client shall commit to making available to the agent all information and documents re-quired to carry out the assignment and to provide the agent with the required support. If the assignment to represent the client is extended to third parties by the agent, the agent shall be authorised accordingly in writing, upon request.

  5. Compensation

    1. (1) The agent shall be entitled to payment of services rendered or services to be rendered. Payment shall be based on the applicable agent’s scale of fees. If no other agreement has been reached, the payment shall be based on rates which are customarily charged by freelance marine and cargo surveyors. If a fixed payment was agreed upon and if in the course of carrying out the assignment it becomes evident that the assignment is more extensive than foreseeable at the time the mission was assigned and further handling of the matter becomes impossible within the agreed-upon terms, the client shall be informed immediately. If the client withdraws the mission as a result, any tasks performed up to this point shall have to be paid.

    2. (2) Payment in full shall be due upon supply or acceptance of the service. This shall also apply if the agent learns of substitute services rendered to the client by a third party. The client shall be in default 14 days after receipt of the invoice if the client has not paid; without further notice by the agent. In case of deficiencies, the client shall not have the right of retention, unless the services rendered evidently were deficient or the client evidently has the right to refuse to accept the services. In such a case, the client shall be entitled to retention only insofar as the retained amount is appropriate in view of the deficiencies and the prospective costs of supplementary performance. The client shall not be entitled to assert claims or rights due to deficiencies if payments are due and the amount due (including any payments made) is reasonable in relation to the value of the services afflicted by deficiencies.

  6. Utilisation of the services rendered

    The services rendered by the agent may be used or utilised only within the scope of the underlying purpose of the assignment. Any other uses shall require the expressed written permission of the agent. The agent shall retain copyright on the services rendered.

  7. Warranty

    1. (1) The client shall immediately review the services rendered for any noticeable deviations and shall notify the agent immediately in writing, specifying exactly the type and extent of the deviations. Otherwise, the service shall be deemed properly rendered, approved and accepted. In case of legitimate objections, the client may demand supplementary performance from the agent within a reasonable time frame after having notified the agent of the deficiency. The agent shall in any case be entitled to choose between removal of the deficiency and reperformance of service. The client’s demand for supplementary performance also shall be issued in writing. The agent shall be allowed a time frame of 21 days to complete the supplementary performance. If the service is to be corrected, the correction shall be considered failed only after an unsuccessful second try. If the supplementary performance fails or has become impossible, the client shall have the right to depreciate or rescin a contract, as per the client’s choice. The statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.

    2. (2) The expenditures required to complete the supplementary performance shall be borne by the client insofar as they increase as a result of the circumstance of being forwarded to a different location than the client’s branch. Irrespective of further requirements of the agent, the client shall reimburse the agent’s expenditures for review and removal of the deficiency if the notice of defects was unwarranted.

    3. (3) There shall be no further requirements of the client on account of deficient performance, unless there are other written agreements and/or fraudulent concealment on the part of the agent. The client’s claims on account of deficient performance shall be barred by the statute of limitations after one year from the time of acceptance of the service. Any claims for compensation from deliberate intention and culpable injury to life, limb or health shall remain unaffected.

  8. Liability

    1. (1) The following regulations of liability shall be valid regardless of which contractual or non-contractual basis the claim for compensation is based on. Further limitations of liability in separate agreements shall remain unaffected.

    2. (2) The client shall be required to inform the agent of special risks, extraordinary contingencies and extents of loss prior to closing the contract.

    3. (3) The agent shall be liable to an unlimited extent in cases of intent or gross negligence on the part of the agent or the agent’s legal representative or assistant and in case of injury to life, limb or health.

    4. (4) Regardless of the above, the agent’s liability shall be limited as follows:

      1. (a) The agent shall be liable only for culpable infraction of contractually essential obligations. Obligations shall be defined as contractually essential when their fulfilment renders the contract possible in the first place, their violation endangers the achievement of the purpose of the contract and the contractual partner can trust that they will be adhered to on a regular basis. If the violation of the contractually essential obligations is due to simple negligence, the obligation to indemnify / obligation to pay damages or compensation shall be limited to damage/loss foreseeable at the time of closing the contract and typical for the contract.

      2. (b) Moreover, the agent’s liability shall be limited to € 25,000.00 per incident of loss in cases described in the preceding paragraph.

        This limitation of liability shall be applicable regardless of how many claims are raised as a result of one incident of loss. If the sum of all individual claims exceeds € 25,000.00, the amount shall be distributed on a pro-rata basis in proportion of the claims raised. If the distribution is contested among the claimants, for whatever reason, the agent shall be able to relieve itself of liability against all claimants by lodging a maximum amount of liability.

      3. (c) Insofar as claims for damages against the agent are ruled out, limited or restricted, this shall also apply to possibly existing liability of the agent’s mouthpieces or employees.

      4. (d) Insofar as the agent owes only the closure of the contracts required in order to render the contractually required services, it shall be liable only for the diligent selection of the instructed third party.

  9. Place of performance, place of jurisdiction, applicable law, severability clause

    1. (1) The city of Bucharest as location of the agent’s headquarters shall be the place of per-formance and sole place of jurisdiction for all disputes which may arise from the contractual relationship.

    2. (2) Romanian law only shall be applicable for any privity of contract between the agent and the client.

    3. (3) In case individual provisions of this contract are invalid, the remainder of the contract shall remain in effect.