General Terms and Conditions of Business
GENERAL TERMS AND CONDITIONS OF BUSINESS
OF MARINE- UND INDUSTRIE MONTAGE GMBH ('MIM')
N.B.: The following is a translation of the original German-language 'Allgemeine Geschäftsbedingungen' (General Terms and Conditions of Business, or AGB) of MIM. It is intended to reproduce the AGB in an English-language version for information purposes. However, in the case of contradictions, the German-language version shall be deemed to be definitive.
1.1 The conclusion and execution of contracts shall be subject exclusively to these conditions. Any terms and conditions of business of the client which deviate from these terms and conditions of business shall not apply.
1.2 Deviating agreements must be made in writing.
1.3 Quotations shall be subject to alteration.
2 Bearing of Risks and Duty of Care
Any items that are to be made available by the client for the execution of the order shall be delivered to and collected from MIM at the risk and on the account of the client. Such items shall be stored by MIM at the risk and on the account of the client and the client shall also be responsible for insuring those items.
3 Prices and Terms of Payment
3.1 Prices shall be deemed to be ex works, excluding value added tax, procurement expenses, freight and packaging. Unless a fixed price has been expressly agreed upon in writing and the service is to be rendered within 4 months of the order date,
MIM shall, in the case of documentable increases in costs (e.g. for wages, material prices, public levies of all kinds, supplier costs etc.), be entitled to increase its prices accordingly.
3.2 Price are based on the retention of salvaged material by MIM free of charge.
3.3 Unless agreed otherwise, all amounts invoiced are due for immediate payment without any deduction.
3.4 During execution of the order, MIM shall be entitled to issue progress invoices in accordance with the scope of work already completed.
3.5 If the client is in payment default and also does not remedy the situation before the expiry of a given reasonable deadline, or if, after conclusion of the contract, MIM becomes aware of circumstances which raise doubts concerning the client's solvency or willingness to fulfil the contract, MIM shall be entitled to revoke any periods of grace granted and to demand an advance payment of or security for the full contract amount before proceeding with the order, or to withdraw from the contract and demand remuneration from the client for expenses already incurred and work and services already performed by MIM.
3.6 The client shall not be entitled to withhold or set off payments against counterclaims unless such counterclaims are undisputed or legally binding.
4 Dates and Deadlines
Execution dates and deadlines shall only be binding if expressly agreed upon in writing. They shall be postponed or extended for such time as the client fails to complete any contributory work or service or action which may be required of him.
5 Warranty and Liability
5.1 Warranty claims against MIM for defects in items delivered or processed by MIM shall lapse under the statute of limitations one year after handover. Apart from that, statutory provisions governing warranties against defects shall apply, subject to the proviso that compensation for damages may only be claimed if the prerequisites specified in 5.2 below are satisfied.
5.2 MIM shall be liable to the statutory extent under the German Product Liability Act (Produkthaftungsgesetz) and for damages of the following nature and/or under the following circumstances:
5.2.1 Death, physical injury or damage to health
5.2.2 Breach of principal contractual obligations
5.2.3 Breach of other contractual obligations, insofar as such breach is caused by intentional or grossly negligent behaviour on the part of executive bodies or senior executives of MIM or by intentional behaviour on the part of MIM's agents or subcontractors. Apart from that, all liability on the part of MIM shall be excluded.
6 Reservation of Proprietary Rights
6.1 Until all claims accruing to MIM against the client have been settled (including, where applicable, balance claims deriving from a current account), goods shall remain the property of MIM (hereinafter referred to as reserved goods). Any processing or modification of reserved goods shall be effected on behalf of MIM as manufacturer. It is hereby agreed that in cases of combinations or mixtures of reserved goods with other goods, ownership of the resultant unified goods shall be assigned to MIM in the proportion represented by the proportional value of the reserved goods to the whole.
6.2 The client shall be entitled to process or sell reserved goods in the proper course of business. The pledging or assignment of reserved goods as security shall be prohibited. For security purposes, the client herewith assigns in full to MIM all claims which accrue in place of the reserved goods from the selling-on of the reserved goods or deriving from them on any other legal basis (in terms of insurance or unlawful act). Subject to revocation, MIM hereby authorizes the client to collect assigned claims for the account of MIM. This authorization shall lapse if the client does not properly comply with his payment obligations.
6.3 The client shall keep the reserved goods in a safe place free of charge. If third parties should try to gain access to the reserved goods, the client shall advise such parties of MIM's title to the reserved goods and notify MIM of the event without delay.
6.4 If the client is in breach of contract— including but not limited to default of payment - MIM shall be entitled to repossess the reserved goods or demand that the client assign to MIM all claims for surrender of the reserved goods that the client may have against third parties.
6.5 At the request of the client, MIM shall release securities granted insofar as their value exceeds outstanding claims by more than 20 per cent.
7 Applicable Law, Place of Performance and Legal Domicile
7.1 All legal relations between MIM and the client shall be governed exclusively by the laws of the Federal Republic of Germany.
7.2 Place of performance and legal domicile shall be Hamburg.
As at: 4 October 2012