HCCR - Hamburger Container- und Chassis- Reparatur-Gesellschaft mbH

/ GENERAL TERMS OF CONTRACT
GENERAL TERMS OF CONTRACT

General Terms and Conditions of Business of
HCCR Hamburger Container- und Chassis Reparatur Gesellschaft mbH

I. General Definition

"the Company" shall refer to: HCCR Hamburger Container- und Chassis Reparatur Gesellschaft mbH
"the Customer" shall refer to: an ordering party entering into a business contract with the Company.
"these terms" shall refer to: the hereinafter stipulated General Terms and Conditions of Business of the Company.

These terms will be applicable in their most recent version for any offers and business contracts; *unless a contract is pertaining to the haulage-, freight- or storage-business. In particular, these terms shall apply to any work achievements carried out by the Company (especially for repairs, modification, maintenance and assembly of containers, trailers, chassis, roadtankers, motor vehicles or devices belonging to the aforementioned; hereinafter collectively referred to as "the object" even it will refer only to one component part of the object ); beside the services above mentioned, these terms shall apply for any further work carried out on objects (especially cleaning services) as well as the sale of objects and spare parts.

Additionally to these terms, the "Standard Terms and Conditions" of the German forwarding business, in its version: 1.1.2003 (= ADPs Allgemeine Spediteurbedingungen) shall be applicable for any forwarding/transhipment activities.

These terms are issued in two languages: German and English; if there are any inconsistencies between the German and Englisch version of these terms then the German version shall prevail.

II. Conclusion of Contracts

Offers/Estimates submitted by the Company are to be considered not binding in any respect and can be withdrawn any time by written notice unless and until the offer is accpted in writing by the Customer. The punctual dispatching of the withdrawal by the Company will be sufficient.

In the event that the Customer invites the Company to prepare an estimate for repair of an object, the Customer shall compensate the Company for any related costs.
Especially the Customer shall be liable to compensate in full, but not exclusively, the costs incurred from handling of the object, labour of the Company' employee, expenses of third parties as well as costs for technical examination reports. The costs are not to be reimbursed by the Customer if he authorized the Company to carry out the services according to the offer/estimate submitted.

The entire contract will be formed in the following range:
- a written indenture signed by both Customer and Company
- the Company's written offer/estimate
- these terms
Any verbally statement/warranty etc. made during the contract negotiations shall be void, if not confirmed in writing. Likewise, any general terms, issued by the Customer, but to the contrary to these terms, unless they are confirmed in writing by the Company.

III. Prices/Fees

Each price quoted is based on cost-factors prevailing the time the offer was submitted; i.e. the actual prices for material and wages. Should the cost factor rise in between submitting of the offer and the Customer's authorization, or on performance of the service, the Company reserves the right to increase the prices in proportion to the change of the cost factor.

The Company is obliged to inform the Customer about range and effect of such increase respectively has to furnish prove of in case of dispute.

If for certain services no binding prices were agreed then the standard rates for transhipment (Kaitarif) at the quays of the Hamburger Hafen und Logistik Aktiengesellschaft shall - when applicable in so far - be valid; otherwise the common standard rates for the business, specified in these terms, shall apply. All prices quoted are net prices.

IV. Payment

Payment is due upon receipt of invoice. Payment less discount or any other deductions are not allowable, unless agreed otherwise in writing.

Payment by cheque/bill of exchange are accepted only if particularly agreed in writing. Acceptance of cheques to be understood as conditional payment only. Any expenses arising from payment by bill of exchange and/or cheque are to the account of the Customer.

The Customer shall exercise only a right of retention if the claim is undisputed and valid. Likewise, the Customer shall exercise only a set-off if the demand is undisputed and legally binding.

Except provision in rent-contracts, payment shall be deemed to be in default if it has not been received within 10 working days after the date of the invoice; unless the Customer can furnish prove that the receipt of the invoice was later than within 10 working days. In such case the default of payment is counting from the 5th day following the day the invoice was actually received. The amount of interest on arrears is ruled by article 288, paragraph 2, BGB.

V. Time and Mode of Delivery/Achievements, Risks of Loss

As far as not expressly agreed in writing, any verbally stated deadline for delivery is non-committal.

Even if agreed in writing, time of performance shall be extended by an extra working day, in case the Company or its suppliers/agents have to stop the services for at least 4 working hours on each working day because of Force Majeure (see para.X, item 1. of these terms.).

If the Company is liable for a considerable delay in performance of a service, the Customer is entitled - if an appropriate respite was not met by the Company - to withdraw from the contract. Any claim for damages and/or expenditures made by the Customer are excluded in that case.

Unless not otherwise specified in writing , the Customer shall redeliver the object at the Company' premises. The Customer shall submit to the Company any information that will be relevant - or could be seen in connection with - to carry out the services duely. This will especially refer to the last cargo shipped with the object, and/or cargo residues containing in the object upon redelivery (e.g. hazardous cargo), as well as to special repair instructions, monitoring of refrigerated container, or further technical bulletins referring to the object redelivered.

Unless not otherwise agreed in writing - shipment of an object shall be carried out at the expense of the Customer. Risks of loss of an object, ie.: caused by shippping accident, accidental deterioration are to the account of the Customer, as soon as the object has been delivered to the Customer. The same applies to any transhipment of the object the Company has to carry out by order of the Customer.

VI. Work-Achievements

In analogical application of article 648a, BGB the Company is entitled to demand from the Customer an appropriate security for the entire payment, and to furnish an unlimited period guarantee of payment; such guaranteeof payment must be issued by an European major banking house and should be written in German language. In the event the Customer fails to provide such guaranty of payment / or not in time, the demand of the Company shall be analogous ruled by article 648, paragraph 5, BGB.

Range and practicality of the services’ performance will independently determinated by the Company. The Company is authorized to adjust the range of service in reasonable extent, as far as the whole extent of damage could not been inspected during gate-IN. The Company has to inform the Customer about the extended range of service as soon as possible; whereas the inspection report of a classification society could be basis of such extended service.

VII. Service Provision

When the Company is instructed by the Customer to provide services on an object, espectively with the cleaning of an object, the Customer is obliged to redelivered the object empty i.e.: free of any cargo residues, as well as to inform the Company about the last cargo and cargo that will be loaded next.

The Customer shall inform the Company on redelivery of the object about any possible residues contained in the object. In this case the Company has the right to withdraw from the contract, and to claim for compensation - or - carry out the cleaning in adherance to the contract as well as arrange for transport and disposal of the residues. shall pay for all costs arising from the disposal at a lumpsum rate, agreed beforehand. In case the Customer insist on fulfilment of the contract, any agreed deadline of the contract is to be considered void.

Unless not otherwise specified in writing, it is entirely up to the Company to decide which cleaning method will be relevant and appropriate to reach a complete removal of harmless cargo residues.

The Company shall be responsible only for a qualified performance of determinated services but not for the result. This especially refers to any cleaning services ordered by the Customer.

VIII. Lease of object

In order to meet the particular requirements the customer has on an object to rent, the Company shall submit an detailed description of the object. According article 315 BGB the Customer will have the right to select for his purposes an appropriate object for on hire the Company has available on a definited stock. If an object was delivered to the Customer in compliance with a rent-contract then those object shall be subject hired on.

Commence of the lease contract is at the day the Company has stated for delivery on and was accepted by the Customer in writing. If the date of delivery was not confirmed by the Customer the hire period shall be valid from the day the object is ready for delivery or was picked up for shipment. At the earliest, however, on the day, the Company has stated for delivery. The day of delivery is counting entirely to the term of lease.

Payment of the agreed rental is due in advance on the 1st working day of a month. If the Customer has not settled the amount due on the 3rd working day at the latest default in payment is counting from the 4th working day of a month onwards. When commence or termination of the rent-contract is within a month then the first and/or the final charge for rent has to be paid proportionately to the length of time the object was rent. The first rental must be paid in advance of the delivery of the object.

As far as not agreed otherwise in writing, the place of delivery shall be at the Company’s premises The Company is obliged to deliver the object only when the first charge for rent has been received. The Customer must perform an inspection of the object upon delivery and record by written notice any possible defect or failure; the record has to be signed by both, Customer and Company. Defects/failure that were inspected upon delivery but not recorded are to be considered as caused after delivery.

Any destruction or deterioration of the object caused by accident are on risks of the lessee if occurred after delivery/before redelivery - or before the term of the rent-contract.

The hired object shall only be used in a suitable manner, and according to the directed purposes. No alterations are to be made on the object without prior written consent by the Company; likewise, the transport of hazardous cargo in/by the object are allowed only, if the written consent of the Company is received in advance. The Company has the right to restrict the use of the object in moderate manner for technical reasons.

According to para. VIII, item 5. of these terms, the Company shall be liable only for defects arising before delivery of the object. In such case the Customer has the right to demand for repair of the damaged object at the place of delivery. It is to the Company's option either to deliver from stock an object of correspond design, or to repair the defect claimed. If the defect has been repaired by replacement of an equivalent object, then these object shall become the object hired on. If the Company fails to repair the object promptly the Customer may reduce the amount to pay for rental appropriate to the time the Company is in default of the repair. Any further demand for indemnification, especially for any damages and/or expenses are excluded, unless the Company has handled the defect in an intentional or grossly negligent manner.

The Customer shall at its sole cost insure the object for the period hired on against claims for damage and loss, and shall provide the Company with a certificate of insurance immediately upon delivery of the object.

The contract period of the lease is limited from the day of delivery till the date for termination as stipulated by the Company. Validity of the lease shall be for an unlimited period as far as date of termination was not fixed or not confirmed by the Company. An unlimited lease can be terminated any time by a 4-weeks-written notice at the end of a month; at the earliest, however, on expiry of an agreed minimum period of hire. The right to terminate by due notice a lease of fixed hire period is excluded from this; the right to terminate a lease without notice for exceptional reason is unaffected from this.

A termination for exceptional reason is caused especially by the following facts:
- if the Customer is in default of at least one rental, or - notwithstanding of a resasonable extension, the total amount of outstandings is not settled within 10 days.
- if the object, hired on, is not used for the purpose intended (see para VIII, item 1, these terms)
- if the Customer has violated his obligation under para. VIII, item 8, these terms, and did fail to insure and show proof of the insurance within a reasonable extension of 5 working days
- if the object is subleased by the Customer to a third party without agreement in writing by the Company.
- if the solvency of the Customer appears substantially threatened, especially by
or:
- if the Customer has stated consciously incorrect information about his address or/and about further details which would be relevant for the conclusion of the contract.
- if the hired object was used for criminal offence by the Customer or a third party, ommissioned by the Customer
On term of the lease the object has to be to returned to the place of delivery (if not otherwise agreed in writing) in same condition as recorded upon delivery. An inspection report must be carried out on return of the object. The Customer shall be liable for any defect/damage inspected on return of the object as well as for the costs of any repair the Company has to carry out.

IX. Warranty with reference to Contracts for Services -, Work- or Sale on/of Objects

The object must be immediately inspected by the Customer or by a third party, commissioned by the Customer, as soon as the delivery is carriedout. Any defect becoming aware of during the inspection must be notified without delay to the Company. The warranty is excluded to the full, in case an inspected defect was not claimed by written notice within 5 days, or was repaired by the Customer without given opportunity to the Company to inspect the defect claimed and, if necessary, to repair.

Except items which are subject to para VIII, item 1, of these terms, the Customer has the right to demand remedy within a reasonable extension in the event that the delivery of a new built object fails or a specific service of the Company is defective. If the repair fails twice, the Customer shall have the option either to reduce in reasonable manner the rate agreed for services or/and sale, or to withdraw from the contract. Any further indemnity, especially claim for compensation and/or expenditure are excluded herefrom.

Warranty for new built objects or services come under the statute of limitations after one year, commencing from the day of delivery of the object, unless the defect was withheld deceitfully by the Company. In such case the legal statutory period of limitation shall prevail.

Claim for warranty or other claim for compensation whatsoever are excluded to the full from the delivery of secondhand objects, unless the defect was withheld deceitfully by the Company. In such case correction of the defect must be carried out under the condition of warranty.

If an inspection of the Company's service was carried out by Germanischer Lloyd or by an equivalent classification society, any defect detected thereafter shall not be attributable to the Company or to any party assisting the Company in the performance of the service, unless the Customer can furnish proof of the contrary.

X. Liability

The Customer shall neither have the right to terminate the contract nor to demand compensation by reason of a breach of the contract, in whole or in part, occurred by any act or event beyond the Company's control. This especially refers to damage/expenditures and/or delays caused by Force Majeure. In particular, but not limited to, if caused by reason of fire, explosion, storm (more than 7 Beaufort) floods, strike, labour disputes: strikes, go-glow and lockout (regardless whether one party took part in the labour disputes) as well as theft by a third party.

On careless performance, concerning contracts signed for maintenance or repair the Company shall be liable only for a breach of substantial provisions of the contract (essential duties). Except in the respect of item 6 and 7 of this article (X) the responsibility of the Company for such breach of duties is limited to the double of the amount agreed for those services.

As defined by article VII of these terms, liability of the Company is excluded to the full, in case the Customer is responsible for the breach of article VII, item 1 and 2; unless the damage/expenditures are not resulting from such breach.

In the performance of the duties the Company shall be liable for personal injury only, if caused by the Company's or its employees’ negligence.

Any further damage/expenditures are excluded from the Company's liability, unless the Company or its employees did act in a wilfully and gross negligent manner.

The Company's liability for remuneration for damage or loss of goods containing in the object is limited to an amount of 2 accounting units for each kilogramm net weight as per HGB.

If only individual packages of the consignment are lost or damaged then the responsibility of the Company is limited to 2 accounting units per kg net weight in total, even the entire value of the consignment get depreciated.

The Company's liability for compensation by reason of damage or destruction of a transport equipment (container, trailer, chassis, truck) is limited to the following maximum amount:

a) trailer, train, truck and other transport equipment: max. € 100.000 each damage

b) on damage or loss of containers
- max. € 3.500 each 20ft dry freight container
- max. € 5.000 each 40ft
- max. € 25.000 each reefer- or tank-container

Any further liability for compensation is excluded.

XI. Lien / Retention

To secure its contractual claim the Company is entitled to exercise a lien on objects in its possession and in relation to the services to carry out on the objects.

The contractual right of lien can also be asserted for accounts receivable from other business relation with the Customer.

Any of the objects delivered to the Customer, retain in the ownership of the Company until payment for the contractual services is received. The object is passing into the possession of the Customer as soon as any claim arising from the services performed on the object are settled in full. On condition that payments out of contractual services are not in default, the Customer is entitled to dispose the pledged object, however for purposes only the object is intended for. Subject to the Customer’s guarantee of payment, the Customer agrees to assign to the Company all rights, title and interest in case a pledge object is sold by the Customer to a third party. The Company shall accept the assignment, and shall inform the buyer of the pledged object about such assignment. The Customer has the right to collect the amount that was invoiced for the resale. These assignment shall be void by any time possible revocation or in case of default in payment. If the invoice amount of the lien is exceeding the constructual claims, incl. Expenses (interests, costs etc.), by more than 50 per cent, the Customer is authorised to demand release of lien from objects, which are determinated by the Company.

XII. Miscellaneous

Any modification and amendments of these terms, including this article, are only to be made in writing;

Place of fulfilment of these terms is the seat of the Company. These terms are governed by the laws of the Federal Republic of Germany; the rights under the International Private Law are excluded herefrom. The place of jurisdiction for both Customer and Company will be Hamburg.

If any of the provision of these terms or of any further agreements and contracts between the parties become impracticable or invalid all other provision of these terms or of any further agreements/contracts shall remain in full force and effect. The terms which are become impractiable or invalid can be replaced by terms which clearly reflect the economic purposes of both Customer and Company. Likewise, this shall refer to any void condition under these terms or any further contracts agreed by the parties.