CO2 savings of the
Torque Marine Systems

compared to conventional systems

General Terms and Conditions (as of October 2010)
1. general

By accepting the order, the contractor acknowledges the following order conditions. Conflicting, deviating or additional terms and conditions of the Contractor shall not apply even if they are contained in an order confirmation following our order or commissioning and we do not expressly object to them or accept the delivery without reservation.
Terms and conditions of the contractor are only valid if they are recognized by us in writing.

Our order conditions also apply to all future orders placed with the contractor.

2. conclusion of contract

Only orders placed in writing or confirmed by us in writing shall be binding on us. Amendments, collateral agreements, supplements etc. require written confirmation by our purchasing department, with which all correspondence must be conducted, stating all complete order data. Declarations by fax or e-mail are equivalent to the written form.

If our order is not confirmed in writing within 10 working days of the order date, we are entitled to cancel our order.

3. delivery and shipping

The delivery dates or deadlines stated in the order are binding.
All services must be delivered to the destination specified by us by the prescribed date.

The Contractor may only invoke the absence of necessary documents/information to be supplied by us if it has not received them within a reasonable period despite a written reminder.

Shipment shall be at the risk of the contractor. The risk of any deterioration, including accidental loss, shall remain with the Contractor until delivery to the shipping address or place of use requested by us.

If the agreed delivery period or delivery date is exceeded for reasons for which the Contractor is responsible, we shall be entitled to charge a contractual penalty of 0.3% of the total order value for each working day of delay commenced, up to a maximum of 10% of the total order value. The contractor has the right to prove that we have suffered no or less damage as a result of the delay. We may claim the contractual penalty in addition to performance. Further rights and claims are reserved.

If the corresponding reservation is not made when accepting the deliveries, services or subsequent performance, the contractual penalty can nevertheless be asserted up to the final payment.

Force majeure, labor disputes, unrest and similar unforeseeable obstacles on the part of the contractor must be reported to us immediately. If such unforeseeable obstacles occur for us or our customer and lead to disruptions to our business operations or those of our customer, we shall be released from any obligation to accept delivery or pay damages for the duration and to the extent of their effect.

The Contractor shall only be entitled to make partial deliveries with our consent.

4. packaging and ancillary costs

If the packaging or shipping instructions specified by us and the statutory take-back obligations in the packaging area are not observed, we shall be entitled to refuse to accept the goods.

Unless expressly agreed otherwise, all ancillary costs, e.g. for shipping, packaging, insurance, customs duties, fees, etc. shall be borne by the Contractor.

All consignments must be accompanied by delivery bills showing all individual parts of the consignments and our order data.

5. invoices

Invoices must include our order numbers and the number of each individual item.

6. payments

Payment shall be made after acceptance of the goods and proper receipt of the invoice at our discretion within 10 days with 3% discount, within
30 days with 2% discount or within 45 days net. All payments shall be made subject to factual and arithmetical verification as well as our rights arising from defective delivery, even if this is not expressly noted in our payment. We are entitled to withhold payments if we are already aware of defects at the due date.

In the event of faulty or incomplete delivery, we are entitled to withhold the entire payment until proper fulfillment, without loss of discounts or similar payment benefits.

We are entitled to offset our own claims.

7. assignment of claims

Assignments of the contractor outside the scope of application of § 354 a HGB are excluded, unless otherwise agreed in writing.

8. warranty

The Contractor warrants that the delivered goods are free from third-party rights. By accepting the order, he undertakes to indemnify us against all third-party claims in this respect on first demand. This includes, in particular, legal costs and compensation payments.

The confirmation of receipt of goods does not exclude quality or quantity-related complaints that are identified after receipt of the goods. We are obliged to inspect the goods for any quality or quantity deviations within a reasonable period of time; the complaint shall be deemed to have been made in good time if it is received by the contractor within a period of 10 working days.

The warranty period is 24 months after the transfer of risk.

If defects are discovered before or at the time of transfer of risk or occur during the warranty period, the Contractor shall, at its own expense and at our discretion, either remedy the defects or deliver or perform again free of defects. Our choice shall be made at our reasonable discretion.

If the contractor does not carry out the supplementary performance within a reasonable period to be set by us, we shall be entitled to

to withdraw from the contract in whole or in part without compensation
or to demand a reduction of the price
or to carry out rectification or redelivery itself or have it carried out at the contractor’s expense
and to claim damages.
§ Section 281 para. 2 and § 323 para. 2 BGB remain unaffected.

Further or other legal claims remain unaffected.

If the Contractor makes a new delivery or rectifies the defect as part of the supplementary performance, the warranty period shall begin to run again.

The Contractor shall bear the costs and risk of returning defective delivery items.

If a piece-by-piece or 100% inspection of the goods received is necessary due to defective deliveries, the Contractor shall bear the costs incurred.

9. advertising

The contractor’s advertising with our company name, in particular its inclusion in reference lists, requires our consent.

10. liability

The contractor is already liable for slight negligence. This also applies to ancillary contractual obligations, consequential harm caused by a defect and for culpa in contrahendo.

11. place of fulfillment

The place of performance for all deliveries and services is the agreed place of receipt. The place of performance for payments is Hamburg.

12 Place of jurisdiction, applicable law, severability clause

The place of jurisdiction for all disputes arising from the business relationship is Hamburg. However, we are also entitled to sue the contractor at the court of his place of business or residence.

The entire contractual relationship shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

Should a provision of these Terms and Conditions of Ordering or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions and agreements.

General Terms and Conditions (as of October 2010)
1. general/scope of application

(1) These General Terms and Conditions of Sale shall apply exclusively; any conflicting or deviating terms and conditions of the client/customer (hereinafter referred to as the orderer, client, customer or contractual partner) shall not be recognized unless we expressly agree to their validity in writing. Our Terms and Conditions of Sale shall also apply if we provide services to the customer without objection in the knowledge that the customer’s terms and conditions conflict with or deviate from these Terms and Conditions of Sale.

(2) These Terms and Conditions of Sale shall only apply to merchants, companies, legal entities under public law and special funds under public law within the meaning of Section 310 of the German Civil Code (BGB).

(3) Deliveries, services and offers are made exclusively on the basis of these Terms and Conditions of Sale. These shall therefore also apply to all future business relationships, even if they are not expressly agreed again. This applies in particular to follow-up and supplementary orders.

2. offer, conclusion of contract, content of contract and copyright

(1) If an offer of the customer is to be qualified according to § 145 BGB, the customer is bound to it for 4 weeks. We can accept such an offer within the commitment period.

(2) Our descriptions, cost estimates and offers are subject to change and non-binding, unless expressly stated otherwise in writing. Information, data in brochures, data sheets and technical application instructions or descriptions are only intended to be informative and provide general knowledge. Unless otherwise agreed, they shall not become part of the contract.

(3) We reserve the right to make technical changes in the execution of the order, insofar as this proves to be useful in the interest of the performance of the system or other goods/services in individual cases and is reasonable for the customer.

(4) We reserve all property rights and copyrights to illustrations, drawings, sketches, calculations and other documents. This also applies to written documents that are designated as confidential. The customer requires our express written consent before passing them on to third parties.

(5) We are entitled to use the services of other reliable companies and/or persons to fulfill our obligations.

3. prices

(1) Unless otherwise agreed in writing, prices are quoted ex our registered office excluding packaging, transport, transport insurance, customs duties, TÜV fees and assembly. In the event of calculation and/or other errors, we reserve the right to correct our offer and invoice prices.

(2) Irrespective of clause 3 (1), we may change prices accordingly if cost reductions or cost increases occur after conclusion of the contract, in particular due to changes in material prices, public charges, ancillary charges or freight charges, and the delivery or service is provided more than four months after conclusion of the contract. Proof of this will be provided to the customer on request. Price changes cannot be made if a fixed price has been expressly agreed in writing. A price increase due to cost increases occurring before conclusion of the contract is excluded.

(3) All prices are subject to the applicable statutory value added tax.

4. terms of payment

(1) The deduction of discounts requires a special written agreement.

(2) Unless otherwise stated in our order confirmation, the purchase price shall be due for payment without deduction within 14 days of the invoice date.

(3) If the customer is in default of payment, he shall pay default interest in the amount of 8% above the respective base interest rate per annum. If we have incurred higher damages due to the delay, the customer must pay these upon proof.

(4) The customer shall only have a right of set-off if his counterclaims have been legally established or recognized by us. Furthermore, the customer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

(5) Cheques, bills of exchange or other securities shall only be accepted on account of performance subject to the usual reservation of their redemption, their discounting possibility and the assumption of all costs in connection with their redemption by the customer. Discount and bill charges shall be borne by the customer and are due immediately.

(6) In the event of partial deliveries or services, we shall be entitled to demand corresponding partial amounts.

(7) All our claims shall become due immediately, irrespective of the term of any bills of exchange received and credited, if the terms of payment are not complied with by the customer or if circumstances become known which are likely to reduce the customer’s creditworthiness.

5. installation, maintenance, repair and service of/for systems

Unless otherwise agreed in writing, the following conditions apply to all types of installation, assembly, repair, maintenance and service:

(1) The customer shall pay us the rates agreed when the order was placed for working time and surcharges for overtime, work on Sundays and public holidays, for unprepared extended work, for work under difficult circumstances, as well as for planning and supervision. This applies accordingly to the consumption of materials, including offcuts, as well as to the installation and connection of the equipment.

(2) Preparation and running times as well as feedback are considered working time. For travel to and from the location, including in particular labor and vehicle costs, the actual expenditure will be charged, unless otherwise agreed.

(3) The following costs shall also be reimbursed: Travel expenses, costs for the transportation of tools, for freight and packaging, for the delivery of all materials and equipment, as well as ordered technical documents.

6 Delivery and performance time, delivery

(1) Information on delivery periods and dates shall be non-binding unless we have expressly designated them as binding in writing.

(2) The commencement of the delivery period specified by us is subject to the clarification of all technical questions.

(3) Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the customer’s obligations. The defense of non-performance of the contract remains reserved.

(4) If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us as a result, including any additional expenses. Furthermore, our performance periods shall be extended for the period in which the customer is in default with its obligations. We reserve the right to make further claims.

(5) If the requirements of the above paragraph 4 are met, the risk of accidental loss or accidental deterioration shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

(6) In the event of force majeure and other unavoidable, extraordinary circumstances for which we are not responsible, e.g. difficulties in procuring materials, operational disruptions, lockouts, lack of means of transportation, official interventions, energy supply difficulties, etc. – even if they occur at upstream suppliers – the delivery period shall be extended by the duration of the hindrance and a reasonable start-up time if our supplier is prevented from fulfilling its obligation in due time. If the delivery or service becomes impossible or unreasonable due to the stated circumstances, we shall be released from the delivery obligation unless we are responsible for the circumstances. We can only invoke the aforementioned circumstances if we have notified the customer immediately.

(7) We are entitled to make partial deliveries and render partial services at any time, unless such are unreasonable for the customer.

(8) If no agreement has been made between the customer and us regarding shipment, this shall be at our discretion, whereby we shall not be obliged to choose the most favorable type of shipment.

(9) If an agreed performance/delivery deadline is not met due to our own fault, our contractual partner shall be entitled to demand compensation for delay or to withdraw from the contract after expiry of a reasonable grace period, unless we have acted with gross negligence or intent or have breached a material contractual obligation, to the exclusion of further claims. The compensation for delay shall amount to 0.5 percent for each completed calendar week of delay, but shall not exceed a total of 5 percent of the net price for the part of the delivery or service with which we are in default. Withdrawal and/or the assertion of compensation for delay shall be excluded if our contractual partner is itself in default of acceptance. The contractual partner reserves the right to provide evidence of higher damages and we reserve the right to provide evidence of lower damages.

7. reservation of title

(1) We reserve title to the purchased item or the delivery item (hereinafter referred to as the item) until full payment has been received under the respective contract. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the goods after setting a reasonable deadline and fruitless expiry of the deadline. Our taking back the goods does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the goods by us shall always constitute a withdrawal from the contract. After taking back the goods, we shall be entitled to utilize them; the proceeds from the utilization shall be offset against the customer’s liabilities – less reasonable utilization costs.

(2) The customer is obliged to treat the goods with care; in particular, he is obliged to insure them adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

(3) In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure) if necessary. If the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall indemnify us against such costs.

(4) The customer shall be entitled to resell the item in the ordinary course of business; however, by way of security, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) which accrue to him from the resale against his customers or third parties, irrespective of whether the item has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations to us, does not default on payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the customer informs us of assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.

(5) The processing or transformation of the item by the customer shall always be carried out for us. If the item is processed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the item (final invoice amount, including VAT) to the other processed items at the time of processing. For the rest, the same applies to the item resulting from processing as to the item delivered under retention of title.

(6) We undertake to release the securities to which we are entitled insofar as the realizable value of the securities exceeds the claims to be secured by more than 10%; we shall select the securities to be released.

§ 8 Acceptance, transfer of risk, packaging costs

(1) Unless otherwise agreed, the acceptance of engines and the associated components shall take place prior to delivery on our engine test bench with a corresponding protocol.

(2) Unless otherwise stated in the order confirmation or other written agreements have been made, delivery from our registered office or production site is agreed. The transfer of risk is governed by §§ 446, 447 BGB.

(3) Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back. The customer is obliged to dispose of the packaging at his own expense.

(4) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

§ 9 Warranty for defects/compensation for damages

(1) The purchaser’s warranty rights presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).

(2) If there is a defect in the delivered goods or services for which we are responsible, we shall be entitled to choose whether to remedy the defect or make a replacement delivery. In the event of rectification of defects, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.

(3) If the rectification of defects fails twice, the customer shall be entitled, at his discretion, to withdraw from the contract or to demand a corresponding reduction of the purchase price (reduction).

(4) The warranty period for new delivery items is one year, calculated from the transfer of risk, unless otherwise expressly agreed in writing. The period is a limitation period and also applies to claims for compensation for consequential damages, insofar as no claims in tort are asserted; the statutory limitation period applies to these. Unless otherwise agreed in individual cases, claims by the contractual partner for material defects in used delivery items are excluded.

(5) Claims for defects shall not exist in the event of insignificant deviations from the agreed quality, in the event of only insignificant impairment of usability, in the event of natural wear and tear or damage caused after the transfer of risk as a result of incorrect or negligent handling, unsuitable or improper use, excessive strain, incorrect assembly or commissioning, unsuitable operating materials, in the event of damage caused by special external influences (e.g. moisture, strong heating, intensive irradiation with sunlight or artificial light, other temperature or weather conditions). We shall not be liable for any damage caused by the use of unsuitable operating materials, damage caused by special external influences (e.g. moisture, excessive heating, intense exposure to sunlight or artificial light, other temperature or weather influences, chemical, electronic or electrical influences) which are not assumed under the contract, unless the damage is attributable to our intentional or grossly negligent behavior. If improper modifications or repairs are carried out by our contractual partner or third parties, no claims for defects shall exist for these and the resulting consequences.

(6) It is also a prerequisite for claims for defects that the delivery item is properly maintained, serviced and handled in accordance with the regulations or our operating and operating instructions and operated properly.

§ 10 Liability

(1) We shall only be liable for damages in the event of intent or gross negligence and in the event of intent or gross negligence on the part of our representatives or vicarious agents. Any further liability for damages is excluded.

(2) The exclusion of liability pursuant to paragraph 1 above shall not apply in the event of negligent breach of material contractual obligations by us, in the absence of warranted characteristics, in the event of the assumption of a guarantee, in the event of damage resulting from injury to life, limb or health and in the event of liability under the Product Liability Act.

(3) In the event of negligent breach of material contractual obligations (cardinal obligation), our liability shall be limited to the damage foreseeable at the time of conclusion of the contract. Cardinal obligations are above all those obligations whose fulfillment makes the proper execution of the contract possible in the first place; the contractual partner therefore relies and may rely on their fulfillment.

(4) Claims for damages due to the absence of warranted characteristics are limited to the damage with regard to which the customer should be protected by the warranty. This shall not apply in the event of intent or gross negligence on our part.

§ 11 Place of jurisdiction, place of performance, applicable law and severability clause

(1) Unless otherwise stated in the order confirmation or expressly agreed otherwise, our place of business shall be the place of performance. The place of jurisdiction is Hamburg.

(2) The law of the Federal Republic of Germany shall apply exclusively to these terms and conditions and the entire legal relationship between the contracting parties. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

(3) Should individual provisions of this contract prove to be invalid or unenforceable, the remaining provisions shall remain valid.

Torque Marine IPS GmbH + Co KG
Status: October 2010

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