GENERAL TERMS AND CONDITIONS

I. General terms

Para. 1 Scope of validity of these general terms and conditions
1. These general terms and conditions (“AGB”) shall apply, exclusively, to the handling and warehousing of goods as well as to all other activities and services provided by the Stadtwerke Andernach GmbH municipal utilities (“Port Operator”) to customers (“Customer”). Any terms and conditions to the contrary provided by the Customer shall only apply if expressly accepted by the Port Operator in writing.
2. Insofar as the below AGB contain no express provisions, the provisions of the German Freight Forwarders’ Standard Terms and Conditions (“Allgemeine Deutsche Spediteurbedingungen”; ADSp as amended in 2003) shall apply, subject to the proviso of the deviating provisions specified in Para. 24 regarding obtaining insurance. Paras. 407 to 475 h of the German Commercial Code (“HGB”) and Paras. 631 ff. of the German Civil Code (“BGB”) shall apply in addition hereto. In addition, the provisions and regulations of the Customs Authority shall apply when handling or warehousing customs controlled goods, and the Customer shall be responsible for complying with such provisions and regulations.

Para. 2 Placing an order/ scope of an order
1. The respective cargo-handling or warehousing contract shall be considered concluded upon the express acceptance of the order by the Port Operator.
2. The Port Operator shall render all activities and services (transshipment, weighing etc.) associated with the receipt, handling, loading, outgoing delivery or any other handling of the goods in exchange for respectively agreed-upon or customary fees. Work activities and services may be assigned to third parties.
3. An order shall not include the packaging of the goods nor the supplying or the exchange of pallets or any other loading equipment or packaging material, unless expressly agreed otherwise.
4. A person authorised to accept delivery of the goods is to be indicated on the order issued to the Port Operator.n

Para. 3 Working hours/ supervisory authority
1. Orders issued to the Port Operator shall be processed during the business hours stated. The processing of orders outside these hours shall be undertaken upon special request and for an appropriate additional fee. The Port Operator may request the acceptance of their services even outside of regular business hours.
2. Upon entering the business premises, every Customer or every person authorised by the Customer is to follow the instructions issued by the Port Operator’s personnel fully and without reservation. Smoking in enclosed areas or in close proximity thereto is prohibited.
3. The Port Operator shall offer no guarantee whatsoever for maintaining laytime and idle periods. Any charges or fees incurred for the demurrage of the ship or train shall be borne exclusively by the Customer.

Para. 4 Forms/ signature verification
1. The Customer is to use the preprinted forms provided by the Port Operator. Insofar as, in exceptional cases, other forms or preprinted forms are used to place an order – in particular forms or preprinted forms provided by the Customer – any references to opposing Terms and Conditions as issued by the Customer shall be deemed not to have been written.
2. The Port Operator shall not be obliged to verify the authenticity of signatures of any kind nor the powers of authority of the signatories or signees.

Para. 5 Commissioning other persons
1. If the Port Operator commissions other persons outside the company to fulfil orders, the Port Operator shall reach agreement with them for their services on the terms and conditions which are customary for the industry while taking account of the Customer’s interests.
2. In the event of damage, the Port Operator shall transfer any possible claim against the liable party if so requested by the Customer or by the third party. In addition hereto, the relevant provisions of the German Freight Forwarders’ Standard Terms and Conditions (“ADSp”, 2003) shall apply accordingly.
3. The Port Operator shall not be obliged to monitor these outside persons nor to have them monitored while they carry out their tasks.

Para. 6 Traffic-related provisions
1. The Customer’s vehicles (ships and land vehicles) may be parked only in the berths and/or parking spaces as assigned by the Port Operator.
2. Ships must be shifted immediately upon the Port Operator’s request. If the request is not complied with immediately, the Port Operator shall be authorised to have the necessary action carried out for the account and at the risk of the vehicle or vessel operator. If the ship cannot be shifted, the Port Operator is to be compensated for any resulting damage.
3. For land traffic and transport, the provisions of the Port Regulations and of the German Road Traffic Regulations (“StVO”), as well as the special provisions for rail traffic and transport shall apply in addition hereto. Rail vehicles and cranes shall always have priority. The roadways for rail vehicles and cranes are to be kept clear at all times.

II. General terms regarding cargo handling and warehousing

Para. 7 Cargo handling
1. The handling of goods in ship as well as land traffic and transport is usually carried out using the Port Operator’s lifting equipment and personnel. Work with lifting equipment provided by the Customer or by third parties requires the Port Operator’s express permission.
2. Additional work related to cargo handling, such as marking/labelling, mending/repairing of the packaging etc., is usually carried out by Port Operator employees. The Port Operator may permit authorised parties to carry out such work on the Port Operator’s premises under supervision.

Para. 8 Interim storage
1. If required, goods handled can be placed into interim storage, following agreement with the Customer regarding storage location and interim storage costs.
2. If interim storage is required or appropriate, and if no agreement is reached with the Customer, the Port Operator shall not be obliged to have the goods stored for more than 24 hours. The Port Operator may at any time request the authorised parties to collect and remove the goods within 24 hours. If such a request is not complied with or if the authorised party is unknown or cannot be found, the Port Operator may, after expiry of the 24-hour period, transfer the goods for the account of “to whom it may concern”, or store them some other way.

Para. 9 Cargo handling restrictions
1. When placing an order, the Customer must inform the Port Operator if any of the following are object of the Transport Contract:
- Hazardous goods;
- Living animals and plants;
- Perishable goods;
- Particularly valuable goods or goods which are at risk of being stolen.
2. On the order, the Customer must state the addresses, references, reference numbers, amount, type and contents of the packages; the attributes/features of the goods in accordance with Subparagraph 1; the value of the goods for the purpose of insuring the goods; and all other context which is relevant for the proper processing of the order.
3. In the case of hazardous goods, the Customer shall, when placing an order, inform the Port Operator in writing of the precise type of danger or risk and, if required, of any precautionary measures to be undertaken. If the goods are dangerous goods within the definition of the German Act on the Transport of Dangerous Goods (“GGBefG”), or if the goods are other goods where their carriage or storage is subject to special regulations in relation to dangerous goods, handling or disposal, the Customer shall provide all information required for the proper processing of the order, in particular the classification in accordance with the relevant legislation on dangerous goods.
4. The Customer is to inform the Port Operator in writing of particularly valuable goods or goods which are at risk of being stolen (e.g. money; precious metals; jewellery; watches; precious stones; objects of art; antiques; banking, credit and valid telephone cards or other methods of payment; stocks and bonds; securities; documents; spirits; tobacco products; consumer electronics; telecommunication devices; computer equipment and accessories), as well as goods with an actual value of EUR 50/kg or more and in such a prompt manner before being received by the Port Operator that the Port Operator has the opportunity to decide whether to accept the goods and to then undertake measures for the safe and secure processing of the order.
5. If an order placed with the Port Operator does not comply with the conditions set forth in Subparagraphs 1 to 4, the Port Operator shall be free to refuse acceptance of the goods; to return goods already accepted or to keep them ready for collection; to dispatch, transport or store the goods without notification to the Customer; and to request an additional, appropriate fee if the safe and secure processing of an order is subject to increased costs.
6. The Port Operator shall not be obliged to verify or add to the information provided in accordance with Subparagraphs 1 to 4.
7. The Port Operator shall not be obliged to verify the authenticity of signatures on any communications whatsoever relating to the goods or on any other documents, or to verify the power of authority of the signatories or signees, unless there is reasonable doubt as to the authenticity or power of authority.
8. If received or discharged goods may no longer be made available, loaded or shipped due to legal provisions and regulations or due to orders issued by the competent authority, the Customer shall be obliged to take back the goods immediately. If the Customer does not immediately comply with a request to take back the goods, the Port Operator shall be authorised to destroy the goods at the Customer’s expense.

Para. 10 Hazardous goods
1. The handling of hazardous goods on the Port Operator’s premises is subject to the general terms with which the Customer expressly agrees to comply.
2. Prior to the receipt of hazardous goods, all data relating to the dangerous goods and, if required, the transport permit must be transmitted to the Port Operator.
3. Any packages, containers and trailers which contain hazardous goods must comply with the provisions and regulations regarding the transport of dangerous goods.

Para. 11 Cargo manifest
The Customer is to submit a cargo manifest in good time before the order is processed, stating the type, volume/amount and destination of the goods to be handled. For loading units of 1000 kg or more, individual weights must be stated.

Para. 12 Receipt/ handover
1. The goods shall be deemed to have been received or handed over as of the loading sill of a means of transport. Complaints or reservations can only be taken into consideration if issued immediately at the loading site.
2. Outgoing deliveries of goods shall be made exclusively to the person authorised to accept delivery as designated by the Customer.

Para. 13 Verification of the product description and weight
1. Before the goods are handled, the Port Operator may request presentation of the package contents if accuracy of the product description is not demonstrated in the form of proper documentation.
2. If the weight data is missing or if there is doubt regarding the accuracy thereof, the Port Operator shall be authorised to weigh the goods at the Customer’s expense. If weighing results in an additional weight of 5 per cent or more of the indicated weight, the Customer shall pay for the weighing costs.

Para. 14 Lien/ sale
1. In accordance with Para. 475 b of the German Commercial Code (“HGB”), the Port Operator shall have a lien on all goods which are stored under contract or in accordance with Para. 8.
2. Following a warehousing period of two months, the Port Operator shall be authorised to privately sell or to publicly auction off for the account of “to whom it may concern” such goods which are stored under contract or in accordance with Para. 8 if the fees owed are not paid despite reminders and despite a warning that these goods will be sold, or if the authorised party is unknown or cannot be found.
3. The intended sale shall be announced to the authorised party. If the authorised party is unknown or cannot be found, the intended sale shall be announced in the “Amtlicher Anzeiger” gazette published in Hamburg, Germany. The sale may only take place after at least one week has expired after announcement of the intended sale.
4. The Port Operator shall not be bound to the two-month period and shall not be obliged to warn of or announce the intended sale if the goods are perishable or of low value and if, at the Port Operator’s own assessment, the sale proceeds will fail to cover the fees due.
5. If no buyer can be found for the goods to be sold, the Port Operator may remove or destroy the goods at the expense of “to whom it may concern”.
6. All claims to any net proceeds shall expire one year after the sale to the Port Operator’s benefit.

III. Supplemental terms for warehousing operations

Para. 15 Specification of the goods
1. When an order is placed, the goods must be specified in such a manner that proper stacking, warehousing and processing are possible. Such specifications are to be submitted to the Port Operator. The specifications must include all instructions regarding handling and safekeeping of the goods.
2. The Port Operator shall not be obliged to verify or add to the information provided in the specifications. For units exceeding a weight of 1000 kg, individual weights must be stated. In the event that postage and/or specifications are inaccurate, the Customer shall bear any and all resulting costs.

Para. 16 Storage
1. The goods shall, at the option and at the discretion of the Port Operator, be stored in the Port Operator’s own or in third-party warehouses. If the Customer requires storage in a locked or specially secured storage area, this must be indicated to the Port Operator in writing and paid for separately.
2. If goods are to be stored and/or processed which, owing to their attributes, features or properties (flammability, harmfulness to health etc.), may create disadvantages of any kind for the warehouse or for any other warehoused goods, the Customer shall be obliged to notify the Port Operator in a prompt manner and in writing of the special features of the goods, the precise type of risk and the precautionary measures to be undertaken. In addition, the Customer must, if required, package and label the goods and provide the related documents or certificates as well as all information which the Port Operator requires to fulfil their obligations. The Port Operator shall be authorised to warehouse such goods in separate rooms, in special warehouses which have been specifically designed for this purpose or, where applicable, even outdoors. Furthermore, the Customer shall be obliged to provide the Port Operator with instructions for the proper warehousing of the stored goods. If the Customer fails to fulfil this obligation, the Port Operator shall store the goods at their own best judgement and discretion. If, in the Port Operator’s opinion, no suitable warehouse is available, the Port Operator may refuse to carry out the order. In such an event, the Customer must immediately take back the warehoused goods and bear any costs incurred up to that point.
3.The Port Operator shall issue the Customer with a storage notification regarding the stored goods.
4. The Port Operator shall take note of any externally-visible damage to the goods or to the goods’ packaging on the storage notification and/or on the receipt for goods stored. With regard to the storage of and other activities on or with cargo units (palletised or bundled goods, filled cases/receptacles, containers), the inspection by the Port Operator shall refer to the external quality and count of the units only.

Para. 17 Warehousing
1. The Port Operator may rewarehouse the goods within their entire warehousing space (own and third-party warehouses). The Port Operator shall notify the Customer of such rewarehousing and provide the Customer with the exact name of the new storage location.
2. The Port Operator shall ensure a standard level of security guarding and monitoring of the warehoused goods; the Port Operator shall not be obliged to take further, specialised security guarding and/or monitoring measures.
3. The Port Operator shall not open the goods’ packaging without an express request made by the Customer. However, the Port Operator shall nonetheless be authorised to open the packaging if an important reason exists for doing so. Such important reasons include, in particular, if the Port Operator has reasonable grounds for assuming that the contents of the packages have not been accurately stated, or if the type of goods has not been clearly indicated in the accompanying documents.
4. Without a special agreement, the Port Operator shall not be obliged to undertake any work for the maintenance or improvement of the goods or the goods’ packaging. However, the Port Operator shall be authorised to undertake such work at the Customer’s expense if, at their own best judgement and discretion, loss of or damage to the goods themselves, of/to other goods or of/to the storage facilities can be expected if such work is not undertaken.
5. The Port Operator shall be authorised – but not obliged without a request made in this regard – to weigh and/or measure the goods. If the goods are weighed and/or measured by the Port Operator without a request to do so, the Customer shall bear the costs if the weight and/or measurements have not been accurately stated.
6. Only the Customer or persons authorised by the Customer have the right to request information about stored goods. They may enter and inspect the warehouse at their own risk during standard business hours while being accompanied by Port Operator employees. Objections regarding the way in which goods are stored must be raised with the Port Operator by the Customer. If the Customer does not raise these objections immediately after storage, the Customer waives these objections as long as storage has been carried out with the care of a proper warehouse keeper.
7. If the Customer or the Customer’s representatives carry out actions on or with the warehoused goods, they must then hand over the goods to the Port Operator once more and determine the weight and quality of the goods together with the Port Operator. If this does not occur, the Port Operator shall not be held liable for any reduction in value of or damage to the goods determined subsequently. Upon the Port Operator’s request, the Customer shall be obliged to have the actions to the warehoused goods carried out by Port Operator employees.

Para. 18 Retrieval
Outgoing deliveries/retrieval of goods shall only take place following prior agreement with the Port Operator. Only the Customer or persons authorised by the Customer in writing to receive the goods shall be authorised to receive the goods.

Para. 19 Exclusion of abandonment of ownership
The Customer, the Customer’s legal successor and/or the person authorised by the Customer shall not be authorised to unilaterally abandon ownership of the goods under the Port Operator’s control.

IV. Liability provisions, insurance of the goods

Para. 20 Customer’s liability
1. The Customer shall be held liable for any damage arising from inaccurate, unclear or incomplete information provided in the cargo manifest, the order documents, any other requests/application forms or in computerised messages.
2. If a certain time is agreed for Port Operator services, and if delays occur as a result of the operation of ships or other means of transport, the Customer shall be held liable for any costs incurred in unsuccessfully providing and not using the Port Operator’s employees and resources.
3. The Customer shall be held liable for any damage to the Port Operator’s systems and equipment caused by the Customer’s vehicles or persons. Any extended liability shall remain unaffected by this provision.

Para. 21 Port Operator’s liability

I. Limitations of liability except for authorised warehousing
1. The Port Operator’s liability for the loss of or damage to the goods (“damage of goods”) shall, with the exception of authorised warehousing, be limited to a certain amount:
1.1 To EUR 5 for each kilogramme of gross weight of the consignment;
1.2 For damage which occurs to the goods during transport using a means of transport – deviating from Para.
21.I.1.1 to the maximum limit of liability prescribed by law for this type of carriage;
1.3 For a Transport Contract regarding carriage using various means of transport, including sea transport – deviating from Para. 21.I.1.1 – to SDR 2 (“Special Drawing Right”) for each kilogramme;
1.4 For each damage event to a maximum amount of no more than EUR 1 million or SDR 2 for each kilogramme, whichever amount is higher.
2. If only individual packages or parts of the consignment were lost or damaged, the maximum amount of liability shall be calculated based upon the gross weight – of the entire consignment if the entire consignment is rendered worthless; – of the part of the consignment that is rendered worthless if only one part of the consignment is rendered worthless.
3. The liability of the Port Operator for damage other than the damage of goods shall, with the exception of personal injury and material/property damage to third-party goods, be limited to three times the amount which would have to be paid upon the loss of the goods, but no more than EUR 100,000 per damage event. Paras. 431 Section 3, 433 of the German Commercial Code (“HGB”) shall remain unaffected.
4. Nevertheless and no matter how many claims are asserted as a result of a damage event, the liability of the Port Operator shall be limited to EUR 2 million per damage event or to SDR 2 for each kilogramme of lost and damaged goods, whichever amount is higher. In the event of multiple parties who have suffered damage, the Port Operator shall be held liable proportionally to their claims.
5. To calculate the SDR (“Special Drawing Right”), Para. 431 Section 4 of the German Commercial Code (“HGB”) shall apply.

II. Limitations of liability for authorised warehousing
1. The Port Operator’s liability for the loss of or damage to the goods (“damage of goods”) in the case of authorised warehousing shall be limited:
1.1 To SDR 2 (“Special Drawing Right”) for each kilogramme;
1.2 To a maximum amount of EUR 5,000 per damage event; if the damage suffered by a Customer lies in a discrepancy between target inventory and actual inventory, the liability amount shall be limited to EUR 25,000, no matter the number of damage events causing the discrepancy in inventory. In both cases, Para. 21.II.1.1 shall remain unaffected.
2. Para. 21 I 2. shall apply accordingly.
3. The liability of the Port Operator for damage other than the damage of goods shall, with the exception of personal injury and material/property damage to third-party goods, be limited to EUR 5,000 per damage event in the case of authorised warehousing.
4. Nevertheless and no matter how many claims are asserted as a result of a damage event, the liability of the Port Operator shall be limited to EUR 2 million per damage event; in the event of multiple parties who have suffered damage, the Port Operator shall be held liable proportionally to their claims.

III. Declaration of value
1. The Customer shall be at liberty to indicate a higher value of the goods in individual cases and to agree to an extended liability.
2. The Port Operator may make the liability exceeding the liability described in Para. 21 I and II subject to a surcharge in addition to the customary fee.

IV. Liability in the case of loss of or damage to goods stored in outdoor storage areas and semi-open warehouses (warehouse boxes)
In the event of the loss of or damage to goods which, according to contract, are stored in outdoor storage areas, freely accessible storage areas or storage areas which are not specially secured (particularly in the case of theft or exposure to the elements), the Port Operator shall assume no liability. Any such storage shall always be at the expense and risk of the Customer.

V. Liability vis-à-vis third parties
The Customer shall be obliged to release the Port Operator from any liability exceeding the liability specified in the aforementioned Para. 21 I. to III. vis-à-vis a third party with whom the Customer has entered into a Contract of Carriage, Contract of Sea Carriage or Freight Forwarding Contract.

VI. Liability for damage to Customer or third-party property
1. For damage to the Customer’s property – particularly to the Customer’s water vessels or land vehicles which the Customer uses to hand over or collect the goods – the Port Operator shall be held liable only if it is proven that the Port Operator or the Port Operator’s employees are at fault in the performance of their duties. If the damage was caused by slight negligence on the part of a non-management employee, the Port Operator shall be held liable for consequential damage that exceeds the material/property damage only up to an amount of EUR 2 million.
2. If the Customer uses vehicles that are owned by a third party in order to hand over or collect the goods, the Customer shall be obliged to release the Port Operator from any liability vis-à-vis the third party which exceeds the liability specified in Section 1.

VII. Liability in the case of failure to meet the handover deadline
The liability of the Port Operator owing to the failure to meet a handover deadline shall be limited to three times the amount of the cargo-handling/warehousing fee.

VIII. Liability in the case of qualified fault
The aforementioned reliefs from liability/limitations of liability shall not apply if the damage was caused:
1. Through intentional wrongdoing or gross negligence on the part of the Port Operator or the Port Operator’s management employees, or through the violation of essential contractual obligations, whereby claims for compensation in the latter case shall be limited to foreseeable, typical damage;
2. In the cases of Paras. 425 ff., 461 Section 1 of the German Commercial Code (“HGB”), by the Port Operator or by persons specified in Paras. 428, 462 of the HGB through intentional wrongdoing or recklessness and in the awareness that damage is likely to occur.

Para. 22 Notification of damage
1. If loss of or damage to the goods is externally visible, and if the Customer does not indicate such loss or damage to the Port Operator by no later than when the goods are handed over, it shall be assumed that the goods have been handed over in the condition specified in the contract. A notification must indicate the damage in sufficient detail.
2. The assumption specified in Section 1 shall also apply if the loss or damage was not externally visible and if notification was not made within 7 days of handover.
3. Claims owing to a failure to meet the handover deadline shall expire if the Customer does not notify the Port Operator of a failure to meet the handover deadline within 21 days after handover. If the Customer cannot fulfil this 21-day deadline for making such a notification owing to the period of transport, the Customer must make the notification immediately after the transport process has been completed.
4. A notification of damage after handover must be submitted in writing; the notification of damage may be transmitted via a telecommunications service or device. A signature is not required if the party submitting the notification can be identified some other way. Timely dispatch of the notification is sufficient to meet the deadline.

Para. 23 Statute of limitations
1. All claims against the Port Operator shall expire within one year. In the event of intentional wrongdoing or gross negligence, the limitation period shall be three years.
2. The limitation period shall begin at the end of the day on which the goods were handed over. If the goods were not handed over, the limitation period shall begin at the end of the day on which the goods should have been handed over.
3. The statute of limitations for a claim against the Port Operator shall, by means of a written declaration by the Customer which the Customer uses to assert these claims for compensation, be suspended up to that point in time when the Port Operator refuses in writing to satisfy the claim.
Any additional declaration, which has at its object the same claim for compensation, shall not suspend the limitation period anew.

Para. 24 Insurance
The goods shall be insured by the Port Operator only after special agreement in this regard (subject to an amendment of Subparagraph 21 of the German Freight Forwarders’ Standard Terms and Conditions (“ADSp”)).

V. Miscellaneous provisions

Para. 25 Offsetting
Only undisputed or legally binding counterclaims can be offset against the claims of the Port Operator.

Para. 26 Place of jurisdiction, applicable law
1. The place of performance and the place of jurisdiction shall be Andernach am Rhein, Germany. The Port Operators shall also be authorised to take legal action at the Customer’s commercial residence.
2. The law of the Federal Republic of Germany shall apply.

Andernach am Rhein, April 2016