General Business Terms and Conditions of the

YSA Yachtdesign Sven Akermann GmbH
Werftstraße 8-9
88142 Wasserburg / B.

for boat building, remodeling and repair.

Preliminary note

The YSA Yachtdesign Sven Akermann GmbH is referred to as “shipyard” in the following.

§ 1 Conclusion of Contract

1. Offers made by the shipyard are on principle subject to change without notice and unbinding. If an offer made by the shipyard is explicitly declared in writing as “binding”, the shipyard is bound to it for 30 calendar days as from date of dispatch.
2. All contracts must be effected in writing. If a contract is not concluded in a standard deed signed by both the customer and the shipyard, a contract is only concluded upon the written order placement made by the customer and the written order confirmation issued by the shipyard.
3. Additional agreements, changes, amendments and endorsements are to be recorded and to be signed by the shipyard and the customer.
4. The shipyard is bound to the warranty of characteristics, if these were equally recorded in writing and signed by the shipyard and the customer.
5. If a boat to be remodeled and/or to be repaired is not in the ownership or in the sole ownership of the customer, the customer must point this out to the shipyard unrequested and in writing when concluding the contract. Equally, the customer must immediately inform the shipyard in writing about changes occurring in the ownership structure of the boat. 

§ 2 Prices and Conditions of Payment

1. The prices agreed upon are for delivery ex shipyard.
2. In case of doubt set prices are net prices exclusive of VAT, unless something else may be gathered from the agreement or the underlying facts.
3. A price agreed upon falls due net upon issuance of invoice and is to be promptly paid. Delivery cannot be asked for prior to completion of full payment of the price agreed upon, unless agreements to this effect have been made in writing.
4. A balancing against counter charges of the customer is ruled out, unless these are uncontested or legally verified.

§ 3 Reservation of Proprietary Rights

Until completion of full settlement of all outstanding claims against the customer the shipyard at the time of delivery is entitled to on the basis of a contract or other services and/or deliveries and concerning the boat which is the subject to the contract, the customer grants the shipyard the following securities. Insofar as lien claims for items of the customer remaining in lien in favour of the shipyard exist on the part of third parties, and the value of these lien claims exceeds the value of the claim of the shipyard by more than 10 per cent in each case, the shipyard will upon the customer’s request release one or several items of the shipyard’s choice.

Moreover, it applies as follows: 

1. Insofar as a ship is built and delivered, it remains in the ownership of the shipyard (in the following referred to as “reserved ownership of the order boat”).
2. Insofar as accessories are delivered by the shipyard or are built into a boat, these remain in the ownership of the shipyard (in the following referred to as “reserved ownership good”). The same applies, if parts are delivered by the shipyard or are built into the boat specified in the contract and upon assembly are to be considered merely inessential components of the boat.
3. Upon termination of the shipyard’s ownership of the parts to be built in according to § 947 paragraph II German Civil Code, the shipyard and the customer agree already at this present point in time that the customer’s ownership of the unitary good insofar devolves to the shipyard (§ 929 paragraph II German Civil Code) as this corresponds to the value of the built-in parts plus wages (effective invoice amount).
4. The customer must not divest or encumber a boat prior to termination of the reservation of the proprietary rights without obtaining the shipyard’s permission. All claims the customer gains through further divestment or encumbrance of the boat already at this present point in time are assigned to the shipyard, insofar as this corresponds to the value of the built-in parts and the amount of the wages for the services rendered by the shipyard. The shipyard accepts this assignment.
5. In the case of third party seizure of the reserved ownership good the customer will point out the ownership of the shipyard and notify them immediately. The customer is obliged to support or acquiesce in all legal measures taken by the shipyard to secure their claims with regard to their reserved ownership of the boat. 

§ 4 Date of Delivery

1. If a delivery time has been agreed upon, it starts with conclusion of the contract in writing. If changes in or expansion of the extent of work or delivery specified in the original contract are effected upon request of the customer, the delivery time originally agreed upon loses its effectiveness without further notice. However, the customer may ask for a new delivery time to be set which is adapted to the extent of change or expansion.
2. Observation of a delivery time agreed upon cannot be demanded, if the customer omits to perform cooperative acts he is obliged to perform and this in turn keeps the shipyard from rendering their services, if the shipyard has called on the customer in writing to immediately meet his obligation to perform cooperative acts. The same applies, if the customer defaults on his payment obligations.
3. If the delivery time is extended for reasons the shipyard is not responsible for, the shipyard immediately informs the customer. In this case both parties equally undertake to set a new delivery time adapted to the extent of the delay for which the shipyard is not responsible. 

§ 5 Transport

1. A boat to be repaired or remodeled is to be delivered to the shipyard and upon completion of the work collected from there by the customer at his own expense. 
2. Place of performance for all new building, repair or remodeling is the location of the shipyard.
3. Transport of a boat to and from the shipyard carried out upon request of the customer – including a possibly employed packaging and/or loading – is effected at the customer’s expense. The shipyard does not need to arrange for transport until complete payment of the price agreed upon as well as of all transport, packaging and loading costs already incurred or still to be incurred has been effected.
4. The risk of transport to and from the shipyard is borne by the customer, unless the shipyard takes over transport. In this case, however, the shipyard is liable only for their own intentional or grossly negligent behavior and that of their vicarious agents and auxiliary assistants, unless essential obligations of contract performance as such are concerned. 
5. Die Haftung der Werft für leichte Fahrlässigkeit bei von ihr im The liability of the shipyard for slight negligence in acts to be conducted in connection with transport is excluded, unless essential obligations of contract performance are concerned.
6. Transport insurance on the part of the shipyard is only effected upon special request of the customer and only in the customer’s name and at his expense. The shipyard recommends effecting transport insurance.

§ 6 Obligations to Co-operate, Inspection and Approval through the Customer

1. Upon completion of a boat or a repair or remodeling job the customer is obliged to inspect and approve of this contract performance through signing the inspection and approval certificate, if and – as specified in paragraph 2 – insofar as the contract performance is in line with the requirements of the contract concerned.
2. Insofar as it is agreed upon that during the realization phase partial inspections and approvals take place, the customer is obliged to inspect and approve of these partial realization steps through a corresponding note in the partial inspection and approval certificate which is to be countersigned by the customer, if the corresponding components of the contract performances are in line with the requirements of the contract concluded. 

§ 7 Warranty

1. If the newly built boat, the remodeling or repair job or another performance agreed upon and rendered by the shipyard is faulty, the right of the customer to start with is restricted to rectification of the deficiency, unless liability for damages for deficiency of warranted characteristics comes into consideration. If the shipyard refuses such rectification, fails to perform such rectification within an appropriate term, or even the second attempt at rectification of one and the same deficiency fails, the customer has a choice of demanding reduction or compensation (diminution). If the shipyard make use of their right to rectify, rectification of the deficiency may be effected by the shipyard themselves or through a third party commissioned with rectification. It is the choice of the shipyard to effect rectification in their works or in a third location determined by the shipyard in coordination with the customer using equitable discretion and in consideration of the significance of the deficiency.
   
   A rescission of the contract (redhibitory action) may only be demanded upon failure of at least a third attempt at rectification of one and the same deficiency.
2. Warranty claims of the customer cease to exist, insofar as they relate to deficiencies in parts on which the customer or a third party has performed overrides without obtaining the consent of the shipyard and deficiencies have thus been caused. This does not apply, if the customer disproves the substantiated statement made by the shipyard that the override caused or aggravated the deficiency. The warranty claims further cease to exist, if the customer fails to hold the deficient parts ready for inspection through the shipyard in the state they are in at the time of identifying the deficiency and the inspection takes place immediately. Finally, warranty claims cease to exist insofar as the deficiency concerns a part manufactured by a certain third party and the customer refuses to give his consent to replace this part by an equivalent part manufactured by a different manufacturer.
3. The shipyard assumes no responsibility for damages which have occurred for the following reasons:
   Faulty assembly or incorrect commissioning through the customer or third parties, natural wear, faulty or negligent handling/use – in particular excessive strain -, use of operating materials and substitute materials, chemical, electrochemical, and/or electric influences that are not in line with the operating manual, unless they are due to the shipyards fault or a correct use of the boat and its components. 
4. Warranty claims are ruled out, as far as the shipyard has met a special instruction of the customer concerning the construction design or the material to be used and as far as the shipyard has pointed the corresponding caveat emptor out in writing to the customer upon issuance of the instruction.
5. Warranty is six months and starts with date of inspection and approval.

§ 8 Liability for Damages

1. Claims for damages of the customer for default in performance of contract, for default in conclusion of contract and unlawful acting are ruled out, unless the damage was caused by the shipyard intentionally or due to gross negligence, or essential obligations of performance of contract are concerned. This also applies to the vicarious agents and auxiliary assistants at the service of the shipyard. This limitation of liability in particular also applies to claims of the customer for damages that occurred during slipping the boat on and/or off or during transport within the shipyard compound as well as for damages occurring as a consequence of theft, burglary, fire, storm, vandalism etc.
2. If the shipyard is held liable in the case of slightly negligent violation of essential contract obligations, the shipyard is only liable in the amount of the typical and predictable damage. This claim for compensation is limited to the insured value existing at the time of conclusion of contract, if missing, to the value at the time.
3. Claims for damages according to the law on liability for faulty products (product liability law) remain unaffected. The same applies to claims for damages in the case of acceptance of a guarantee.

§ 9 Own Work and Third Party Work

The customer requires the shipyard’s consent to be authorized to perform work or have work performed on his boat by others. Third party workmen are granted access to the shipyard for the performance of assembly, remodeling or repair jobs only upon the explicit permission of the shipyard. As a rule for this purpose a particular project agreement should be made. Boats of others must not be entered by outsiders to the shipyard works. 

§ 10 Written Form

Amendments and endorsements to this contract are required to be made in writing to become effective. This also applies to the rescission, amendment and endorsement of this written form clause.
 

§ 11 Court of Jurisdiction and Law Applicable

The privity of contract between the parties deriving from or in connection with the contract are exclusively subject to the Law of the Federal Republic of Germany exclusive of the UN Convention on the International Sale of Goods. Exclusive court of jurisdiction for all litigation deriving from this project contract or in connection with it is Wasserburg am Bodensee. 

§ 12 Severability Clause

Should individual provisions of this contract be or become entirely or partly ineffective or void, this does not affect the effectiveness of the remaining contract. The parties undertake to replace the ineffective or void provision by a different effective provision that comes closest to the desired economic purpose. The same applies in the case of a loophole.