MTU Extended Propulsion Coverage (EPC) Marine Pleasure Craft

Transcription

1 Contract Number: Filled out by MTU only This Contract is entered into between MTU Friedrichshafen GmbH, Maybachplatz 1, Friedrichshafen ( MTU ) and the customer and governs the extended propulsion coverage ( EPC ) provided by MTU to the customer for the MTU propulsion system which is specified in Item I.2 below. I. Contract data 1. Customer Name / Company: First name: Street address: Postal code: City/Town: Country: Tel. No. / Fax: 2. Subject of contract MTU will provide the EPC for the following engine and main components of the propulsion system supplied by MTU (the MTU Equipment ): Quantity Engine model / main component Serial number MTU works order Vessel manufacturer: Vessel model: Vessel hull number / build number: Name of vessel: Distributor performing EPC approval / installation inspection: EPC approval / installation inspection performed on: 3. Contract period Coverage number: Coverage revision: Start: End of the MTU standard warranty period, i.e. (DD-MM-YYYY) (DD-MM-YYYY) End: or on completion of the following max. hours of operation: (DD-MM-YYYY) whichever occurs first. Original delivery date of MTU Equipment to first end customer: (DD-MM-YYYY) 4. Fee (net) per engine: USD Total: USD 5. Deductible (per Repair visit and propulsion line): USD 500,- 6. Load profile: Power output (in %) Duty period (in %) Application type (as provided in the MTU maintenance schedule) PLEASE READ THIS CONTRACT CAREFULLY. IT CONTAINS THE ENTIRE AGREEMENT BETWEEN MTU AND THE CUSTOMER AND SUBSITUTES ANY PRIOR VERBAL OR OTHER WRITTEN STATEMENTS. EPC-ASBM Sep 09 R3/V3e/FN Page 1/8

2 II. Scope of service 1. Coverages The coverages available are listed in Attachment 1 ( Coverage Schedule ) to this contract. Any coverage must be purchased prior to the expiration of the MTU standard warranty. 2. Repairs 2.1 During the contract period, MTU shall rectify all defects and malfunctions of the MTU Equipment (jointly a Fault and each of such activities a Repair ), provided a) the notice procedure described in Item III. 1 has been observed, b) the Fault has not been caused by an excluded event as specified in Item II. 3. c) any preventive QL-3 Advanced Maintenance and any preventive QL-4 Major Overhaul occurring during the contract period has been performed by an MTU authorized service outlet. The customer shall be solely responsible for preventive maintenance as defined in MTU s operating and maintenance instructions. The customer is also responsible for the supply and replacement of consumable maintenance items, such as filters, belts, hoses, lubricants, or fluids (other than those that become necessary to replace as a direct result of a covered Repair unless the preventive maintenance on such item is overdue). 2.2 MTU may, in its reasonable discretion, a) perform the Repair at an MTU factory, at its authorized outlet or at the site where the customer s vessel is located (each such place the Place of Performance ), b) rectify Faults by way of Repair or by replacing the defective components by using new, repaired or remanufactured original components or engines. If MTU, in its reasonable discretion, decides to perform the Repair of a main component as specifed in Item I.2 not aboard the vessel, the customer shall arrange, at its own cost, removal of the relevant parts of MTU Equipment, transportation to the Place of Performance, and reinstallation aboard the vessel. MTU shall acquire title to all parts (including complete products) which it replaces, with the exception of consumables, which shall be disposed of by the customer. 2.3 MTU will perform Repairs during normal working hours as applied at the Place of Performance. 3. Excluded events 3.1 MTU is not obligated to rectify a Fault, to the extent it results from any of the following causes: a) Modification of the MTU Equipment by unauthorized third parties or through the installation or attachment of parts not made or supplied by MTU. b) Non-compliance with MTU s operating and maintenance instructions or specifications, including MTU s Fuels and Lubricants Specification. c) Accident, misuse, improper installation, storage damage, negligence. d) Chemical corrosion or physical erosion, unless caused by MTU. e) Operation and / or failure of parts or components, attachments or accessories, which are related to engine power and/or operation or which may impair these, which do not form part of the MTU Equipment unless specifically authorized by MTU. f) Use of the MTU Equipment or the vessel in a manner that exceeds normally expected operation for marine pleasure craft use if such use exceeds the load profile defined in Item I.6. g) Operation of the MTU Equipment under overload conditions or when engine warnings are activated. h) Force Majeure for reasons outside the control of the parties, including, but not limited to fire, lightning, strike, act of God, war, theft, governmental action, etc. 3.2 In the event MTU has repaired a Fault which later proves to have been caused by an excluded event, the customer shall reimburse the cost of such repair in accordance with the list prices as applied by MTU in the year in which the repair is performed. 4. Customer s assistance 4.1 The customer shall make the MTU Equipment available under healthy and safe conditions and provide reasonable access to the MTU Equipment. Reasonable access includes clearance of any parts or obstructions such as shipside / ship-based interferences which would impede the performance of the Repairs. 4.2 If necessary, the customer shall arrange, at its own cost, the removal, transport and reinstallation of the MTU Equipment or any part thereof. The customer shall provide assistance in the corrective maintenance which are usually performed by a third party such as a shipyard and, thus, cannot be reasonably expected from MTU, (e.g. lifting of the vessel out of the water, diver support). 4.3 If requested by MTU, the customer shall provide oil samples or samples of other engine fluids and lubricants (coolant, fuel, etc.). 5. Adjustment for system renewal If MTU in the performance of service replaces an engine or a main component as specifed in Item I.2 which has reached at least 50% of its useful life as defined within the MTU operating and maintenance instructions, the customer shall pay a portion of the replacement cost based on the amount of time left in the useful life, on the following basis. Customer portion of replacement cost if used life is equal to or less than 50% TBO: none Customer portion of replacement cost if used life is more than 50% TBO: replacement cost multiplied by ratio of actual used life to useful life. 6. EPC Card 6.1 MTU will provide the customer with a service card which specifies the MTU Equipment, the vessel, the deductibles as per item I. 5, and the term of this contract (the EPC Card ). The EPC Card entitles the customer and its respective holder to request the performance by MTU of Repairs in accordance with this contract. 6.2 The customer shall safeguard the EPC Card against abuse by third parties and notify MTU, without undue delay, of any loss of the EPC Card. Unless there are obvious indications for an abuse, MTU is under no obligation to check whether a holder of the EPC Card has been authorised by the customer to request the performance of Repairs under this contract. 6.3 Any Repairs performed by MTU upon presentation of the EPC Card be considered effective and the customer shall be liable for any obligations resulting from such Repairs. EPC-ASBM Sep 09 R3/V3e/FN Page 2/8

3 III. Terms and conditions 1. Notification of Faults 1.1 MTU is only obligated to rectify a Fault in accordance with this contract, if the customer a) has promptly (within 10 days from discovery at the latest, unless the customer can demonstrate that it was not able to make such notification due to reasons beyond its reasonable control) submitted an EPC claim to an MTU authorized service outlet, and b) before the start of the Repair, has provided all documentation necessary to demonstrate that preventive maintenance - has been performed in accordance with MTU s operating and maintenance instructions and - has been carried out in accordance with the relevant MTU quality and operating requirements or by MTU-trained personnel. The customer shall keep a maintenance log book specifying the scope and dates of all preventive maintenance performed and all invoices for the purchase of filters, oil, performance of maintenance work, etc. 1.2 MTU reserves the right to temporarily install an operating data recorder in the engine room in order to monitor and record operating parameters of the MTU Equipment. Title to such unit shall, at all times, remain with MTU. Manipulation or unauthorised deactivation of the unit shall entitle MTU to terminate this contract. 2. Fee, deductibles and additional cost 2.1 The fee defined in I. 4. (the Fee ) is payable upon execution of the contract. 2.2 After the payment of the Fee the following shall apply: a) In case of each Repair per propulsion line the customer shall pay an amount up to the deductible as specified in Item I. 5. The actual amount payable by the customer shall be calculated on the basis of the list prices for MTU service and parts applicable in the year in which the Repair is performed. b) All cost in excess of the deductible incurred by MTU by the performance of a Repair within the scope of services specified in Item II.2 are, unless specified otherwise in Item III.2.3, covered by the Fee. c) The customer is under no obligation to pay deductibles for Repairs made under warranty as per Item III The Fee includes travel expenses provided that the MTU Equipment is made available at the closest harbour to an MTU authorised service outlet or at such other approved location. Additional travel expenses shall be borne by the customer. 2.4 If the customer has notified MTU of a Fault, which proves to be outside the scope of services of this contract or if the notification did not comply with Item III. 1.1 a), the customer shall bear the costs related to the investigation of such Fault. 2.5 The Fee is net of all taxes and duties. Taxes (including any indirect taxes such as VAT) and duties due by law in the country of MTU s or the customer s location will be invoiced additionally and shall be paid by the customer. 2.6 In case of any other amounts payable by the customer under this contract, the customer shall bear all taxes and duties payable at the Place of Performance. 3. Warranty, liability and time limitations 3.1 MTU shall perform all Repairs using the level of skill and care ordinarily expected in the performance of comparable repair services and shall use parts only which are free from defects in material, workmanship and design. 3.2 If MTU fails to perform a Repair in accordance with this contract (a Default ), MTU shall rectify such Default at no cost to the customer. 3.3 The rights under Item III shall constitute the customer s sole remedy in the event of a Default or any other breach by MTU of any of its obligations under this contract and be in lieu of any other rights and claims under whatever title, legal or contractual basis or theory of law, including warranties, express or implied, and in particular, any implied warranty of merchantability or of fitness for a particular purpose of parts. MTU MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY DISCLAIMED. 3.4 MTU s liability to the customer under whatever title, legal or contractual basis or theory of law, including liability for tort or Default is limited to USD$ 100,000 per event and a maximum of USD$ 300,000 during the contract period. MTU SHALL NOT BE LIABLE FOR INCIDENTAL AND CONSEQUENTIAL DAMAGES NOT DIRECTLY AFFECTING THE MTU EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, LOST INCOME, LOSS OF USE OF THE MTU EQUIPMENT OR THE VESSEL, LOSS OF TIME, INCONVENIENCE, CARGO LOSS OR DAMAGE, TOWING, DOCKING AND HARBOR CHARGES, OR OTHER EXPENSES. 3.6 Any rights of the customer under whatever title, legal or contractual basis or theory of law, including liability for tort shall become time barred after the expiry of a period of twelve months from the performance of the relevant Repair. Any repaired parts or replacement parts will be warranted until the original warranty period expires, and will otherwise be subject to the provisions of Item III Termination 4.1 Prior to the end of the contract period as defined in Item I. 3, this contract may be terminated in mutual agreement or for good cause only. Good cause shall exist if: a) either party is in material breach of the contract and fails, after being notified thereof, to rectify such breach within a reasonable period of time specified in said notice, or b) the customer manipulates the MTU Equipment or manipulates or deactivates the operating data recorder as per Item III. 1.2, if any. 4.2 In case the customer terminates the contract based on an MTU default, MTU shall return a portion of the Fee according to the following formula: Fee Return fee = x remaining term of contract in months term in months The customer s rights under Item III. 3 shall remain unaffected. EPC-ASBM Sep 09 R3/V3e/FN Page 3/8

4 4.3 A termination shall only be valid if made in writing. 5. Transfer of Coverage 5.1 The customer may transfer this contract to a subsequent owner of the MTU Equipment with MTU s prior written approval which approval shall not be unreasonably withheld. The customer shall notify MTU of an expected transfer by using the form provided in Attachment 2 Notification on transfer of contract. 5.2 If MTU denies a transfer of coverage, the customer may terminate this contract for good cause. Upon such termination, MTU shall return a portion of the Fee which shall be calculated in accordance with the following formula: Fee Return fee = x remaining term of contract in months term in months In addition, MTU may deduct any amount necessary to cover proven costs accrued up to the date of termination, but which would not be covered by the amount calculated in accordance with the above formula. 6. Legal venue and applicable law 6.1 The place of jurisdiction for claims arising under this agreement shall be Detroit, Michigan, U.S.A. 6.2 MTU may alternatively choose to enforce this agreement in a court of the customer s jurisdiction. 6.3 The applicable laws are those of the State of Michigan, excluding the Uniform Laws on the International Sale of Goods And on the Formation of Contracts for the International Sales of Goods. CUSTOMER CONFIRMS WITH THIS SIGNATURE OWNERSHIP OF THE VESSEL OR BEING LEGALLY AUTHORIZED BY THE OWNER TO ORDER THE WORK UNDER THIS CONTRACT. (Date) (CUSTOMER) (Date) (MTU FRIEDRICHSHAFEN GMBH) BY SIGNING, THE MTU REPRESENTATIVE STATES THAT IT HAS PROPERLY INSPECTED THE MTU EQUIPMENT FOR PURPOSES OF THIS CONTRACT (Date) (MTU REPRESENTATIVE) (COMPANY NAME) EPC-ASBM Sep 09 R3/V3e/FN Page 4/8

5 Attachment 1 - Coverage Schedule Agreement Limitations Coverage Number Coverage Revision Engine Power (KW) Years Hours MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE SERIES 60 All MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M EPC-ASBM Sep 09 R3/V3e/FN Page 5/8

6 Agreement Limitations Coverage Number Coverage Revision Engine Power (KW) Years Hours MTU20SE V2000M MTU20SE V2000M MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V4000M MTU20SE V4000M93L MTU20SE SERIES 60 All MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V4000M MTU20SE V4000M93L MTU20SE SERIES 60 All MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M EPC-ASBM Sep 09 R3/V3e/FN Page 6/8

7 Agreement Limitations Coverage Number Coverage Revision Engine Power (KW) Years Hours MTU20SE V4000M93L MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V4000M MTU20SE V4000M93L MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE V2000M MTU20SE SERIES 60 All MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V396TE MTU20SE V4000M MTU20SE V4000M MTU20SE V4000M93L MTU20SE V4000M MTU20SE V4000M93L EPC-ASBM Sep 09 R3/V3e/FN Page 7/8

8 Re: Attachment 2 - Notification on transfer of contract Extended Propulsion Coverage (EPC) for MTU Equipment between MTU and (the Customer ) MTU contract number: Name of the vessel: (the EPC Contract ) This is to notify MTU that the above vessel, including the MTU Equipment has been / is intended to be sold to Name / Company: First name: Street address: Postal code: City/Town: Country: Tel. No. / Fax: (hereinafter the Purchaser ). Following such sale, (i) (ii) the home port / area of operation will remain unchanged are intended to be as follows: usage and application group (including the load profile specified in Item I. 6 of the EPC Contract) will remain unchanged the vessel is intended to be used as (e.g. pleasure craft, sport fishing) In addition, we would like to inform MTU that the EPC Contract has, subject to MTU s written approval as per Item III. 6 of the EPC Contract, been transferred to the Purchaser. By signing this notification, the Purchaser authorizes MTU to make reasonable enquiries into the Purchaser s financial status and commits itself to provide MTU with all reasonable support. Please notify us whether MTU grants or denies its approval. During this assessment period, the Customer s liablility for all obligations under or in connection with the EPC Contract shall remain unaffected. By signing this notification, (i) the Purchaser, subject to MTU s written approval, assumes with discharging effect for the Customer as of (DD-MM-YYYY) (the Transfer Date ) all rights and obligations of the Customer under the EPC Contract and replaces the Customer under the EPC Contract; (ii) (iii) the Customer, subject to MTU s written approval, confirms that as of the Tansfer Date it has no rights and claims against MTU under or in connection with the EPC Contract, however, with the exception of liability for tort, the Customer confirms that as of the Transfer Date it has no outstanding claims against MTU under or in connection with the EPC Contract. (Date - DD-MM-YYYY) (CUSTOMER) (Date - DD-MM-YYYY) Approved by MTU Friedrichshafen GmbH: (PURCHASER) (Date - DD-MM-YYYY) (MTU FRIEDRICHSHAFEN GMBH) By signing this document, MTU grants its approval to the transfer of the EPC Contract from the Customer to the Purchaser and releases the Customer from Customer s obligations under the EPC Contract with the exception of such obligations outstanding at the Transfer Date. EPC-ASBM Sep 09 R3/V3e/FN Page 8/8