2.3 The Contractor must confirm the Customer s order within a period of 5 (five) days if he intends to accept the order.

Transcription

1 General Terms and Conditions for the Purchase of Services by the Ocean Breeze Energy GmbH & Co. KG 1. GENERAL, SCOPE 1.1 These Terms and Conditions of Purchase (hereinafter TCP ) apply to all domestic and international business relations regarding services and work performances by and between Ocean Breeze Energy GmbH & Co. KG (hereinafter Customer ) and its business partners (hereinafter Contractor ) within the scope of these TCP. The TCP are only applicable if the Contractor is an entrepreneur (pursuant to Sec. 14 of the German Civil Code, BGB), a legal person under public law or a special fund under public law. 1.2 These TCP apply exclusively. Any diverging, conflicting or additional general terms and conditions of the Contractor will become a part of any contract only to the extent to which the Customer has expressly consented in writing to their applicability. This consent requirement applies in every case, even if, for example, the Customer unconditionally accepts the Contractor s services despite being fully aware of the Contractor's General Terms and Conditions. 1.3 Individual agreements made between the Contractor and the Customer in specific cases (including ancillary agreements, additions and amendments) always take precedence over these TCP. 1.4 Legally relevant declarations and notices to be made by the Contractor to the Customer following the conclusion of a contract (e.g. the setting of time limits, payment reminders, declaration of rescission) require the written form to be valid. 2. CONCLUSION OF CONTRACT 2.1 All offers and quotations of the Contractor are free of charge and not binding for the Customer. 2.2 Orders by the Customer are deemed binding at the earliest upon their placement or written confirmation by the Customer. 2.3 The Contractor must confirm the Customer s order within a period of 5 (five) days if he intends to accept the order. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 1/13

2 3. TIME OF PERFORMANCE, PERIOD OF PERFORMANCE, DEFAULT 3.1 The time of performance or period of performance specified by the Customer in the order accepted by the Contractor is binding. The Contractor is obligated to inform the Customer immediately in writing if the Contractor is likely to be unable to keep - for whatever reason - any agreed upon times. 3.2 Section 3.1 applies mutatis mutandis to interim deadlines, if the Contractor provides recurring services or services over a longer period. The Contractor must immediately inform the Customer in writing if the Contractor anticipates that he will likely be unable to meet mutually agreed upon intermediate deadlines. 3.3 If the Contractor fails to perform his services or does not perform them within the agreed upon time or if the Contractor is in default, the Customer s rights - in particular the Customer s right of rescission and right to damages - are governed by the applicable statutory provisions. The provisions in Section 3.4 remain unaffected thereby. 3.4 If the Contractor is in default, the Customer is entitled to demand - in addition to more extensive statutory claims - flat-rate compensation for the damages caused by the Contractor's default in the amount of 1% (one percent) of the net order value per completed calendar week, but in the aggregate not more than 5% (five percent) of the net order value for the delayed services. The Customer is entitled to prove that he has incurred higher losses. The Contractor has the right to prove that the Customer has not incurred any loss at all, or only a substantially lower loss than alleged. 4. TERMINATION 4.1 Both parties are entitled to terminate the contract with the other party if: The other party suspends the performance of its contractual duties in a material manner due to a deterioration of its financial situation or makes an announcement to that effect; or A negative report is issued by Creditreform e.v. or SCHUFA Holding AG about the other party, in particular with regard to the following: 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 2/13

3 Compulsory enforcement, unsuccessful attachment, financial status information, residual debt discharge or enforcement proceedings against the entire or a substantial part of the assets of the other party have been initiated or the initiation of insolvency proceedings against the assets of the other party has been rejected or discontinued for insufficiency of assets. 4.2 Other statutory rights of rescission and termination are not affected by the preceding provisions. 5. SCOPE OF SERVICES, PLACE OF PERFORMANCE, DEFAULT OF ACCEPTANCE 5.1 Without the Customer s prior written consent, the Contractor does not have the right to have the services owed by him performed by any third party (hereinafter Subcontractor ). 5.2 The Contractor must render the contractually-owed services independently and in complete compliance with the generally recognized rules of engineering and the art of construction, and, in regard to services rendered on machines, systems and facilities, also in accordance with the manufacturer's instructions or other system documentation provided. 5.3 The Contractor undertakes to execute the scope of delivery and services according to the applicable German and European legal provisions. Notwithstanding any more extensive statutory provisions, the scope of the services must be executed in such a way that all occupational safety, risk prevention and environmental protection concerns are taken into account. 5.4 The services must be rendered at the place specified in the order. If the place of destination is not specified, and in the absence of any other agreement, the services must be rendered at the Customer s place of business in Emden. The respective place of destination is also the place of performance. 5.5 The statutory provisions apply to all cases of acceptance delay. However, the Contractor is obligated to explicitly offer the services to the Customer even if a determined or determinable calendar date has been agreed upon for the performance of a certain action or 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 3/13

4 cooperation by the Customer (e.g. supply of material). If the Customer is in default of acceptance, the Contractor may demand reimbursement of his extra expenses under the statutory provisions (Sec. 304 BGB). 6. DUTY OF SELF-BRIEFING The Contractor agrees to inspect and familiarize himself with all locations and buildings, access routes, installation sites for work machines, foundations, scaffolding, and with all other affected facilities and objects that are relevant to the rendering of the services, prior to the conclusion of any contract. The Contractor may not plead at a later time the presence of obstacles and aggravations, or error or ignorance on account of any circumstances that were recognizable at the time of the conclusion of the contract, and is not entitled to any additional remuneration with regard to such circumstances. Dimensional measurements and drawing controls in regard to conformity with existing systems, facilities and buildings that are necessary for the rendering of the services for the design specifications, the installation and commissioning, will be carried out independently by the Contractor himself and at his own expense. 7. EXECUTION OF THE SERVICES 7.1 All equipment, tools, materials and supplies, consumables required to render the services, and any working clothes are to be provided by the Contractor free of charge, unless expressly otherwise agreed by the parties. 7.2 All objects provided by the Customer may only be used for the performance of the contract and must thereafter be returned immediately, unasked for, and intact. The costs of excessive wear and tear or damage are charged to the Contractor. 7.3 The Contractor s execution documents are accepted by the Customer for inspection purposes only. By initialing such documents, the Customer only confirms having taken notice of such documents and does not assume any responsibility for the design, the execution and the absence of defects. Modification suggestions, notes and complaints of the Customer do not release the Contractor from his sole responsibility to bring about the contractually owed result. The Customer has the right to give instructions to the Contractor in order to ensure that the purpose of the contract will be achieved and that the contractual performance is free of any defects. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 4/13

5 If instructions were given, the Customer is only liable within the meaning of Sec. 645 BGB if the Contractor has immediately raised and explained the reasons for his concerns in writing. 7.4 Any objects placed on the Customer's business premises and onto the Offshore Windpark BO1 are, if existing, subject to factory inspection and must have prior marking by the Contractor with the Contractor s name or company logo. 7.5 The Contractor undertakes to comply with the following requirements for the use of workers and/or employees on the premises of the Customer and the Offshore Windpark BO1: Proper registration for social security purposes of all employees deployed for the services and providing them with the relevant social security card; Proper withholding of payroll tax and all social security contributions for deployed employees; Compliance with all labor- and social security laws, including, but not limited to, the Law on Posting Employees (Arbeitnehmerentsendegesetz, AEntG) and the Minimum Wage Act (Mindestlohngesetz, MiLoG). The Contractor must ensure that the minimum working conditions resulting from the aforementioned laws and the legal regulations enacted in connection therewith are complied with, and that the minimum remunerations prescribed by law are paid with regard to all workers employed for the rendering of the services; All deployed foreign workers must be in possession of the necessary work permits; Compliance with all relevant factory-inspection provisions, accident prevention regulations and other occupational safety and working time regulations, as well as all other statutory and regulatory provisions; and Compliance with all requirements of the Customer and of the Customer s service provider pertaining to accident prevention, occupational safety, and environmental protection. 7.6 If the Contractor deploys persons who are not subject to social security contributions, such as freelancers, the Contractor must also ensure that such persons have sufficient accident 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 5/13

6 and health insurance coverage and, if they engage in a trade, that such persons have fulfilled their reporting obligation under the Trade Regulation Act (Gewerbeordnung, GewO), pursuant to Sec. 14, 15 (1) GewO. 7.7 The Contractor bears the risk and responsibility for the execution of the services and for all objects brought onto the Customer s business premises and the Offshore Windpark BO1 or handed over to the Contractor by the Customer for the execution of the services. 7.8 The Contractor is responsible for the preparation of all necessary risk assessments for the execution of the services. 8. DEADLINES The contractually agreed upon acceptance and overall completion date, as well as any other deadlines or time limits represent binding deadlines and time limits. The culpable failure to meet such deadlines and time limits constitutes default. 9. PROOF OF PERFORMANCE, ACCEPTANCE 9.1 If the contract does not provide otherwise and to the extent possible with regard to the services rendered, all services will require formal acceptance; acceptance constitutes a prerequisite for the Contractor s remuneration claim to become due in the case of all contracts providing for the delivery of a work. Acceptance shall occur as early as possible. The Customer will accept the services at the place of performance as soon as the Contractor requests this in writing after completion and meeting all acceptance requirements. Acceptance imperatively requires the preparation of a written protocol on the Customer s preprinted form that must be signed by both the Contractor and the Customer. The Contractor has the right to note in the written protocol any opinion diverging from that of the Customer. 9.2 Any minor defects identified at the time of acceptance must be remedied immediately by the Contractor. 10. PRICES, PAYMENT TERMS 10.1 The price indicated in the order shall be binding. It is understood that all prices are inclusive of the applicable statutory Value Added Tax, if such tax is not stated separately. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 6/13

7 10.2 If not agreed otherwise on an individual basis, the price includes all of the Contractor s services and ancillary services as well as all incidental expenses. For example, the scope of services and therefore the price includes: All cost for technical processing, execution documents, and contract-specific resources of the Contractor, materials to be supplied, wages, and ancillary wage costs; all costs and fees incurred for required test certificates, technical inspections, evaluations and the granting and transfer of all rights pursuant to Section 12 of these TCP An invoice must be issued for each order, including any supplementary order. These include the declaration of acceptance and any time sheets countersigned by the Customer The invoice must comply with the respective domestic and, if applicable, any foreign legal requirements, it must be auditable and must clearly and understandably itemize the services and indicate their order numbers. The Contractor shall submit the invoice by mail to the Customer s invoice address The agreed upon price is due and payable within 30 (thirty) calendar days from the time of the complete rendering of the services (including any acceptance) and receipt of a properly issued invoice. If the Customer pays within 14 (fourteen) calendar days, the Contractor grants him a 3 % (three percent) discount on the net amount of the invoice. Payments made by bank transfer are deemed as having been made in time if the Customer s transfer order is received by the Customer s bank prior to the expiration of the payment due date; the Customer is not responsible for any delays caused by the banks involved in the payment process The Customer does not owe any interest on overdue payments. The default interest amounts to 5% (five percent) p.a. above the applicable base rate. The statutory provisions apply to the occurrence of default, but always require, in possible divergence from such provisions, a written payment reminder by the Contractor The Customer is entitled to any offset rights and rights of retention as well as to the defense of non-performance of the contract to the extent permitted by law. Specifically, the 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 7/13

8 Customer is entitled to retain any due payments for as long as the Customer still has claims against the Contractor arising from incomplete or defective services The Contractor is entitled to a right to refuse performance only on account of undisputed or final and binding counterclaims The Contractor is entitled to an offset-right only on account of undisputed or final and binding counterclaims For the processing of assignments, third-party debtor declarations, attachment orders and transfers of garnished claims, and of attachment and collection orders related to the Contractor, the Customer charges an appropriate processing fee that may be deducted from the amount to be disbursed to the Contractor. 11. INVOICING ON AN HOURLY BASIS 11.1 If invoicing on an hourly basis has been agreed upon, the Contractor will be remunerated for the actual man-hours worked and confirmed by the Customer after the deduction of any work breaks; however, the remuneration obligation is limited to the objectively established number of hours required by experienced and qualified workers. Travel times and expenses will be reimbursed only, if expressly agreed upon by the parties. The smallest billing unit is one quarter of an hour or any part thereof The Contractor or his employees must report to the Customer s designated representative prior to commencing and finishing work To the extent available, all time sheets are to be issued on the forms provided by the Customer and are to be submitted daily, immediately after working hours, to the Customer s designated representative for countersigning. Otherwise, the contents of the time sheets are to be verified in coordination with the Customer. 12. INTELLECTUAL PROPERTY / INTANGIBLE PROPERTY RIGHTS 12.1 The performance results arising from the Contractor s rendering of services, together with all related concepts, preliminary work, drafts, revisions, versions, and adaptations as well as all exploitation rights, trademark rights, patents, and other industrial property rights 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 8/13

9 thereto, as well as all other embodiments of the work results of any kind, including, but not limited to software, technical designs, technical specifications, technical drawings, design work, presentations and the like (hereinafter Work ) are deemed as specially commissioned by the Customer. The Customer has all rights to the Work without any geographical or temporal limitation, including but not limited to all copyright-related exploitation rights, patents, utility models, trademark rights, design rights, and other industrial property rights and any rights derived therefrom. The Customer has the right to the processing and translating of the Work and the right to create derivative works from it Upon conclusion of the contract, the Contractor transfers to the Customer the geographically and temporally unlimited rights to the Work and all of its components, regardless of whether these rights have already arisen or will arise in the future (as advance assignment subject to the condition precedent of the creation of the respective right), in particular all copyright-related exploitation rights, patents, utility models, trademark rights, design rights, and other industrial property rights, including, but not limited to the right to processing and the right to the unrestricted transfer or granting of rights to third parties The Contractor waives any existing moral-right related claims with regard to the Work The Contractor undertakes to support the Customer in every respect in order to procure and / or execute all documents to secure the Customer s rights to the Work. Furthermore, the Contractor undertakes to obtain all necessary documents, assignments of rights from subcontractors, employees, in particular from consultants or other vicarious agents, or to cause any other cooperation required for the passing of the rights to the Work specified in this Section 12 to the Customer The remuneration agreed upon between the Contractor and the Customer also includes the granting of rights or the assignment of intellectual property rights according to this Section 12, including the utilization of the Work and any income of any kind arising from the further licensing and use of the Work. Further claims of remuneration for the rights granted are excluded The Contractor represents and warrants that the services and/or the Work and their contractually agreed upon and intended use by the Customer will not violate any industrial 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 9/13

10 property rights of third parties (e.g. patents, copyrights) Without prejudice to any legal claims, the Contractor is obligated to indemnify the Customer for all claims of third parties and for all losses, expenses, and other detriments thereby incurred by the Customer. This includes in particular any detriments which the Customer incurs from any necessary modifications of buildings, machines, systems, and data processing systems or programs, and from delays in the course of the construction, project or operation. 13. RETENTION OF TITLE 13.1 To the extent that the Customer provides the Contractor with pictures, plans, drawings, calculations, execution instructions, product descriptions, and other documents, the Customer retains to the fullest extent all rights of ownership and copyrights. Such documents are to be used exclusively for the purpose of this contract and must be returned immediately to the Customer after the services have been rendered The preceding provision also applies to substances and materials (e.g. hardware, software), as well as tools, templates, samples, and other items, which the Customer makes available to the Contractor. As long as they are not processed, such items must be stored separately at the Contractor s expense and must be insured sufficiently against destruction and loss The transfer of title to any embodied Works to the Customer must be effected unconditionally and without regard to the payment of the price for the services. Therefore, all forms of retention of title, including, but not limited to, the simple, extended and assigned retention of title, as well as the retention of title extended to any further processing are excluded. However, if the Customer accepts, on an individual basis, an offer of transfer of title conditioned by the payment of the purchase price, the Contractor s retention of title expires no later than at the time of payment. 14. DEFECTS 14.1 The Contractor represents and warrants that the services are error-free and complete in every respect, and that they feature in particular all the material properties agreed upon in the contract, and furthermore, that the services are suitable for the intended purpose under customary operating conditions. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 10/13

11 14.2 The limitation of claims regarding services not rendered or not rendered properly is subject to the statutory provisions. The statute of limitation commences with the acceptance of the services In case of material and legal defects of the Contractor's services, the Customer is entitled to the statutory rights. The Customer is entitled to refuse subsequent performance if this proves unreasonable. Without prejudice to the statutory provisions, unreasonableness may specifically exist if the subsequent performance leads or may lead to an unreasonable delay or to an uncertain success with regard to devices, systems or facilities that are relevant to the security or maintenance of the operation, production or business processes If the other rescission right requirements are met, the Customer may limit the rescission to that part of the services that was not at all or was not properly executed, regardless of whether such part is a self-contained or delimitable part of the services. In lieu of exercising his rescission right, the Customer may terminate the contract for cause with regard to any outstanding services and without prejudice to his other statutory rights Without prejudice to his other statutory rights, the Customer is entitled, upon fruitless expiration of a time period fixed for the subsequent performance pursuant to Sec. 637 BGB, to render the services himself and to demand an advance payment. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 11/13

12 15. LIABILITY INSURANCE 15.1 The Contractor must show proof of professional liability insurance coverage. The Contractor must ensure that insurance coverage of no less than EUR 10,000,000 is in place for the entire contract term and any limitation periods, covering damages arising under the contract for any personal injury and property damage and any consequential damage resulting therefrom. In the case of project groups, insurance coverage must extend to all members of the group Prior to submitting proof of insurance coverage, the Contractor does not have any right to demand performance from the Customer. The Customer may condition payments on the Contractor providing proof of continued insurance coverage The Contractor is obligated to immediately notify the Customer in writing, if and to the extent that the insurance coverage no longer exists in the agreed-upon amount. 16. NON-DISCLOSURE / DOCUMENTS 16.1 The terms of the order as well as any information and documents provided for this purpose (with the exception of publicly available information) may not be disclosed to any third parties as long as and to the extent that they have not been proven to be public knowledge, and may be made available only to such persons in the Contractor's own business operation who must necessarily be used for the purposes of the services and who are also under an obligation of non-disclosure The Contractor may not refer to the business connection with or to the services rendered to the Customer in any promotional material, brochures etc., unless the Customer has given his consent in writing The Contractor is obligated to comply with the statutory data protection provisions. Personal data may be processed only to the extent necessary for the performance of the respective contract. Any disclosure of personal data to third parties by the Contractor is not permitted without the prior written consent of the Customer The Contractor will obligate any subcontractors according to the provisions in the preceding Sections of these TCP. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 12/13

13 17. CHOICE OF LAW, PLACE OF JURISDICTION 17.1 These TCP and all legal relationships between the Contractor and the Customer are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods (CISG), and its other conflict of law rules The exclusive - and also international - place of jurisdiction for any disputes arising from the contractual relationship of the parties is the Customer s place of business in Bremen. However, the Customer is also entitled to file suit at the place of performance for the delivery commitment. 6. June 2016 OBE-CS-ABZ TCP Services-Annex 2 Page 13/13