Special Terms of Contract to the VOB/B as Amended in 2012

Transcription

1 This is a convenience translation only; the German version controls Rev. March 10, Special Terms of Contract to the VOB/B as Amended in 2012 of Thermal Conversion Compound Industriepark Höchst GmbH Industriepark Höchst Frankfurt am Main Germany hereinafter referred to as "Client" The following agreements are subject of current and future contracts concluded between the Client and the Contractor regarding the execution by the Contractor of construction and assembly work within the meaning of the General Technical Specifications in Construction Contracts [Part C of the German Construction Contract Procedures ("VOB")] in the version in force at the time that the contract is concluded (hereinafter also referred to "VOB/C"). 1. BASIS OF THE CONTRACT 1.1 The following provisions form the basis of the contract with the Contractor in the order shown below and, in case of conflicts, in the relevant order of numbers and letters: the terms agreed upon by the Parties when the contract is awarded and any quotations, bills of quantities, records of the selection of tenders, construction schedules, and other preparatory declarations referenced in these terms. In the event of doubt due to substantive contradictions, the more recent reference document shall apply; the General Conditions of Contract Relating to the Execution of Construction Work [Part B of the German Construction Contract Procedures ("VOB")] as Amended in 2012 (hereinafter also referred to as "VOB/B"); the Client's current terms and conditions of service, which are known to the Contractor, as set out below: a) these "Special Terms of Contract for the German Construction Contract Procedures Part B: General Conditions of Contract Relating to the Execution of Contract Work (VOB/B) as Amended in 2012" and, as a supplement, b) the "Terms and Conditions of Purchase of Infraserv GmbH & Co. Höchst KG" with the proviso that the Contractor is deemed to be the Supplier within the meaning of these terms and conditions; any special technical regulations in the version applicable at the time, including, without limitation, a) the Client's "Richtlinien für die Durchführung der technischen Bearbeitung von Baukonstruktionen" (Guidelines for the Performing Technical Work on Building Structures) and b) the Client's "Additional Technical Regulations for Building Structures"; any special rules of conduct as they may change from time to time, including, without limitation, a) the Client's "Rules for Contractors at Industriepark Höchst"; b) the Client's "Safety Information for Contractors at Industriepark Höchst" and c) the Client's "Safety Instructions"; VOB/C unless otherwise agreed; the relevant DIN standards, laws, regulations, decrees and directives. 1.2 Documents such as quotations, revised quotations, confirmations and commercial correspondence must be addressed to the Client's responsible purchasing department.

2 Page 2 Contract-specific information must be provided in full in all documents (letters, invoices, delivery notes, bills of lading etc.). 1.3 If the Contractor does not have, or is not familiar with, the terms and conditions specified in Section b) up to and including Section and other terms and conditions, specifications and documentation directly or indirectly referenced therein, the Client will provide the Contractor with a copy on request. 2. PRICES AND CONTRACT VALUE, LICENSES 2.1 If the Client provides the Contractor with valuable services which the Contractor accepts for the performance of the contract, the Contractor shall bear the costs for the use of these services to the extent that they are reasonable or proven to have been incurred by the Client, at the Client's option. Valuable services shall be deemed to be all services provided by the Client that, under ordinary circumstances, are only provided for a consideration, including, without limitation, the provision of tools, machinery, mobile homes, office trailers, vacant areas, facilities, transportation services, occupational medical examinations, construction site heating, disposal services, dumpsters et cetera. 2.2 Surcharges for overtime, nighttime, Sunday and holiday work or for unforeseen difficulties are only paid to the Contractor if the Client has expressly ordered the Contractor to perform the work under these circumstances. The amount of the surcharges must be stipulated in advance in writing. 2.3 To document the completed work, the Contractor must maintain a bound construction log and present it to the Client once a week. 2.4 A detailed, written record must be kept of the use of materials, employees, machinery and equipment for which additional fees are charged. 2.5 The Contractor must dispose of the construction site waste that it generates; also see the Special Terms and Conditions for Work Performed at Industriepark Höchst in Frankfurt/Main in Section All original technical records to be created by the Contractor, including, but not limited to, plans, documents, drawings, models etc. will become the property of the Client once the Contractor has updated the records to reflect all as-built changes and all the changes made by the inspection engineer. This also applies to electronic data storage media and electronically created records, including, but not limited to, drawings in CAD format, which must be provided to the Client in a suitable electronic format. If the Client provides such records to the Contractor or to a third party in the employ of the Contractor, they remain the property of the Client and must be returned to the Client upon completion of the work. This also applies to any copies or duplicates made of such records. The Client has the transferrable right to use, copy and also modify all plans and other work, materials and services provided by the Contractor. Wherever possible, the Contractor shall enter into corresponding agreements with any architects, engineers and subcontractors retained by the Contractor. In all other regards, Section 11. of the General Terms & Conditions of Purchase applies. 3. PERFORMANCE 3.1 The Contractor shall perform the work in a way that minimizes the harm to third parties' ownership and possession of property in terms of physical integrity and undisturbed use. Wherever the Client's instructions allow several options for performing the work, the Contractor shall select whichever option is the least offensive for third parties (tenants etc.) affected by the work.

3 Page The preparation of the documentation contemplated by VOB/B 4 (10) does not constitute partial acceptance unless otherwise stipulated by the Client. The Client reserves the right to perform interim inspections as part of his quality assurance activities. Parts may not be installed if inspections have been announced or are in progress or the findings are inconclusive. Trenches for underground lines may not be backfilled until the lines have been surveyed by the Client. 3.3 The Contractor must take out contractor's all risks insurance for his work on the subject construction project in accordance with the General Terms and Conditions for Contractors' All Risks Insurance for Contractor Services (ABU) issued by the German Insurance Association (GDV) as they may change from time to time, and provide proof of insurance to the Client. If an insured event gives the Client a claim against the Contractor that is economically equivalent to the insurance claim, the Contractor hereby irrevocably assigns to the Client his indemnity claims against the insurer as conditional payment, and the Client hereby accepts such assignment. 3.4 The Contractor agrees to take out, at his own expense, liability insurance for the work to be performed by the Contractor; the insurance must provide sufficient coverage, but no less than a combined single limit of EUR 2.5 million per insured event for bodily injury and property damage. The Contractor will provide the Client with relevant proof of insurance on request and notify the Client spontaneously and immediately of any circumstances that adversely affect this insurance coverage. 4. DEADLINES AND PERIODS OF PERFORMANCE The following applies in addition to VOB/B 5 (1): The individual deadlines stipulated in a construction schedule or otherwise are contractual deadlines for the completion of the relevant work or services; the Client's continued interest in the work or services depends on compliance with these contractual deadlines. 5. LIQUIDATED DAMAGES 5.1 If the Contractor is responsible for missing a stipulated completion date or otherwise defaults on completion dates for work or services which the Contractor is supposed to perform, the Contractor will be charged liquidated damages in the amount of 0.2 percent of the pre-tax order amount for every business day in the default period. The total liquidated damages may not exceed 5 percent of the pre-tax order amount. 5.2 If the Contractor is responsible for missing stipulated interim completion dates or otherwise defaults on interim completion dates, the Contractor will be charged 0.2 percent for each business day in the default period, but no more than 5 percent of the portion of the pre-tax order amount attributable to the work and services owed by the interim completion date. 5.3 The total liquidated damages may not exceed 5 percent of the pre-tax order amount. The maximum amounts specified in Sections 5.1 and 5.2 do not apply separately. 5.4 The Client may claim liquidated damages until the time of final payment. 5.5 This is without prejudice to any further claims for damages that the Client may have. The liquidated damages will, however, be credited toward any such claims for damages. 5.6 If contract deadlines dates are postponed because the Contractor requests a deadline extension for good cause or if contract deadlines are reset by mutual agreement, the above liquidated damages provision will apply to the new dates without requiring a new agreement with respect to the liquidated damages provision.

4 Page 4 6. ACCEPTANCE Notwithstanding VOB/B 12 (5), the acceptance cannot be performed in any other way than by formal acceptance. The stipulated formal acceptance must be performed within a reasonable period after the work is completed. This is without prejudice to the Contractor's right to demand acceptance of the work (German Civil Code (BGB) 640 (1) sentence 3). 7. SETTLEMENT AND PAYMENT 7.1 Installment invoices must show and deduct previous installment payments individually and in order at the bottom of the invoice. Invoices and work records must be submitted in single form to the Client's accounts payable department giving the sales/purchase order number. A separate invoice must be issued for each purchase order. 7.2 Time sheets must be kept in the same format as the template provided by the Client, and must be submitted daily immediately after labor hour work is completed. Signatures on time sheets do not constitute acknowledgement of invoices; we reserve the right to verify whether the work is labor hour work or contract work. 7.3 Section 5. sentence 1 of the Client's Terms & Conditions of Purchase (Payment Terms) is replaced in its entirety by VOB/B If the parties agree upon a payment plan, the resulting deadlines / construction stages shall be binding for the Contractor's right to demand installment payments. 7.5 The Contractor must provide any and all invoices and billing documents, including, without limitation, time sheets, to the Client, to the attention of the Client's accounts payable department, and simultaneously send a copy to the construction supervisor and/or project manager. The construction supervisor and/or project manager is not authorized to make contractual representations on behalf of the Client, including, without limitation, to authorize expansions of the contract scope or award additional contracts. 7.6 The final invoice must be submitted to the Client (accounts payable department) immediately upon completion of the work. All other provisions of VOB/B 14 (3) shall remain unaffected. 8. DEFECTS, LIABILITY, SECURITY 8.1 After a building or installation has been commissioned, defects may only be remedied (including by producing a new building or installation) in consultation with the Client, taking into consideration the operational requirements of the Client and/or users; defects may also be remedied outside business hours where applicable. 8.2 If a limitation period has been contractually stipulated for claims for defects in derogation of VOB/B 13 (4), the date for returning the security as mentioned in VOB/B 17 (8) par. 2 shall be the expiration date of the contractually stipulated limitation period for claims for damages If the Contractor subcontracts work, the Contractor hereby irrevocably and indefinitely offers to assign to the Client any and all claims for defects the Contractor may have against the subcontractor with regard to the work pursuant to German Civil Code (BGB) 634 et seqq. and/or pursuant to the subcontractor agreement. If the Client accepts the offer, the Contractor shall immediately provide the Client with a complete copy/copies of the subcontractor agreement(s) along with all supplementary agreements and documents as well as all information and records required to assert and enforce the claims for defects, including, without limitation, installment invoices, records of payment, acceptance reports, et cetera.

5 Page Security Section 8. of the Client's Terms & Conditions of Purchase is replaced in its entirety by Section 8.4 of these Special Terms of Contract for VOB/B Security for claims for defects To secure possible claims for defects, we may retain 5 percent of the amount of the verified final invoice (before tax) for the duration of the period of limitation. 17 VOB/B applies mutatis mutandis The retained security can be replaced in full or in part by furnishing a bond that conforms to these Terms and Conditions Advance payment bond If we agree to make advance payments, the Contractor must furnish a bond that conforms to these Terms and Conditions for an amount equal to our advance payments to secure repayment of these advance payments Performance bond If the Contractor has agreed to provide security for the performance of the contract, the following provisions apply: To secure performance of the services assigned to him as agreed, including settlement, compensation for damages, liquidated damages and refunding of excess payments with interest, the Contractor must, after the order has been placed, immediately furnish us with a performance bond that conforms to these Terms and Conditions for an amount equal to 10 percent of the order value (before tax) In each of the above cases, the Contractor must furnish an absolute, irrevocable and perpetual bond issued by a bank or insurance company regulated by the German Federal Financial Supervisory Authority or by a bank regulated by the European Central Bank and domiciled in Germany or the Contractor's country. The bond must include waivers of the defenses of avoidance, set-off and unexhausted remedies as per German Civil Code (BGB) 770 and 771; the defense of set-off is not waived where the counterclaim is already undisputed or upheld by final and absolute judgment. The bond must not allow depositing of valuables in an officially designated place if the creditor fails to accept performance in time ("Hinterlegung"). The bond template that we provide must be used 9. Additional agreements 9.1 The Client is responsible for measures required under the German Construction Site Regulation (BaustellV) The Contractor, through a representative authorized by the Contractor, serves as the trade manager as defined by the relevant State Building Code for contracted services/work. Before work begins, the Contractor will give the Client the name of a person who has the necessary qualifications to be a trade manager, including expertise and experience in the relevant trade, and will ensure that this person (a) is present or represented by suitable persons at the site wherever required by supervisory obligations, (b) performs the legally required duties of a trade manager and (c) issues relevant instructions to the Contractor's staff. 9.3 The Client reserves the right to process the data, including personal data, required to complete the business transactions in compliance with applicable data protection laws. 9.4 The Contractor is not entitled to perform work for third parties using jobsite equipment owned or possessed by the Client.

6 Page The Contractor must have an adequate number of German-speaking contact people at the construction and assembly sites. 10. SPECIAL TERMS AND CONDITIONS FOR WORK PERFORMED AT INDUSTRIEPARK HÖCHST IN FRANKFURT/MAIN (ALSO REFERRED TO AS "THE PARK") 10.1 For safety reasons, work may only begin after the construction supervisor or project manager has provided an on-site orientation. Due to the density of pipelines and other lines already laid in the Park, the Client's written permission must be obtained before beginning any work below ground level. Water may only be obtained from hydrants with the Client's express prior permission. Rinse/purge water (e.g. from concrete delivery trucks) may not be directed into the sewer system. Water generated at jobsites may only be discharged if and as instructed by the Client The Contractor must identify all tools, equipment and machines that he brings into the Park as his property Excavated soil and demolition debris may only be taken to the collection point designated by the Client. This material shall remain the Client's property. In all other regards, construction site waste generated by the Contractor must be disposed of by the Contractor; this also applies to work performed outside of Industriepark Höchst. 11. OTHER AGREEMENTS 11.1 Provisions that conflict with these terms, including, but not limited to, the Contractor's terms and conditions of business do not apply, even if the Client does not separately object to them in a particular case. Nor shall the Client be deemed to have accepted such terms and conditions of business if the Client makes reference to a writing that contains or makes reference to the Contractor's or a third party's terms and conditions of business or the Client unconditionally accepts the produce and / or service in full knowledge of the Contractor's conflicting terms and conditions of business. Any modifications or amendments hereto must be made in written form to be effective. Unilateral declarations by one party, especially terminations, must be made in written form to be effective. For the purpose of these provisions, written form is deemed to include faxes as well as the written form and signature under one's own hand stated in German Civil Code (BGB) This contract is solely governed by German law, irrespective of the location of the construction project and the location of the Contractor's business domicile The District Court of Frankfurt/Main shall have jurisdiction over any legal disputes arising under or in connection with this contract provided that the Contractor is a merchant ("Kaufmann") or does not have a general place of jurisdiction in Germany. The statutory provisions governing exclusive jurisdiction shall remain unaffected by this clause. Likewise, this clause does not affect the Client's right to assert his claims against the Contractor in other jurisdictions If an agreement between the parties that is subject of the contract or the legal basis thereof is void or invalid, the validity of the remaining provisions hereof shall not be affected thereby. The void or invalid provision shall be replaced by a legally valid provision whose contents approximate the economic intent of the void or invalid provision as closely as possible.