Terms & conditions

Sales, Delivery and Payment Terms and Conditions

1. Scope of application

1.1 The following General Terms and Conditions are exclusively applicable to our deliveries and services. They are deemed approved and acknowledged at the latest on receipt of the confirmation of an order. We do not accept or acknowledge any of the Principal’s general terms and conditions that are contrary to or deviate from the General Terms and Conditions (GTC) herein, unless they are confirmed by us expressly and in writing. The GTC herein shall also apply if we execute a delivery without reservation to the Principal despite our awareness of general terms and conditions of the Principal that are contrary to or deviate from the GTC herein.

1.2 These General Terms and Conditions shall only apply to entrepreneurs, legal entities under public law, and special funds under public law within the meaning of § 310 sec. 1 BGB [Bürgerliches Gesetzbuch – German Civil Code].

2. Offer and conclusion of contract

2.1 If an order qualifies as an “offer” under § 145 BGB we may accept it within 4 weeks.

2.2 We reserve all rights of ownership and copyrights to illustrations, drawings, calculations, data, data carriers, programs, and other documents as well as work equipment. They shall not be made accessible to third parties. This also applies to such information, in particular written documents, that has been designated confidential; the Principal may not pass on any such information to third parties without our prior explicit and written consent.

2.3 Drawings, illustrations, weights, measures and/or any other performance data are only binding if such binding effect is agreed expressly and in writing. Such data shall not be deemed a guarantee of condition and quality [Beschaffenheitsgarantie]. We reserve the right to technical changes.

2.4 Orders shall only become binding for us after we have confirmed them in writing. The same applies to all other agreements that are not in writing (oral, telegraphic, and Email agreements, agreements over the telephone, etc.).

2.5 Part deliveries are permissible if the Principal can be reasonably expected to accept them.

3. Delivery and performance times

3.1 The period of delivery determined by us shall only commence after all technical questions have been resolved, all documents, required licences, authorisations, and releases, in particular of plans, to be presented by the Principal have been received in due time, and the agreed conditions of payment and any other of the Principal’s duties and obligations have been observed. If these conditions are not met in due time the time limits shall be extended adequately; this shall not apply if we are responsible for the delay.

3.2 The dates and time limits specified by us are not binding unless something else has been agreed expressly and in writing. On principal, we do not accept any procurement risks.

3.3 Delays of delivery and performance due to force majeure and events that make delivery for us substantially more difficult or impossible (e.g. strike, lockout, etc.) entitle us to defer the delivery, i.e. performance for the duration of the obstruction plus an adequate preliminary starting time. The same applies accordingly if the aforesaid obstructions occur in the sphere of our suppliers or subcontractors.

3.4 The right to obtain supplies properly and timely by oneself is reserved.

4. Default

4.1 We shall only be in default due to a reminder or demand of performance if nothing else results from statutory law or the contract. Reminders, demands and time limits set or issued by the Principal shall only be effective if in writing.

4.2 We shall adhere to our delivery obligations under the precondition that the Principal performs his obligations and duties properly and in due time. The plea of non-performance [Einrede des nicht-erfüllten Vertrages] is reserved.

4.3 Should we fail to perform a due service entirely or not as agreed the Principal may withdraw from the contract and, in the case of a violation of a contractual duty for which we are responsible, claim compensation for damage instead of demanding the performance of the service or claiming compensation of futile expenses in accordance with the following provisions irrespective of the further requirements. A further condition is that the Principal has set a reasonable deadline for performance or supplementary performance and that this deadline has expired without success.

4.4 The Principal will be obliged to link the grace period according to Para. 4.3 above with the unequivocal declaration that he will refuse the delivery after expiry of the grace period without any result and will assert the rights arising from Para. 4.3 above against our Company.

4.5 If the service has already been partially performed the Principal may only claim compensation for damage instead of full performance if his interest in the full performance requires it. In this case, withdrawal from the contract as a whole is only possible if the Principal provably has no interest in a part performance.

4.6 If we are in default for reasons for which we are responsible our liability for damages shall be excluded in the case of ordinary negligence. The aforesaid limitation of liability does not apply if the default results from a violation, for which we are responsible, of a material contractual duty. Our liability in these cases will be limited to typical contractual, foreseeable damages in accordance with Para. 4.8 below. In the case of a wilful and intentional violation of the contract for which we are responsible we are liable under the statutory provisions. Any further compensation rights of the Principal are excluded in all cases of delayed deliveries, even in the case that an additional time-limit has expired. This does not apply if liability is compulsory in cases of intent, gross negligence and physical injury; a reversal in the burden of proof to the Principal’s disadvantage is not connected to the above.

4.7 We will be entitled to assert our statutory rights in the event of delay in acceptance by the Principal or in the event of violation of other collaboration obligations by the Principal (cf. Para. 6) below. The risk of accidental loss [zufälliger Untergang] and/or accidental deterioration [zufällige Verschlechterung] of the subject of the contract (e.g. the object of purchase) shall be transferred to the Principal in the moment of his default in acceptance at the latest.

4.8 If our Company gets into arrears, the Principal may – insofar as he can credibly establish that he has incurred damages thereby – in the event of simple negligence irrespective of the liability limitation in accordance with Para.4.6 above, request compensation amounting to a maximum of 0.5% for each complete week of delivery delay, however a total of 10% maximum of the price for that part of the delivery which could not be put into useful service due to the delay.

5. Transfer of risk, packaging

5.1 If nothing else has been stipulated, delivery “FCA plant Nordhorn plus packing” is agreed (Incoterms 2010).

5.2 The transfer of risk to the Principal shall also take place in the case of carriage free delivery, as follows:

5.2.1 In the case of delivery without assembly or installation, if the delivery has been dispatched or collected.

5.2.2 In the case of deliveries including assembly or installation, on the day the delivery is taken into the own business or, if such is agreed, after its faultless trial operation and/or on its initial operation.

5.3 If dispatch becomes impossible without our fault the risk is passed to the Principal on the declaration of the readiness for dispatch.

5.4 On the Principal’s request we shall cover the delivery with a transport insurance; any costs accrued thereby shall be at the Principal’s expense.

5.5 Transport and any other packaging that complies with the Verpackungsverordnung [packaging ordinance] will not be taken back; this does not apply to multi-purpose means of transport such as pallets, lattice boxes, etc.. The Principal is obliged to provide for the disposal of non-returnable packaging at his own expense. Multi-purpose means of transportation are provided to the Principal by way of lending only; the Principal is obliged to return them in a proper condition, i.e. fully emptied and undamaged.

6. Duties of collaboration of the Principal

6.1 As a material contractual duty the Principal shall perform the agreed duties of collaboration and the provision of materials by the agreed dates, i.e. the dates required for the realisation of the project / processing of the order, and with the required quality. The duty to provide material terminates as soon as the components provided for the realisation of the project are no longer required.

6.2 If the Principal provides us with drafts, drawings, parts lists, manufacturing projects, models, samples, materials, etc. for the execution of an order the Principal shall ensure that they have been examined and inspected conscientiously by himself or on his behalf, in particular in respect to their suitability and plausibility. The Principal shall provide the general stress analysis, evidence of the load capacity, of the suitability for the respective use, of the operating ability, as well as any further necessary static evidence in respect to his own constructions, and calculate the weld seam for them.

6.3 If the Principal provides us with materials for processing he shall obligate himself, in particular in cases of contract production, to inspect their performance, workmanship and suitability prior to their delivery to us. If the Principal has procured materials from a third party he shall ensure in particular that he has duly observed his duties of examination and inspection. If the product manufactured by us is faulty because of a defect of the provided materials, and/or if processing fails because of a defect which results causally from a defect of the material provided, we are – irrespective of further claims – entitled to nevertheless demand the agreed remuneration taking into consideration savings of expenses.

6.4 The ruling in Para.6.3 above will apply accordingly in those cases where our manufacturing performance is based on preliminary work by the Principal or by a third party commissioned by the latter.

6.5 The Principal is obliged to inform us truthfully and thoroughly in writing, in particular in the case of agreed contract production, of the expected loads (stress, forces, weights, temperatures and thermal fluctuation, gross loads, etc.) to which the final product will be exposed during its operation in accordance with its intended use. Furthermore, the Principal shall be obliged to inform us in writing of any hazards to health that are caused by and/or that could be caused by the provided components. On our initial request the Principal shall indemnify us from claims for damages asserted by third parties on the basis of product liability if their cause originates in his organisational sphere.

7. Consultation / assembly and installation

7.1 We are only liable for advice and consultation within the limits set by the standard of “care as applied in one’s own affairs” [Sorgfalt in eigenen Angelegenheiten], unless something else has been   expressly agreed by contract.

7.2 The following provisions apply to assembly and installation unless something else has been agreed in writing:

7.2.1 The Principal shall take over and provide in due time at his own expense:

– all earthwork, construction work and other ancillary work that is not customary in this branch of business, including the required skilled and unskilled work force, building materials and tools; – the implements required for assembly and start-up;

– energy and water at the site of usage, including the supplies for heating and lighting;

– adequate premises for storing machine parts, tools, materials, semi-finished products, etc.; as well as

any other prerequisites necessary for proper execution, taking into consideration our needs, that are required for the execution of assembly and installation works.

7.2.2 Prior to the commencement of assembly/installation works the Principal shall provide us, unrequested, with the necessary information on the location of hidden power supply lines, gas lines, water conduits, or similar installations, as well as with the necessary static data.

7.2.3 Prior to installation and assembly the materials and objects to be provided by the Principal shall be present at the assembly/installation site, and the preliminary works preceding set-up shall have progressed so far that installation or assembly can be commenced and executed without interruption as agreed. All delivery channels as well as installation or assembly sites must be vacated.

7.2.4 If installation/assembly works and/or start-up are delayed for reasons for which we are not responsible the Principal shall bear, to an adequate extent, the resulting costs.

7.2.5 If we perform any work and its acceptance has been agreed the Principal is obliged to accept such work performance without delay. Acceptance may not be refused on the grounds of insubstantial defects. We may set an adequate time-limit for the declaration of acceptance; after expiry of this time-limit the contractual performance shall be deemed accepted. Acceptance shall also be deemed effected if the delivery – after conclusion of an agreed trial period, if the case may be – is utilised.

8. Impossibility [Unmöglichkeit]/ adjustment of contract / force majeure

8.1 If delivery is impossible the Principal shall be entitled to claim compensation for damage unless we are not responsible for the impossibility. The Principal’s claim for damages is, however,

limited to 10% of the value of that part of the delivery that cannot be utilized in accordance with its appropriate purpose due to the impossibility. This limitation does not apply if liability is compulsory in cases of intent, gross negligence, or an injury to life, bodily harm or health injuries; a reversal in the burden of proof to the Principal’s disadvantage is not combined with the above. The Principal’s right to withdraw from the contract shall not be affected.

8.2 If unpredicted events substantially change the economic significance, or the content of the delivery, or substantially affect our business, the contract shall be appropriately adjusted according to the requirements of good faith [nach Treu und Glauben]. If such adjustment is not economically feasible the Principal shall be entitled to withdraw from the contract. If he intends to exercise his right of withdrawal he shall inform us of such intention immediately after he has realised the significance and consequences of the event, even if initially an extension of the term of delivery was agreed with the Principal.

8.3 If the performance of our duties is obstructed by unpredictable, extraordinary circumstances which we were not able to avert despite applying all care that is reasonable under those circumstances – regardless of whether they occurred in our sphere or that of our subcontractors – , e.g. a general shortage of labour, strike, lockout, operating troubles, transport difficulties, a shortage of essential raw materials, mobilisation, war, etc., we shall be entitled to adequately extend the delivery period–even during a default of delivery. We shall inform the Principal as soon as possible of the commencement and termination of such obstructions.

9. Prices and payments

9.1 The relevant prices are those specified in our respectively effective price lists, plus the respective statutory value added tax. Additional deliveries and performance are calculated separately.

9.2 If nothing else is agreed, prices are quoted ex works Nordhorn, exclusive of packaging.

9.3 The invoiced amount is due 14 days after issue of the invoice without any further deduction, unless something else has been agreed explicitly. If nothing else is agreed, payment shall be made on the following dates:

• 1/3 after receipt of the confirmation of the order,

• 1/3 as soon as the Principal has been informed that the main parts are ready for dispatch,

• the remaining amount within a further month, at the latest however, as soon as the contractual

performance is held available for acceptance.

9.4 If the Principal is in default of payment we shall be entitled to assert the rights resulting from § 288 BGB.

9.5 The Principal shall only be entitled to rights of set-off if his counter-claims have been found non-appealable with final force and effect, if they are uncontested, or if they have been

acknowledged by us. Furthermore, the Principal shall only be entitled to a right of retention if his counter-claim is based on the same contractual relationship.

9.6 If we have gained knowledge of circumstances that give cause to question the Principal’s credit worthiness we shall be entitled to demand advance payments or collateral security irrespective of any further statutory claims.

9.7 Checks and bills of exchange, for which we reserve the right of acceptance in each individual case, shall only qualify as payment after their encashment or discharge. Any discount and bank charges shall be at the Principal’s expense.

9.8 The goods are delivered under reservation of title in accordance with these General Terms and Conditions. If the Principal agrees with us the payment of the purchase price on the basis of the check-/bill of exchange-procedure, the reservation of title shall also apply to the Principal’s discharge of the bill of exchange accepted by us and shall not cease to be effective on the credit of the check received to us.

10. Warranty

10.1 The Principal’s warranty rights are subject to his proper performance of his obligation to examine and to give notice of defects under § 377 HGB [Handelsgesetzbuch – German Commercial Code]. In this connection the Principal shall examine the delivered item with regard to quantity, dimensions, format, properties and integrity etc. upon receipt of the consignment at the agreed location or at the Principal’s premises. If he finds any defects, he shall list them in writing and notify our Company in writing without undue delay, within eight days from receipt of the goods at the latest. Such defects, which cannot be detected by the Principal during careful examination, shall be notified in writing by the Principal without undue delay upon their discovery. The date of leaving our works or stores is decisive for the contractual condition of the delivery item.

10.2 The Principal may only assert statutory rights of recourse against us if he has not concluded any agreements with his customer that exceed the statutory warranty claims.

10.3.1 Any components supplied by our Company, which prove to be faulty as a result of circumstances prevailing prior to the transfer of risk, will be rectified or defect-free replacements will be provided free of charge at our selection. The discovery of these defects shall be notified to our Company by the Principal in writing without undue delay. Any components replaced by our Company will become our property. The Principal shall, upon agreement with our Company, give our Company the necessary time and opportunity for any necessary rectifications and replacement deliveries; otherwise, we will be released from liability for any consequences arising therefrom. Only in urgent cases involving jeopardising operating safety or to avoid any disproportionately high damages, where we are to be notified immediately, will the Principal be entitled to have the defects remedied in a proper manner himself or by third parties and to claim reimbursement from our Company for the outlay required for rectifying the defects.

10.3.2 Of the costs incurred directly through the rectification or replacement delivery, our Company will

– insofar as the complaint turns out to be justified – only bear the costs of the replacement part.

10.3.3 Our Company will not accept any liability for the resultant consequences of improper rectification by the Principal or by a third party commissioned by the latter. This also applies to any modifications to the delivery items undertaken without our prior agreement.

10.3.4 The Principal will be entitled, under statutory regulations, to withdraw from the contract if our Company – taking into account the statutory exemptions – has allowed a reasonable deadline set for our Company for rectification or replacement delivery because of a material defect to lapse without success. If it is only a minor defect, the Principal will only be entitled to reduce the contract price. Otherwise, the right to reduce the contract price is excluded. Claims by the Principal will otherwise comply with Paras.11.1 and 11.2 of these terms and conditions.

10.4.1 Our warranty obligation does not exist in the event of improper installation, commissioning or utilisation by the Principal and/or one of his agents, also in the event of non-compliance with the regulations on handling, maintenance and care (e.g. operating instructions), improper maintenance, modification or repair work, installation in unsuitable premises, effects of parts of foreign origin or other external influences (e.g. aggressive vapours, extreme temperatures, dust ingress, oxygen corrosion, fluorinated hydrocarbons, calciferous or aggressive water etc.) unsuitable processing equipment, defective construction works, unsuitable foundations, chemical, electrochemical or electrical effects – insofar as they are not attributable to our Company. Natural wear and tear is excluded from liability for defects. We also do not accept any warranty obligation for damage to the paintwork incurred after the transfer of risk, particularly if this is attributable to incorrect and negligent handling during transportation, storage, installation, operation and similar and/or to natural wear and tear.

10.4.2 Deviations in colour and grain, e.g. in the case of wooden surfaces, that are customary in the trade and reasonably acceptable for the Principal are reserved. The same shall apply accordingly to deviations in the case of furnishing fabrics and/or tapestries, in particular in respect to the tone of colour, if they are reasonably acceptable for the Principal. In the case of furniture, deviations from the measurements data that are customary in the trade and reasonable acceptable for the Principal are reserved.

10.5 The following applies in the event of legal defects: If the contractual and intended utilisation of the unmodified delivery item by the Principal leads to infringement of commercial protective rights or copyright within the country, we will, in principle, afford the Principal the right to further usage at our costs or will modify the delivery item in a manner acceptable to the Purchaser so that the protective rights violation no longer exists. If this is not possible at suitable economic terms and conditions or within a suitable timeframe, the Principal may withdraw from the contract. At the same time, we also have the right vis-à-vis the Principal to withdraw from the contract under these conditions. Our aforementioned obligations, with reservation of Paras.11.1 and 11.2, are final with respect to the event of protective rights or copyright infringement. They only exist if we are informed by the Principal without undue delay of any protective rights or copyright infringements asserted, are supported to an appropriate extent in the defense against the asserted claims or are enabled to carry out the aforementioned modification measures and our Company is reserved all defensive measures including out-of-court settlements.

10.6 The following applies in addition in the event of job-order production:

If material becomes unusable during processing and our Company is not to blame, the costs incurred by our Company will be reimbursed by the Purchaser. If, on the other hand, our Company is guilty of defective processing, we will undertake to accept the processing and rectification costs incurred up to this date. If the material becomes unusable due to our fault, we will undertake the reprocessing. The Purchaser shall deliver the material free of charge. Any further claims by the Principal are excluded, particularly compensation claims of any kind whatsoever and in fact compensation claims for those damages not incurred by the material provided by the Purchaser or the objects manufactured therefrom. We accept no liability for infringements of rights of third parties occurring in connection with the processing contract. The Principal will be responsible for the material order.

11. Joint and several liability

11.1 The Supplier will be responsible for damages not incurred on the delivery item itself irrespective of the cause of the damage – only in the event of malice aforethought, in the event of gross negligence on the part of the owner/agents or managerial staff, in the event of culpable injury to life, limb and health, in the event of defects which we have fraudulently concealed or whose absence we have guaranteed or in the event of defects in the delivery item, insofar as there is liability for physical or material damage to objects used in the private sphere in accordance with the Product Liability Act.

11.2 In the case of our liability because of slight or gross violation of essential contractual obligations, we will be liable only to a limited extent for typical contractual, reasonably foreseeable damages in accordance with the level of damages in each case. If we violate an essential contractual obligation through negligence, our compensation obligation for material or physical damage is limited to the indemnification from our product liability insurance amounting to 5 million EUR. We will be prepared to permit the Principal to inspect our policy upon request and we will undertake to maintain the insurance until expiry of the warranty obligation in accordance with these terms and conditions. Claims are otherwise excluded, particularly those claims due to financial losses including lost profit.

11.3 We will not accept any procurement risk vis-à-vis the Principal. If it turns out upon contract conclusion that the delivery item cannot be produced or can only be procured under effectively or financially unacceptable terms and conditions, the Principal’s rights will be limited to withdrawal

from the contract under exclusion of other and further claims. The contract will also be concluded with reservation of supplies to our Company. We will have the right vis-à-vis the Principal to withdraw from the contract if there are unacceptable price increases in the procurement area, the deliverability by subcontractors is not possible or the subcontractor files for bankruptcy.

12. Lapse of Time

The Principal’s claims – for whatever legal reason – will lapse in principle in 12 months. However, the legally stipulated deadlines will apply to compensation claims by the Principal in accordance with Para.11.1. These will also apply to defects in construction works or to delivery items that were used for construction work in accordance with their usual manner of use and have caused its defectiveness.

13. Use of software

13.1 If software is included in the scope of supply, the Principal will be granted a non-exclusive right to use the delivered software including its documentation. It will be supplied for use on the delivery item for which it is destined. Using the software on more than one system is prohibited.

13.2 The Principal is only permitted to copy, revise, translate or change the software from the object code to the source code to the legally permitted extent. The Principal undertakes not to remove or change manufacturer data – particularly copyright endorsements – without our prior express consent.

13.3 All other rights to the software and documentation including copies remain with our Company or with the software supplier. The granting of sublicenses by the Principal to third parties is not permitted.

14. Ownership Reservation

14.1 The delivered goods shall remain our property until all debts resulting from the business relationship between us and the Principal have been fully cleared. The transfer of individual debts to a running account as well as the acknowledgement of the balance do not affect the retention of title. Payment shall only be deemed effected upon our receipt of the proceeds.

14.2 We are also entitled to take back the delivery item in the event of behaviour in breach of contract by the Principal, particularly in the event of payment arrears. If the object of purchase is revoked by us this shall not be deemed a withdrawal from the contract, unless we explicitly declare in writing that this is to be the case.

14.3 13.3 Pledging of the delivery item by our Company will always constitute a withdrawal from the contract.

After taking back the object of purchase we shall be entitled to utilise and exploit it. The proceeds from the exploitation shall be credited against the Principal’s debts under deduction of adequate exploitation costs.

14.4 13.4 The Principal is obliged to treat the object of purchase with care; he is obliged, in particular, to effect a sufficient insurance for damages from fire, water and theft for it at its reinstatement value. If maintenance and inspection works are necessary the Principal shall perform them in due time at his own expense.

14.5 13.5 In the case of levy of execution or other interventions by third parties we must be informed without delay in writing in order to enable us to file an action in accordance with § 771 ZPO [Zivilprozessordnung – Code of Civil Procedure]. If the third party is not able to reimburse our costs and expenses for an action under § 771 ZPO, the Principal shall be liable for the resulting shortfall.

14.6 13.6 The Principal is entitled to resell the goods that are under retention of title in the ordinary course of business; he shall, however, assign to us in advance at this present moment all receivables that amount to the total invoice value (including value added tax) accrued by reselling to his customers or third parties, regardless of whether the object of purchase is resold without or after further processing. We will accept the assignment. If the assigned debt of the purchaser of the goods that are under retention of title is included into a current account the assignment shall also apply to the accepted balance as well as the “causal balance” in the case of the purchaser’s insolvency. After the assignment, the Principal shall continue to be entitled to collect this debt. Our right to collect the debt ourselves shall not be affected hereby. However, we obligate ourselves not to collect the debt as long as the Principal meets his payment obligations with the collected proceeds, if he is not in default of payment, and in particular, if no petition in bankruptcy has been filed, or payments have ceased, or have been suspended. If this, however, should be the case we may demand that the Principal discloses to us the assigned debts and their debtors, provides us with all data required for the collection of the debts and informs the debtors (third parties) of the assignment.

14.7 13.7 Processing or transformation of the goods under retention of title by the Principal shall always be deemed performed for us. If the reservation goods are processed with other items which do not belong to our Company, we will acquire co-ownership of the new item in the ratio of the value of the reservation goods (invoice total including VAT) to the other processed items at the time of processing. The same provisions that apply to the goods delivered under retention of title shall apply to the object produced by processing.

14.8 If the reservation goods are inextricably mixed with other items which do not belong to our Company, we will acquire co-ownership of the new item in the ratio of the value of the reservation goods (invoice total including VAT) to the other mixed items at the time of mixing. If the intermixture occurs in such a manner that the object of the Contractor regarded as the principal object it shall be deemed agreed that the Principal transfers the proportional co-ownership to us. The Principal shall safe-keep for us the sole ownership or co-ownership thus created.

14.9 As security for our claims against the Principal he shall also assign to us the receivables he is due from third parties that accrue from the incorporation of the object of purchase in real estate.

14.10 We obligate ourselves to release all securities we are entitled to on the Principal’s request if the realisable value of our securities exceeds that of the claims to be secured by more than 10%; the selection of the securities to be released is at our choice.

15. Place of performance, place of jurisdiction, applicable law

15.1 The place of performance is Nordhorn.

15.2 All disputes resulting from the business relationships with merchants, legal entities under public law and special funds under public law shall be under the exclusive jurisdiction of the Amtsgericht Münster [local court Münster], i.e. the Landgericht Münster [district court Münster]. The same place of jurisdiction shall apply if the Principal does not have a place of general jurisdiction [at his domicile or general residence] in the Federal Republic of Germany, if he transfers his general residence to a country other than the Federal Republic of Germany or if his domicile or general residence is unknown at the time of the filing of the action.

15.3 All legal relationships with the Principal are exclusively governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on the International Sale of Goods of 11 April 1980, BGBL [Bundesgesetzblatt – federal law gazette] 1989, II, p. 588; 1990 II, 1699) is excluded.

15.4 In the case of multi-lingual contractual wording and documents the German version shall be binding if doubts regarding the correct interpretation arise.

16. Partial invalidity / scope

16.1 Whole or partial invalidity of one of the aforementioned rulings will otherwise not affect the validity of these General Business Terms and Conditions or the contracts concluded on the basis thereof. The legally permissible ruling, with which the commercial purpose pursued by the null and void provision will be achieved as far as possible, shall be agreed without undue delay in the event of processing of contracts already agreed.

16.2 These General Business Terms and Conditions supersede earlier versions thereof.

Status: January 2017

Rosink-Werkstätten GmbH
General Terms and Conditions of Purchase (AEB) (2015)

1. General, area of application

1.1. The following general terms and conditions of purchase apply for all orders of supplies and services (“services” in the following) by associated companies of Rosink-Werkstätten GmbH Power Systems GmbH (Client) and for contracts in which these general terms and conditions of purchase are referred to.

1.2. The Contractor declares its consent to the exclusive application of the Client’s general terms and conditions of purchase for the respective order as well as for any subsequent business. If agreements different to those of these general terms and conditions of purchase are made in an order or in a contract, the general terms and conditions of purchase shall apply subordinately and in addition thereto.

1.3. The application of different general terms and conditions of the Contractor is hereby rejected.

2. Conclusion of contract, subsidiary agreements, inadmissible advertising

2.1. The contract is concluded in accordance with the order, unless the Contractor objects to the conclusion of contract in writing within one week following receipt of the order.

2.2. Verbal subsidiary agreements require the written confirmation of the Client in order to be effective.

2.3. The use of orders for reference and/or advertising purposes is inadmissible, unless the Client consents to this use in writing beforehand.

3. Drawings, models, tools

The Client’s property rights and/or copyrights and/or other trade mark rights are reserved on all illustrations, drawings, models, samples, calculations, construct- ion plans and other documents, which the Client has provided or paid for with the purpose of order execution; these documents may only be used for order completion work and may not be duplicated and/or made accessible to thirds without the express written agreement of the Client. The documents, any copies made and/or tools provided are to be returned to the Client after the order is complete without being asked and free of charge. The Contractor also has to impose the obligations above to thirds to which it makes the documents of the Client accessible.

The Contractor commits itself to treating the present contract and the information and documents obtained within the framework of the latter confidentially and to only making them accessible to thirds as far as this is unavoidable for executing the contract. Organs and employees as well as contracting parties of the Contractor are to be committed to the appropriate confidentiality.

The Contractor is liable to the Client for any damage caused by a culpable offence on its part or by thirds to which it has made the documents or the information accessible.

4. Responsibility of the Contractor

The Client’s agreement to drawings, calculations and other documents does not affect the sole responsibility of the Contractor for its services and/or for risks emanating from them. This also applies for proposals, recommendations and other involvement by the Client.

5. Inspections

5.1. After prior notification in due time, the Client or its employees and/or thirds designated by it shall have admission to the manufacturing and assembly sites as well as the storehouses of the Contractor and/or its subcontractor (supplier, planning office etc.), in order to examine, among other things, the status of the work, the use of suitable material, the deployment of the necessary specialists and the professional execution of the service ordered.

5.2. Such inspections are carried out without any legal effect, for example regarding a possible acceptance or claims for defects of the Client; an inspection shall replace neither an acceptance nor shall it represent one, nor shall it in any way limit the sole responsibility of the Contractor for its services and/or risks emanating from them. In particular, no objection of contributory negligence of the Client can be derived from an inspection.

6. Spare parts

The Contractor guarantees that, for every order, spare and wearing parts will be available for a period of at least 10 years after the defect liability period has expired.

7. Transport of dangerous goods, marking of dangerous materials, packaging

7.1. It is up to the Contractor to examine, before accepting the order, whether the articles and/or their components specified in the order are classified as dangerous goods (e.g. paints, adhesives, chemicals or inflammable, oxidising, potentially explosive, inflammable, poisonous, radioactive or corrosive goods or goods with a tendency towards self-heating) in the country of origin, country of destination and/or all transit countries. In such cases the Contractor has to inform the Client immediately and in detail. It has to send the Client the binding declarations necessary in accordance with legal requirements for their forwarding, correctly filled out and with a legally binding signature, no later than at the time of its written order confirmation.

7.2. The Contractor is obligated to consider the nationally and internationally applicable regulations in each case for the packaging, marking and declaration of dangerous goods. Any different and/or additional national regulations of the respective receiving country are also to be considered if the receiving country was designated in the order.

7.3 The Contractor is responsible for all damage which occurs as a consequence of incorrect data in the binding declarations or because existing regulations were not considered when handling dangerous goods (packaging, forwarding, storage etc.). The Client’s obligations arising from the regulations on dangerous substances remain unaffected by this.

8. Export licence

The Contractor is obligated to inform the Client in writing and no later than at the time of its order confirmation, whether and to what extent national export licenses are necessary for the order as a whole or in part or similar legal or official requirements are to be fulfilled or the services are subject to export restrictions.

9. Prices, terms of payment, delay

9.1. The contract prices agreed upon are given exclusive of the legal value added tax.

9.2. The prices are given FCA (designated place) in accordance with INCOTERMS 2010.

9.3. Payments are effected after full and proper performance of the contract within 14 days with a deduction of 3% cash discount, within 30 days with a deduction of 2% cash discount or within 90 days net without deduction, calculated from the first working day from receipt of a proper invoice by the Client.

9.4. If the performance of certain services and/or the provision of security has been agreed, the invoiced amount become due and payable not until this requirement has been met. If the Client has provided security to a third because of possible defects of the services of the Contractor, the invoice amount will only become due when the Contractor provides security for the Client at the appropriate amount.

9.5. Any payments on account which may have been agreed do not release the Contractor from its duty to indicate and invoice all services in a specified final invoice.

9.6. After maturity, the Client is only in default of payment following a reminder.

9.7. The Client does not come into default of payment if it erred in good faith regarding the existence of an objection raised against the claims for remuneration of the Contractor or of an asserted right of lien.

9.8. If a delay in payment by the Client is based on negligence, default interest is limited to 5 (five) percentage points above the base rate (§ 247 BGB (Civil Code)), as far as the Contractor cannot prove that a higher damage arose for it as a consequence of the delay.

9.9. Payments by the Client do not mean under any circumstances an acknowledgment of professional and faultless service in the sense of an acceptance.

10. Offsetting, right of lien, company clearing

10.1. The Client is entitled to offsetting rights and rights of lien to the legal extent.

10.2. The Client is also entitled to offsetting rights and rights of lien due to claims it has against enterprises which are affiliated with the Contractor in terms of § 15 AktG (Companies Act).

10.3. Disputes regarding the amount of the remuneration to be paid to the Contractor do not entitle the Contractor to discontinue its services wholly or in part, not even temporarily.

11. Dates, delayed services

11.1. Dates indicated in the order are binding. Premature services and/or partial performance require the written agreement of the Client.

11.2. The Contractor is obligated to inform the Client immediately in writing if circumstances arise or become recognisable which show that the dates cannot be kept.

11.3. The Client is entitled to demand 0.2% of the contract price, but no more than 5% in total, as a contractual penalty alongside fulfilment for each begun day of a culpably missed deadline in accordance with number 9.1. The asserting of further damage and/or of further claims due to late service (including the right to withdrawal and/or compensation for damages in lieu of the service) is not excluded by this. The right of the Client to demand the contractual penalty lasts until the final invoice / payment even if it did not reserve this right when accepting the service.

11.4. Without prejudice to its other and/or further claims, the Client can, in the case of delay following the unsuccessful expiration of an appropriate respite set by it, perform the service not yet provided by the Contractor or have it performed by a third party at the Contractor’s expense, if the Contractor finally and irrevocably refuses the service or if there are special circumstances which justify this taking mutual interests into consideration.

In the case of substitute performance, the Contractor will procure all information necessary for this and hand over all documents in its possession to the Client at its own expense.

In this case of any own or third party trade mark rights thereon, it will, at its own expense, provide the Client with the necessary rights of use for the substitute performance to the necessary extent or immediately exempt the Client from claims arising from these third party rights.

By concluding the contract, the Contractor declares its consent to the use of its trade mark rights for the substitute performance by the Client or by thirds instructed by the latter.

12. Claim assignment

Claims against the Client may be only be assigned with its prior written agreement. This does not apply for assignments in the context of an extended retention of title. § 354a HGB (Commercial Code) remains unaffected.

13. Passage of risk

The Contractor bears the risk in accordance with the delivery conditions agreed upon with it in each case, and if none are agreed upon, until the acceptance.

14. Documents

The Contractor is obligated to indicate the order number of the Client as well as the markings agreed upon by contract on all shipping documents and/or delivery notes; otherwise any consequences (e.g. further delays, additional costs) will be at its own expense.

15. Liability for defects, notice of defects, recourse

15.1. The Contractor guarantees that its services meet the acknowledged rules and the state of the art as well as the standards and regulations (including safety, industrial safety and accident prevention regulations) in the country of the Contractor and in the country of destination, have the agreed properties and warranted characteristics and are otherwise free from defects of title and material defects.

15.2. The Client has the right arising from the legal liability for defects including the rights from § 478 BGB (Civil Code) (recourse of the entrepreneur) without restrictions.

The Client is entitled to eliminate the defect himself or have it eliminated by thirds at the expense of the Contractor.

The Client can demand an advance from the Contractor on its necessary expenditure due to this.

15.3 As far as the Client has the right to eliminate defects by himself in accordance with the preceding number 15.2, number 11.4 is applied regarding the obligations of the Contractor.

All costs incurred by defect elimination, in particular for disassembly, assembly, travel, freight, packaging, insurance, customs duties and other public charges, tests and technical acceptances, are to be borne by the Contractor.

15.4 The claims of the Client due to defects prescribe 36 months after the passage of risk. If the service is a building or if it is intended for a building and caused the defectiveness of the latter, the period of prescription is 5 years. Longer legal periods of prescription remain unaffected;

§§ 438 paragraph 3, 479 and 634a paragraph 3 BGB (Civil Code) also remain unaffected.

15.5 As far as and as long as services cannot be used as stipulated by contract as a consequence of supplementary performance work by the Contractor, the period of prescription for defects extends by the duration of this supplementary performance work. For services rectified and/or replaced in the context of the liability for defects, the period of prescription starts over when the repair or the substitute service is accepted, although for no longer than five years from the passage of risk, and in the case of building services, for no longer than seven.

16. Product liability, exemption, insurance cover

16.1. As far as the Contractor is responsible for a product fault or the injury of legal or official safety regulations, it has to exempt the Client from any claims for compensation by thirds on the first written request. Moreover, the Client has the right to reimbursement of all expenditure which the Client has in connection with recalls prompted by it for this reason in particular; as far as is possible and reasonable, the Client will inform the Contractor about the nature and extent of recalls beforehand. Further legal claims are reserved.

16.2. The same applies if product faults are down to services by subcontractors (suppliers, planning offices etc.) of the Contractor.

16.3. The Contractor is obligated to keep itself sufficiently insured against product liability and claims for compensation by thirds and to prove this to the Client in writing at any time on request, in particular by written confirmation from the insurer of the Contractor.

17. Liability for environmental damage

The Contractor is liable for all damage caused in connection with its own activities or those of its auxiliary persons by violation of the regulations on environmental protection. It has to exempt the Client in this connection from any claims for compensation by thirds on first written request. Moreover, it has to compensate for the damage caused for the Client.

18. Liability

18.1 The Contractor is liable within the framework of the legal regulations.

18.2 The Contractor exempts the Client on first written request from all claims for damages which are asserted against the Client in connection with its activity or that of its assistants or vicarious agents.

19. Force majeure

In particular natural disasters and war are considered as events of force majeure.

20. Cancellation/withdrawal

Without prejudice to its other rights to voluntary cancellation and to cancellation for an important reason, the Client can cancel the contract without giving notice if the Contractor stops its payments or insolvency proceedings or comparable legal proceedings are applied for or such proceedings are initiated or their initiation rejected due to a lack of assets.

21. Rights of thirds

The Contractor vouches for the fact that its services do not injure any rights of thirds, in particular trade mark rights and/or copyrights. In case of any third party claims, the Client has to exempt the Contractor from any such claims on first written request. The exemption obligation refers to all expenditure which has inevitably accrued for the Client from and/or in connection with a claim.

22. Subcontracting

The Contractor requires the prior written agreement of the Client in order to exercise rights of lien against its subcontractors (suppliers, planning offices etc.).

In order to avoid rights of lien being exercised by the subcontractors of the subcontractor, are considered as payment in lieu of fulfilment with respect to the Contractor.

In each case thirds, in particular subcontractors, which the Contractor uses for the fulfilment of its obligations arising from the order or which it otherwise involves in connection with its services, are vicarious agents of the Contractor.

23. Partial ineffectiveness

In the case of individual contractual provisions being ineffective, the effectiveness of the remaining contractual provisions remains unaffected. The contracting parties commit themselves to replacing these ineffective contractual provisions immediately, by way of supplementary arrangement, with an agreement which comes closest to the economic result of the ineffective contractual provision.

24. Place of fulfilment

The place of fulfilment for the services of the Contractor is the application site agreed upon, and for payments of the Client it is its registered place of business.

25. Jurisdiction, applicable law

25.1 If the Contractor is a merchant, a corporate body under public law or a special fund under public law, the area of jurisdiction for all kinds of proceedings is the registered office of the Client; the Client can also bring action against the Contractor at the general area of jurisdiction of the latter.

25.2 The law of the Federal Republic of Germany applies excluding conflicts of law; the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.

26. Code of conduct

The Client is committed to the principles of ethics, integrity and respect for the law. The Contractor also commits itself to integrity and a law-abiding and ethical conduct which corresponds to the principles of the Global Compact initiative of the United Nations and the code of conduct1 of Rosink-Werkstätten GmbH subcontractors and suppliers.

 1 Annex to these general terms and conditions of purchase

General Installation Conditions

Status January 2017

Table of Contents

1 General Information

1.1 Terms

1.2 Deviating contractual arrangements

1.3 No validity of deviating conditions of the Contractor

1.4 Subcontractors

1.5 Use of the Client’s personnel

2 Client’s performances

2.1 Storage places and access roads

2.2 Pre-assembly place

2.3 Building site facilities

2.4 Installation documents and confidentiality

2.5 Tools and appliances

3 Contractor’s performances

3.1 Self-information

3.2 Provision of personnel

3.3 Building site facilities

3.4 Lifting equipment

3.5 Fixtures and auxiliary structures

3.6 Unloading of parts

3.7 Intermediate transport

3.8 Pre-assembly

3.9 Lifting assembly and final assembly

3.10 Removal of provisional installations

3.11 Corrosion protection

3.12 Securing for winter

3.13 Protection against soiling

3.14 Filler metals

3.15 Technical gases

4 Provision of performances by the Contractor

4.1 Quality and safety

4.2 Compliance with legal regulations for cross-border services

4.3 Building site rules

4.4 Assembly instructions

4.5 Relationship to the final customer

4.6 Contractor’s responsibility on the building site

4.7 Execution of work on the building site

4.8 Overtime and surcharges

4.9 Subsequent rectification work

4.10 Additional assembly work

4.11 Joint use of lifting equipment

4.12 Joint use of scaffolding

5 Welding and annealing work

5.1 Welding qualification certificate

5.2 Welding personnel

5.3 Welding Procedure Specification (WPS)

5.4 Annealing personnel and annealing equipment

5.5 Annealing instructions

5.6 Annealing documentation

6 Quality management and quality assurance

7 Cleanliness on the building site

8 Environmental protection

9 Work safety

9.1 Accident prevention regulations

9.2 Instructions and proof of instructions given

9.3 Occupational safety management for subcontractors on the site

9.4 Installation instructions and risk assessment

9.5 Assembly personnel

9.6 First aiders

9.7 Safety representatives

9.8 Work safety officer

9.9 Electrical hazards

9.10 Scaffolding

9.11 Fire protection

9.12 Occupational accidents, fire, incidents

9.13 Investigation of accidents

10 Clearing up the building site

11. Code of conduct

1 General Information

1.1 Terms

The deliveries and services, which the Contractor is obliged to provide, are also described as contractual performances.

1.2 Deviating contractual arrangements

If the parties deviate from the contractual agreements (e.g. in minutes of negotiation) or the Client deviates in orders from the following General Conditions, the provisions included there shall have precedence over the following conditions, unless the parties have expressly agreed otherwise.

1.3 No validity of deviating conditions of the Contractor

Deviating conditions for the supply of goods and services of the Contractor are herewith contradicted. Conditions for the supply of goods and services of the Contractor are only valid, if and as far as they are confirmed in writing by the Client.

1.4 Subcontractors

The subcontracting of deliveries and performances (hiring of subcontractors) by the contractor is only permissible within the terms of the contract concluded between the Client and the contractor.

The start of work by subcontractors on site is to be notified to the site management of the Contractor in advance. The supervisory personnel of subcontractors shall have both writing and speaking knowledge of the contract language agreed in the contract, if such an agreement has not been made, of German.

1.5 Use of the Client’s personnel

The Contractor agrees to use the Client’s personnel under his responsibility. Appropriate agreements must be reached in the event that this should be necessary.

2 Client’s performances

2.1 Storage places and access roads

The Client makes storage places and access roads available to the Contractor insofar as they are made available to the Client by the final customer. The Contractor must inform himself of the position and nature of these places and roads, and he may inspect them. Before signing the contract, the Contractor confirms that he has obtained sufficient and precise knowledge of all local conditions and circumstances of the place of assembly and its surroundings. Subsequent claims for additional remuneration by the Contractor on account of the local conditions are excluded.

Changes or movements within the building site or on the storage place provided by the Client will not be remunerated.

2.2 Pre-assembly place

If the Client has provided a pre-assembly place, number 2.1 applies accordingly.

2.3 Place for building site facilities

The Client provides the Contractor with a place to erect day accommodation, construction offices, stores, workshops and sanitary facilities. The Contractor must accept the place in the same condition in which it is made available to the Client by the final customer.

For reasons of space it is usually necessary to stack facility units (containers) up to three storeys high.

2.4 Installation documents and confidentiality

The Client will provide the Contractor with the drawings, welding and annealing specifications, parts lists etc. required in order to carry out the assembly work, unless the delivery of the components to be assembled is a contractual performance of the Contractor.

The Contractor agrees to treat the information and documents received from

the Client in confidence and disclose them to third parties only to such an extent as is unavoidable for rendering the services to be provided. Corporate agents and employees as well as contracting parties of the Contractor are to be committed to the corresponding confidentiality.

2.5 Tools and appliances 

2.5.1. All tools and appliances necessary for carrying out the contractual performance must be provided by the Contractor himself.

2.5.2. If it has been agreed that tools and appliances will be provided by the Client, these remain solely the property of the Client even after handing them over to the Contractor. The Contractor bears full and sole responsibility from the time of handover. He must protect the tools and appliances against theft, loss and damage and must insure them adequately.

The Contractor is obliged to take due care of the tools and appliances provided to him, to use them properly and to maintain them in perfect condition. The latter includes the usual maintenance work and any necessary repairs as well as the replacement of worn parts.

Before using the tools and appliances for the first time, the Contractor must examine them with regard to safety and function to an extent which is reasonable and sensible given the circumstances, and must report any defects to the Client. If he fails to do so and the defect was recognisable, the Contractor will be held answerable for the condition of the tools and appliances.

If the tools and appliances provided should prove to be unsafe, unusable or defective, the Client shall only be liable for contractually typical, reasonably foreseeable damages in the case of injury to life, limb and health as well as – except in the case of intent or gross negligence – in the case of the breach of essential contractual obligations.

The Contractor must return the provided tools and appliances to the Client’s issuing office without delay after completion of the work. The issuing office must be advised of the impending return three days in advance. Upon return, the tools and appliances will be examined jointly by the Client and the Contractor for completeness and intactness and the result will be recorded in writing. If tools or appliances are missing, damaged or in an otherwise unacceptable condition, the Client can invoice the Contractor for the expense necessary to repair the items or purchase new ones and deduct it from the next part payment or final payment.

3 Contractor’s performances

3.1 Self-information

The Contractor must inform himself about the type and location of the building site, about the ground conditions and about the available water and electricity supplies for the construction machines etc. Furthermore, before submitting a tender, he must check that the work can be performed without any circumstances that could make it more expensive (e.g. difficulty in accessing the building site, existing cables or pipelines etc.) and that all required work is included in the specification sheet. He must clear up any ambiguities in the tender documents with the Client, in particular if these affect the calculation.

Additional claims due to unclear or incomplete tender documents will no longer be accepted after an order has been issued. The same applies to subsequent claims caused by a lack of knowledge of the building site conditions.

3.2 Provision of personnel

The Contractor must provide the qualified expert and assistant personnel, including site management, safety officers, first aiders, welding supervisors and certified welders, which are necessary in order to carry out his contractual performances.

3.3 Building site facilities

In compliance with the respective national and local regulations the Contractor provides day accommodation, site offices, stores, workshops and sanitary facilities, unless these are provided by the final customer or the Client, including the necessary connecting lines to the existing supply and disposal networks. In Germany, day accommodation and sanitary facilities must comply, among other regulations, with the requirements of the German Workplace Ordinance, sections 45, 46, 47, 48 and 49.

Building site facilities provided by the final customer or the Client must be used wholly or in part by the Contractor in return for an appropriate payment.

The Contractor is solely responsible for arranging the accommodation of his personnel at the building site location (accommodation outside the building site).

3.4 Lifting equipment

The Contractor provides and installs all lifting equipment required to fulfil his contractual performances, including any necessary ground compaction, foundations, bracing etc. Following completion of the work, the Contractor must remove the lifting equipment, including the necessary ground compaction, foundations, bracing etc., without request.

Crane erection plans must be submitted to the Client for approval in good time before the start of the assembly.

The lifting gear and slinging means must comply with the respective national and local regulations. The necessary test certificates must be kept at the building site.

3.5 Fixtures and auxiliary structures

The Contractor takes care of the construction and delivery of all fixtures and auxiliary structures necessary for carrying out his contractual performances.

3.6 Unloading of parts

The Contractor is responsible for the unloading and putting into storage of parts at the storage place, interim storage place or building site. The parts become the responsibility of the Contractor upon unloading. The Contractor must provide an appropriate warehouse for parts which are sensitive to weather influences.

The Contractor must check deliveries for completeness according to delivery notes as well as for transport damage. Any complaints must be certified by the haulage driver and reported by the Contractor in writing to the Client’s building site management immediately. The contents of closed packages (boxes, crates etc.) must be checked for completeness and defects immediately or at the latest within one calendar week. The Contractor shall bear the consequences of not checking, complaining or informing the Client’s building site management or of not doing so in good time. In particular, missing parts which are not or not promptly claimed for shall be deemed to have been lost on the building site and must be replaced free of charge by the Contractor.

3.7 Intermediate transport

Intermediate transport from the storage yard to the pre-assembly or assembly place must be carried out by the Contractor.

3.8 Pre-assembly

Unless agreed otherwise, the Contractor must carry out the pre-assembly of individual parts.

3.9 Lifting assembly and final assembly

The Contractor carries out lifting and final assembly of the plant components to be assembled as per the contract in accordance with the drawings, taking into account all regulations and technical rules applicable to this order. Unless agreed otherwise, all connections to other assembly sections are contractual performances of the Contractor.

The assembly must be performed in the largest possible steps (e.g. pre-assembled platform sections incl. railings and gratings).

Plant components must be checked for dimensional accuracy before lifting assembly. If adaptation work is necessary due to incorrect dimensions of the plant components, this will be at the Contractor’s expense if he had not checked the dimensional accuracy beforehand and reported deviations to the Client in writing.

Areas for which no railings are intended in finished condition but which nevertheless bear a risk of falling must be temporarily secured by the Contractor by means of a fixed, three-part lateral protection, if necessary. This also applies to the area around openings.

3.10 Removal of provisional installations

Following completion of his contractual performance, the Contractor must remove all provisional installations, auxiliary structures, lifting and transport eye bolts etc.

3.11 Corrosion protection

Screwed and welded joints must be provided by the Contractor with suitable protection against corrosion after manufacture. Primer coating damaged during transport or assembly must be touched up by the Contractor professionally in accordance with the paintwork specifications.

3.12 Securing for winter

The Contractor’s contractual performance includes securing the building site for winter, incl. heating, if necessary, and covering with tarpaulins etc.

3.13 Protection against soiling

During storage and assembly, both the parts and existing plant parts must be protected against interior and exterior soiling. The Contractor must clean the parts if necessary.

3.14 Filler metals

The Contractor will provide all necessary filler metals with the associated quality documentation (suitability certificates/test certificates acc. to EN 10204).

3.15 Technical gases

The Contractor provides all necessary technical gases for his contractual performances.

4 Provision of performances by the Contractor

4.1 Quality and safety

The Contractor guarantees a proper and workmanlike performance of its contractual services in accordance with national and local law as well as the requirements of the Client and of the final customer with regard to quality, safety, health and environmental protection. If no regulations exist for certain areas or constructions, the work must comply with the state of current technology. The Contractor is fully responsible for the work which he has to perform.

4.2 Compliance with legal regulations for cross-border services

The Contractor is obliged to comply with all legal regulations and official directives concerned with cross-border services. He is solely responsible for the procurement and maintenance of work and residence permits etc. He is responsible for remuneration in accordance with legal regulations. The Contractor must compensate the Client for any damages caused by the disruption of the assembly procedure as a consequence of official measures for which the Contractor is responsible.

The Client and the final customer are entitled at any time to check the Contractor’s compliance with the German Posting of Workers Act and other legislation concerning cross-border services. The Contractor is obliged to submit pertinent documents to the Client and the final customer in this respect.

The Contractor is obliged to verifiably instruct his subcontractors with regard to compliance with the German Posting of

Workers Act and other legislation concerning cross-border services, to impose on them the above-mentioned obligations and to check their compliance with the obligations.

4.3 Building site rules

The final customer’s building site rules form part of the contract and are accepted by the Contractor without reservation.

4.4 Assembly instructions

The Contractor prepares a detailed installation plan and submits this to the Client not later than 4 weeks after contract award. Verification of structural stability must be provided for each status of the construction, if required.

4.5 Relationship to the final customer

The assembly work proceeds under the supervision of the Client. Direct consultation and agreements between the Contractor and the final customer are not permissible.

4.6 Contractor’s responsibility on the building site

The presence of the Client’s building site management on the building site does not relieve the Contractor of his sole responsibility for the work which he has to carry out.

4.7 Execution of work on the building site

The Contractor must arrange the deployment of his personnel and appliances such that the Client’s schedule is maintained and the Client does not incur any extra costs.

The Contractor is obliged to cooperate with all of the trades involved in the construction in order to avoid hindrances. This also includes the shifting of working times in agreement with the Client’s building site management should it become necessary to avoid an accumulation of workforces in particular assembly areas. These obligations were taken into account by the Contractor at the

time of concluding the contract and no costs are involved for the Client.

In the event that delays in the assembly procedure or other difficulties are recognised, the Contractor and the Client are mutually obliged to inform each other in order to jointly seek solutions for maintaining the schedule and avoiding additional costs.

If delays occur in the assembly procedure due to the Contractor’s personnel being absent or unqualified, the Client is entitled, following a prior warning with the setting of a time limit, to deploy his own personnel or third party personnel. The expense of this personnel deployment will be invoiced to the Contractor at the Client’s hourly rates applicable at the time of deployment.

The assembly plan must be updated constantly and a new one drawn up if necessary. Progress statistics must be maintained. The number of working hours performed per month is to be reported to the Client for each month at the beginning of the subsequent month. This also includes working hours performed by subcontractors and site management. Any lost time caused by occupational accidents is to be reported to the Client on a monthly basis at the beginning of the subsequent month.

The Contractor shall report the number and qualifications of his on-site personnel in writing to the Client’s building site management by 9 am daily.

4.8 Overtime and surcharges

The Contractor is obliged, without the remuneration of additional costs, to arrange overtime, working on Sundays and public holidays, night shifts etc., as well as parallel working in offset shifts within normal industrial bounds, if this should be necessary in order to maintain the schedule that has been stipulated by the Client and confirmed by the Contractor.

4.9 Subsequent rectification work

Subsequent rectification work is any work necessary to rectify defects in the design or manufacture for which the Contractor is not responsible.

The assembly price includes 0.25 h/t settlement weight for subsequent rectification work, including all appliance costs in conjunction with this.

Any costs over and above this for subsequent rectification work can only be claimed by the Contractor if, before carrying out the work, the Client’s building site management has been informed that the extent of the subsequent rectification work will be greater than originally calculated and the Client has issued his written consent for the work to be performed. Subsequent rectification work carried out without the consent of the Client’s building site management will not be recognised.

The name of the person who commissioned the Contractor to carry out the notifiable subsequent rectification work must be stated on the ‘Working time certificate’.

4.10 Additional assembly work

The Contractor is obliged, over and above his contractual performances, to provide any additional deliveries and performances ordered by the Client under the conditions mentioned in the contract and on the basis of the prices mentioned in the contract, even if an interruption in the assembly procedure occurs as a result and resumption of work is then necessary.

The execution of additional performances must be confirmed in writing by the Client. The counter-signature of performance or weight certificates is also deemed to be written confirmation.

Additional performances will not be remunerated without written confirmation of their execution. Confirmation of execution by the Client’s building site manager does not prevent the Client from rejecting additional remuneration with the advice that the work carried out was in fact a regular contractual performance.

4.11 Joint use of lifting equipment

The Contractor is obliged the make his lifting equipment on the building site available to the Client and third parties at the request of the Client and in return for appropriate remuneration. The Contractor shall mention his charge rates for this when submitting his tender.

4.12 Joint use of scaffolding

The scaffolding provided by the Contractor can be used if necessary free of charge by the Client and his other Contractors, or by the final customer or his representatives. This regulation also applies in the opposite sense.

5 Welding and annealing work

5.1 Welding qualification certificate

The Contractor shall have valid welding procedure qualifications according to DIN EN ISO 15614. For welding work on pressure equipment, the additional requirements according to the Pressure Equipment Directive (PED), TRD, AD 2000, KTA, ASME Section IX are to be met, in each case as far as applicable. In the area of steel structures subject to monitoring the additional requirements according to DIN 18800 or DIN EN 1090-2 (Eurocode 3) are to be adhered to. Copies of the welding procedure test reports shall be handed over to the Client. The Client reserves the right to order sample welds, the testing of which will be carried out by the Client or a testing body. The Contractor bears the costs of the tests.

If necessary, preliminary test certificates for assembly welding work must be presented before commencement of the work.

5.2 Welding personnel

All welding work shall only be performed by welders qualified in accordance with EN 287, for automatic welding the requirements according to DIN EN 1418 shall be met. Further, the code requirements mentioned under 5.1 are to be adhered to. The Contractor shall prepare skill test assemblies free of charge on site under site conditions. The welding supervisor of the Contractor shall keep a list of welders on site. The welder’s qualification certificates (originals or legalized copies) of the welders employed by the Contractor on site are to be kept ready for submission to the Client or inspection agency. The regulation according to EN 287 applies with regard to the validity of the welding certificates. An authorised and qualified welding supervisor from the Contractor must be present at the building site throughout the duration of the welding work (DIN EN 719).

5.3 Welding Procedure Specification (WPS)

Suitable welding procedure specifications (WPS) and, if required, a welding sequence plan shall be prepared and submitted to the Client for approval at least 10 workdays before start of the welding work, considering the codes mentioned under 5.1 and 5.2.

5.4 Annealing personnel and annealing systems

The Contractor shall provide the required number of suitable annealing systems and qualified annealing personnel; the requirements according to FDBR 18 “Heat Treatment of Welded Joints” are to be met.

The Client reserves the right to request trial annealing runs at the expense of the Contractor.

5.5 Annealing specifications

Unless the specifications for heat treatment are included the WPS mentioned under 5.3, the Contractor shall prepare separate annealing specifications and submit them to the Client for approval.

5.6 Annealing documentation

The requirements according to FDBR 18 shall be adhered to.

6 Quality management and quality assurance

The Contractor shall prepare a project- related quality management plan (QPM) on the basis of DIN EN ISO 9001 and ISO 10005. The Client can at any time check implementation of the specific QM requirements by auditing and, if essential defects are detected, stop the installation activities at the expense of the Contractor until implementation of the agreed QM requirements has been achieved, as can be proved.

Quality inspections are carried out on the basis of released inspection plans, test specifications, material specifications and other specifications included in the inspection plans or technical drawings. Deviations are to be documented in writing and are subject to the scenario described in the above mentioned QMP.

Necessary weld repairs of connecting welds or components are to be presented to the Client without delay. Only after submission and release of the repair specifications (WPS and inspection plan) the weld repair work will be carried out.

Welding work and weld repairs are each day recorded statistically by the Contractor and handed over to the BBS site management in writing. Repair rates are determined in each case on the basis of inspected welds and weekly reported to the Client.

Unless otherwise agreed, quality control will be carried out by the Client or third- party inspectors and/or notified bodies.

If repetition of a quality inspection is necessary and the Contractor is responsible for this, he will bear the total costs caused by the repetition.

If systematic defects are found, the Client is entitled to increase the scope of inspection agreed upon in the contract, if necessary up to 100 % of the contractual work. If the Client is responsible for the  cause of the increase in the scope of inspection, he will bear the total costs caused by this.

The Contractor shall prepare a quality documentation concurrent with the installation progress under the direction of the Client which conforms to the quality required by the Client and/or end user.

Acceptance of the assembly work is based on the contractual agreements, the latest edition of the VGB Guidelines for Ordering High Duty Steam Boilers (VGB = Association of Large Power Station Operators), the TRDs (German Technical Rules for Boilers), the AD specification sheets and the agreed construction and assembly supervision plan.

The Contractor must allow the Client or final customer’s quality assurance officer, construction supervisor and acceptance officer access to the parts of the plant at all times.

7 Cleanliness on the building site

The Contractor must perform coarse cleaning of his work area on a daily basis. The Contractor must perform fine cleaning of his work area at the request of the Client if the building site procedure makes this necessary (e.g. adjoining assembly sections, acceptance, handover, impediment of third parties etc.). Furthermore, the Contractor shall employ, at his own expense and in accordance with the size of his staff, one person from every 20 persons for 10 hours per week for the general cleaning of the building site. The use of these employees is arranged via the Client’s building site management.

In areas where other Contractors of the Client are also working besides the Contractor, the Contractor is jointly responsible for cleaning along with the other Contractors. In the event of a dispute between the Contractor and the Client’s other Contractors regarding the respective share of the cleaning work, the Client can demand that the Contractor carry out the cleaning of the entire area. The Contractor’s verified costs will be reimbursed proportionately according to his staff level, his trade and the associated level of dirt at the time of the cleaning work.

If the cleaning is not carried out even after a written warning and the setting of an appropriate time limit, the Client is entitled to carry out the cleaning himself or to have it performed by a third party. The third party in this case is another of the Client’s Contractors, who has taken over the cleaning completely. The Client will allocate the costs proportionately to the Contractor according to his staff level, his trade and the associated level of dirt at the time of the cleaning work.

8 Environmental protection

All applicable legislation and official directives concerning the disposal and handling of waste and residual materials on building sites must be complied with.

If the final customer and the Client have come to an agreement regarding the handling and disposal of waste and residual materials on building sites, this applies accordingly to the Contractor.

The costs for disposal will be allocated proportionately to the Contractor according to the share of his contractual performance in relation to the entire project.

Hazardous substances

The following provisions are to be observed in connection with the storage, handling and processing of dangerous substances on the site:

For all dangerous substances the corresponding safety data sheet in German, English and in the respective national language must be available on the site. All dangerous substances must be listed in a list of dangerous substances with indication of the quantity of the dangerous substances and the dangers arising from them. If the use of the dangerous substance is subject to the approval of the final customer (see also building site regulations of the final  customer, for instance), the Contractor itself is to obtain this approval. Any resulting delays or re-scheduling will be at the expense of the Contractor.

Apart from the approval of the final customer for the use of dangerous substances the use and/or storage of water-polluting substances is to be reported to the Client’s site management. Only after release by the Client’s site management these substances may be stored in accordance with the national rules and regulations applicable at the respective time.

The Contractor declares that the materials to be supplied by it are free from asbestos and substances according to Annex XIV of the REACH Regulation and/or the corresponding “Candidate List of Substances of Very High Concern”.

9 Work safety

9.1 Accident prevention regulations

The Contractor must issue directives and take measures to prevent accidents in compliance with the national and local accident prevention regulations and the legal regulations with respect to the Health and Safety at Work.

9.2 Instructions and proof of instructions given

The Contractor shall regularly give instructions in occupational safety and health to his employees in accordance with the legal regulations and furnish proof of giving the instructions, the contents and the group of participants. The instruction records are to be kept ready on site for inspection at any time.

9.3 Occupational and safety management system for subcontractors

Together with the submission of its offer the Contractor is to prove to the Client that the company has an occupational safety and health system in place. This includes BS OHSAS 18001, OHSAS 18001, BS

8800, SCC*, SCC**, SCCP, SeSaM. If the

company has implemented a different management system, this must have been checked by the Client before it can be accepted as equivalent.

Irrespective of the introduction of a management system the Contractor grants the Client the right to check the actual conditions with regard to the introduction and implementation of the system at the building site and at the permanent establishments of the Contractor by means of an audit.

Companies which do not have a corresponding management system in place, must be qualified by a corresponding pre-audit of the company. The items to be observed in connection with the audit are geared to the current version of the SCC Document 010.

9.4 Installation instructions and risk assessment

At least 10 working days before the commencement of work the Contractor’s installation instructions including all relevant safety details must be available at the site.

Technical safety specifications could be, for example:

1) Scope, sequence and description of the assembly, lifting weights, rigging points, hoists

2) Regulation of responsibility

3) Measures to prevent employees from falling or slipping during assembly work

4) Measures to prevent objects from falling

5) General drawings or sketches of the intended workplaces and access to same

6) Instructions on first aid and fire prevention

At least 10 working days before the commencement of work the Contractor is to present to the Client (site management)

a risk assessment for the work to be performed by it. This risk assessment must be available not only in the national official language of the Contractor but also in the German language and the language spoken at the site. The risk assessment must be geared to the Directive 89/391/EEC on the performance of measures for the improvement of safety and health of the employees at work.

9.5 Assembly personnel

The Contractor must instruct his assembly personnel and his subcontractors on the specific conditions of the building site before work commences. Each of the Contractor’s employees and subcontractors must confirm this instruction in writing.

The assembly personnel employed by the Contractor and his subcontractors must have been subjected to occupational medical check-ups in accordance with the following regulations:

Fitters: BGI 504-1.4, BGI 504-20, BGI 504-26.2

Welders: BGI 504-20, BGI 504-26.2, BGI 504-39

Stainless steel welders: BGI 504-15, BGI 504-20, BGI 504-26.2, BGI 504-38, BGI 504-39

Crane drivers: BGI 504-25 Fork lift truck drivers: BGI 504-25

The carrying out of the medical examinations must be proven and the written confirmations of instruction submitted to the Client upon request. The Client is entitled to expel the employees concerned from the building site until such time as the written confirmations and the proof of medical examinations have been submitted.

9.6 First aiders

The Contractor is to engage a sufficient number of first-aiders at the site which is geared to the risk potential.

9.7 Safety representatives

For every 50 employees assigned to the work the Contractor is to appoint one employee who has completed a corresponding safety training for the building site and fulfils the duties of a safety officer. If it is required due to legal regulations, a safety officer is to be appointed for the building site.

9.8 Work safety officer

As a function of the number of employees assigned to the work the Contractor is to employ the necessary number of workers who have completed the corresponding safety training for the building site and fulfil the duties of an occupational safety and health specialist. If it is required due to legal regulations, a corresponding number of occupational safety and health specialists is to be assigned.

The period of service is established according to the factor of 0.5 hours per employee and month. The required periods of service represent the lower limits to be observed. All periods of service of the occupational safety and health specialist at the site are to be proved by the Contractor upon request.

9.9 Electrical hazards

As a rule, power station building sites fulfil the criteria for working in confined spaces or for working under increased electrical hazards. For this reason, all electrical tools and machines used must possess a valid test certificate for mobile electrical equipment. The protective measures necessary for the Contractor’s work (e.g. isolating transformer, protective extra-low voltage) must be provided by the Contractor.

9.10 Scaffolding

Working and protective scaffolding must be erected in accordance with DIN EN 12811, DIN 4420 and DIN EN 1004.

Working scaffolding must be designed with at least load class III. The scaffolding may only be erected or altered by a specialist company.

All scaffolding must be marked in a permanent and clearly recognisable manner. The marking must include the following details:

Which scaffolding is it? Which width class is used? Which load class is used?

What load can the scaffolding bear? Who erected the scaffolding?

Who checked the scaffolding?

In areas where there is an increased risk of fire, the scaffolding must be erected with flame resistant boards.

If there are differences to the standard design as per the manufacturer’s erection and usage instructions, verification of stability in an individual case must be supplied by the Contractor.

The manufacturer’s erection and usage instructions and the verification of stability in an individual case, if applicable, must be kept at the building site at all times.

9.11 Fire protection

Unless otherwise required, the Contractor must maintain a sufficient number of tested and functional 12 kg dry powder fire extinguishers (ABC extinguishing powder) as follows:

per accommodation container 1 x 12 kg dry powder extinguisher (ABC)

per storage container 1 x 12 kg dry powder extinguisher (ABC)

per 100 m2 warehouse area 1 x 12 kg dry powder extinguisher (ABC)

per gas bottle store 1 x 12 kg dry powder extinguisher (ABC)

at cutting and welding workplaces 1 x 12 kg dry powder extinguisher (ABC)

Fuel loads must be removed by the Contractor from the assembly area on a daily basis.

Only flame-resistant tarpaulins and sheets may be used.

9.12 Occupational accidents, fire, incidents

Not later than 24 hours after an incident (e.g. occupational accident, environmental pollution, fall of objects) the Contractor is present a written report about this to the Client. In the event of serious occupational accidents (fatal accident, accident with several injured persons, serious injuries) the site management of the Client is to be immediately informed.

9.13 Investigation of the accident

The Contractor shall actively contribute to the investigation of incidents. Any meetings or the preparation of documents required for this purpose will not be paid. In the event of such incidents the Contractor grants the Client the right to participate in the investigation and, if necessary, also to conduct this investigation. Official investigations and/or local legal conditions remain unaffected by this.

10 Clearing up the building site

Following completion of the assembly work, all provisional items must be removed, including all provisional foundations etc. The building site must be handed over in a clean-swept condition. Storage places, pre-assembly places and places for building site facilities, if these were provided by the Contractor, as well as building site facilities provided by the Client must be handed over by the Contractor in a comparable condition to that at the time when they were handed over to him. The handover to the Client of the building site and the facilities mentioned in section 3 must be recorded in writing.

If the Contractor does not comply or does not fully comply with his obligation to clear  up the site, the Client is entitled, following a written request and the setting of an appropriate time limit, to carry out the cleaning himself or to have it performed by a third party at the Contractor’s expense.

11 Code of conduct

The Contactor is committed to the principles of ethics, integrity and law-abidingness.

The Contractor also commits himself to integrity and a law-abiding ethical conduct conforming to the principles of the Global Compact Initiative of the United Nations. The Contractor commits himself to adhere

to the Code of Conduct1 of Rosink-Werkstätten GmbH for subcontractors and suppliers and confirms this by his signature.

1 Annex Code of Conduct for Subcontractors and Suppliers

Code of Conduct

for Subcontractors and Suppliers

Rosink-Werkstätten GmbH is bound by the principles of ethical behaviour, integrity and compliance. The principles of the United Nations Global Compact Initiative (Global Compact Initiative)1  is mandatory for all Rosink-Werkstätten GmbH employees.

Also from its subcontractors and suppliers, Rosink-Werkstдtten GmbH expects integrity and ethical, lawabiding behaviour in line with the Global Compact Initiative and the minimum standards set out below.

Counteracting Corruption

‐ Subcontractors and suppliers actively and consistently counteract criminal or unethical influence on decisions taken by Rosink-Werkstätten GmbH or other companies and institutions and fight corruptibility within their own companies.

Counteracting Bid Rigging

‐ Subcontractors and suppliers do not participate in anti-competitive bid rigging and take action against illegal cartels.

Counteracting Illegal Employment

‐ Subcontractors and suppliers comply with the applicable legal requirements and effectively eliminate illegal employment. 

Respect for the Fundamental Rights of Employees

‐ Subcontractors and suppliers respect the health, safety and personal rights of their employees and adhere to the principles of respect, fairness and non-discrimination. They employ and remunerate their employees on the basis of fair and compliant contracts. They maintain international minimum labour standards.

Respect for the Environment

‐ Subcontractors and suppliers observe relevant legal environmental standards and minimise environmental pollution.

Rosink-Werkstätten GmbH requests from its subcontractors and suppliers that they require their own subcontractors and suppliers also to comply with the principles of the Global Compact Initiative and the minimum standards of this Code of Conduct for Subcontractors and Suppliers (Flow Down).


Subcontractors and suppliers of Rosink-Werkstätten GmbH are required to report their own violations of this Code of Con- duct for Subcontractors and Suppliers, insofar as these affect their business relations with Rosink-Werkstätten. They are also asked to report any knowledge of misconduct on the part of Rosink-Werkstätten employees.

Contact Person

‐  General Management of Rosink-Werkstätten GmbH

Phone: +49 59 21 88 20 0

Subcontractors and suppliers are required to actively resolve any suspicious cases and to cooperate unconditionally

with Rosink-Werkstätten in this regard.

If there are reasonable grounds to believe that a subcontractor or supplier has violated this Code of Conduct for Subcontractors and Suppliers or if a subcontractor or supplier, when a suspicious case arises, fails to sufficiently meet his obligations to resolve the case and to cooperate, Rosink-Werkstдtten GmbH, on the basis of existing contractual or legal rights, can end all business relations with the subcontractor or supplier with immediate effect. In the event of a violation of this Code of Conduct for Subcontractors and Suppliers, Rosink-Werkstдtten GmbH retains the right to initiate further legal measures, particularly damage claims.

Rosink-Werkstдtten GmbH, from time to time, can appropriately update this Code of Conduct for Subcontractors and Suppliers and expects that its subcontractors and suppliers accept any such changes.

The subcontractor/supplier hereby declares:

1. We have received this Code of Conduct for Subcontractors and Suppliers and, in addition to our other contractual obligations vis-а-vis Rosink-Werkstдtten GmbH, hereby agree to abide by it.

2. We understand that this declaration is subject to the substantive laws of the Federal Republic of Germany (excluding the standards of international privacy law).

Location, date

Signature of subcontractor/supplier

Company stamp

Name (in block letters), function