GENERAL TERMS AND CONDITIONS OF PURCHASE

DEILMANN-HANIEL MINING SYSTEMS GMBH

 

As of 1 May 2014

 

 

1.             SCOPE

1.1.        These general terms and conditions of purchase are applicable to all orders (deliveries, services and works within the framework of an ‘extended work bench‘ or the manufacturing of complete assembly units) of Deilmann-Haniel Mining Systems GmbH (hereinafter ”dhms“). Differing terms of the seller/supplier do not become a part of the contract even through acceptance of an order and are solely related to the use for:

1) a person which at the time the agreement is concluded is exercising its commercial or independent professional activity and thus is an entrepreneur within the meaning of sect. 14, para. 1 of the German Civil Code,

2) legal persons under public law and to special funds under public law

1.2.       Provided there are no regulations regarding these conditions of purchase or order, the legal requirements shall apply in addition.

 

2.             PLACING OF ORDER, CONCLUSION OF CONTRACT

2.1      By acceptance of our order, these terms and conditions of purchase become part of the contract. Only orders placed in written form provided with a legal signature shall be valid. Changes or amendments to the order as well as verbal agreements are only valid if they are confirmed in writing by dhms (purchaser).

2.2      Deliveries without any written purchase order will not be accepted.

2.3      The entire or partial subcontracting to third parties by the seller/supplier requires the prior written approval of dhms.

 

3.             ORDER CONFIRMATION, TERMS AND CONDITIONS OF CONTRACTOR

3.1       The acceptance of the order shall be confirmed in writing immediately or within 5 days at the latest at dhms. dhms reserves the right to cancel the order free of charge if the proper order confirmation has not been received by dhms within a reasonable period of time but not later than two weeks after having placed the purchased order with dhms.   Such a cancellation is in good time if it was sent prior to the receipt of the order confirmation.

3.2       If the order confirmation differs from the order, the contractor shall refer to this in the order confirmation, clearly showing the respective deviations. dhms is only required to accept the deviation if dhms has expressly confirmed the acceptance in writing. Failure to respond to the amended order confirmation shall not be considered as consent. An unconditional acceptance of goods is in any case not considered as such a consent.

3.3       Terms and conditions of the contractor shall not be valid unless they are acknowledged in writing by dhms. Regarding the order, any reference of dhms to the contractor’s bidding documents does not imply acceptance of the commercial terms of the contractor.

3.4       Any terms and conditions of the contractor or its subcontractors that might have been supplied on paper or in digital form are, due to lack of prior specific written approval by dhms particularly not valid if dhms or any other third party attributable to it (e.g. staff etc.) has envisaged a therein specified conduct giving rise to a contract.

 

4.      PRICES

4.1       The price stated in the order of dhms is binding; prices cannot be increased without the explicit, written consent of dhms. If prices are not being mentioned or established during the placing of order, the last price that was agreed between the parties shall be in force.

4.2       The price is specified in Euro. Unless otherwise agreed, the legal value-added tax being valid at the time the contract is concluded is included in the price. The price also shall include any and all costs incurred by the supplier for and in connection with the shipment of goods to the place of delivery, particularly the freight charges, customs duties as well as the costs for packaging and transport insurance.

 

5.      TERMS OF DELIVERY, DELIVERY DOCUMENTS, CONSEQUENCES OF DEFAULT

5.1       The delivery dates and terms of delivery specified in the order of dhms are binding and shall strictly be adhered to by the supplier. Partial deliveries and premature deliveries are only permitted with prior consent of dhms. In case of a delivery ahead of time, dhms is entitled to make the payment on the agreed date of maturity.

5.2       The delivery and service obligation shall begin with the day of the order unless the begin was explicitly otherwise agreed.  If no period of delivery has been agreed, the supplier shall deliver or perform immediately. The timeliness of deliveries shall be determined by the receipt of the goods at the place of receipt indicated by dhms; the timeliness of deliveries involving installation or assembly and services shall be dependent on their acceptance. In case of a delay in delivery, the contractor must notify dhms immediately, stating the reasons for the delay in delivery and its probable duration and to obtain a decision from dhms concerning this matter. If the supplier does not fulfill his obligation to inform, he cannot plead that he was not responsible for the delay.

5.3       In this case, the delivery or service period will only be extended if this has been expressly recognized by dhms in writing.

5.4       If the agreed dates, for any reason whatsoever, are not met by the supplier, dhms shall be entitled, without prejudice to further legal claims, to choose to withdraw from the contract and/or to demand compensation for non-fulfillment of the contract. Granting an additional respite with a warning to refuse is not required. All additional costs incurred due to late deliveries and services have to be compensated by the supplier. Acceptance of a delayed delivery or service shall not constitute any waiver of claims for compensation.

5.5       In any case where dhms is entitled to claim damages for lack of performance, dhms may require 30% of the contract price as compensation without furnishing proof thereof subject to the contract partner’s proof that no, or a lesser damage, was caused. The right that dhms claims a higher damage actually incurred remains unaffected.

5.6       dhms shall be entitled, regardless of the default of the contractor and independent of the proof of an actual damage, to charge a penalty of 0.5% of the total order value per calendar day, or any fraction thereof, of the delay in the delivery or services, but not more than 10% of the total order value. The right to assertion regarding further damages remains reserved.

5.7       Unless otherwise agreed in writing, the delivery has to be carried out free domicile to the branch of dhms specified in the order or, when a separate disclosure in the purchase order is missing, to the ordering branch.

5.8       If it is impossible or unacceptable for dhms to accept delivery at the designated point of reception due to force majeure or other circumstances beyond its own sphere of influence including labor disputes, then dhms has the right to demand that the shipment is delivered to another reception center which will be indicated anew.

5.9       Each consignment has to be supplied with a delivery note immediately. Dispatch notes, consignment notes, parcel labels, invoices and any correspondence must feature the number and date of the order and, if necessary, the drawing number or material code number. Furthermore, the delivery note has to include the gross, tare and net weight. For deliveries for which dhms has to bear, completely or partially, the freight costs, the routing order must be kept at all costs.

5.10     The supplier shall guarantee that he is able to subsequently deliver the goods or corresponding spare parts ordered by dhms for a period of five years as from the date of delivery. The supplier shall be obliged to inform dhms at least 1 year in advance on products that are going to be discontinued but are currently still ordered by dhms.

5.11     The supplier shall provide, by his own accord, the necessary supplier’s declarations to dhms in the course of the 4th quarter. Unless the preparation of these declarations is not possible, an alternative proof must be provided on request.

 

6.        INVOICES

6.1       Invoices containing all order data (e.g. correct company name and address, order number, item, item number) shall be submitted immediately after delivery or completely performed services to dhms. The invoice must comply with the requirements of sect. 14 of the Value Added Tax Act.

6.2       Invoices can only be processed if they contain the order number and material number shown in orders by dhms. dhms reserves the right to return invoices unprocessed that were not issued properly. In this case, the invoice is not considered as an account rendered.

 

7.        PAYMENT

7.1       The period for payment of the invoice shall begin as soon as the delivery or performance has completely been accepted by dhms and a proper issue has been received. Insofar as the contractor is required to provide material testing, test records, quality control documents or any other documentation, such shall be a part of the requirements of the completeness of the delivery or performance.

7.2       Unless otherwise agreed, payments shall be made on the choice of dhms within 14 days less 3% discount or within 30 days net. dhms is entitled to withhold payment until the correction of the defects. Payment shall neither signify recognition of a properly executed delivery or service nor a waiver of any rights of dhms. With the execution of the transfer order to the bank of dhms by the due date at the latest, payment is considered made in time. Bank charges of the receiving bank shall be borne by the contractor.

 

8.        PACKAGING OF THE GOODS, PASSING OF RISK

8.1       The contractor shall pack the goods on his own expense in a suitable manner.

8.2       Any risk shall not be transferred from the supplier to dhms until the goods have been delivered and accepted at the designated reception center. The contractor shall bear all risks up to that point of time.

 

9.        ACCEPTANCE, NOTICE OF DEFECTS

9.1       The mere receipt of deliveries or services and their temporary use or payments made thereof shall not constitute an acceptance or a waiver of the rights on the part of dhms. Receipts and prints of reception stamps of dhms on delivery notes are not statements of dhms on the final acceptance of the goods supplied.

9.2       The acceptance of good as well as the check for completeness and any visible defects will be made within a reasonable time after the receipt of goods. If random spot checks indicate that parts in the scope of supply do not comply with the requirements of dhms or quality customary in the trade, the whole delivery may be rejected. The obligation to give notice of defects as per sect. 377 of the Commercial Code is limited to defects that become evident in the inspection of incoming goods by external assessment. The obligation to give notice of defects for defects discovered later as per section 377 of the Commercial Code remains unaffected.

 

10.      WARRANTY

10.1     The contractor shall guarantee the use of the best, adequate and brand-new materials, competent execution and in correspondence with the drawing, adequate construction and flawless installation. Furthermore, the contractor shall warrant that the goods comply with the official instructions and legal requirements and, in particular, with the relevant occupational safety and accident prevention regulations and with the latest accepted rules of technology, even when the goods are custom-made products. When the supplier is entrusted with tasks within the scope of an extended work bench or with the production of complete assembly units, the technical quality requirements (QSV) will be applied, which are to be inquired by the supplier prior to order taking and to be met subsequently.

10.2     The warranty period is 2 years after the completion of delivery. For material defects and defects of title of the goods (including wrong and short deliveries as well as improper installation, insufficient assembly instructions, user manuals or operating manuals) and other breaches of duty on the part of the contractor, the statutory provisions shall apply unless agreed otherwise in the following.

10.3     According to the statutory provisions the supplier is, in particular, liable to ensure that the goods possess the quality agreed when warranty is transferred to dhms. The product descriptions which, in particular through designation or reference in the order, are the subject matter of the respective agreement. For this, it makes no difference whether the product description originates from dhms, the contractor or the producer.

10.4     Notwithstanding sect. 442, para. 1, sentence 2 of German Civil Code, dhms is entitled to claim for defects even when the defect remained unknown to dhms due to gross negligence at the time of conclusion of the contract.

10.5     The contractor is obliged to remedy any defects that have occurred within the warranty period on his own expense and according to the choice of dhms to either repair these defects immediately, but at the latest within 10 working days after the receipt of the notice of defects, or to provide new goods free from defects, or to render a service free of faults within a set period of time. dhms is entitled to demand any and all costs associated with the rectification of the defect such as installation and dismantling costs from the contractor. Inspection and testing costs shall also be refunded to dhms when the inspection/test has revealed defects. Expenditure incurred for the purpose of subsequent performance as per sect. 439, para. 2 of German Civil Code, such as transport costs also include those transportation costs that will incur for the subsequent delivery abroad.

10.6     Apart from that and according to the legal requirements, dhms shall be entitled to reduce the purchase price or to withdraw from the contract in case of a material defect or a defect of title. Moreover, dhms is entitled to claim for damages and the reimbursement of expenses according to the statutory provisions.

10.7     After the elimination of defects that were complained about, the warranty deed for the replaced delivery item or contractual object shall begin anew. The warranty deed for deliveries including assembly and installation and for services will commence upon acceptance, for deliveries without any assembly or installation it starts with the receipt at dhms and for hidden defects from detection thereof. Upon delivery to locations where dhms is operating outside its premises using the supplied goods, the warranty deed will start with the acceptance of the services to be rendered by dhms by its principal. In order to keep the term, a notice of defects in writing by dhms shall be sufficient.

10.8     In case of engineering, consultant, software or documentation services provided, as well as in the case of manpower delegated by the contractor, the contractor shall over a period of 2 years, from the time of rendering the service, accept the unrestricted warranty that all his specifications and instructions in oral and written form are correct and complete.    

10.9     Pre-suppliers of the contractor shall be considered as agents of the contractor.

10.10   In case of exigent circumstances, e.g. to avoid its own default or if the contractor fails to remedy defects, dhms is entitled, without prior notice and without prejudice to its rights under the warranty liability of the contractor, to remedy the defects itself, to mend the defective goods or to have them repaired on the contractors own expense. dhms shall be completely compensated for the costs of such repairs by the contractor, even if they are higher than the cost the contractor will have to pay for the mending.

10.11   The contractor shall indemnify and hold dhms harmless for any disputes about patent, copyright, trademark and design protection arising from the supplies and services and to ensure the unlimited use of the supplied goods.

10.12   Unless otherwise agreed by the parties, the period of limitation for guarantee claims is 36 months from the time of the passing of risk.

10.13   In case of self-remedy by dhms according to § 10.10, the limitation period will be interrupted for its duration.

 

11.       PRODUCT LIABILITY

11.1     Where the supplier is responsible for product damage, he shall be obliged to release dhms from third party compensation claims at first request, as far as the reason lies within his range of command and organization and if he is himself liable to third parties. Notwithstanding other obligations, the contractor shall indemnify and hold dhms harmless with respect to all product liability claims raised against dhms by third parties as result of defects in the products delivered by him. At any rate, the contractor shall be obliged to compensate dhms for all costs that will accrue to dhms from the defense of a claim or from compensation.

11.2     Within the framework of his liability for claims within the meaning of § 11.1, the contractor is also obliged to reimburse dhms for any expenses in terms of sections 683 and 670 of the German Civil Code and/or sections 830, 840 and 426 of the German Civil Code arising from or in connection with any recall action conducted by dhms.

11.3     The contractor shall maintain a product liability insurance with a minimum coverage of €5 million for each event involving personal injury/property damage for the duration of the respective contract, i.e. until the expiry of the respective period of limitation for defects. If dhms is entitled to further compensation claims, these remain unaffected.

 

12.      PROVISION OF MATERIAL

12.1     Materials provided remain the property of dhms and shall be separately stored, marked and administered at no cost. Your takeover is to be confirmed at the request of dhms. The use of materials is limited to the orders of dhms. In case of a decrease in value or loss, the contractor shall be obliged to provide compensation.

12.2     If materials provided are processed with other items that are not the property of dhms, dhms then shall acquire co-ownership rights in the new product according to the ratio of the value of the reservation of property (purchase price plus value added tax) to the value of the other processed goods at the time of processing.

12.3     If the article provided by dhms is combined inseparably with other items that are not the property of dhms, dhms then shall acquire co-ownership rights in the new product according to the ratio of the value of the material provided (purchase price plus value added tax) to the value of the other processed items at the time of processing. If the goods are mixed in such a manner that the contractor’s item is regarded as the main item, it is agreed that the contractor  grants dhms proportional joint property rights; the contractor shall keep the sole right of property or the right of joint ownership for dhms.

 

13.    TITLE RETENTION IN FAVOR OF THE CONTRACTOR

13.1     The contractor shall have a retention of title if it expires with the agreed payment for the supplied item (conditional goods) and dhms is entitled to resell any conditional goods in the ordinary course of business.

13.2     With a view to safeguarding contractor’s rights to and interests in conditional goods to be processed downstream and resold subsequently, if the contractor has reserved title thereto and ownership thereof according to § 13.1, dhms hereby assigns to contractor the receivable due to dhms from its customer for the resale of the asset newly created by incorporating any conditional goods, the amount so assigned being capped at the invoice value of the conditional goods delivered by supplier. When incorporating the receivables dhms against the customer in a current account, the assignment refers to the corresponding part of the balance including the closing balance in the current account.

13.3     The supplier hereby assigns pursuant to § 13.2 the claims assigned back to dhms under the suspensive condition that dhms shall pay the agreed compensation for the respective conditional good to the supplier.

13.4     dhms shall remain authorized to collect claims assigned to supplier pursuant to § 10.2. A revocation of the authorization  shall only be effective if and as long as dhms violates payment obligations of the underlying business of the delivery that provides the respective additional material. On that condition the supplier may also require that dhms gives notice of  the assigned claims and the debtors and indicates the assignment to the debtor.

 

14.   DRAWINGS, TOOLS, EXECUTIVE INSTRUCTIONS, PERMITS

14.1     Drawings and technical documentations (including physical calculations, drawings, manuals, quality control documents) shall be delivered by the contractor free of charge, where required. Any tools, molds, samples, models, sections, standard sheets, printing proofs, measuring devices etc., supplied by dhms for the execution of the order, shall remain property of dhms and – as well as the products manufactured in accordance therewith – may neither be passed on to third parties or used for a purpose other than that stipulated in the contract without written consent by dhms. Tools, molds and the like which are made at the expense of dhms shall become the property of dhms after they have been paid for.

14.2     The contractor expressively declares to possess all authorizations in terms of commercial law or other permits that are required for the execution of the services agreed and will submit appropriate documents to dhms upon request. If official approvals, permits or approvals are required, they must be submitted by the contractor without extra payment.

 

15.   PRIVACY, PUBLICITY

15.1     All technical and economic data which the contractor receives from dhms is to be kept as a secret by the contractor as long as it is not already common knowledge. The data may be only used in the context of the initiation or completion of contractual relations to dhms and made available only to those employees whose involvement in this context is essential according to the operational conditions of the contractor.

15.2     The contractor shall undertake to swear these employees to secrecy in the same extent as in 15.1 on request of dhms. At the request of dhms, a confidentially agreement by these employees shall be proven by the contractor.

15.3     The contractor commits himself to keep secret with regard to the findings or partial findings that were generated by him during the fulfillment of the order and shall use them only for the fulfillment of this order. In case the contractor makes use of a third party to fulfill his contractual obligations, he shall contractually bind this third party to an appropriate confidentiality.

15.4     The supplier is only permitted with express written approval by dhms if he wants to indicate any existing business relationship with dhms in his advertising.

 

16.   PLACE OF EXECUTION, APPLICABLE LAW, PLACE OF JURISDICTON

16.1     Unless otherwise agreed, the domicile of dhms shall be considered as the place of execution for deliveries and services.

16.2     These general terms and conditions of purchase, their interpretation and any related or associated  disputes are subject to the law of the Federal Republic of Germany not including the United Nations Convention on contracts for the International Sale Of Goods (CISG).

16.3     The exclusive place of jurisdiction for any disputes which may arise from or in connection with the existing legal relationships between dhms and the supplier is Dortmund insofar the supplier is an enterprise in terms of sect. 14 (German Civil Code). However, dhms is entitled to initiate judicial proceedings against the contractor also at his general place of jurisdiction.

 

17.   SEVERABILITY CLAUSE

17.1      If one of the above clauses is or becomes completely or partly ineffective, the validity of the remaining terms and conditions of purchase shall remain unaffected thereof. The parties agree that any such invalid clause will be replaced by a valid one which is most similar to the sense of the invalid clause.