| 1. GENERAL |
| 1.1. The Terms and Conditions of Sale outlined herein (hereinafter referred to as the “T&C”) shall apply to the leasing, repair and maintenance of products, equipment and parts relating thereto (hereinafter referred to as the “Equipment”) by Doosan Infracore Deutschland GmbH (hereinafter referred to as “Doosan”). They only apply to entrepreneurs pursuant to sec. 14 para. 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) and legal entities under public law as well as special funds under public law within the meaning of sec. 310 para. 1 BGB (hereinafter referred to as the “Customer”). An entrepreneur within the meaning of this section is a natural or legal person or a partnership having legal capacity who or which, when entering into a legal transaction, acts in exercise of his/her/its commercial or self-employed business. |
| 1.2. These T&C shall also apply to all future business transactions with the Customer. This shall also apply even if the T&C are not expressly agreed upon again. Terms and conditions of the Customer that are contrary to or deviate from these T&C shall not be deemed accepted unless Doosan expressly consents to their validity in writing. These T&C shall also apply if Doosan performs the delivery vis-à-vis the Customer without reservation in full awareness of contradictory or deviating terms and conditions of the Customer. |
| 1.3. Any and all agreements regarding the lease, repair and/or maintenance are documented in writing in the contracts concluded between Doosan and the Customer. Deviating agreements concluded between Doosan and the Customer shall be stipulated in text form in the relevant contract and any supplementary agreements. |
| 2. CONCLUSION OF CONTRACTS |
| 2.1. All offers of Doosan are non-binding and subject to change (freibleibend). The Customer may accept Doosan’s offers within 14 days. |
| 2.2. A cost estimate of Doosan submitted to the Customer does not constitute an offer. The Customer can submit an offer on the basis of such cost estimate which Doosan may accept within 14 days from receipt at its discretion. |
| 2.3. Oral agreements will become effective with the content of their confirmation in text form. |
| 2.4. The documents submitted and information provided by Doosan, such as drawings, plans, weights and measurements, shall only be binding insofar as Doosan expressly lists them in the order confirmation as an integral part of the contract and/or explicitly refers to them in the order confirmation. |
| 3. PRICE AND PAYMENT |
| 3.1. The agreed net prices apply i.e. without statutory VAT, packaging and shipping costs as well as customs duties and charges and other taxes. Prices are payable in euros unless otherwise agreed. |
| 3.2. Doosan shall amend the prices accordingly if unforeseeable significant cost increases or decreases regarding price relevant components occur between contract conclusion and delivery for which Doosan is not responsible and if these price relevant components formed part of the original price calculation. Such significant cost increases or decreases may in particular be based on newly charged fees, additional or changed charges or taxes, changes of legal requirements, changes in material or production costs, in particular energy costs, transportation/freight costs, including customs duties, import and export fees as well as changes as a result of exchange rate fluctuations. The product price shall be adjusted in relation to the price change of the price relevant component according to the relevant reference point and the proportion of the price relevant component of the end product. |
| 3.3. In the event the Customer is in default with its payment obligation, Doosan is entitled to charge default interest in the amount of nine percentage points p.a. above the basic interest rate. The right to assert further damage shall remain unaffected. In all other respects, the statutory provisions shall apply. |
| 3.4. The Customer is only entitled to a set-off or retention if its counterclaim has been established with final legal effect, is undisputed or acknowledged by Doosan. |
| 4. SPECIAL CONDITIONS FOR REPAIR AND MAINTENANCE SERVICES |
| 4.1. Insofar as a contract for repairs and maintenance is concluded between Doosan and the Customer, the following provisions shall apply in additionally. |
| 4.2. The Customer is aware that the provision of services owed under this agreement requires particularly close cooperation between the Customer and Doosan. Both parties are therefore obliged to ensure mutual respect and the provision of comprehensive information, precautionary warning of risks and protection against disruptive influences, including from third parties. |
| 4.3. In particular, the Customer shall be responsible for ensuring that all information and documents required for the performance of the services (in particular all functional processes, plans and procedural functional descriptions) are made available to Doosan without request, in a timely manner and without charge to Doosan, and that Doosan is informed about all processes and circumstances that are directly or indirectly relevant for its services. This also applies to documents, information, processes and circumstances that only become known during Doosan’s activities. |
| 4.4. The Customer shall support Doosan in the realisation of repair and maintenance services with regards to the Equipment to the extent this is possible and acceptable for the Customer. This in particular includes that the Customer provides to Doosan at its own initiative, however, in any case upon request, any and all information, documents and/or data, in particular manufacturing parts and components, documents, software and/or data (“Material”) required for the realisation of repair and maintenance services with regards to the Equipment. |
| 4.5. To the extent the Customer provides Material to Doosan, the Customer assures that it is entitled to hand over or use such Material and that, in doing so, in particular no third-party intellectual property rights are infringed by Doosan’s use of the Material. |
| 4.6. If Material is provided by the Customer electronically, it must be in a technically flawless condition, ie in particular free from viruses, Trojan horses, malware or other malicious codes. |
| 4.7. If the Material required for the realisation of the Equipment is not provided in an adequate, in particular, not in a common form (eg file formats customary in the industry), Doosan may request reimbursement of the additional expenditure incurred as a result of this in an appropriate amount. |
| 4.8. Doosan shall not be liable to the extent defects or deficiencies of the Equipment or the impairment of the use of the Equipment are based on defective or otherwise insufficient Material of the Customer and Doosan is not responsible for this. |
| 4.9. Doosan warrants in accordance with the statutory provisions that the services owed under the repair/maintenance agreement will be provided with the care of a prudent, conscientious businessman. |
| 4.10. Unless expressly agreed in writing, performance by Doosan shall not include any specific success of the services. If, by way of exception, the provisions on contracts for work and services do apply, the Customer may only assert the right to subsequent performance in the event of a warranty claim. Only if the supplementary performance fails, shall the Customer be entitled to reduce the remuneration or to withdraw from the agreement at its discretion. |
| 5. SPECIAL CONDITIONS FOR LEASE CONTRACTS |
| 5.1. Insofar as a lease contract is concluded between Doosan and the Customer, the following provisions shall apply in additionally. |
| 5.2. The rental item shall be handed over to the Customer in the condition in which it was inspected. |
| 5.3. Doosan shall keep the rental item in functional condition to the extent that the Customer does not assume responsibility for maintenance and repair. |
| 5.4. The Customer shall only be entitled to claim for damages in the case of defects in the rental item if such defects were caused through the wilful or grossly negligent actions of Doosan or if Doosan defaults on remedying defects as a result of wilful or grossly negligent conduct. |
| 5.5. The limitation and exclusion of Doosan’s liability shall not apply in the case of physical injury, injury to health or death. Doosan shall have unlimited liability in such cases if it, or one of its legal representatives or vicarious agents (Erfüllungsgehilfe), has acted wilfully or negligently. |
| 5.6. There shall be no additional warranty claims for defects which occurred due to inappropriate or incorrect use, faulty start-up, usual wear and tear, faulty or negligent treatment, excessive use and improper maintenance of the Equipment as well as due to changes to the Equipment by the Customer or on its behalf by third parties without Doosan’s express consent. |
| 5.7. The rental item is to be looked after and cleaned by the Customer. |
| 5.8. The Customer shall be responsible for any damage caused to the rental item, even if this was caused by officers (Angehörige), employees, sublessees, suppliers or workmen of the Customer or by parties visiting the Customer. |
| 6. LIMITATION OF LIABILITY |
| 6.1. Doosan shall be liable without limitation for intent and gross negligence. With regard to slight negligence, the liability of Doosan shall be limited and restricted to the foreseeable damage that might typically occur under the contract if an obligation is violated, the fulfilment of which is essential for the proper performance of the contract and on the compliance with which the Customer may regularly rely (cardinal duty). |
| 6.2. The foregoing liability limitations or exclusions shall not apply to claims resulting from fraudulent concealment of a defect, acceptance of a guarantee and claims pursuant to the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) and to damage arising from injuries to life, body or health. |
| 6.3. Insofar as Doosan’s liability is excluded or limited, such exclusion or limitation shall also apply to the personal liability of its employees, workers, representatives and vicarious agents. |
| 7. COMPLIANCE |
| Customer shall comply with all applicable laws and regulations including but not limited to anti-corruption, anti-money laundering, anti-terrorism, export control, economic sanction and anti-boycott laws, regulations and administrative requirements applicable to Customer or its services. |
| 8. CONFIDENTIALITY |
| 8.1. “Confidential Information” shall mean the provisions of the contract as well as any business-related information disclosed to the Customer regardless of its form (written, electronic, oral or otherwise), in particular business, marketing, technical, scientific, financial information, specifications, drafts, plans, drawings, software, prototypes or processing technologies of Doosan. |
| 8.2. The Customer undertakes to keep any and all Confidential Information strictly confidential and to neither disclose such information nor to use it for other purposes than the contract during the term of the contract and for a period of five years after the termination of the business relationship. This shall apply in relation to any and all third parties if the disclosure is not required to fulfil the duties under this contract or if such information is to be disclosed by the Customer to comply with applicable laws or governmental regulations, provided that the Customer submits prior written notice of such disclosure to Doosan and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure. |
| 8.3. Confidential Information shall not include any information which: |
| 8.3.1. was or has become generally known or publicly accessible without any action of the Customer; |
| 8.3.2. was already in the Customer’s possession prior to the receipt of the information from Doosan; |
| 8.3.3. was lawfully obtained from a third party which was entitled to disclose such information; or |
| 8.3.4. was independently developed by the Customer without access to Doosan’s Confidential Information. |
| 9. ASSIGNMENT |
| Except for any payment claims, neither party may assign individual rights under the contract or transfer the entire contract to third parties without the prior consent in text form of the other party. Such consent may not to be unreasonably withheld by either party. |
| 10. GOVERNING LAW AND JURISDICTION |
| 10.1. This contract shall be governed by the laws of the Federal Republic of Germany with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980). |
| 10.2. All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three members. The seat of the arbitration is Frankfurt am Main, Germany. The language of the arbitration shall be English. |
| 11. LANGUAGE |
| These T&C are in English and German. In case of discrepancies between the English and the German version, the German version shall always prevail. |
