Terms and Conditions of Purchase

Part A – General Provisions
1.1. The following Terms and Conditions of Purchase of Doosan Infracore Deutschland GmbH (“Doosan”) (the “T&C”) shall apply exclusively.  They shall also apply to all future business transactions with the supplier.  This shall also apply even if the T&C are not expressly agreed upon again
1.2. Terms and conditions of the supplier that are contrary to or deviate from these T&C shall not be deemed accepted unless Doosan expressly consents to their validity in writing.  The T&C shall also apply if Doosan orders and/or accepts the delivery or the services vis-à-vis the supplier without reservation in full awareness of contradictory or deviating terms and conditions of the supplier.
1.3. Any and all agreements regarding deliveries are documented in writing in the contracts concluded between Doosan and the supplier.  Deviating agreements concluded between Doosan and the supplier shall be stipulated in text form in the relevant contract and any supplementary agreements.
1.4. These T&C only apply vis-à-vis 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.  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 in exercise of his/her/its commercial or self-employed business.
2.1. All orders by Doosan are non-binding and subject to change (freibleibend).  The supplier may accept Doosan’s orders within 14 days unless otherwise indicated in the order.  Unless otherwise agreed, any and all communication relevant to the contract shall be made either by mail, fax or by email exclusively using the following email address: legal@hhi-di.com.
2.2. Oral agreements will become effective with the content of their confirmation in text form.
3.1. The goods shall be delivered DDP (Incoterms® 2020) to the place agreed in the contract or to the place of business of Doosan (“Place of Delivery”) during its regular business hours; the supplier shall also bear the costs and the risk of unloading.  The Place of Delivery shall be the place of performance (Erfüllungsort).
3.2. The risk passes at the point in time when the goods are handed over or service performance is completed at the Place of Delivery unless an acceptance was agreed in accordance with or is required by statutory law in which case the point in time of acceptance shall be the decisive moment for the passing of the risk.
3.3. Unless otherwise agreed, the supplier shall add a delivery note to the delivery and send a copy thereof to [E-mail address to be added].  The delivery note must contain Doosan’s order number, the item, material and/or article numbers as well as a reference.
3.4. Doosan is not obliged to accept partial deliveries unless agreed in advance. Where partial deliveries have been agreed, Doosan can determine their chronological order.  The acceptance of a partial delivery shall not constitute an acknowledgement of the entire delivery as being in conformity with the contract.
3.5. Doosan is not obliged to accept early deliveries and reserves the right to charge storage costs related to early deliveries to the supplier’s account until the actual delivery date.  Acceptance of early deliveries shall not affect the point in time and consequences of the passing of risk.
3.6. The goods to be delivered shall be packed in accordance with customary commercial practices or, if requested by Doosan, shall be delivered in Doosan’s packaging or other particular packaging materials.  Each external packaging shall be marked and labelled with details regarding the respective product as well as quantities and sizes.
4.1. The delivery date agreed in the contract shall be binding (“Delivery Date”).
4.2. If the supplier is unable to meet the Delivery Date, the supplier shall immediately notify Doosan in writing once the delay becomes evident, indicating the reasons and duration of the estimated delay.  This does not affect the supplier’s obligation to comply with the Delivery Date and Doosan’s right to claim damages as per section ‎4.3 below.
4.3. In case of a delayed delivery, notwithstanding any further rights or claims for damages that Doosan may have, Doosan shall be entitled to claim liquidated damages from the supplier in the amount of 0.5% of the net price of the delayed goods or services for each full calendar week of the delay, however, limited to a maximum of 5% of the net price of the delayed goods or services.  The supplier has the right to dispute such amounts if it can demonstrate that Doosan did not suffer any damage or that such damage was lower than set out above.  The claim for liquidated damages due to the delay will be set off against further claims for damages.  Doosan may also request liquidated damages due to a delay if it does not explicitly reserve the right to do so upon acceptance of the goods or services.
5.1. Title to the goods shall transfer upon handover or acceptance of the goods and services (Abnahme).  Any retentions of title shall be excluded.
5.2. In the event the supplier retains the title, Doosan performs any processing or adjustments of the delivered goods exclusively for itself.
6.1. The agreed prices are fixed prices including all related additional expenses (eg costs of packaging, costs of freight including possible transport and liability insurance as well as travel costs) and, if applicable, statutory VAT.  The supplier shall pay any applicable public charges and taxes.
6.2. Invoicing must be in euros unless another currency is specified in the order.
6.3. The agreed price is due for payment within thirty (30) calendar days from the handover of the goods or provision of the services and receipt of an accurately issued invoice.
6.4. Doosan is entitled to withhold payments that are due for payment if and to the extent that Doosan has any claims against the supplier due to incomplete or defective performances.
6.5. Doosan may set off claims and exercise rights of retention at its own discretion.  The supplier’s right to set off claims and exercise rights of retention shall be limited to legally established or undisputed counterclaims.
6.6. The invoice must contain Doosan’s order number, the item, material and/or article numbers, a reference as well as the approved work performance records, if any, and information on the invoice and performance period.  A separate invoice must be issued for each order and/or delivery note.  The supplier shall ensure that all formal layout requirements for invoices set forth by the tax authorities are complied with.
7.1. The supplier warrants to Doosan that the goods and services correspond to the specifications.  Representations made regarding product quality are deemed to be binding.  The acceptance or approval of submitted prototypes or samples does not represent a waiver of warranty claims.
7.2. Doosan’s inspection and notification obligations pursuant to sec. 377 and sec. 381 of the German Commercial Code (Handelsgesetzbuch, HGB) are considered to be exercised in due time if the supplier is notified of obvious defects within five calendar days from receipt of the goods or five calendar days from the identification of any non-obvious defects.
7.3. The delivery of a defective product entitles Doosan to subsequent performance by the supplier at Doosan’s option either by repair or replacement with non-defective goods.  If the supplier fails to meet this obligation twice within a reasonable period of time set by Doosan or if subsequent performance is unreasonable (unzumutbar), Doosan may reduce the purchase price, rescind the contract and/or claim damages in accordance with the applicable statutory provisions.
7.4. The warranty period shall be three years from the passing of risk of the goods or services unless the product is perishable or has a shorter shelf life.
7.5. The provisions of sec. 478 of the German Civil Code (BGB) (recourse of the entrepreneur) regarding Doosan’s right of recourse against the supplier shall remain unaffected.
8.1. The supplier is liable in accordance with statutory law.
8.2. Doosan’s liability is limited as set out below:
8.2.1. Doosan is fully liable for loss or damage due to intent and gross negligence;
8.2.2. if Doosan breaches a contractual obligation in a slightly negligent manner, which is essential for the purpose of the transaction, and if the supplier relies on its fulfilment (cardinal duty), Doosan is only liable for foreseeable damage that typically occurs in these kinds of contractual relationships. With respect to any other damage resulting from slight negligence, a liability of Doosan shall be excluded;
8.2.3. the foregoing limitations of liability or exclusions shall not apply to claims resulting from fraudulent concealment of a defect, acceptance of a guarantee, claims pursuant to the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) and to damage arising from injuries to life, body or health; and
8.2.4. if Doosan’s liability is excluded or limited, this also applies to the personal liability of its employees, representatives and vicarious agents.
8.3. Unless not possible due to the nature of the goods and services to be provided, the supplier is required to take out and maintain insurance policies for product liability, commercial general liability and professional liability with an appropriate minimum coverage.  The supplier shall provide Doosan with copies of the relevant insurance documentation upon Doosan’s request.
9.1. During regular business hours, the supplier shall permit Doosan or, at Doosan’s discretion, professionally qualified independent auditors, access to its premises and to any of its personnel, systems and relevant records as may be reasonably required in order to check whether the supplier complies with the contract and all applicable laws and whether the goods and services are provided in accordance with the contract.  The supplier may refuse access to any information that constitutes a trade secret.
9.2. The supplier will provide Doosan and its auditors, as applicable, with all reasonable cooperation, access and assistance in relation to each audit.
10.1. The supplier warrants that neither the goods nor the services nor Doosan’s use thereof for the intended purpose infringe any intellectual property rights.  Otherwise, this constitutes a defect.
10.2. The supplier shall remedy the infringement of intellectual property rights within the framework of the warranty for defects either by procuring at its own expense a respective licence regarding the infringed right or by changing or replacing the infringing parts of the goods or services; in the latter case, the quality of the goods or services must not change.
10.3 Where such goods or services are bespoke products designed, made or performed specially for Doosan, all intellectual property rights therein shall pass to Doosan upon delivery of the goods or performance of the services or upon termination of the contract.  If not all intellectual property rights, such as copyrights, can be transferred to Doosan for legal reasons, the supplier grants to Doosan an exclusive, transferable and sublicensable right of use and exploitation free of charge unlimited in time, place and content.
10.4. All materials of Doosan that may have been provided to the supplier, such as tools („Doosan Materials”), shall remain the exclusive property of Doosan. Doosan grants to the supplier free of charge a non-exclusive and non-transferable right to use any Doosan Materials provided to the supplier for the term of the contract for the purpose of delivering the goods and/or services to Doosan.  Any such Doosan Materials shall not be made available to third parties.  If the supplier no longer needs the Doosan Materials for the purpose of fulfilling the contract, the supplier shall return the Doosan Materials to Doosan immediately or, in any case at the latest upon termination of the contract or contract negotiations.
11.1. “Confidential Information” shall mean the provisions of the contract as well as any business-related information disclosed to the supplier by Doosan 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.
11.2. The supplier undertakes to keep any and all Confidential Information strictly confidential and to neither disclose such Confidential 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 unless disclosure is required to fulfil the duties under this contract or unless information is to be disclosed by the supplier to comply with applicable laws or governmental regulations, provided that the supplier 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.
11.3. Confidential Information shall not include any information which:
11.3.1. was or has become generally known or publicly accessible without any action of the supplier;
11.3.2. was already in the supplier’s possession prior to the receipt of the information from Doosan;
11.3.3. was lawfully obtained from a third party which was entitled to disclose such information; or
11.3.4. was independently developed by the supplier without access to Doosan’s Confidential Information.
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.
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.
14.1. The laws of the Federal Republic of Germany shall apply to these T&C between Doosan and the supplier.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.2. 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, Germany. The language of the arbitration shall be English.
Part B – Specific Provisions for Contracts for Works and Materials (Sec. 650 BGB) and Contracts for the Performance of Work (Sec. 631 BGB)
If the supplier is obliged to manufacture goods or perform, install, repair or carry out other work (“Work”), the following provisions shall apply in addition to Part A of these T&C of Purchase and prevail in case of deviations.
In addition to the provisions set forth in section ‎6.3, payment shall only become due after a declaration of acceptance unless Doosan did not reject the declaration of acceptance within a reasonable deadline set by the supplier based on a defect.
14.3. The supplier shall notify Doosan once the Work is completed and shall provide Doosan with all associated documents.
14.4. Doosan shall declare acceptance of the Work or its refusal within 15 calendar days after receiving notice of the completion of the Work.
14.5. If an acceptance requires that the Work is put into operation for testing purposes, it will only be declared upon a successful completion of the tests.
14.6. The supplier will prepare an acceptance certificate to be signed by Doosan.
14.7. The mere use of the Work by Doosan or any third party shall not replace the formal declaration of acceptance as required by section ‎3.2.
14.8. Any acceptance inspection reports shall be sent to Doosan by mail or by email exclusively using the following email address: [E-Mail address to be added].
15.1. In case of delivery of defective Work, Doosan is entitled to subsequent performance at Doosan’s option either by repair of the defect or by delivery of an object which is free from defects. If the supplier fails to meet this obligation within a reasonable period set by Doosan twice or if setting a period is unreasonable, Doosan may remedy the situation on its own and demand reimbursement, reduce the purchase price, rescind from the contract and/or claim damages according to the applicable statutory provisions.
15.2. Changes of either nature or composition of the materials or the construction, in comparison to similar prior works of the supplier, require the prior written consent of Doosan.
15.3. In addition, warranty claims shall be subject to the applicable statutory provisions.
Doosan may terminate the contract at any time prior to completion of the Work. If Doosan terminates the contract, the supplier is entitled to request reimbursement of the costs incurred within the context of fulfilling the contract as well as a compensation for lost profits which would have been allocated to the already performed portion of the Work.
Part C – Specific Provisions for Contracts for the Performance of Services (sec. 611 BGB)
If the supplier’s contractual obligation is to perform services, ‎Sec 3, ‎Sec 5 and ‎Sec 7 as well as Part B do not apply.