Условия продажи и поставки
Общие условия продажи и поставки компании RAG Mining Solutions GmbH (далее называемой RAG Mining Solutions).
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- Our current and future business relationships with our customers shall be exclusively determined by the following terms and conditions, besides the agreements reached in writing on the basis of individual contracts. In particular, this shall apply with regard to any deviating general terms and conditions of our customers, which shall not be applicable even if the customer forwards its own general terms and conditions to us, if this happens upon the award of the contract and/or if such terms and conditions have not been explicitly objected by us.
- Any supplements to and deviations from the following terms and conditions shall be subject to our explicit written consent.
II. Offer and Conclusion of a Contract
- Our offers shall always be subject to change without notice. Orders shall only be deemed to be accepted where they have been confirmed by us in writing.
- Any supplements to and amendments of the contract or of these terms and conditions shall also always be subject to our written confirmation to be effective.
- We shall reserve any right of ownership or copyright in connection with cost estimates, drawings, and other documents. They must not be made accessible to third parties, unless we have explicitly authorised the purchaser in advance and in writing to that end.
- The regulations of the Association of German Electrical Engineers (VDE) shall apply to any electronic material.
- The volume and technical properties of our delivery shall be based on the written specifications in the order of the customer and in our order confirmation, unless they deviate from each other. If the order and order confirmation only deviate insignificantly from each other, then our order confirmation shall solely apply, provided the contents of our order confirmation have not been objected by the customer in writing by the fifth business day after the date of our order confirmation at the very latest.
- Only such properties of the delivery item shall be deemed to be guaranteed which are explicitly referred to in our order confirmation as "guaranteed properties".
- The selection of the personnel to be provided by us for any repair and maintenance work shall be reserved to us, unless any special agreements are applicable.
III. Price and Payment
- The prices shall be without packaging, ex works the respective black coal mining company, from which the delivery will be effected to the purchaser, net plus legally applicable value-added tax. They shall be due for payment without any deduction within 14 days upon receipt of the invoice. Any deduction of cash discount shall be subject to a special written agreement. In the event of a delay in payment on the part of the purchaser, we shall be entitled to claim interest on arrears to the amount of 4% above the respective discount rate of the German Federal Bank per year. If we prove the damage resulting from the default to be higher, we shall be entitled to assert such a claim. The customer shall, however, be entitled to furnish proof to that end that either the damage resulting from the delay in payment has been significantly lower or that no damage whatsoever has been incurred.
- The purchaser shall only be entitled to offset any counterclaims if such claims have been determined in a legally binding way, if they are indisputable, or if they have been recognised by us. Furthermore, the purchaser shall only be entitled to exercise any right of retention as far as its counterclaim is based on the same contractual relationship.
- If bills of exchange or cheques are accepted by us, the debt shall only be redeemed upon irrevocable payment of such a bill of exchange or cheque. Any discount charges and all costs incurred when collecting the respective amount of the bill of exchange or cheque shall be borne by the purchaser.
- We shall be entitled to request a security for our claims at any time if and when an adequate security is not or no longer available.
- In the event of an increase in the cost factors underlying the pricing (in particular, the costs for salaries and wages, material, supplies, and freight costs), we shall be entitled to adjust the price accordingly.
IV. Delivery Time
- Where a period of delivery has been agreed upon, it shall begin upon receipt of our order confirmation and as soon as the purchaser has forwarded all documents required. We undertake to use our best effort to observe the periods of delivery agreed upon. In any case, the period of delivery shall be extended by such periods of time during which the delivery cannot be effected due to any business disruptions through no fault of our own, any unforeseeable loss of personnel, any delay caused by suppliers, or due to force majeure, unless any commercial fixed transaction has been agreed upon.
- If we get into delay with our performances for reasons for which we are to be held liable, then any liability for damages shall be excluded in the event of simple negligence. If the purchaser allots a reasonable period within which to make performance, under threat of refusal of accept performance, after such a case of delay on our part, then the purchaser shall be entitled to withdraw from the contract after a fruitless lapse of this period. The purchaser shall only be entitled to claim damages for non-performance to the amount of the foreseeable damage if the delay is to be attributed either to intent or gross negligence.
- A period shall be deemed to be observed if the delivery has left our operating facility by the end of the period.
- Any postponements of the date of delivery, which are to be attributed to changed orders and extended production times resulting therefrom, shall be accepted by the purchaser.
V. Shipment and Packaging
- If invoices are issued on the basis of dimensions, numbers, and weights, then the dimensions, weights, and unit numbers determined upon shipment of the goods shall be decisive.
- The goods shall be packed and shipped in a customary manner at our own discretion. The packaging shall be charged at cost price.
- The risk shall pass to the purchaser no later than upon shipment of the goods from our respective operating facility, from which the shipment will be made; and this shall also apply if partial deliveries are made. If the shipment is delayed for reasons for which we are not to be held liable, then the risk shall pass to the purchaser or its agent at the time of readiness for shipment of the delivery singled out.
- Provided no other agreements have been stipulated, then transports shall be invoiced by us according to the standard rates of short-distance hauling.
- In the event of a delay in acceptance on the part of the purchaser, or if the purchaser violates any other duties to co-operate, then we shall be entitled to assert claims for any damage incurred by us, including any possible additional expenses for storing the delivery item. In such a case, the risk of accidental loss or of accidental deterioration of the delivery item shall pass to the purchaser at the time the delay in acceptance occurs on the part of the purchaser. After having allotted a reasonable period of time to the customer, we shall be entitled to otherwise dispose of the delivery item upon a prior threat to do so.
- We shall be liable for any damage caused by intent or gross negligence, as well as for any damage resulting from any injury to life, body or health if we are responsible for such a violation of duties and for any damage resulting from material concealment with regard to a defect or a guaranteed property which is missing. Where damage is caused due to gross negligence, our liability shall be restricted to compenation of the foreseeable direct damage, as per standard contract provisions. Any liability according to the Product Liability Act shall also remain unaffected thereby. Our violation of duties shall be on a par with any violation caused by our legal representatives or vicarious agents.
Our liability for any damage incurred due to a simple negligent violation of material contractual obligations, where the fulfilment of such obligations is a prerequisite for the proper performance of the order, and where the customer may regularly be confident that such obligations will be observed (so-called cardinal duties), shall in connection with a simple negligent impossibility or a simple negligent delay be restricted to the foreseeable direct damage, as per standard contract provisions. In the event of any violation of non-material contractual obligations due to simple negligence, our liability shall, however, be excluded.
Unless we acted gross negligently or intentionally, we shall be liable for any property damage up to an amount of EUR 0.5 million per damaging event, as far as such a damage will be covered by the business liability insurance and as far as this will be legally permissible.
Unless otherwise stipulated above, our liability shall be excluded.
VII. Retention of Ownership
- We shall retain ownership in the object of purchase until the payment of all claims incurred at the time of the conclusion of the contract has been received, including all claims resulting from subsequent orders and reorders. In the event of any behaviour violating the contract on the part of the purchaser, in particular in the event of a delay in payment, we shall be entitled to take the object of purchase back. If the object of purchase is taken back by us, this shall not imply any withdrawal from the contract, unless we would have explicitly declared such a withdrawal. After having taken back the object of purchase, we shall be entitled to utilise such an object, while the revenues resulting from such a utilisation shall be offset against the liabilities of the purchaser, less any reasonable expenses for utilisation incurred on our part. The purchaser shall be obliged to treat the object of purchase with proper care.
- We shall immediately be informed by the purchaser about any pledges or other actual or legal interventions of third parties.
- The purchaser shall be entitled to resell the object of purchase in the ordinary course of business. The purchaser shall already now assign to us all claims (including value-added tax) against its customers or against third parties resulting from the resale, irrespective of whether or not the object of purchase has been resold without or without any further processing. The purchaser shall also remain entitled to collect such claims after the assignment. Our right to collect the claim ourselves shall remain unaffected thereby. We undertake, however, not to collect the claim as long as the purchaser fulfils its payment obligations resulting from the collected considerations, if there is no delay in payment and, in particular if no petition in bankruptcy, court composition proceedings, or any other aggregate execution proceedings has been filed. In such cases, we may request that the purchaser informs us about the claims assigned and the corresponding debtors, and that the purchaser specifies all data required for collection, hands over the documents required, and informs the debtors about the assignment.
- The object of purchase shall always be processed or remodelled by the purchaser for us. If the object of purchase is processed together with other objects not belonging to us, we shall acquire co-ownership in the new object in proportion to the value of the object of purchase to the other processed objects at the time of the processing. The same shall apply to the object created as a result of the processing as to the object of purchase delivered under retention of ownership.
- If the object of purchase is inseparably mixed with other objects not belongingto us, we shall acquire co-ownership in the new object in proportion to the value of the object of purchase to the other mixed objects at the time of mixture. If the mixture is made in such a way that the object of the purchaser is to be considered the main object, then it shall be deemed to be agreed that the purchaser transfers a proportionate co-ownership to us. The purchaser shall keep the sole or co-ownership created this way for us.
- In addition, the purchaser shall assign to us the claims for securing our claims against the purchaser, which arise against a third party from connecting the object of purchase with a property.
- We undertake to release the securities we are entitled to, upon the purchaser's request, as far as the value of our securities exceeds the claim to be secured by more than 20%; the selection of the securities to be released shall be made by us.
VIII. Place of Jurisdiction, Place of Performance, and Others
- If the purchaser is a full merchant, our registered office will be the place of jurisdiction. We shall, however, be entitled to proceed against the purchaser at the court of its residence.
- Unless otherwise stipulated in the order confirmation, our registered office shall be the place of performance.
- The terms and conditions shall exclusively be governed by the law of the Federal Republic of Germany to the exclusion of the Uniform Law on the International Sale of Goods of The Hague and the United Nations Convention on Contracts for the International Sale of Goods.
- Without our prior approval, our work and other performances shall not be used by the purchaser for its own advertising purposes. Taking photographs on the premises of our Company shall be subject to our explicit consent.
- Any transfer of the contract to a third party shall be subject to written consent. Any transfer to an associated company shall not be subject to any consent. The term associated company refers to a company which directly or indirectly holds interests of more than 50 % in the transferring contracting party or in which the transferring company directly or indirectly holds interests of more than 50%. The contracting partner shall, however, be entitled to withdraw from the contract if a third party enters into the contract as a successor against its will.