DERIVADOS DEL FLÚOR, S.A.U.
PURPOSE. This document establishes the general contractual conditions which govern the relationship between Derivados del Flúor, S.A.U. (“DDF”) and a third-party contractor (“Contractor”) for the contracting of services (“General Conditions”) to be provided to DDF.
SCOPE OF APPLICATION. These General Conditions shall apply to all orders (“Orders”) from DDF. Any amendment to deviation from these General Conditions by the Contractor shall only be valid if it has been accepted in writing by DDF. The General Conditions of the Contractor shall not apply, neither other condition, specification or similar that the Contractor includes in any documentation exchanged between the parties regarding the Order and contradictory with the provisions of these General Conditions.
OFFERS AND ORDERS. The offeror shall deliver its offer in accordance with the provisions of the corresponding request for offer submitted by DDF. DDF shall be entitled to reserve the right to accept or reject the offer without any right to compensation. Unless otherwise set out in the request for offer the offers shall remain in force for a period of ninety (90) days from the date of receipt by DDF. DDF shall not assume any expenses derived from or related to the submission of the offer by the Contractor. The offers accepted by DDF shall be executed by the corresponding Order. Any amendment to the Order shall be established in writing. Orders sent by DDF shall be considered tacitly accepted by the Contractor unless written communication to the contrary received within a period of seven (7) days from the date of shipment. Acceptance of the Order by the Contractor also means acceptance of all these General Conditions, which form an integral part of it. Likewise, the total or partial performance of services by the Contractor shall be deemed to as an acceptance of these General Conditions and the Order issued. The relationship between DDF and the Contractor shall be governed by the following contractual documentation, in descending order of priority: (1) the accepted Order, (2) standard or technical specification, if applicable, (3) quality plan, if applicable, (4) individual conditions, if applicable, (5) these General Conditions and finally, the Contractor’s offer.
CONDITIONS OF PROVISION AND ACCEPTANCE OF THE SERVICE. The services shall be provided in accordance with the provisions of the contractual documentation, without variations, unless expressly accepted by DDF. The Order shall specify the performance schedule and the conditions for providing the service, as well as the documentation included, where appropriate, in its scope. DDF may vary the term of the performance schedule, or order its suspension at any time, indicating in this case to the Contractor the estimated duration of the suspension. DDF and the Contractor shall jointly set a new performance schedule and agree on the consequences of the suspension. In case of rejection of the service for justified reasons, it shall be considered as not made available, unless the parties expressly agree otherwise. DDF shall entitled to reserve the right to accept the defective service, agreeing with the Contractor the reduction of the price based on the defect. The performance of any service shall include the correction of the defect, collection of remains of materials and tools in the work area, which shall remain in perfect order and cleanliness, the Contractor being responsible for any incident, including accidents, that may be caused as a consequence of the breach of these provisions. In the event that the Contractor fails to comply with the performance schedule, DDF shall have the right to automatically apply a liquidated damage of 1% of the Order price when the delay exceeds, either continuously or intermittently in time, 1 to 15 days, an additional 2% from the 16th to the 30th, an additional 3% from the 31st to the 45th and an additional 4% from the 46th, up to a maximum of 10.00%, without prejudice to the right of DDF to terminate the Order and to claim any further or additional damages caused by late performance of the Contractor’s obligations to terminate, such as the cost of acquiring the services of third parties to comply with the Order.
INDEPENDENT CONTRACTOR. In fulfilling its obligations vis-à-vis DDF, the Contractor shall act as an independent contractor, and its agents and employees, and any subcontractor’s agents and employees, shall be recruited, directed and supervised by the Contractor, and shall remain subject to its solely managing control and authority. No relationship of employer and employee, master and servant, appointer, and attorney, or principal and agent shall exist between DDF and the Contractor, which shall only be linked by a relation of commercial nature. The Contractor shall have a real business organization, with its own human and material resources suitable for properly fulfilling the Order, and the Contractor shall organize and use such resources to duly carry out the commissioned activity, of which shall be solely responsible. The Contractor shall provide the contractual services by means of its own personnel, duly hired in accordance with the applicable laws, and. having the training, experience and qualifications required for the proper performance of the contracted services. The Contractor’s employees shall be duly qualified for the performance of the services and shall provide the service correctly and with all the dedication and diligence expected depending on the circumstances.
LABOUR AND SOCIAL SECURITY OBLIGATIONS. PREVENTION OF OCCUPATIONAL RISKS. The Contractor guarantees that the situation of its employees is absolutely regular, all of them being registered with Social Security as employees of the company in question. If the Contractor is registered in Spain, it shall be obliged to present to DDF through the computer application for the management of the coordination of business activities “Koordinatu”, or whichever method that may replace it in the future, at the time of starting the provision of services, negative certification for overdrafts of the General Treasury of Social Security accrediting the contributions and premiums corresponding to its workers. Said certification must be renewed with the periodicity indicated in the “Koordinatu” application. In addition, the Contractor shall provide DDF on the date of commencement of services, a positive certification issued by the State Tax Administration Agency of being up to date with its tax obligations. Said certificate must have been issued in relation to the contracting of services by DDF and shall be renewed with the periodicity indicated in the aforementioned “Koordinatu” application. DDF may withhold payments for the services if the Contractor does not provide the aforementioned certifications, without the Contractor being able to urge the resolution of the Order due to the corresponding withholding of payments made by DDF as a consequence of the breach by the Contractor. The Contractor undertakes to comply, and to enforce its employees, and where appropriate the duly authorized subcontractors, with the procedure for controlling the access of people and vehicles to the DDF facilities, a copy of which is available upon request.
OWN WORKPLACE TOOLS. The services shall be provided by the Contractor using its own machinery and vehicles, spare parts, fuel, etc. Machinery and vehicles must be properly insured and comply with the applicable safety prevention obligations. The Contractor shall provide its personnel with the appropriate work garments and the auxiliary elements required in each case to carry out the services. When it is necessary the Contractor shall also make changing rooms with showers available to its employees.
PREVENTION OF LABOR RISKS AND COORDINATION OF BUSINESS ACTIVITY. The Contractor shall be in full compliance with the standards and measures of safety, hygiene and prevention of occupational hazards in force at the DDF’s facilities and with the DDF’s procedures for the prevention of occupational hazards in force. In accordance with article 24 of Spanish Law 31/95, on the Prevention of Occupational Risks, which include the obligations of cooperation and information between companies in a workplace, DDF and the Contractor shall collaborate through the established means of coordination and in particular, the Contractor is obliged to comply with all those rules and procedures established by DDF at its facilities for the purpose of coordinating business activities in matters of occupational risk prevention and in particular, DDF’s “Coordination of Business Activities” procedure. The Contractor must have at the commence date of the services, the express certification of homologation to be issued by the DDF’s Quality, Environment and Safety Department. In the event of an emergency at the DDF facilities the Contractor’s staff shall comply with the relevant DDF self-protection plan.
LEASING OFSPACES OR USE OF DDF EQUIPMENT. When, for performance of the services the Contractor’s personnel must carry out activities at DDF’s premises, use goods or equipment owned by DDF, as well as use common DDF services, DDF shall be entitled to charge the Contractor the cost corresponding to the occupation of spaces and use of common services, as well as goods or equipment owned by DDF used by said personnel. For this purpose, a lease agreement shall be signed between the Contractor shall and DDF.
PRICES, INVOICING AND PAYMENT. The prices set out in the Order are fixed, firm, and not subject to any revision or escalation and shall include all taxes (except VAT or equivalent), contributions, insurances and all other costs incurred by Supplier in performing the Order. The Contractor shall issue the invoice for the services provided in accordance with all applicable legal requirements and, where appropriate, with the DDF instructions indicating the Order number and date, and if applicable, the corresponding contractual milestones susceptible to partial invoicing. The maximum legal payment period applicable to DDF according to Law 3/2004, of 29 December, on combating late payment in commercial transactions will be 60 days, as long as an agreement is reached with its suppliers; for the remaining operations, the maximum period will be 30 days, as indicated by the law. Payments shall be made by check or bank transfer from the Contractor´s bank account, after sending a certificate of ownership of the bank account. The price of the service shall be paid once the approval of DDF has been issued by signing the delivery note of the services correctly provided. In the event the Contractor fails to comply with its obligations DDF may differ and / or withhold payments. DDF it is entitled to compensate any amounts that, for any concept of this Order, are owed to it, with any amount or amounts that DDF and / or any other company of the Minersa Group owes the Contractor by virtue of this or any other contract that they have signed, enabling them by virtue of these General Conditions to make the appropriate transfers. Payment of an invoice shall not constitute DDF’s waiver of any of its rights. The company shall pay the corresponding invoices within the agreed deadlines, after compliance by the Contractor with the obligations described in section LABOUR AND SOCIAL SECURITY OBLIGATIONS. PREVENTION OF OCCUPATIONAL RISKS.
ENVIRONMENTAL RESPONSIBILITY. The Contractor shall comply with all the provisions of the current environmental regulations applicable to its activity, such as regulatory nature (European, state, regional or local legislation) or imposed by DDF (standards, procedures, or instructions of DDF) regarding the applicable treatment and management of waste, industrial discharges, atmospheric emissions, noise, and prevention of soil contamination, assuming the costs inherent in complying with said obligation. The Contractor shall be responsible, where appropriate, with the compliance of all and any regulations on the use and storage of chemical products in the work areas and shall assume responsibility for non-compliance with its environmental obligations.
INSURANCE. The Contractor shall arrange and maintain in force during the term of the Order, with a recognized leading insurance company, third parties´ liability insurance policy, to cover sufficiently its risk of liability from fulfilment of the Order. The mentioned policy shall include coverage for liability (1) general or operations, (2) employer, (3) cross, (4) post-work, (5) professional, (6) accidental contamination, (7) derived from transportation, loading, and unloading and, (8) any other civil liability that may arise from the performance of the Order. The aforementioned liability insurance shall have a minimum coverage of the sum insured per claim of € 1,500,0000, with a sub-limit of € 600,000 of coverage per victim. In addition, all vehicles used by the Contractor shall have the insurance in force, as well as the technical inspections always contemplated by the legal regulations in force. DDF may require, at any time, the Contractor to display the certificates of the insurance policies (which shall include the name of the insurer, the policy number, the coverages, exclusions, limits, sub-limits and franchises, start and expiration dates) and shall make available to DDF the proofs of having made the payments of the fees corresponding to said insurance through Koordinatu or the computer application for the Coordination of Business Activities applicable in DDF at all times.
ASSIGNMENT AND SUBCONTRACTING. The Contractor may not subcontract or assign or transfer, in whole or in part, the Order or any of the rights and obligations arising from it, without the prior written approval of DDF. The specialized technical assistance works that in each case are agreed between DDF and the Contractor, either at the time the work is planned, or when eventually required, are expressly exempted from subcontracting. The Contractor assumes full responsibility for the services that it has subcontracted to third parties and shall respond in any case to DDF for any circumstance arising from the performance of the subcontracted services, or for any breach of the current regulations on subcontracting.
CONFIDENTIALITY. The Contractor shall maintain the confidentiality of all information, documentation, or knowledge that it receives directly or indirectly from DDF because of this Order, whether in written, electronic, visual or verbal form, and that can be identified in good faith as confidential. Said information may not be copied, disclosed to third parties, or used directly or indirectly for purposes other than those provided for in the Order. In particular, all documents, designs, calculations, samples, photographs taken of the facilities, areas, equipment or people of DDF, and similar items shall be treated as confidential and returned to DDF upon request. The Contractor shall limit access to such information and shall impose the same confidentiality on its employees, suppliers, and subcontractors. This obligation shall survive the termination of the contractual relationship for a period of five years.
CANCELLATION OF THE ORDER. DDF reserves the right to cancel the Order at any time, without incurring liability, upon written notice, in the event of (1) a non-fulfilment by the Contractor of labour, tax, Social Security, environmental obligations, prevention of occupational and safety risks, (2) when the liquidated damages limits for non-compliance with the performance deadlines set out in Clause 4 are exceeded, (3) when serious inaccuracies occur in the information provided by the Contractor in relation to the Order, especially in relation to its ability to performance the Order or the quality of the services or materials necessary for the the services or any other aspect related to the services or, (4) when the Contractor seriously breaches the security conditions imposed for the performance of services or failure to comply with the quality requirements in the provision of the service. In the event of cancellation of the Order for any of the reasons above mentioned DDF reserves the right not to return any partially advanced delivery without prejudice to the fact that, by asserting its rights, it may take legal actions against the Contractor for damages. Likewise, DDF may cancel upon written notification the Order at any time, in whole or in part, . Upon receipt of this communication, the Contractor shall stop all work related to the Order and the payment of the services performed at the time the cancellation notice is received, shall be negotiated between the Contractor and DDF, in fair conditions.
INTELLECTUAL PROPERTY RIGHTS. The Contractor shall warrant that all projects, drawings, calculations, specifications, reports, information, studies, data, investigations, apparatus or equipment and any other materials, products or procedures that it or its subcontractors provide to DDF or use by themselves for the performance of the Order belong to the Contractor or, it has the relevant licenses and that it does not violate any patent, copyright, trademark, know-how or any other Intellectual and Industrial Property rights in Spain. or in another country.
FORCE MAJEURE. Neither party shall be liable for breach of any of its obligations under the Order as long as its performance is delayed, prevent or made impossible as a result of a force majeure case in accordance with article 1.105 of the Spanish Civil Code. Strikes affecting the Contractor, public transport or other events that could affect the Contractor’s subcontractors or suppliers shall not be considered as events of force majeure excusing non-performance of this Order. Upon the occurrence of force majeure the Contractor shall immediately inform DDF in writing and in detail. If the force majeure event persists for more than 15 days DDF shall be entitled to terminate the Order without the Contractor’s right to receive any compensation.
LIABILITY. The Contractor shall hold DDF harmless from any and all expense, burden or encumbrance resulting from the failure to comply with the Contractor’s contractual obligations with its suppliers, subcontractors, employees or any natural or legal person with whom it has entered into a commitment of any nature. The Contractor shall hold harmless and defend, free of any expense, DDF against any lawsuit or action for infringement of industrial or intellectual property rights derived from the service provided. The Contractor shall also keep DDF free of liabilities and damages, and shall indemnify it for any and all losses, financial guarantees, costs, damages or expenses that it incurs as a result of any lawsuit or action against it by third parties, as a result of the Order. DDF reserves the right to participate in the defence against these lawsuits or actions, or if it so decides, assume the defence itself, using its own lawyers. The Contractor shall hold harmless and indemnify DDF against damages or expenses that, due to the responsibility imposed by law, fall on it, as well as for damages caused by breach of its contractual obligations, injury or death of any person or persons, whoever it was and / or damage to property, whoever they belonged to, that arose as a result of the provision of the services.
CODE OF ETHICS. The Contractor voluntarily adheres to the provisions of Minersa Group’s Code of Ethics, expressly stating that they know and accept it, assuming the commitment to ensure and comply with it, without prejudice to mandatory compliance with current legislation. The non-observance of it shall lead to the cancellation of the Order for just cause. The Contractor may dispose of it through the Minersa website www.minersa.com.
PROTECTION OF PERSONAL DATA. By virtue of Article 13 of Regulation (EU) 2016/679 of the European Parliament and of the Council, of April 27, 2016 regarding the protection of natural persons with regard to the processing of personal data and the free circulation of these data and of Law 3/2018, of December 5, on Data Protection and Guarantees of Digital Rights: (a) the personal data of the parties and by the entities designated by them for their management and evaluation that are captured during the negotiation or execution of the Order shall be treated by the parties (as responsible) for the purposes related to the object of the Order or for compliance with legal requirements, based on the execution thereof; (b) the parties shall keep the personal data for the time necessary to comply with legal obligations, (c) the data of the parties shall be accessible only to the consultants or affiliates of the parties or to the persons designated to process the data related to the purposes established in paragraph (a) and shall not be communicated to third parties, (d) in relation to the processing of the data of the parties, the Provider may exercise their rights of access, rectification, opposition, deletion, limitation of treatment, and data portability through the address lopd@minersa.com.
APPLICABLE LAW AND JURISDICTION. These General Conditions, the Order, its execution, and any other legal relationship between DDF and the Contractor are governed by Spanish law, with the exclusion of the 1980 Vienna Convention on the International Sale of Goods. Any disputes arising in connection with the validity, interpretation and / or fulfilment of an Order or the obligations of DDF and / or the Contractor that cannot be resolved amicably, shall be finally settled by the sole competent Courts of Bilbao (Vizcaya-Spain) to the exclusion of any other jurisdiction, which is waived by the Contractor.
