§ 1 General
(1) These General Terms and Conditions shall apply exclusively; we shall not recognise any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we deliver the goods or perform the service without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our General Terms and Conditions.
(2) Our General Terms and Conditions shall only apply vis-à-vis entrepreneurs, governmental entities, or special government estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).
§ 2 Offer and conclusion of contract
(1) The customer's order constitutes a binding offer which we can accept within two weeks by sending an order confirmation or by delivering the goods or performing the services.
(2) Unless otherwise stated on the quote, our offers (quotes) are invitations to tender and are subject to change at any time without notice.
(3) In the case of orders from outside the European Union, they shall be accepted subject to the condition precedent that the Federal Office of Economics and Export Control (BAFA), Frankfurter Straße 29-35, 65760 Eschborn, Germany, gives any necessary required authorization for the sale, delivery, transfer and/or export of the products to an embargoed country. In this case, the customer is obliged to make all declarations required for approval and to provide reasonable evidence, in particular, a certificate of end-use and/or an import certificate.
(4) The documents (illustrations, drawings, diagrams and similar) and information provided to the customer, such as weight specifications, dimensions and performance data, are only approximate indications. We reserve the right to make design or form changes as well as technical changes and other deviations from our offer if these deviations are not fundamental, the contractual purpose is not restricted and the change is reasonable for the customer. This shall also apply if this is necessary due to statutory regulations or the state of the art in order to achieve the purpose of the contract.
§ 3 Prices and terms of payment
(1) Unless expressly agreed otherwise, our prices shall apply ex-warehouse or ex-works, excluding freight and insurance. The prices are subject to value-added tax at the respective statutory rate. All public charges (taxes, fees, customs duties, etc.) arising from or in connection with the conclusion or execution of the order outside Germany shall be borne by the customer.
(2) Payments for products, services, repairs and contract work are to be made within the agreed payment terms after receipt of the invoice. The deciding factor for the punctuality of the payment shall be the date of crediting of the entire price without any deductions to our account. We reserve the right to demand advance payment from the customer.
(3) Unless otherwise agreed, payment of the purchase price or the remuneration shall be made in Euro by bank transfer.
(4) For all claims that have not been settled within the agreed payment terms after the receipt of the invoice, default interest in the amount of 9% above the respective base interest rate (sec. 288 (2) BGB) shall accrue from the 1st day of default. We reserve all rights to claim further damages for delay.
§ 4 Offset, Right to Retain
The customer shall be entitled to offset only insofar as the customer’s counterclaims are legally valid, undisputed, were accepted by us or determined in a legally binding judgement. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. We are entitled to exercise a right of retention with respect to all claims arising from the business relationship with the customer.
§ 5 Time of performance
(1) The time of delivery and performance shall be determined by the agreements between the contracting parties. Compliance with agreed deadlines and dates requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or approvals or the payment of a prepayment. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if we are responsible for the delay. Changes or extensions to the original scope of delivery or services agreed upon after the conclusion of the contract shall reasonably extend or postpone the original delivery periods or dates.
(2) The delivery period shall be deemed to have been observed if the delivery item has left the ANEST IWATA EUROPE GmbH factory before the agreed deadline or readiness for dispatch has been notified from ANEST IWATA EUROPE GmbH to the customer before the agreed deadline.
(3) Insofar as it is impossible for us to comply with performance periods and deadlines due to force majeure, including, but not limited to, all government action, declared or undeclared war, floods, fires, earthquakes, unusually severe weather conditions, epidemics, pandemics, civil unrest, riots or other civil disturbances, downtimes due to virus or hacker attacks, road conditions and construction, statutes, legislation, ordinances, court orders or regulations (including changes of these statutes, legislation, ordinances, court orders or regulations), strikes or labour disputes, inability to secure raw materials, supplies or labour, or any other event, cause, contingency or circumstance beyond our control, we shall be released from the performance obligation for the duration of the impediment. During this period, the customer is not entitled to set a grace period with the aim of withdrawing from the contract or claiming damages. Insofar as we are responsible for the impediment to performance, our obligation to perform and the right of the customer to set a grace period shall remain unaffected; however, the grace period must be calculated in such a way that the impediment to performance can probably be remedied within the grace period. We will inform the customer immediately after the occurrence of the impediment of performance about the period of time which will probably be necessary to remove the impediment of performance.
(4) In case of default of acceptance or other breach of obligations to co-operate by the customer, we are entitled to claim any resulting damages including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such default in acceptance or breach of obligations to co-operate.
(5) Compliance with the delivery period is subject to correct and punctual delivery by our own suppliers. We will inform the customer as soon as possible of any imminent delays.
(6) We shall be entitled to render partial services insofar as these can be used independently by the customer.
(7) If the customer suffers a delay for which we are responsible, the customer shall be entitled to demand lump-sum compensation for the delay. It shall amount to 0.5% for each full week of delay, but not more than 5% of the contract value to which the delay relates. Further claims shall be determined exclusively in accordance with § 8 of this General Terms and Conditions.
§ 6 Passing of risk
(1) If the customer demands shipment of the goods, the dispatch takes place at the expense and risk of the customer. Deliveries shall only be insured against transport damage upon express request of the customer and at the customer’s expense.
(2) The risk of loss or damage of the delivery item shall pass to the customer when the delivery item has been packed, is ready for shipment and has been moved to the designated place in our warehouse.
(3) If the delivery is delayed or fails to take place due to circumstances for which we are not responsible, the risk shall pass to the customer from the date of notification of readiness for delivery.
(4) If the customer breaches any of these General Terms and Conditions or any contract between us and the customer, we shall be entitled to withdraw from the contract or demand damages after unsuccessful expiry of a cure period of 14 days. We are not obliged to set a cure period if the customer seriously and finally refuses acceptance or is obviously unable to pay the price even if a cure period is granted. In this case, we shall be entitled to demand a flat-rate compensation of 10% of the agreed delivery price for lost profit. However, the customer has the right to prove that no damage or less damage has been incurred by us. We also reserve the right to prove and assert higher damages.
§ 7 Liability for defects
(1) If a defect exists at the transfer of risk, the customer's warranty claims shall be limited, at our option, to the elimination of the defect or delivery of a defect-free item [subsequent performance (Nacherfüllung)]. In case of subsequent performance, the customer shall set a reasonable cure period in each individual case, which must be at least two weeks. If we refuse subsequent performance, if it fails, if it is unreasonable for the customer or if it has not taken place within the reasonable period determined by the customer, the customer may, at its discretion, demand a reduction in price or withdraw from the contract or - in the case of a contract for work and services - remedy the defect by itself at our expense. Withdrawal from the contract shall not be permitted if the defect is insignificant. Self-performance of remedy by the customer shall not be permitted if we have rightfully refused subsequent performance. Otherwise, we shall only be liable in accordance with § 8 of these General Terms and Conditions.
(2) The customer must notify us in writing of obvious defects within two weeks of the passing of risk. Defects which are not obvious must be notified to us immediately after their detection. If the notification is not made within the aforementioned periods, the warranty rights of the customer shall expire. This shall not apply if we have fraudulently concealed the defect or assumed a guarantee for the quality of the products.
(3) If our operating or maintenance instructions (or those of the manufacturer) are not followed, changes are made to the products, parts are replaced or consumables are used which do not correspond to the original specifications or unsuitable or improper use is made, faulty assembly or commissioning is made by the customer or any third parties, the warranty becomes null and void unless the customer proves that none of the foregoing circumstances caused the defect of the products.
(4) If, at the customer's request, the scope of delivery or performance is changed after the conclusion of the contract and the quality or suitability of the delivery item or the work to be produced by us is thereby impaired, the customer shall not claim for defects insofar as the impairment is attributable to the customer's requests for changes.
(5) Warranty claims shall be time-barred after 12 months from the passing of risk.
(6) Further claims of the customer, in particular, due to consequential damages (Mangelfolgeschäden), are generally excluded unless otherwise stated in § 8.
§ 8 Liability for damages
(1) In case of intent or gross negligence on our part or by our vicarious agents, representatives or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of our breach of fundamental contract obligations. To the extent the breach of contract is unintentional, our liability for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
(3) Any liability not expressly provided for above shall be excluded.
§ 9 Retention of title
(1) We retain title to the delivered products until all existing and future claims against the customer have been settled. In case of breach of contract by the customer, including, without limitation, default in payment, we are entitled to take possession of the products.
(2) The customer is obliged to treat the products delivered by us with due care as long as the ownership has not yet been transferred to the customer. In particular, the customer shall be obliged to maintain suitable insurance for the products at its own expense against theft, fire, water and other damage. The customer shall assign to us all rights arising from the insurance contracts and its claims against the insurers. In particular, the customer shall also be obliged to store the products properly after delivery if they are supposed to be assembled later.
(3) If maintenance and inspection work has to be carried out before the transfer of ownership, the customer must carry this out in good time at its own expense.
(4) The customer shall not create any lien, pledge, encumbrance, mortgage, or other conflicting ownership, conflicting security interest or restriction of any kind or nature whatsoever in respect of the products subject to our retention of title. The customer must inform us immediately of any enforcement measures taken by third parties concerning the products subject to our retention of title. Furthermore, the customer is obliged to hand us over the documents required for an intervention to protect our title in the products, which also applies to the prevention of impairments of any other kind. Irrespective of this, the customer must inform the third parties in advance that the title to the products is subject to our retention. The customer shall bear our costs for any intervention taken to protect our title in the products unless the third parties reimburse them.
(5) In the event of resale or leasing of the products subject to retention of title, the customer hereby assigns to us all rights against the counterparty which arise from such transactions, until all our claims have been satisfied. If the products subject to our retention of title are processed, reshaped or combined with another item, we acquire direct pro-rata ownership of the resulting item. Notwithstanding our right to claim direct payment, the customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the customer complies with all its obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(6) Insofar as the above-mentioned securities in our favour exceed the secured claim by more than 10%, we are obliged, upon our selection, to release such securities upon the customer’s request.
§ 10 Software
(1) Insofar as the scope of delivery also includes operating software subject to license, we shall grant the customer a simple, non-exclusive and non-transferable right to use this software on the delivered system in the program state (release) valid at the time of delivery only in conjunction with the associated hardware upon full payment of the invoice from the delivery. Special license terms apply to user software, which is handed over to the customer together with the software. If it is necessary to install the software, only the installation instructions contained in the documentation shall apply. It is the customer's responsibility to satisfy the system requirements (hardware or other software) necessary for the proper performance of the installation.
(2) The customer is not entitled to change, copy or use the software in deviation from § 10 (1), except for back-up purposes. In all other respects, the mandatory provisions of the German Copyright Act (Urheberrechtsgesetz) shall apply in addition with regard to the rights to use the software.
(3) All other rights to the software and the documentation including the copies shall remain with the author or owner of the exclusive right of use.
(4) In no event shall we be required to make available the source code of the software.
§ 11 Confidentiality, industrial property rights and data protection
(1) The parties undertake to maintain the strictest secrecy towards other parties with regard to all confidential information, in particular business or trade secrets, which come to their knowledge in the course of their activities for the respective other party and not to pass this on or otherwise exploit it. This applies to any unauthorised third parties, i.e. also to unauthorised employees of the parties, insofar as the disclosure of information does not serve the proper fulfilment of the contractual obligations. This obligation shall apply indefinitely, even beyond the termination of the business relationship. In case of doubt, each party shall be obliged to ask the other party for its consent prior to such disclosure. The foregoing obligations shall not apply to such facts which are demonstrably obvious or belong to the known state of the art or which had already come to the knowledge of the respective party prior to notification by the other party or which were communicated again after notification by the other party by third parties who were not subject to any confidentiality obligation.
(2) We reserve title and copyright to all contractual documents such as drafts, drawings, calculations and cost estimates. They may not be reproduced or made accessible to third parties without our prior consent. We are exclusively entitled to rights to patents, utility models, etc., even if they have not yet been registered. Reproduction of our products is only permitted upon our prior written consent.
(3) With regard to the collection, processing and transmission of data, the procedure shall be in accordance with the statutory provisions. The data necessary for the business transaction will be stored and passed on to third parties to the extent necessary for the fulfilment of the contract. The customer expressly agrees to comply with the applicable statutory provisions which apply to the collection, processing and use of personal data.
§ 12 Compliance with re-export requirements
(1) The customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with these General Terms and Conditions that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.
(2) The customer shall undertake its best efforts to ensure that the purpose of § 12 (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.
(3) The customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of § 12 (1).
(4) Any violation of § 12 (1), (2) or (3) shall constitute a material breach of an essential element of the contract (“wichtiger Grund”), and without limitation to our other rights, we shall be entitled to seek appropriate remedies, including, but not limited to:
(a) terminate any contract associated with these General Terms and Conditions, as well as terminate the business relationship with the customer as a whole; and
(b) demand a contractual penalty in the amount of 5 % of the net price of the products exported in breach of contract or of the total value of the underlying contract with us, whichever amount is higher. The right to claim higher damages remains unaffected.
(5) The customer shall immediately inform us about any problems in applying § 12 (1), (2) or (3), including any relevant activities by third parties that could frustrate the purpose of § 12 (1). The customer shall make available to us any information concerning compliance with the obligations under § 12 (1), (2) or (3) within two weeks of our simple request of such information.
§ 13 Place of performance, applicable law and jurisdiction
(1) Unless otherwise specified in the contract, the place of performance for any obligations out of or in connection with the business relationship between us and the customer shall be our place of business.
(2) The law of the Federal Republic of Germany shall apply to this contract; the UN Convention on Contracts for the International Sale of Goods shall not apply.
(3) The exclusive place of jurisdiction for all disputes arising from or in connection with the business relationship between us and the customer shall be the court responsible for our place of business. However, we are also entitled to sue the customer at its general place of jurisdiction.