General Terms and Conditions of Supply
1 General information; quotation and conclusion of the contract; copyright; minimum order value; data protection
1.1 These Conditions of Supply (General Contract Conditions) are the basis for all deliveries and services of ANFIM s.r.l. (hereinafter called ‘ANFIM’ or the “Supplier”). Conditions of purchase in derogation hereof shall not become the subject of the contract - even if the order has been accepted - and shall be valid only if they have been agreed expressly in writing. Customers within the meaning of these General Terms and Conditions are exclusively entrepreneurs, companies and legal entities and professionals. Customers are natural persons and legal entities that, upon conclusion of the contract, act in execution of their commercial and independent professional capacity.
1.2 Unless otherwise provided for, ANFIM's quotations are never binding. In the absence of a special agreement, a contract will not be concluded unless it is confirmed by ANFIM's written order acknowledgement. Therefore, the supply contract (the “Contract”), regulated by these General Contract Conditions, is deemed to be concluded as soon as the Supplier confirms acceptance in writing of an order (“Order Confirmation”) after receipt of it.
1.3 Documents associated to ANFIM’s agreements, quotations and brochures as well as pictures, drawings, illustrations and descriptions, measurements and weight specifications contained in ANFIM's agreements, quotations and brochures, shall be binding only if they are the subject matter of a special written contract with the Customer. ANFIM shall reserve the copyright of all the afore mentioned documents. Said documents may not be copied or made accessible to third parties without ANFIM’s written consent, nor may they be used for the self-made production of corresponding items and systems. Said documents are to be returned to ANFIM upon request.
2.1 Prices for goods of each purchase will be those indicated in the ANFIM’s Prices List in force on the date of submission of the purchase order by the Customer or the different prices offered by ANFIM to the Customer by using the Order Confirmation as long as these prices are confirmed in the Order Confirmation. Unless otherwise expressly agreed in writing by the Parties, the Supplier’s prices are net Ex Works Milano according Incoterms 2010, or latest version, and they are exclusive of packaging, insurance, custom duties and transport expenses. herefore, custom and stamp fees, contract taxes, fees for import, export and transit authorisations, as well as all other taxes and costs relating to import and export, such as - but not limited to - bank charges, insurance premiums, etc., shall be borne by the Customer. Prices are subject to the statutory rate of VAT.
2.2 A minimum order value of EUR 50,00 net shall apply. For orders below this threshold ANFIM reserves the right to charge a processing fee of EUR 10,00.
2.3 For orders with a value below EUR 1.000,00 packaging costs of EUR 20,00 will be charged in addition to the actual costs of delivery.
2.4 Services, which are not included in ANFIM's Order Confirmation, will be invoiced separately.
3 Period of delivery
3.1 The period of delivery will be established by mutual agreement of the contracting Parties; unless otherwise expressly agreed in writing between the Supplier and the Customer, the delivery terms are merely indicative and calculated on working days’ basis. If prepayment has been agreed, the period of delivery starts upon receipt of the prepayment by ANFIM.
3.2 In case of unforeseen and unavoidable events in the production or other obstacles such as acts of god, labor disputes or other disruptions in ANFIM’s business or in the business of ANFIM’s suppliers as well as delayed delivery by ANFIM’s suppliers (hereinafter, jointly or individually considered, the “impeditive events”) ANFIM shall not be held liable for a delay in delivery and it will be entitled to extend the delivery period by a period of time equal to the duration of such force majeure event. In the aforementioned cases, ANFIM will inform the Customer of the start and end of such impeditive events as soon as possible.
3.3 A delay in delivery due to one of the impeditive events set forth under § 3.2 above, shall not authorise the Customer to terminate the Contract unless the delay is exceeding a time period of 90 days to be calculated from the expiry of the delivery period previously agreed. In any case, ANFIM will not be responsible for the harmful consequences and damages that may arise from impeditive events which fall outside its sphere of control.
3.4 If the delay in the delivery is due to a reason for which only the Customer is responsible, ANFIM will be entitled to extend the delivery period by a period of time equal to the duration of the reason that caused the delay and to claim for compensation of any direct or indirect damage or cost suffered as a consequence thereof.
3.5 Apart from the cases considered above, whenever ANFIM were to be overdue (by more than 15 days) following the delivery periods, the Customer shall be entitled to a penalty of one-half percent (0.5%) of the total value of the goods per each entire week of delay, but only up to a maximum of five percent (5%) of the value of the goods delivered late, while any recoverability of further damages is excluded, pursuant to art. 1382 first paragraph, of the Civil Code. Notwithstanding the above provisions, the Customer may terminate the contract only in case the delay is exceeding 90 days and, however if the delay is entirely imputable to wilful misconduct or gross negligence of ANFIM.
3.6 Further damage claims by the Customer shall be considered and determined exclusively according to § 10.1. of these General Contract Conditions.
3.7 Partial deliveries are permissible to the extent such partial deliveries are not unreasonably burdensome for the Customer.
4.1 Payments must be made in the invoiced currency to the bank designated by ANFIM, except as otherwise agreed. Payments in another currency will be converted at the exchange rate applicable on the day on which the received payment is converted.
4.2 The timely fulfilment of the negotiated terms and conditions of payment will not be influenced by any warranty. Further, the setoff of payments shall be excluded, unless the Customer's counterclaims have been recognised by declaratory judgment or expressly acknowledged in writing by ANFIM. The Customer may exercise a right of retention only if its counterclaim is based on the same contract.
4.3 If the Customer remains in arrears with a payment for longer than 10 days, the entire residual amount shall become due
immediately. Any default interest, stamp duties and collection expenses related to the processing of bills of exchange shall be borne by the Customer. The Customer shall pay interests which will be calculated in compliance with Italian Legislative Decree 9 October 2002, N. 231.
5 Retention of ownership
5.1 All the products delivered by ANFIM shall remain in ANFIM’s ownership until full payment of the price by the Customer has been executed and until all obligations arising from the business relationship have been met in full, in particular until all cheques and bills of exchange offered in payment have been redeemed. Until this point in time, the Customer is not authorised to resell, pledge or mortgage the goods to third parties or to transfer them as security unless it is not expressly authorized in writing by ANFIM. In case of resell of the product by the Customer to third parties, pursuant to and for the purposes of Article 1478 Civil Code, the third party buyer shall acquire ownership of the product in the exact moment its price is fully paid to ANFIM.
5.2 Except for other written agreement by the Parties, the authorization to resale shall be deemed subject to the condition precedent of the simultaneous transfer in favour of ANFIM of all claims resulting from the resale, but within the limits of the value of the Products supplied by ANFIM. Therefore, the Customer shall notify the own client / third party buyer the transfer of any claim regarding the price of the Product(s) in favour of ANFIM and provide the latter with every information and documentation necessary for the enforcement of any right of claim arising from the resale.
5.3 ANFIM, whenever it deems it appropriate, may waive the right to retain title from the above §§, and transfer ownership of the Product to the Customer prior to his entire payment expressed via written notification.
5.4 The Customer shall also engage any act, conduct or performance useful to support the protection of the rights of ANFIM arising from this article.
6.1 In the absence of special instructions from the Customer, ANFIM shall procure the packing and handling of the consignments to the best of its knowledge and ability, but without any responsibility and with the right to decide, at its sole discretion, without any possible possibility of claim by the Customer, the modes of transport/carriage and/or which transport agents shall be appointed for the consignments.
6.2 All consignments shall travel uninsured at the Customer´s risk. The Customer will accept the full risk as of dispatch Ex-Works or warehouse (in the case of pickup of goods: at the time of making the goods available), the full risk for their damage, destruction or loss, even if the delivery is carriage-paid or assembly is included in the delivery. ANFIM will insure the goods only if expressly demanded by the Customer. All insurance costs will be charged to the Customer.
The packaging will not be taken back, unless it is designated as ANFIM´s property. In that case, it must be returned free of freight charges to ANFIM. In other cases, the Customer undertakes to reutilize or recycle the packaging in compliance with all the applicable law in force.
8 Assembly and installation
8.1 If assembly and/or installation are included in the delivery price, this shall not include the auxiliary staff to be provided at the Customer’s request, which will be provided at the Customer’s own expense. Any waiting times or supplementary time expenses incurred by ANFIM’s assembly staff, which were not incurred due to ANFIM’s fault, will be charged separately, which also applies to all additional expenses that go beyond the agreed upon assembly costs.
8.2 The Customer shall accept full responsibility for liability and accident risks that are caused by its personnel or assistants it provides, even when the assembly work is ANFIM’s responsibility. If, in connection with the assembly, said persons suffer injuries, ANFIM shall be responsible only in cases of intent or gross negligence.
9.1 The warranty period for all new parts, parts subject to wear and tear as grinding discs, is 12 months as of the date of delivery of the product.
9.2 The Customer must immediately examine the supplied goods for deviations in quantity and quality and report defects obvious and immediately identifiable, at the latest within a time limit of 8 working days upon receipt of the goods; otherwise, the assertion of the warranty claim shall be excluded. Hidden defects are to be reported within 8 working days upon discovery. The Customer has the full burden of proof with respect to all claim requirements, in particular with respect to the defect itself, the time of discovering the defect and the timeliness of the notice of the defect.
9.3 Pursuant to the above-said, ANFIM warrants as follows:
9.3.1 To the extent supplied goods are unusable in whole or in part due to defects ANFIM will, at its sole reasonable discretion, choose to cure the defect at no cost to the Customer or deliver, at no cost to the Customer, goods without defects (collectively, “Supplementary Specific Performance”). ANFIM is not responsible for damages due to natural wear and tear during the time of use.
9.3.2 The Customer must grant to ANFIM a reasonable period of time and reasonable opportunity to permit Supplementary Specific Performance that will be performed by ANFIM at its sole reasonable discretion. Should the Supplementary Specific Performance fail, the Customer has the option, instead of demanding performance, to (i) reduce payment (price reduction) or (ii) terminate the contract by means of written notice to the Customer in accordance with article 1456 of the Italian Civil Code and claim damages within the scope of the limitation of liability referred to under § 10, or (iii) to perform Supplementary Specific Performance itself or to cause a third party to perform such Supplementary Specific Performance and, in each case, demand reimbursement of the costs associated therewith, only (i) in case of emergency relating to operational security (ii) to avoid unreasonably high damages or (iii) when ANFIM do not execute the Supplementary Specific Performance. The Customer must notify ANFIM immediately of an occurrence of any of the events described in the previous sentence.
9.4 In the case of breach of contract which is negligible or not due to wilful misconduct or gross negligence of ANFIM, the Customer has no right to request the termination of the Contract.
9.5 In principal, only ANFIM’s product description shall apply as to the quality of the goods. Public statements, praise or advertising do not represent any contractual properties of the goods.
10 Liability of ANFIM, limitations and exclusions
10.1 Notwithstanding the provisions made somewhere different, the liability of ANFIM is excluded for all cases of objective liability and slight negligence.
10.2 In particular, ANFIM shall not assume any liability for:
damages resulting from accidents of any kind to occur during the use of the Product(s), when these accidents result from a use that is not compliant with the intended use, the technical, technological and performance specifications of the Products;
failures, defects or damages due to a lacking observance by the Customer or the user of the using instructions provided by ANFIM and/ or the Client.
10.3 The Customer's damage claims due to a defect become statute-barred one year from delivery, unless ANFIM is charged with intention to wilful misconduct or gross negligence or in the case of personal injury or injury to health or in the case of the customer's loss of life.
10.4 The overall liability of ANFIM arising from the performance or breach of the Contract governed by these General Contract Conditions shall not exceed the value of the product to which such liability is related.
10.5 In no case, the limitations and exclusions of liability in the above Conditions shall limit or exclude:
the liability towards the final consumer resulting from action of omission by ANFIM in case of death or injuries to the person of the final consumer;
the liability of ANFIM in case of fraud or gross negligence in accordance to article 1228 of the Italian Civil Code;
the liability of ANFIM for fraudulent concealment of defects or lack of promised quality of the delivered goods;
the liability in cases where the action of Schaeffler or its auxiliary persons represent violations of obligations deriving from provisions of public order.
11 Concluding provisions; place of performance, place of competent jurisdiction and notification of claims
11.1 The Contract between ANFIM and the Customer is subject to Italian law, excluding the UN Convention on International Sales of Goods and - as far as legally permissible - the conflict-of-laws rules.
11.2 Unless other written agreements exist from the respective Order Confirmation, the place of performance and the exclusive place of competent jurisdiction for both Parties shall be Milan (Italy). ANFIM however has the option to assert its rights also before the jurisdiction of the Customer's registered office.
11.3 Side agreements to the Contract or these General Contract Conditions are valid only in writing.
11.4 Any claim of the Customer has to be notified in written to the registered office of ANFIM within 8 working days upon receipt of the goods or upon discovery of the defects will be deemed as not valid and not accepted by ANFIM.
If any provision of this agreement is invalid or unenforceable or prohibited by the law of the country where it is to be performed then unless such provision materially affects the interest of any party under this agreement such provision shall be considered divisible and shall be inoperative and shall not be part of the consideration moving from either party hereto to other. The remainder of the agreement shall be binding and valid and of like effect as though such provision was not included herein. If any provision of this agreement which materially affects the rights or interest of either party under this agreement is invalid or unenforceable or prohibited by law, then the party shall have the right or terminate the agreement forthwith.
13.1 The personal data communicated to the Customer for the purposes of contractual relationships governed by these General Contract Conditions shall be kept in the archives of ANFIM with the adoption of appropriate security measures to prevent unlawful processing.
13.2 The processing of the provided data will respect the requirements of law on protection of personal data (Legislative Decree D. Lgs. 196/2003 and subsequent amendments concerning the protection of persons and other subjects regarding the processing of personal data and its subsequent amendments and additions) using methods ensuring their security and confidentiality.
13.3 The data of the Customer may be used exclusively for the purposes underlying the contractual relationships governed by these General Contract Conditions and may also be disclosed to companies or third parties (including, without limitation, banks, couriers, forward agents, auditors, independent professionals), who cooperate or perform specific tasks on behalf of ANFIM.
13.4 The data of the Customer may also be processed by employees, consultants and collaborators, internal and external, of ANFIM or of companies belonging to the same group acting as “assigned processors”, in accordance with the instructions from the data controller (and / or the persons responsible). The data of the Customer and of the Partners shall not be disclosed. This does not affect the rights recognized in article 7 of Legislative Decree D. Lgs. 196/2003 and subsequent amendments.
13.5 The data controller is ANFIM S.r.l. Via B. Verro 33/5, 20141 Milano.
Milan, 1st January 2015