General Terms & Conditions of SURFACE und SURFACE systems + technology GmbH & Co. KG (hereinafter called SURFACE)
This english version of our terms and conditions is for informational purposes only. The german version of these terms remains the legally binding one.
§1 – General provisions, scope
- The general terms & conditions for the planning, development, fabrication, and delivery of scientific instruments, equipment, machinery, accessories, and services (subsequently called terms & conditions) are exclusively valid; opposing terms or terms of the buyer deviating from these terms and conditions are disregarded by SURFACE, unless SURFACE has specifically agreed to these terms in writing. The terms and conditions remain valid even if SURFACE, with the knowledge of deviating terms of the buyer, has unconditionally executed the contract.
- All regulations between SURFACE and the buyer for the execution of this contract are included in written form in the contract.
- SURFACE is not bound by buying terms & conditions of the buyer. SURFACE is also not bound by these if SURFACE does not explicitly object these terms.
§2 – Quotation, quotation documents
- Technical data, specifications, dimensions, and weights as well as all product information and figures in advertising materials and catalogs of SURFACE are nonbinding. They become binding after a written confirmation by SURFACE. SURFACE reserves the right to change specifications, data, and description of products in advertising materials and catalogs because of ongoing development and product improvement at any time.
- SURFACE reserves the copyright and ownership for price quotations, drawings, and other documents that are made accessible to the customer or buyer in the process of quotation or bidding. These documents are only entrusted in the customers care and must not be made available to third parties. They must be returned to SURFACE upon request.
- We can accept orders, which are to qualify as offer to buy according to §145 BGB, within 30 calendar days by a written order confirmation.
- SURFACE reserves the copyright and ownership of all figures, drawings, calculations, and other information, in material and immaterial form, including electronic documents, which are enclosed in a quotation. This applies also to documents that are marked as confidential. A transfer to third parties requires the explicit written agreement of SURFACE.
- SURFACE reserves the right to subcontract work to fulfil its obligations from a contract.
§3 – Pricing, payment terms
- If price quotation or order confirmation do not specify otherwise, prices are «ex works» and do not include transport, packaging, and delivery. These positions are billed separatley.
- SURFACE reserves the right to demand down payments, bank guarantees or another acceptable letter of credit (according to the guidelines of the ICC) to collateralize the payment obligation of the buyer.
- The statutory sales tax is not included in the quoted prices and will be billed additionally.
- All public taxes, fees, duties, and other charges that incur during an export contract or in the curse of the execution of a contract outside the Federal Republic of Germany are paid by the buyer.
- The deduction of a trade discount is excluded.
- If not specified otherwise by the quotation or order confirmation, the purchasing price is due without deductions 30 days after the invoice date.
- The customer is only entitled to set-off rights if the counterclaim is established legally binding and unchallenged, or if it is acknowledged by us. In addition the customer is entitled to set-off rights if the claim results from the same contract.
- If the buyer does not fulfil his payment obligations or other obligations resulting from the reservation of title, the buyers's financial state significantly declines, or the buyer halts payment, SURFACE has the right to deny further shipments or demand advance payment or guarantees prior to further shipments, demand compensation for nonfulfillment, and withdraw from the contract.
- If the payment terms are not met, we shall be entitled to bill interest on arrears at the rate charged to us by the bank for current account overdrafts, but at a minimum of 8 percentage points above the base interest rate of the European Central Bank at the time.
§4 – Completion and lead time
- The adherence to this obligation requires the timely and orderly compliance of the buyer to the buyer's obligations. Among others, these obligations are the supply of necessary samples or documents, necessary information, technical details and parameters, the completion of the stipulated down payment. The defense of lack of performance of the contract remains reserved.
- The compliance to the completion and delivery deadlines is subject to the correct and timely delivery of goods to ourselves. SURFACE will inform the buyer about delays and their cause in a timely manner and specify an updated completion and delivery date. The same applies if the buyer modifies or extends the original order and this causes a delay. This does not yield any acknowledgement of surcharges or default fees and interest.
- Completion and delivery deadlines are extended adequately if the noncompliance is a result of force majeure, collective action, or other events outside the influence of SURFACE. SURFACE will inform the buyer about these delays specifying reason and new completion and delivery date.
- If the buyer defaults the acceptance or culpably does not comply to other contractual obligations, SURFACE is entitled to compensation of the incurred damages, including additional incurred cost. SURFACE reserves the right of further claims.
- The liability of SURFACE is limited to the legal requirements if the delay of delivery is caused by a deliberate or grossly negligent contract violation; a violation by SURFACE representatives or servants is to be imputed to SURFACE. If the delay is not caused by a deliberate contract violation by SURFACE, the liability of SURFACE is limited to the foreseeable, typically expected damages.
- SURFACE is also liable according to the legal requirements if the delay of delivery is caused by the violation of an essential contractual obligation by SURFACE; in this case the liability of SURFACE is limited to the foreseeable, typically expected damages.
- Otherwise the liability of SURFACE for delayed delivery is limited to 2% of the value of the part of the order that cannot be used in a timely or contractual way because of the delay.
- Other legal entitlements and right of the buyer remain unaffected.
§5 – Reservation of proprietary rights
- The shipped goods remain the property of SURFACE until all claims resulting from the delivery of goods are fulfilled.
- Any processing and modification of the goods under reservation of proprietary rights and their joining with other parts and goods by the buyer or third persons is carried out for SURFACE. SURFACE gains property of the manufactured goods proportional to the value of the originally shipped goods.
- The buyer cedes all claims from resale of the delivered goods to SURFACE up to the amount due to SURFACE to secure the claims of SURFACE.
- If the buyer violates the contract, particularly by delayed or defaulted payment, SURFACE has the right to withdraw/redeem the delivered goods and the buyer has the obligation to surrender them. If the goods have been used, SURFACE can demand compensation for depreciation from the buyer without further proof of the loss of value. This compensation will be 25% of the buying price for the first half year period, and 10% for each subsequent half year period after delivery.
- If the law of a country prohibits the reservation of proprietary rights, but grants comparable rights, SURFACE can exercise these rights. Upon demand, the buyer is obligated to take all measures necessary – on the buyer's expense – for these rights to come into effect.
- In case of garnishment or other detriments of our property rights the buyer is obligated to immediately inform SURFACE and to put appropriate measures of protection into effect on the buyer's expense.
§6 – Transfer of risk, acceptance, packaging cost
- If the quotation or our order confirmation does not specify otherwise, delivery «ex works» is stipulated.
- The acceptance of the ordered goods is carried out in a stretched procedure, if not otherwise agreed upon. A pre-acceptance procedure is carried out in the presence of the buyer at the SURFACE works. After finished pre-acceptance, the goods are reported as ready to be shipped to the buyer. After delivery, the final acceptance test is carried out at the buyer's location. Each acceptance step is to be carried out on the contractually fixed date, or alternatively after readiness for the acceptance test has been reported.
- Obvious damage to the delivered goods must be reported to SURFACE immediately upon arrival of the goods. If damage is found at a later time, the buyer must prove that he has fulfilled his obligations in this regard.
- The return of transport packaging and other packaging materials according to the packaging ordinance is not accepted by SURFACE. The buyer is liable for proper disposal of the packaging materials on his expense.
- SURFACE will cover the shipment by a cargo insurance if the buyer demands so and no other written agreement exists; the cost of this insurance are born by the buyer.
§7 – Warranty for defects
- The buyer must notify SURFACE immediately in writing about defects or deficiencies of the goods.
- If a defect of the delivered goods exists, SURFACE has the choice whether subsequent fulfillment will be met through repair/refurbishing or the delivery of a new, non-defective replacement. In case of repair/refurbishing, SURFACE will repair or replace free of charge all those parts that are deficient as a consequence of a circumstance or event before the transfer of risk. Expenses for the repair/refurbishing are limited to the contractual buying price. Replaced parts become the property of SURFACE.
- A restart or extension of the warranty period by the subsequent fulfillment is excluded.
- The buyer has to grant SURFACE the necessary access and time for subsequent fulfillment, otherwise SURFACE is not liable for any consequences of the non-fulfillment.
- The liability for fraudulent intent and warranted properties remains unaffected.
- SURFACE is liable according to legal requirements if the buyer claims damages caused by deliberate or grossly negligent action including actions of SURFACE representatives or servants. If the damage is not caused by a deliberate contract violation by SURFACE, the liability of SURFACE is limited to the foreseeable, typically expected damages.
- SURFACE is liable according to legal requirements if SURFACE culpably violates an essential contractual obligation; in this case the liability is limited to the foreseeable, typically expected damages.
- The liability for culpable injury of life, body, or health remains unaffected; this applies also to the liability according to the product liability act (ProdHG).
- Any further liability is excluded.
- The statutory period for warranty claims is 12 months from transfer of risk or final acceptance (if applicable).
§8 – Liability for industrial and intellectual property rights and copyright
- In case of infringement of industrial and intellectual property rights or copyright by the use of the shipped goods SURFACE will either modify the shipped goods so that the aforementioned infringement is avoided or will avoid the infringement by granting a corresponding license.
- Both parties can withdraw from the contract if the necessary licensing is impossible in a timely or economically adequate manner. Damage claims remain unaffected from withdrawal.
- In addition the buyer has the right of recourse for undisputed claims of the intellectual property right or copyright holders or such claims that are res judicata.
- The aforementioned liability (subparagraph 1 to 3) is only effective if
- the buyer informs SURFACE immediately in writing of an alleged industrial or intellectual property right or copyright infringement,
- the buyer grants SURFACE a sufficient chance to modify the delivered goods,
- the buyer aids in the defense agains the property right or copyright claim, so that SURFACE can bring forward an appropriate defense,
- the buyer leaves all measures of defense including extrajudical settlement to SURFACE,
- the aforementioned infringement is not the result of a directive of the buyer, a modification of the delivered goods, or the use of the goods in violation of the contract between SURFACE and the buyer.
§9 – Joint liability
- Any further liability exceeding the provisions in §§6 and 7 is excluded diregarding the legal nature of the liability claim. This applies in particular to claims resulting from culpa in contrahendo, from other breaches of duty, or tortious claims of damage compensation according to §823 BGB.
- The limitation or exclusion of liability also applies to the personal liability of our personnel, employees, associates, representatives, and servants.
§10 – Usage rights of software
- If the delivered goods include software, SURFACE grants the buyer a simple, non-exclusive license to use the software including the delivered documentation. This license covers only the use of the software on the delivered equipment. Any use beyond this is explicitly forbidden.
- The buyer must use the software wihtin the legal limitiations according to §§69a ff UrhG.
- All other rights to the software and documentation remain at SURFACE, or for software from third parties, at the respective party.
§11 – Data protection
- Both contract parties observe the rules of data protection. We implement business relationships by means of data processing centres. Name, address and bank account of the customer, together with data from the contract implementation are therefore recorded and stored in a file. The customer is hereby informed about this data storage. There is no data transfer to third parties. The SURFACE data protection policy to comply with EU-GDPR can be found via the following link: https://www.surface-tec.com/dataprotection_en.php.
§12 – Nontransferability of contractual rights
- The buyer is prohibited from transferring his contractual right to third parties without the explicit consent of SURFACE.
§13 – Place of fulfillment and jurisdiction
- If our customer is a businessman, legal entity under public law or a seperate property under public law: The place of fulfillment for the services performed by us and our customers is our headquarters Hückelhoven; place of jurisdiction for all disputes is Mönchengladbach.
§14 – Final clause
- The validity of these terms and conditions remains unaffected as a whole if single terms of these terms and conditions are or become partially or totally ineffective or prohibited by law. The ineffective or prohibited regulations are then replaced by regulations that come as close as possible to the economic purpose of the original terms in a legally permissible way. Corresponding regulations are in effect if gaps requiring further elaboration are found during the execution of these terms and conditions, of if terms are found to be impossible to execute due to actual or legal reasons.
- According to §26 Bundesdatenschutzgesetz SURFACE advises that individual-related data of the buyer can be stored.
- The law of the Federal Republic of Germany shall apply with the exclusion of UN international trade law.
- Compulsory specification for complaints procedures: The European Commission has set up an Online Dispute Resolution (ODR) platform for the purposes of out-of-court settlement, or Alternative Dispute Resolution (ADR). It can be found via the following link: http://ec.europa.eu/consumers/odr/
The following conditions apply to all orders placed via our online shop.:
§15 – Contractual partners, conclusion of the contract
- The purchase contract is concluded with SURFACE.
The display of products within the online shop constitutes a binding offer on our part to enter into a contract
vis-à-vis the items. You may place our products in your basket without obligation and amend your entries at any time prior to submitting a binding order by using the correction facilities that are provided for this purpose and explained during the ordering process. The contract is formed by clicking on the order button which indicates your acceptance of our offer concerning the goods contained in your basket. Once you have sent your order you will immediately receive a confirmation via e-mail.
§16 – Payment
- In our online shop you may choose from the following payment methods: Credit Card
§17 – Delivery conditions
- Delivery costs are added to the product prices as displayed. Delivery charges are explained within individual product offers. Costs relating to the remedial measure such as shipment, transport and tax costs shall not be reimbursed by us and are not included in our offer. A refund will not be paid. If conditions arise which prevent compliance with delivery schedules, SURFACE will not be liable for any damage or penalty for delay in delivery, or for failure to give notice of delay. Delays will not be grounds for cancellation. Delivery occurs Ex Works on the actual shipping date, and title and the risk of loss transfer to you upon shipment.
§18 – Final provisions
- In the event of any inconsistency, the German version is the original language and the englisch version is a translation for information purposes only. Then in case of conflict, the German version will prevail and will therefore be the binding version for both parties.