General Terms and Conditions of Sale
1. Scope of application
1.1 All contracts and supply transactions of Surfachem Deutschland GmbH, Richtweg 81, 90530 Wendelstein, Germany (referred to hereinafter as “Surfachem”), are exclusively governed by the following General Terms and Conditions of Sale (referred to hereinafter as “GTC Sale”) and the provisions of the individual contract concluded hereunder from time to time.
1.2 Once a contract has been concluded under these GTC Sale, all future (supply) transactions concluded with the customer in the context of ongoing business relationships shall be governed by these GTC Sale, too, even if Surfachem does not explicitly refer to them in such future transactions. This shall also apply if the customer becomes aware of these GTC Sale only after the first contract has been concluded between the parties.
1.3 Any agreements that deviate from these GTC Sale including but not limited to any conflicting conditions of business of the customer require the explicit written consent (§ 126 BGB -; German Civil Code) of Surfachem to be valid and must be specifically confirmed by Surfachem in writing (§ 126 BGB -; German Civil Code) for each individual contract. Otherwise, Surfachem shall in no case be bound by any conflicting conditions of business of the customer even if Surfachem does not explicitly reject them or, even though Surfachem is well aware of the customer”s conditions, delivers the goods to the customer without reservation.
1.4 Surfachem may change or amend these GTC Sale, subject to reasonable advance notice. Surfachem shall advise the customer of any intended changes or amendments to these GTC Sale in writing no later than two (2) months prior to the effective date of the changes or amendments. The customer shall be deemed to have consented to the changes if he has not rejected them by written notice to Surfachem by the effective date of the changes. Surfachem, in its advice of the intended changes to these GTC Sale, shall specifically explain to the customer the said consequence of customer”s failure to reject the changes.
1.5 These GTC Sale only apply in the relationship with entrepreneurs (“Unternehmer”) within the meaning of § 310 subs. 1 BGB (German Civil Code).
2. Offer; contract conclusion; order of priority
2.1 All offers submitted by Surfachem are non-binding unless they are designated or confirmed as binding in writing. Drawings, images, illustrations, measurements, weights and other performance parameters shall only be binding if this is explicitly agreed between the parties in writing.
2.2 If the customer issues a purchase order, this shall be deemed to constitute a binding offer for contract conclusion according to § 145 BGB (German Civil Code). The customer”s purchase order shall conform to the preceding offer from Surfachem, if any. Surfachem may accept the customer”s offer for contract conclusion within no more than two (2) weeks from submission by sending the customer an order confirmation unless the parties agree otherwise in writing.
2.3 Contracts with Surfachem shall be deemed concluded with the acceptance by Surfachem of the customer”s purchase order by written order confirmation; the contract shall however in any case be deemed concluded upon provision of the ordered goods or services at the latest.
2.4 Unless otherwise agreed in the individual contract from time to time, the following order of priority shall apply in the case of discrepancies or conflicts between the applicable provisions:
1. The individual contract with supplementary agreements, if any,
2. These GTC Sale,
3. the technical product specifications (“TDS”) and the safety data sheet (“SDS”), if available,
4. the elements essential to the contract (“vertragswesentliche Bestandteile”) stated in the offer from Surfachem (e.g. price, quantity)
2.5 Surfachem reserves all property rights and copyrights in the documents specified in sec. 2.1.
3. Customer”s contractual duties and other obligations
3.1 The customer shall ensure timely implementation of all necessary contributions, provisions and cooperation as required and at no expense to Surfachem. If the customer fails to cooperate or does not cooperate in a timely manner or in the way agreed between the parties, the customer alone shall bear the consequences of such failure (e.g. delays, additional expenses).
3.2 The customer, before processing or working the delivered goods, shall inspect them as to their appropriateness and fitness for the intended use, even if samples were delivered beforehand.
3.3 The customer shall provide Surfachem with the data stored on the customer”s systems such that they can be easily reproduced by Surfachem with no considerable effort or expense. The data carriers used for such purpose must be faultless in technical terms and in terms of contents, in particular they must be free from malware, viruses etc. If this is not the case, the customer shall compensate Surfachem for any and all damage which Surfachem incurs in connection with the use of these data carriers and customer shall insofar indemnify Surfachem from any and all third-party claims unless the customer is not responsible for the cause of damage (“nicht zu vertreten haben”).
4. Delivery and delivery time; subcontracting
4.1 Surfachem shall in no case be deemed in default of delivery (“Lieferverzug”) if and as long as the customer does not fulfil its cooperation duties, including but not limited to the obligation to provide the goods for processing or working or master pieces and/or information regarding the goods to be manufactured or the like.
4.2 Surfachem shall not be deemed in default of delivery (“Lieferverzug”) if and to the extent that Surfachem itself does not receive correct or timely delivery from its own sub-suppliers.
4.3 Deliveries shall be made “CPT [place of destination named in the individual contract] Incoterms® 2020” unless explicitly agreed otherwise in writing.
4.4 Surfachem shall either enclose the delivery note and the certificate of analysis (“CoA”) with the consignment or send the said documents to the customer electronically prior to the delivery.
4.5 The delivery dates and dates for the provision of services shall only be binding if Surfachem explicitly designates or confirms them as binding.
If an anticipated delivery date has expired without delivery, the customer shall be entitled to fix a reasonable additional period for delivery. If Surfachem fails to deliver within the additional period, the customer shall be entitled to withdraw from the contract. The withdrawal must be declared in writing.
The foregoing shall not apply if the contract in question is a fixed-date transaction (“Fixgeschäft”) within the meaning of § 286 subs. 2 no. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code) or if the customer may reasonably invoke the fact that it is no longer interested in the fulfilment of the contract.
If, in case Surfachem is in default of delivery (“Lieferverzug”), the customer claims damages in lieu of performance (“Schadenersatz statt der Leistung”), the scope of Surfachem”s liability shall be determined according to sec. 9.
4.6 Surfachem shall be released from its delivery obligation for the duration of any unforeseeable circumstances induced by outer elemental forces or acts of third parties which could not even be prevented by utmost care and diligence (“force majeure”) such as the impossibility to procure raw materials or transport means, the disruption of operations, strikes, lock-outs, fire or acts of God, epidemics or pandemics. In this case, any agreed delivery times shall be extended by the duration of the force majeure event but by no more than a maximum of six months. If the force majeure event ends during that period, the customer shall only be entitled to reject the delivery if acceptance of the delivery is unreasonable for the customer due to the lapse of time. If the force majeure event only ends after the expiry of the six-month period, this shall be deemed a definite irreversible impediment to performance and the customer shall be entitled to withdraw from the contract (§ 323 BGB -; German Civil Code). The same shall apply if and as soon as it becomes apparent that the force majeure event will be everlasting.
4.7 Surfachem shall be entitled to make partial deliveries or provide partial services if (i) the customer can use the partial delivery for the contractually agreed purpose, (ii) the delivery of the remaining goods is ensured and (iii) the customer does not incur considerable additional effort or additional costs or expenses (except if Surfachem promises in writing (§ 126 BGB -; German Civil Code) to bear such additional costs.
4.8 If Surfachem, at the customer”s request and expense, delivers or ships the goods to a destination outside Germany, the customer shall provide Surfachem with an unsolicited entry certificate (“Gelangensbestätigung”) or another comparable written documentation as proof of shipment abroad within five (5) working days (“Werktage”) from receipt of the goods at the destination. If the customer fails to submit such proof, it shall be liable to Surfachem for compensation if and to the extent that, as a result of the customer”s failure, Surfachem is required to pay value-added tax for the delivery in question unless Surfachem itself is at fault (due to any negligent or intentional misconduct on the part of Surfachem).
4.9 Surfachem shall be entitled to engage third parties as subcontractors to perform the contract unless the subcontracting is contrary to the customer”s legitimate interests. Surfachem shall be liable for the performance of the subcontractors in the same way it is for its own acts.
5. Prices; surcharge for small-volume purchases; terms of payment
5.1 The prices are stated in the individual contract concluded from time to time; the prices are “CPT [place of destination named in the individual contract] Incoterms® 2020”, plus statutory value-added tax.
5.2 Surfachem reserves the right to adequately adjust the prices originally agreed in the individual contract if and to the extent that, after conclusion of the individual contract, a cost increase occurs, in particular as a result of new bargaining agreements or changes in the material prices. The same shall apply in the case of a subsequent cost reduction. Surfachem shall submit proof to the customer to evidence the cost increase or cost reduction as soon as it has occurred.
5.3 Unless otherwise agreed between the parties in writing (§ 126 BGB -; German Civil Code), the invoices from Surfachem are due immediately after receipt and must be paid within 14 days from the date of the invoice, net. The invoice amount shall be transferred in EUR to the account stated in the invoice. Payment shall be deemed in time if the full amount has been received on one of the company accounts of Surfachem within the aforesaid period for payment. If the customer is in default of payment (“Zahlungsverzug”), Surfachem shall be entitled to charge default interest in the amount of nine (9) percentage points above the base interest rate.
5.4 If the customer is in default of payment (“Zahlungsverzug”) with respect to previous deliveries already executed by Surfachem, Surfachem shall also be entitled in its discretion to either withhold any deliveries not yet executed until the customer has made prepayment for these deliveries or, subject to grant of a reasonable additional period for payment, withdraw from the contract with respect to the deliveries not yet executed.
5.5 For every dishonoured or returned direct debit, the customer shall be liable to reimburse Surfachem for the costs incurred thereby including the costs of collection of the outstanding payment to the extent the customer is responsible (“zu vertreten haben”) for the cause triggering the costs.
5.6 Objections regarding the amount of the price which Surfachem has charged to the customer must be reported to Surfachem immediately after receipt (“Zugang”) of the invoice. The objections must be received by Surfachem within eight (8) weeks from receipt (“Zugang”) of the invoice by the customer. Any failure to raise objections in time shall be deemed to constitute approval of the invoice as to the amount. Any statutory rights and claims to which the customer may be entitled on the basis of objections raised after the expiry of the aforesaid period shall remain unaffected.
5.7 If Surfachem has granted the customer a period for payment with respect to a certain delivery (as specified in sec. 5.3 or an even longer period) and if, after conclusion of the individual contract, legitimate reason arises for Surfachem to doubt the customer”s creditworthiness or its ability to pay its debts or if Surfachem only then becomes aware of any such circumstances which already existed upon contract conclusion, Surfachem shall be entitled to revoke the grant of the period for payment and demand prepayment or the provision of security before the delivery is executed.
5.8 Notwithstanding any determination by the customer, Surfachem shall be entitled to credit payments from the customer against the customer”s older debts first. Surfachem shall inform the customer of the details of the crediting. Where costs and interests have accrued, Surfachem shall be entitled to credit the payments against the costs first, then against the interest and against the principal amount at last.
6. Passing of risk; inspection for damage during transport
6.1 The risk of accidental perishing or accidental deterioration of the goods shall pass to the customer as soon as Surfachem has handed over the goods to the carrier engaged by Surfachem.
6.2 The customer shall inspect the outward condition of the consignment without undue delay (“unverzüglich”) after receipt and shall explicitly point out any transport damage to the carrier”s personnel on site and ensure proper documentation of the damage for purposes of proof and notify Surfachem and the carrier of the damage both by phone and in writing without undue delay (“unverzüglich”). If the goods are delivered to a destination other than the customer”s address, the customer shall ensure that the inspection for damage during transport is carried out there according to the aforesaid requirements.
7. Duty to inspect; warranty for defects; limitation periods
7.1 The customer shall inspect the goods without undue delay (“unverzüglich”) after receipt and shall report any obvious defects which can be recognized during proper inspection including any transport damage (see sec. 6.2) to Surfachem in writing without undue delay (“unverzüglich”). Defects which could not even be detected during proper inspection carried out without undue delay (“unverzüglich”) must be reported to Surfachem in writing without undue delay (“unverzüglich”) after detection. If the customer fails to give notice of the defects within the applicable time limit, any warranty claims shall be excluded.
The same shall apply for complaints for wrong delivery or quantity variances.
7.2 Minor variances in the construction design or dimensions shall not give a right of complaint. Variances within the limits of the applicable quality standards known to the customer shall be deemed compliant with the contract.
7.3 In the case of duly reported defects of the delivered goods, Surfachem shall ensure subsequent performance (“Nacherfüllung”) by delivery of new goods free from defects (subsequent delivery -; “Nachlieferung”) except where the mandatory provisions governing the sale of consumer goods (“Verbrauchsgüterkauf”, §§ 478, 479 BGB -; German Civil Code) apply. If the subsequent delivery (“Nachlieferung”) fails, the customer may in its discretion either reduce the price agreed in the contract or withdraw from the contract. The customer shall only be entitled to claim additional damages if the conditions set out in sec. 9 are fulfilled.
7.4 If Surfachem accepts any returned goods and from time to time inspects, tests and/or processes the goods thereafter, this shall in no case be deemed an acknowledgement of the alleged defects of the returned goods.
7.5 The warranty obligation expires in any case where the customer alters, changes, processes or improperly treats the delivered goods and in particular if the goods are not stored according to the requirements set out in the MSDS.
7.6 Surfachem shall not give any warranty for the goods which the customer has made available to Surfachem for processing or working. With respect to those goods, the customer shall not be entitled to any warranty claims unless the defect is caused by the processing or working by Surfachem.
7.7 The limitation period for warranty claims is 12 (twelve) months from the passing of risk except where another mandatory period prescribed by law applies or the mandatory provisions governing the sale of consumer goods (“Verbrauchsgüterkauf”, §§ 478, 479 BGB -; German Civil Code) apply or Surfachem and the customer have agreed otherwise in writing (§ 126 BGB -; German Civil Code). The foregoing shall not apply either in cases where the liability of Surfachem is based on an intentional or negligent injury of the life or limb or health or in cases where Surfachem is liable for claims for damages which are based on intentional or grossly negligent acts including intentional or grossly negligent acts by Surfachem”s representatives or vicarious agents or other persons whom Surfachem engages in the fulfilment of its obligations (“Erfüllungsgehilfen”).
8. Reservation of title
8.1 Surfachem reserves title to the goods until all payments due in the business relationship with the customer have been received.
8.2 The customer bears the risk related to the goods delivered by Surfachem. The customer is obliged for the duration of the reservation of title to carefully treat the goods and take out and maintain sufficient replacement cost insurance at common conditions against common risks such as damage, loss, fire and water. If and to the extent that maintenance and inspection work is required, the customer shall carry such work out at its own expense in due time.
The customer hereby assigns to Surfachem the claim to which the customer is entitled against the insurer in the case of damage to the goods, as a first-priority claim to a partial amount equal to the price of the goods delivered by Surfachem subject to reservation of title (final invoice amount including VAT); Surfachem already now accepts the assignment. If the insurance does not cover the full amount of damage, Surfachem need not accept partial compensation only.
8.3 The customer is entitled to resell the goods delivered by Surfachem in the ordinary course of business. The customer already now assigns to Surfachem by way of security the customer”s claims from the resale or any other claims that take the place of the goods in an amount equal to the final amount (including VAT) stated in the invoice from Surfachem; the assignment takes place regardless of whether the goods delivered by Surfachem under reservation of title were resold after or without processing, transformation, combination, integration or mixing with other items. Surfachem already now accepts the assignment.
If the customer”s claims from the resale of the goods delivered by Surfachem under reservation of title or of the goods held by Surfachem in co-ownership are included in a current account, the claim assigned in advance shall be deemed to refer to the acknowledged balance or, in the case of insolvency of the buyer, to the then existing “causal” balance, in each case corresponding to the amount of the claims of Surfachem against the customer.
8.4 In case the goods delivered under reservation of title are processed, combined or mixed with products from other suppliers and if any of these suppliers may lawfully invoke an extended reservation of title (“verlängerter Eigentumsvorbehalt”) with respect the customer”s claims from the resale, the customer already now assigns to Surfachem the relevant claims from the resale at least to the extent and in the amount equal to Surfachem”s reservation of title to the resold goods. Surfachem already now accepts the assignment.
8.5 The customer”s authority to collect the assigned claims from the resale according to sec. 8.3 remains valid until revoked. This shall be without prejudice to the right of Surfachem to collect the claims itself.
If legitimate reason is given -; e.g. if the customer is in default of payment (“Zahlungsverzug”) or has ceased payments at all or if a petition in insolvency is filed against the customer”s assets or if the satisfaction of the claims against the customer is otherwise endangered -; , Surfachem shall be entitled to revoke the customer”s authority to collect the assigned claims. Until such time, Surfachem promises not to collect the claims itself. In the case of revocation of the customer”s authority, the customer shall in particular be obliged to mark the goods subject to reservation of title in a suitable manner without undue delay (“unverzüglich”) such that they can be easily identified by third parties as the property of Surfachem.
If Surfachem revokes the customer”s authority to collect the assigned claims, the customer shall provide Surfachem with a detailed list of the goods subject to reservation of title still available at that point in time, also including the goods which have already been processed or worked, and with a list of the assigned claims stating the names of the corresponding third-party debtors. In addition, authorized agents of Surfachem shall be entitled, during usual business hours and subject to reasonable prior notice, to access the customer”s premises to make reasonable enquiries and inspect the documents required for such purpose.
8.6 The customer may in no case pledge the goods delivered subject to reservation of title nor may the customer transfer title to the goods by way of security. The customer shall notify Surfachem without undue delay (“unverzüglich”) of all circumstances and incidents affecting the goods subject to reservation of title and the customer shall do anything, in particular make all declarations to Surfachem or a third party, required to ensure the validity and effectiveness of the reservation of title and the assignment in advance of the claims. The customer shall be liable for all costs incurred for judicial and/or extra-judicial intervention.
8.7 Surfachem shall, at the customer”s request and in Surfachem”s reasonably exercised discretion, release the security provided under this sec. 8 if and to the extent that the realizable value of the security permanently exceeds Surfachem”s total claim to be secured from time to time by more than 20% (twenty per cent).
9. Liability; product liability; traceability
9.1 Surfachem shall be liable according to the statutory provisions if the customer asserts claims for damages which are based on intentional or grossly negligent acts including intentional or grossly negligent acts by Surfachem”s representatives or vicarious agents or other persons whom Surfachem engages in the fulfilment of its obligations (“Erfüllungsgehilfen”).
9.2 If Surfachem is accused of a slightly negligent breach of a duty essential to the contract (“vertragswesentliche Pflicht”) the fulfilment of which is indispensable for the proper performance of the contract and the breach of which endangers the achievement of the contract purpose and on the compliance with which the customer is reasonably allowed to rely (so-called “Kardinalpflichten”), Surfachem”s liability for damages shall be limited to the typical foreseeable damage.
9.3 The liability for intentional or negligent injury of the life or limb or health as well as the liability of Surfachem under any other mandatory statutory provisions including but not limited to the Produkthaftungsgesetz (German Product Liability Act) remains unaffected. The liability of Surfachem for any intentional or negligent breach as described in Art. 82 of the General Data Protection Regulation (GDPR) remains unaffected, too.
9.4 The customer, in the inter-partes relationship with Surfachem, shall assume the sole risk as (co-)producer under the Produkthaftungsgesetz (German Product Liability Act) if and to the extent that the cause of damage lies within the customer”s sphere of responsibility and organizational control and the customer is liable as producer in the relationship to the third-party claimant. The customer explicitly undertakes in the aforementioned cases to indemnify Surfachem from any and all third-party claims. The customer shall, where appropriate, provide security according to the customer”s degree of responsibility in the inter-partes relationship with Surfachem. This shall in particular apply (but shall not be limited) to cases where the customer has supplied Surfachem with primary products.
The foregoing shall not apply in cases where the customer indeed provided Surfachem with goods for processing or working but the damage was caused by the processing or working by Surfachem.
9.5 If and to the extent that the liability of Surfachem is limited hereunder, this shall also apply for the personal liability for damages of the employees, personnel, staff, representatives, vicarious agents or other persons whom Surfachem engages in the fulfilment of its obligations (“Erfüllungsgehilfen”).
9.6 Unless otherwise stipulated hereinbefore, any liability of Surfachem shall be excluded.
9.7 If the customer forwards the goods delivered by Surfachem to third parties, the customer shall take appropriate measures to ensure the traceability of the goods. The customer shall in particular ensure that in the case of an intervention that is necessary for product liability reasons (e.g. product warning, product recall) the goods delivered to the customer by Surfachem can be localized and the last buyer of the goods can be identified and notified of the measures without undue delay (“unverzüglich”).
If the customer does not forward the goods delivered by Surfachem to third parties but employs/ uses them up for its own operational purposes, the customer shall likewise ensure that in the case of any necessary intervention as described in the preceding sentence 2 the goods still in stock or in use can be localized.
10. Confidentiality; confidential information; rights and duties
10.1 Unless stipulated otherwise in a separate written non-disclosure agreement between the parties, the confidentiality of information shall be maintained as set out in the provisions of this section.
10.2 “Confidential information” within the meaning of these GTC Sale shall include any and all written, electronic, oral, digitally embodied and any other information which the owner of such information (i.e. the individual or legal entity that has control over the confidential information) discloses to the recipient (any individual or legal entity to whom/which the confidential information is disclosed) and which fulfils the conditions set out in the following. The following shall be deemed to constitute confidential information:
(i) Business secrets, products, software, source code, know-how, images, illustrations, drawings, specifications, samples, descriptions, calculations, quality standards, quality agreements, inventions, business relations, business strategies, business plans, financial plans, human resources issues, digitally embodied information (data);
(ii) All documents and information which are subject to technical and/or organizational confidentiality measures and/or which are marked confidential.
(iii) The existence and the contents of any individual contract concluded under these GTC Sale.
Confidential information within the aforesaid meaning shall not include information which
(i) Was known or generally available to the public before its disclosure by the owner of the information or which becomes known or generally available to the public at a later point in time with no breach of an existing confidentiality obligation;
(ii) Was demonstrably known to the recipient already before its disclosure with no breach of an existing confidentiality obligation;
(iii) Was obtained by the recipient on its own without using, or referring to, confidential information of the owner;
(iv) Was made available to the recipient by an authorized third party with no breach of an existing confidentiality obligation.
10.3 The recipient shall be obliged
(i) To maintain strict confidentiality of the confidential information and only use it for the execution of the individual contracts concluded under these GTC Sale and the achievement of the purposes pursued thereunder;
(ii) To only disclose confidential information to those of its agents who need to know the information for the relevant purpose provided that the recipient ensures compliance by such agents with the provisions in this sec. 10 as if they were themselves bound by them;
(iii) To take adequate confidentiality measures to protect confidential information against unauthorized access by third parties and, when processing confidential information, to comply with any applicable statutory and contractual requirements regarding the protection of secrets and data protection;
(iv) – if the recipient is liable under the applicable law or by judicial or regulatory order to disclose the confidential information or parts thereof – to notify the owner of the information in writing (§ 126 BGB -; German Civil Code) without undue delay (“unverzüglich”) (if and to the extent this is permitted by law and feasible in practice) and make all reasonable efforts to limit the scope of the disclosure to the minimum and, if required, reasonably support and assist the owner of the information in obtaining a protective order to prevent the disclosure of the confidential information or parts thereof.
10.4 The recipient shall -; at the owner”s request or, in default of a request from the owner, no later than after fulfilment of all individual contracts concluded under these GTC and fulfilment of all purposes pursued thereunder -; return to the owner or destroy all confidential information including any copies thereof within seven (7) working days from receipt (“Zugang”) of the request or termination of the contract, as applicable (including any electronically stored confidential information); this shall not apply where the recipient is prevented from doing so by retention obligations agreed with the owner or imposed by law.
The destruction of electronically stored confidential information as described hereinbefore shall be implemented by complete and irrevocable deletion of the files (such that any access to the confidential information is impossible) or by irreversible destruction of the data carrier.
The destruction obligations shall not apply to confidential information which is subject to a retention obligation as described hereinbefore and, in addition, it shall not apply to confidential information the destruction or return of which is technically impossible; in this case the recipient shall demonstrate and prove that such an exceptional case is given. The recipient shall notify the owner of the technical impossibility of destruction or return of the relevant confidential information without undue delay (“unverzüglich”) after the recipient has become aware of the impossibility.
The recipient shall, at the owner”s request, confirm in writing that, to the extent possible, all confidential information has been deleted completely and irrevocably according to the foregoing requirements and the instructions from the owner.
10.5 The owner retains any and all property rights, rights of use and exploitation related to the confidential information; this shall be without prejudice to the rights to which the owner is entitled under the Gesetz zum Schutz von Geschäftsgeheimnissen (German Act for the Protection of Business Secrets – “GeschGehG”). The owner reserves the exclusive right to apply for proprietary rights, where applicable.
The recipient shall not acquire under these GTC Sale ownership of, or any other right to use, the confidential information -; except the right to use the confidential information for the purposes described above.
10.6 The recipient shall not in any way use, exploit or copy (especially by so-called reverse engineering, see below), and/or cause third parties to use, exploit or copy, confidential information for any economic purposes of its own other than the fulfilment of the relevant contract purpose and/or the recipient shall not apply for industrial property rights relating to the confidential information -; including but not limited to trademarks, designs, patents and utility patents.
10.7 Any monitoring, analysis, dismantling or testing of products and/or items by the recipient with the intention of becoming privy to business secrets (so-called reverse engineering) which the owner has disclosed to the recipient for the purposes of cooperation under these GTC Sale, is explicitly forbidden in terms of § 3 subs. 1 no. 2b, last clause GeschGehG (German Act for the Protection of Business Secrets).
10.8 The recipient undertakes to impose confidentiality obligations on its sub-suppliers and subcontractors, if any, to the same extent as is stipulated herein.
10.9 The confidentiality obligation described hereinbefore shall remain effective even after the termination of the contractual relationship and supply relationship between the parties for as long as the confidential information has not become generally known.
11. Set-off; retention rights
11.1 The customer is not entitled to set-off. This shall not apply if the customer”s counterclaim is based on the breach of a primary contractual duty to perform (“Hauptleistungspflicht”) of Surfachem within the meaning of § 320 BGB (German Civil Code) or if the counterclaim is undisputed or has been established by a final non-appealable court decision (res judicata).
11.2 The customer shall only be entitled to retention if and to the extent that its counterclaim is based on the same legal transaction as the claim of Surfachem. Otherwise, the customer is not entitled to retention.
12. Requirement of writing (“Schriftform”)
12.1 There are no oral side agreements to the present agreement.
12.2 Changes and amendments to, as well as the cancellation of, this agreement must be in writing (“Schriftform” according to § 126 BGB -; German Civil Code) to be valid. This shall also apply to any change or waiver of the requirement of writing.
The requirement of writing shall not apply to any oral agreements made between the parties after contract conclusion. However, also in this case, the parties are agreed that the content of any oral agreement must be confirmed in writing (§ 126 BGB -; German Civil Code).
12.3 Unless explicitly stipulated otherwise in these GTC Sale, the requirement of writing shall also be deemed satisfied by communication in text form (“Textform”) according to § 126b BGB (German Civil Code), e.g. email or fax.
13. Place of performance (“Erfüllungsort”); applicable law; place of jurisdiction
13.1 The place of performance (“Erfüllungsort”) is the corporate domicile of Surfachem.
13.2 The contractual relationship between Surfachem and the customer is governed by the law of the Federal Republic of Germany. The uniform UN Sales Law (United Nations Convention on Contracts for the International Sale of Goods – CISG) does not apply.
13.3 The place of exclusive -; even international -; jurisdiction for all disputes arising out of or in connection with this agreement is the corporate domicile of Surfachem if the customer is a merchant (“Kaufmann”), a legal entity under public law or a special fund under public law (“öffentlich-rechtliches Sondervermögen”). Surfachem may however also sue the customer at the customer”s corporate domicile. The foregoing shall not apply if another place of exclusive jurisdiction is prescribed by mandatory law.
14. Final provisions
14.1 If any individual provisions of these GTC Sale are or become invalid, the validity of the remaining provisions shall remain unaffected thereby. This shall not apply if the adherence to the contract constitutes unreasonable hardship for either of the contracting parties.
14.2 The customer shall only be entitled to transfer the rights and duties under the contract with Surfachem to a third party with the prior written (§ 126 BGB -; German Civil Code) consent of Surfachem. Surfachem shall only withhold the consent for good cause. The customer shall notify Surfachem without undue delay (“unverzüglich”) of its intention, if any, to transfer the rights and duties under the contract with Surfachem.