1. Applicable Law, Place of Jurisdiction and Place of Performance
a) All relationships between the Berliner Nanotest und Design GmbH (hereinafter referred to as Nanotest) and the contracting party are exclusively subject to the law of the Federal Republic of Germany.
b) Place of jurisdiction for all disputes between Nanotest and the contracting party is the competent court at the registered office of Nanotest in Berlin, Germany.
c) Agreed place of performance is the registered office of Nanotest.
2. Applicability of T&Cs
a) Nanotest supplies and provides in accordance with these Terms and Conditions.
b) Nanotest hereby expressly rejects any alternative or supplementary terms and conditions of the client. Such terms and conditions also do not apply when on-sided provided as the basis of an order or other statement by the client. The execution of an order does not imply that Nanotest acknowledges the client's terms and conditions.
c) If, at the client's request, Nanotest partially accepts contradictory or additional Terms and Conditions when accepting an order, this shall only apply if it is declared in writing.
d) Any change or adjustment in General Terms and Conditions will not influence earlier contracts.
a) Orders must be in writing. A client’s order shall not be deemed to have been accepted until confirmed. Any additions, amendments or collateral agreements shall not be valid unless confirmed by Nanotest in writing.
b) If the order confirmation provided by Nanotest is different from the client's order, the client is obligated to check the changes which shall be deemed to be approved if the client does not object within 10 days.
c) For immediate deliveries the invoice shall constitute the confirmation of order.
a) Nanotest will typically fulfil orders using its own human and material resources. In addition, Nanotest is entitled to commission subcontractors or its own suppliers to execute an order and to create or commission the creation of photos, drawings and documents without the need for specific consent by the client.
b) Samples provided by the client will only be returned by Nanotest after the execution of an order if this is expressly agreed upon in writing and the return shipment of the samples is not subject to permit requirements. This particularly applies to samples the client has sent to carry out measurements. Nanotest is not liable for the accidental loss of samples.
c) The shipping and returning of samples take place at the risk of the client. This applies even if Nanotest deviates from the client's instructions concerning the method of dispatch without any compelling reason or carries out the shipment with its own means of transport and/or employees.
d) In the case of damage, the client shall promptly provide Nanotest with a confirmation of damage note issued by the transport company or transport manager to avoid the loss of all claims.
5. Client’s Obligations
a) The client shall provide Nanotest with any information, documents and samples necessary for the execution of the order free of charge and in a timely manner. Nanotest shall be informed of any events and circumstances that may recognizably be relevant for the execution of the order in time and without specific request.
b) Hazardous samples or special handling requirements for samples shall be expressly stated by the client.
6. Terms of Payment and Taxes
a) Payments shall be made in accordance with the respective agreements without deduction. Nanotest reserves the possibility to claim in a quotation a prepayment of 30 percent of the net scheduled price within fourteen days after an order confirmation.
b) In the case of default or if the payment due date has expired, Nanotest is entitled to charge interest at the rate of eight percentage points above the respective base rate according to § 247 BGB.
c) Unless explicitly determined otherwise, the payment must be transferred to Nanotest’s following business account: IBAN: DE16 1005 0000 0063 6303 11, BIC: BELADEBEXXX
d) Retention and set-off are excluded unless the counterclaims are not disputed by Nanotest or legally established.
e) If the client defaults on the down payment or other contractual obligations, Nanotest is entitled, at its discretion, to withdraw from the contract or to claim damages.
f) Unless otherwise indicated in a quotation, the prices herein exclude all applicable taxes. The client has to deliver information necessary for application of VAT. Regarding VAT regulations, Nanotest is identified by its VAT code DE813955346. A possible tax liability of the invoice recipient is pointed out.
a) The delivery dates stated (dates and periods) shall only be binding for Nanotest if expressly confirmed as binding in the confirmation of order.
b) Binding delivery dates shall be extended by a reasonable period if Nanotest is prevented from meeting the delivery owing to circumstances for which it is not to be made responsible. If a delivery becomes impossible for reasons which fall into Nanotest’s sphere of responsibility or if Nanotest falls into default and has not delivered by the time a reasonable extension has expired the client is entitled to withdraw from the agreement. This shall have no effect on the right to demand compensation for the delay or inability to supply. Any duty to render compensation on Nanotest’s part shall be based solely on Chapter 11.
c) Unless otherwise agreed the client shall bear the costs of dispatch or delivery and of packaging. This also applies to return shipments of the goods or the packaging.
d) If the order is to carry out measurements, it is fulfilled when Nanotest has provided the measurement results to the client in written form.
8. Retention of Title
a) Delivered goods remain the property of Nanotest until full payment of the purchase price and to cover any incidental claims has been received.
b) Should the client fail to fulfil his contractual obligations, especially in the event of default of payment, Nanotest is entitled to take back the delivered product; the client is obliged to hand over the article. The redemption request does not constitute a withdrawal from the contract unless this is expressly stated by Nanotest.
c) The client is obliged to immediately notify Nanotest in the event of seizure or any other third-party interventions concerning the delivered goods to allow Nanotest to exercise its rights to the article.
9. Acceptance and Notional Acceptance
a) An acceptance by the client shall be made no later than one month after delivery.
b) The unconditional operation for more than four weeks is equivalent to the acceptance by the client.
a) The warranty period on electronics and mechanical parts included in or with any item of the delivery lasts 12 months beginning at the day of the delivery and installation. Included with the delivery may be goods manufactured by third party manufacturers. If the manufacturer of such goods provides for guarantees with regards to such goods, the rights of the client arising from such guarantees are additional to those the client has according to these General Terms and Conditions. Such guarantees cannot be construed as guarantees given by Nanotest. Any guarantee provided with third party’s goods as stated above not complying with guarantees provided by Nanotest are not exceeded.
b) Claims will only be considered if they are made by the client in writing immediately upon receipt of the goods.
c) Nanotest fulfils its warranty obligations by supplementary performance. Nanotest is entitled to choose a supplementary performance.
d) The client is entitled to a price reduction or compensation for damages only if the legal requirements are met. Claims for damages are limited in amount by the value of the goods or services provided.
e) Warranty claims are excluded if interventions have been made to the product or result of the service by the client or a third party.
f) No warranty is assumed for damages that have arisen for the following reasons: unsuitable or improper use, faulty assembly or operation by the client or third parties, normal wear and tear, incorrect or negligent treatment, unsuitable cleaning agents, unsuitable building ground or building, chemical, electrochemical or electrical influences.
a) Claims for compensation and for the reimbursement of expenses on the part of the client are excluded unless due to intent, gross negligence, injury to life, health or body or a violation of essential contractual duties. This also applies to damages resulting from remedial work.
b) The amount of a claim for compensation because of violation of essential contractual duties, for initial inability or for fault on the part of vicarious agents is limited to the total amount of the remuneration due under the agreement from the client and, as a maximum for all damage incurred because of the agreement, to EUR 1.000.000. Regarding goods of third-party manufacturers Nanotest’s liability is limited to the value of the order of the client (net scheduled price for the product). The before mentioned limitations also apply to liability of Nanotest’s legal representatives, employees and vicarious agents.
c) If the client is entitled to claims for compensation under this clause such claims shall become statute-barred after a two-year period. As far as claims for compensation for goods of third-party manufacturers are concerned such claims become statute-barred after a one-year-period. This does not apply to claims for compensation from torts, which are subject to the statutory limitation period. This does not affect mandatory product liability requirements.
d) The measuring devices of Nanotest have been created and verified with great care and to the best of our knowledge and belief, as well as measurements are carried out with great care and to the best of our knowledge and belief. A liability for quality and legal defects, for applicability, correctness and freedom from errors is excluded- except in case of intent or malice. This also applies to specific, direct or indirect damages, including loss of profit or other consequences, due to erroneous measured values and/or improper or incorrect use of the measuring devices.
12. Manuals and Documentation
a) Nanotest reserves title and copyright in drawings and other documents. Before passing such documents to third parties the client shall obtain Nanotest’s express written consent.
b) Nanotest does not guarantee completeness of manuals and documentation. Nanotest shall not be liable for any damage resulting from falsely interpreted instructions. The client is advised to clarify any ambiguity beforehand in contact with Nanotest. Furthermore, Nanotest is not liable for any instructions given by third party’s manuals that may be included with the order.
c) For any damage resulting from clearly wrong instructions or false advice in any other written form applies Nanotest’s liability stated in Sec. 10.
13. Intellectual Property
a) Nanotest owns all intellectual property rights, such as copyrights, patent rights and trademarks, for the goods distributed and manufactured by it. The client must observe these rights. He may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, de-compile, disassemble, decrypt or otherwise reduce the software or any products. The same applies to intellectual property rights for products of third party manufacturers according to their general terms and conditions.
14. Protection of Privacy
The client allows Nanotest to process client data provided in connection with the business relationship for its own business purposes in accordance with applicable legal provisions. In particular, Nanotest may store data or transmit data to a credit protection agency as long as this is done within the context of the purpose of the contract or is necessary to protect the legitimate interests of Nanotest and there is no reason to believe that the legitimate interest of the client to the exclusion of the processing, in particular the transmission, of this data predominates.
If any provision is wholly or partly invalid, the remaining provisions shall remain effective.
Last updated: Sep 24, 2018