General terms and conditions of business

In case of queries concerning our general terms and conditions of business, our customer service department will be happy to assist you. Please contact:

Surplex customer service
Tel.: +49 (0)211 422737 - 0
Fax: +49 (0)211 422737 - 17
E-Mail:info(at)surplex.com

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A. General regulations for all contracts


A. 1. Surplex

Surplex GmbH (“Surplex”) is a leading international used machines service provider which offers tailored solutions for production operations, machine manufacturers and their sales partners, banks and insolvency administrators. In particular, the service portfolio includes expert reports, purchases, order marketing, online auctions, storages, clearances, dismantling measures and individual combinations of services.


Surplex provides a trading space on the Internet (“online”), which essentially consists of a database, a website and various data programming systems (hereinafter referred to as: “Surplex platform”) through which the used machines, devices and other surplus goods and remaining stock (hereinafter referred to as: “Objects”) are marketed.


Furthermore, Surplex offers its customers support in the marketing of Objects through traditional sales and other brokerage and support services outside of the Surplex platform (“offline”).


A. 2. Area of applicability


(1) These Surplex general terms and conditions of business shall apply to all types of deliveries and services which Surplex provides to its customers online (referred to in summarised form as: “Online services”) and offline (referred to in summarised form as: “Offline services”) or receives from its customers; Online services and Offline service are also referred to together as “Surplex services”. Should a contract or more than one contract exist between Surplex and the Customer, these Surplex general terms and conditions of business shall be part of the said contract(s) and shall be applicable, unless agreements to the contrary are concluded. For offline auctions and for special services (provision of advice, valuations, inspections, deliveries) separate general terms and conditions of business shall also apply, which may refer to these Surplex general terms and conditions of business.


(2) Any terms and conditions of the Customer or any provisions of the Customer which alter the contract are hereby being objected to; these shall only be effective if Surplex agrees to their inclusion in writing.

(3) Diese Surplex-AGB gelten nur gegenüber Unternehmern i.S.d. § 14 BGB, juristischen Personen des öffentlichen Rechts oder öffentlich-rechtlichen Sondervermögen i. S. v. § 310 Abs. 1 BGB; diese werden nachfolgend als "Kunden" bezeichnet. Sonstige Personen dürfen die von Surplex angebotenen Leistungen nur mit ausdrücklicher Zustimmung von Surplex in Anspruch nehmen.


(3) These Surplex general terms and conditions of business shall only apply in relation to entrepreneurs as defined in § 14 of the German Civil Code (BGB), legal persons under pubic law or public law special funds as defined in § 310 Paragraph 1 of the German Civil Code (BGB); these are referred to below as “Customers”. Other persons may only use the services provided by Surplex with the express agreement of Surplex.


A.3. Surplex remuneration

Surplex shall be entitled to remuneration for the provided services (“Surplex remuneration”) in accordance with the specifics of the respective contract.


A.4. Prices, payments, set off

(1) The statutory value added tax is not included in the prices quoted by Surplex, rather this is charged separately at the respectively applicable statutory amount on the day of issuing of the invoice.
(2) All invoices must be paid by the Customer immediately without any discount. Should the Customer fail to make payment within seven (7) calendar days of receipt of the invoice, it shall enter default, without the need for a warning.
(3) The setting off by the Customer, as well as the assertion of rights of retention (also of a commercial nature) shall only be permitted if the underlying counterclaims are undisputed or have been recognised by a court.


A.5. Registration

(1) Customers who wish to use the Online services of Surplex must register for these. For this purpose, the Customer must fully and truthfully provide the information requested in the registration form and provide identification by means of an official identity document. The Customer hereby provides an undertaking that it is not a consumer as defined in § 13 of the German Civil Code (BGB), rather it is an entrepreneur, legal person under public law or a public law special fund as defined in § 14 of the German Civil Code (BGB) and that the information provided by it is truthful and complete. The Customer shall be obliged to immediately notify Surplex of any changes to the data which has been provided.
(2) During the registration process, the Customer selects a membership name and password. The membership name must not breach any third party rights, in particular naming or trademark rights, and must not infringe common decency. The Customer shall be obliged to immediately inform Surplex should it have reasons to suspect that the saved data is being abused by third parties.
(3) Should the Customer be registered by a representative, Surplex shall be entitled to request proof of the power of representation. Surplex shall determine the specifics concerning the proof of power of representation.
(4) By means of the acceptance of the registration by Surplex, a framework contract concerning the agreement and performance of contracts in accordance with the specifics of these Surplex general terms and conditions of business shall come into existence between Surplex and the Customer.
(5) By means of the acceptance of each individual order, a contract shall come into existence between Surplex and the Customer on the basis of the terms of the order and these Surplex general terms and conditions of business, unless the contrary is agreed in an individual case. No claim of the Customer to the acceptance of orders or the placing of Objects in the Surplex platform shall exist. Surplex shall reserve the right to reject the placing of an Object in the Surplex platform.


A.6. Administration of the Surplex platform

(1) The administration of the Surplex platform shall be the sole responsibility of Surplex.
(2) In order to describe the Object and carry out the respective transaction, the Customer must follow the instructions which are provided online.
(3) The right of the Customer to use the Surplex platform is limited to the internal business purposes of the Customer and shall be determined exclusively in accordance with the contract and these Surplex general terms and conditions of business. All other rights in respect of the Surplex platform shall remain reserved.
(4) Surplex hereby reserves the right to reject an Object, purchase attempt, offer or acceptance without the giving of reasons or to assign an Object to a product group other than that stated by the Customer. Surplex shall be entitle to alter the user interfaces of the Surplex platform. Should a deadline be determined according to date and time, the time of the system clock or Surplex shall be exclusively decisive.
(5) The price statements made by Surplex in the selected currency shall apply exclusively. Conversions of price statements provided on the Surplex platform merely serve the purpose of non-binding information for the Customer.
(6) The identification data of the Customer is hidden to all other users when any declarations are made by the Customer. Only in cases where a contract has come into direct existence between two Customers, as well as in the case of an on-site visit is Surplex entitled to disclose contact data of other Customers to Customers. The identification data of the Customer, as well as the data transmitted to Surplex in connection with the conclusion of a transaction will be saved by Surplex in a machine readable form. The data will only be used by Surplex in order to operate the Surplex platform and to carry out the Surplex services. Surplex is entitled to keep data in respect of completed transactions saved. The Customer hereby declares its agreement to such by means of the registration. The Customer can revoke its agreement to the use of data at any time.
(7) Unless otherwise agreed, the Customer shall be obliged to create the necessary environment for the use of the Surplex platform and to provide Surplex with all necessary information and knowledge for the carrying out of a transaction. In addition, the Customer shall immediately inform Surplex of recognisable and threatened disruptions to the Surplex services and shall support Surplex in investigating the causes and correcting these.


A.7. Confidentiality, contractual penalty

Also for 12 months following the end of the contract, the Customer shall be obliged to treat in the strictest confidence all commercial and technical information which it receives from Surplex, in particular the personal data of other Customers and all information concerning the Objects, unless such information is generally known (without the Customer being responsible for such) and shall not use such or duplicate such information for purposes other than the fulfilment of the contract or make it accessible to third parties. This shall also apply in respect of information which the Customer receives during on site visits, as well as to all technical documents, cost quotations, drawings and calculations which are provided to the Customer within the framework of the negotiations and performance of the contract. Ownership, authoring and other rights in respect of such documents shall remain reserved.
For each case of breach of this clause, the Customer must pay Surplex a contractual penalty to the amount of 3,000.00 €. The right of Surplex to assert the reimbursement of losses due to the breach of obligations which go beyond the above shall remain unaffected.
In case that the Customer uses the documents named above without being entitled to do so, Surplex shall be entitled (in its own name or in that of the legal owner) to demand their immediate surrender.


A.8. Prohibition of solicitation

For the duration of the contractual co-operation, as well as for up to 12 months following its termination, the Customer shall be obliged not to actively solicit employees of Surplex or of another Customer.


A.9. Guarantees of the Customer, release

The Customer hereby guarantees that all statutory provisions which apply to its business operation, in particular the regulations under supervisory, competition and data protection laws are being complied with and that the sale or purchase attempts submitted by it do not breach laws or third party rights, in particular ownership rights, rights of lien or other rights in rem, or patent rights, trademark rights or copyright or other property rights. The Customer shall release Surplex from all third party claims which are asserted in connection with a breach of the obligations stated above on the part of the Customer.


A.10. Liability

(1) Surplex shall incur liability in case of intent and gross negligence. In case of simple negligence, Surplex shall incur liability for losses connected to injury to life, body or health, as well as for losses connected to the breach of essential contractual obligations (cardinal obligations). Essential contractual obligations are those whose fulfilment is essential for fulfilment of the contract and on whose compliance the contracting partner regularly relies and may rely. In case of a breach of essential contractual obligations, the liability of Surplex shall be limited to reimbursement of losses which are foreseeable and occur typically.
(2) The above-mentioned restrictions shall not apply should Surplex have fraudulently concealed a defect or assumed a guarantee for a specific quality.
(3) Should the liability of Surplex be restricted or excluded in accordance with the provisions above, this shall also apply to any liability on the part of its organs, employees, vicarious agents or agents in performance.


A.11. No responsibility for content provided by the Customer

(1) Declarations of intent and other legal statements or actions which are published by Surplex following a request by a Customer or which are conveyed to or received by another Customer shall be attributed exclusively to the Customer and are forwarded on by Surplex as a messenger. Such actions shall not give rise to any entitlements or obligations on the part of Surplex and Surplex shall not act as a representative to this extent.
(2) Surplex cannot guarantee that the person named as the provider or recipient in the declarations of intent which are conveyed or received by Surplex actually exists. The Customer who submits are accepts such an offer is therefore acting at its own risk in respect of the existence of the other contracting partner. This shall apply accordingly in respect of the creditworthiness of the other contracting partner. In addition, it is not possible for Surplex to fully rule out a membership number, password or a URL coming into the possession of a person who is not authorised to issue declarations of intent. This risk shall be borne by the Customer itself. Number A. 10. shall remain unaffected.


A.12. Subcontractors

Surplex shall be entitled to deploy subcontractors for all Online or Offline services; the liability of Surplex in relation to the Customer in accordance with Number A. 10. shall remain unaffected.


A.13. Declarations

All declarations and notifications to be submitted in accordance with the contract or these Surplex general terms and conditions of business shall only be valid if made in writing. The written form requirement shall also be deemed to have been complied with if the declaration is submitted on the Surplex platform by using the masks provided there or by email.


A.14. Assignment

With the exception of payment claims, the Customer shall only be permitted to assign the rights under the contract with the prior agreement of Surplex.


A.15. Choice of law and place of jurisdiction

(1) The contractual relationships between Surplex and the Customer shall be subject exclusively to German law, to the exclusion of the United Nations Convention governing the International Sale of Goods.
(2) The exclusive place of jurisdiction for all disputes under and in connection with a contract or these Surplex general terms and conditions of business shall be Düsseldorf. However, Surplex shall be entitled to bring a lawsuit against the Customer at its place of business.


A.16. Other

Should any individual provisions of the contract be or become ineffective or should the contract contain a loophole, the validity of the remaining clauses shall remain unaffected thereby. It is hereby agreed that the ineffective provision shall be replaced by an effective clause which comes closest to the sense and purpose of the ineffective provision and/or which fills the said loophole.


B. Supplementary special provisions for commission contracts


B.1. Sales commission contract

By means of the acceptance of an order of a Customer which wishes to engage Surplex in respect of the sale of an Object in its own name but on account of the Customer (if applicable also by means of an auction), a sales commission contract shall come into existence between the Customer as the Principal and Surplex as the contractor (commission agent) on the terms and conditions listed below.


B.2. Ownership, insurance, confidentiality

Until the sale of the Object, the Object shall remain the property of the Principal. The Principal shall insure the Object against fire, other damage and theft. If expressly agreed, Surplex shall treat the identity of the Principal confidentially in relation to prospective purchasers.


B.3. Inspection

The Principal hereby permits Surplex and prospective purchasers named by it to inspect the Object.


B.4. Prohibition of offers elsewhere

For the duration of the contract, the Principal shall be prohibited from offering the Object for purchase elsewhere. Should the Principal breach the above prohibition, it shall be obliged to pay damages to Surplex in accordance with the statutory provisions.


B.5. Right of self intervention

Surplex shall be entitled to purchase the Object itself (right of self intervention in accordance with § 400 of the German Commercial Code - HGB).


B.6. Delivery

The Principal shall be obliged to dismantle the Object and make it available for collection, unless otherwise expressly agreed.


B.7. Defect claims

Surplex shall not grant the buyer any rights in respect of possible material defects or defects of title of the Object which go beyond the statutory rights of the buyer, unless the Principal has agreed to a supplementary provision in an individual case. The Principal shall release Surplex on first request from all claims of the buyer connected to possible material defects or defects of title in respect of the Object.


B.8. Purchase price

Surplex shall be entitled to agree a payment deadline of up to three months. Surplex may not fall below any agreed minimum price without the agreement of the Principal. Surplex shall not assume any liability in respect of the creditworthiness of the buyer (no del credere).


B.9. Commission

Surplex shall receive commission in accordance with the specifics stated in the contract. The calculation basis for the commission is the net purchase price, i.e. the purchase price without taking into account disassembly, transportation, insurance and other costs and without value added tax. The value added tax will be charged on the commission to the statutory amount.


B.10. Collection, offsetting, rendering account

(1) Surplex shall be entitled to collect the purchase price claim and set it off against its own commission claim. The Principal shall not be entitled to collect the purchase price claim.
(2) Surplex shall render account within one month of receipt of the purchase price and will pay the purchase price minus commission to the Principal.


C. Supplementary special provisions for sales contracts with Surplex as the seller


C.1. Offer and conclusion of the contract, object description

(1) Should an order be considered an offer in accordance with § 145 of the German Civil Code (BGB), Surplex can accept this within 2 weeks. Cost quotations shall be non-binding and only contain invitations for the Customer to make offers.
(2) The type and scope of the respective object of purchase are in accordance with its textual description. Photographic images shall be non-binding. These can deviate from the original and only serve the purpose of the representation of the general object type. Accessories and work tools are only part of the object of purchase if expressly stated as such. Additional information which is not contained in a catalogue or on the Surplex platform can be obtained at the storage location if applicable. Each Customer is required to inspect the Objects as far as possible. Inspection appointments must be agreed with Surplex.


C.2. Handed over documents

Surplex shall reserve ownership rights and copyright in respect of all documents which are handed over to the Customer in connection with the issuing of the order, such as calculations, drawings etc. The said documents may not be made accessible to third parties, unless Surplex issues the Customer with its express written agreement in this respect. Should the offer of the Customer not be accepted within the deadline stated in Number C. 1. (1), the said documents must be returned to Surplex immediately.


C.3. Delivery/collection of the Objects, costs, transfer of risk

(1) Unless otherwise agreed, the delivery of the object of purchase shall take place ex factory/warehouse (drop shipment). The prices stated by Surplex are to be interpreted accordingly.
(2) Delivery dates or deadlines shall only be considered to have been agreed to be binding in case of an express written confirmation by Surplex. Compliance shall require fulfilment of all delivery terms and conditions which the Customer must comply with. Fixed transactions shall require an express confirmation.
(3) Surplex shall be entitled to provide partial deliveries, provided that this is reasonable for the Customer.
(4) Unless other collection obligations, in particular specific collection times are agreed, the Customer shall be obliged to take receipt of the purchased Objects at their storage location immediately following conclusion of the sales agreement, at the latest one week following conclusion of the sales agreement. However, the Objects will not be delivered until full payment has been made.
In case of exceeding the collection deadline, the Customer shall incur liability for the costs incurred as a result, in particular the storage and maintenance of the Object. Any storage and shipping shall take place at the expense and risk of the Customer. In case of exceeding the collection deadline, Surplex shall be able to set a reasonable period of grace for collection. Following the fruitless expiry of the period of grace, Surplex shall be able to choose between further storage, exploitation or scrapping of the Object, in each case at the expense of the Customer.
(5) Unless otherwise agreed, the transportation of the Objects from the storage location shall take place at the expense of the Customer. In particular, the Customer shall bear all transportation, insurance, packaging and handling costs, as well as all export duties and taxes.
(6) In case that shipping of the object of purchase is agreed, the shipping shall take place at the risk of the Customer, unless otherwise stated. The risk of possible destruction and possible deterioration of the object of purchase shall be transferred to the Customer at the time of dispatch at the latest at the time of leaving the factory/warehouse (drop shipment). This shall apply regardless of whether the dispatch takes place from the place of performance or who bears the shipping costs.


C.4. Payment of the purchase price

The purchase price is payable immediately following conclusion of the sales agreement. Should the Customer enter default concerning a payment of the purchase price, the claim shall accrue interest as of the time of entering default at a rate of 9 percentage points above the respective base rate of interest (§ 288 Paragraph 2 of the German Civil Code - BGB). In case of non-payment of the purchase price, Surplex shall be entitled to the statutory rights of rescission of the contract or demanding damages in lieu of performance. Should Surplex rescind the contract and/or demand damages, Surplex shall be able to exploit the Object once again. The Customer shall not be entitled to bid during the new exploitation. Should Surplex demand damages, the Customer must also reimburse the costs of a new exploitation of the Object, as well as any reduction in revenues. The Customer shall not have any claim to additional revenues.


C.5. Reservation of ownership

The delivered objects of purchase shall remain the property of Surplex until the full purchase price has been paid. The Customer shall be obliged to immediately inform Surplex of all third party attacks against the objects of purchase which are subject to reservation of ownership; in particular, the Customer must immediately inform Surplex of enforcement measures or other seizure and of all damage caused to the objects of purchase. Should an object of purchase be located in or delivered to a country where the above-mentioned reservation of ownership is not fully effective, the Customer shall be obliged to provide Surplex with equivalent security.


C.6. Defect claims

(1) The items offered for sale by Surplex are second hand and are not newly manufactured, unless expressly stated otherwise in an individual case.
(2) Second hand and non-newly manufactured items are sold without any warranty.
The exclusion shall not apply to damages claims due to a grossly negligent or intentional breach of obligation, or due to injury to life, body or health.


C.7. Online auction

(1) Surplex states a starting price and determines the deadline for the submission of bids in terms of date and time (period of the online auction). The corresponding declarations represent a binding offer for the sale of the Objects. The offer is addressed to the bidder who submits the highest bid during the period of the online auction.
The Customer declares the binding acceptance online by means of the submission of a bid. The acceptance must state a purchase price which is above the current bid by one or more of the bidding steps stated by the online mask. The bid shall expire if another bidder makes a higher offer during the period of the online auction. The official Surplex time is decisive for the measuring of the period of the online auction.
The sales agreement in respect of the Object shall come into existence between Surplex and the bidder who has submitted the highest bid by the end of the period of the online auction.
(2) Should Surplex enter an offer in the auction stating a minimum price and, if applicable, under other terms and conditions to be agreed, the sales agreement in respect of the Object shall come into existence between Surplex and the bidder who has submitted the highest bid by the end of the period of the online auction and has reached at least the stated minimum price.


D. Supplementary special provisions for sales contracts with Surplex as the buyer


D.1. Conclusion of the contract

By means of the acceptance of the offer of a Customer who wishes to sell an item to Surplex, a sales agreement shall come into existence between the Customer and Surplex in accordance with the provisions of these Surplex general terms and conditions of business. Surplex hereby reserves a deadline of one week for the acceptance of the offer.


D.2. Defect claims, liability

(1) Defect claims and liability of the Customer shall be in accordance with the statutory regulations.
(2) In the area of applicability of § 377 of the German Commercial Code (HGB), - commercial purchase - the inspection and complaint obligations stated therein shall apply with the following provisions: Defects to the delivered object of purchase which can be determined during the inspection within the framework of a proper business operation shall be reported by Surplex within two weeks of delivery; defects to the delivered object of purchase which are not recognisable during such an inspection must be reported by Surplex within two weeks of their discovery.


D.3. Use of the object of purchase

Surplex shall be entitled to use the object of purchase according to its discretion; in particular, it shall be permitted to sell the object of purchase.


E. Supplementary special provisions for brokerage contracts


E.1. Remuneration, follow up contracts

Surplex shall be entitled to remuneration for the brokerage of the sale of an Object (“Surplex remuneration”) in accordance with the specifics of the respective contract. For each additional sales agreement which the Customer concludes with the contracting partner brokered by Surplex (follow up contracts), Surplex shall also have a corresponding claim to Surplex remuneration.


E.2. Exclusivity

The Customer shall be obliged only to sell and purchase via Surplex in accordance with these terms and conditions Objects which are the subject of a brokerage contract with Surplex; for the duration of the contract, the Customer shall also be obliged not to engage third parties in respect of the brokerage of the Object; the Customer shall be obliged to prohibit all such activities of third parties. Should an interested party make direct contact with the Customer in order to negotiate the purchase or sale of an Object the Customer must point out that it (as the seller) is having the Object brokered by Surplex and that it (as the buyer) was made aware of the Object by Surplex. The Customer shall inform Surplex of all contact which is initiated.


E.3. Permitted dual broker activity

As a rule, Surplex works for both contracting parties to a transaction which is to be brokered. The Surplex services are generally subject to the payment of remuneration by both contracting parties of a transaction.


E.4. Termination

Surplex and the Customer can terminate the contract by giving notice of 14 days, unless a minimum term or longer notice period were agreed in an individual case. Termination shall require written form. Any existing claim to Surplex remuneration shall remain unaffected.


E.5. Object descriptions, inspection

(1) The Objects which are the subject of a brokerage contract with Surplex are second hand and are not newly manufactured, unless expressly stated otherwise in an individual case.
(2) Descriptions in a catalogue or on the Surplex platform, in particular statements concerning the origin, state, age and authenticity of the individual Object are provided to the best of our knowledge and in good faith and are based on the statements of the seller. No liability will be accepted in respect of their correctness. In particular, the object descriptions do not represent any legally binding quality statements or guarantees.
The type and scope of the respective object of purchase are in accordance with its textual description. Photographic images shall be non-binding. These can deviate from the original and only serve the purpose of the representation of the general object type. Accessories and work tools are only part of the object of purchase if expressly stated as such. Additional information which is not contained in a catalogue or on the Surplex platform can be obtained at the storage location if applicable. Number A. 10. shall remain unaffected.
(3) Each Customer is required to inspect the Objects as far as possible. Inspection appointments must be agreed with Surplex. Surplex shall be entitled at any time to exclude an Object if Surplex is of the opinion that the statements of the seller are incorrect, in particular if these do not correspond to the actual state of the Object; however, no inspection obligation shall be incumbent on Surplex.


E.6. Payment of the Surplex remuneration

The Surplex remuneration is payable to Surplex immediately following conclusion of the sales agreement. The Surplex remuneration must also be paid if a sales agreement comes into existence with a third party due to the forwarding of the information by the Customer. Number A. 7. shall remain unaffected. The Surplex remuneration shall accrue interest as of the time of entering default at a rate of 9 percentage points above the respective base rate of interest (§ 288 Paragraph 2 of the German Civil Code - BGB).


E.7. Payment of the purchase price

(1) The purchase price is payable immediately following conclusion of the sales agreement. Should the buyer enter default concerning a payment of the purchase price, the claim shall accrue interest as of the time of entering default at a rate of 9 percentage points above the respective base rate of interest (§ 288 Paragraph 2 of the German Civil Code - BGB). In case of non-payment of the purchase price, the seller shall be entitled to the statutory rights of rescission of the contract or demanding damages in lieu of performance. The seller who rescinds the contracts and/or demands damages shall be able to dispose of the Object once again. The buyer shall not be entitled to bid during the new exploitation. Should the seller demand damages, the buyer must also reimburse the costs of a new exploitation of the Object, as well as any reduction in revenues. The buyer shall not have any claim to additional revenues.
(2) The claim of Surplex to Surplex remuneration against the buyer and/or the seller shall not be affected by rescission of the contract and/or damages claims by the seller.


E.8. Delivery/collection of the Objects, costs, transfer of risk

Unless otherwise agreed, the regulations concerning the delivery/collection of the Objects, costs and transfer of risk in Number C.3 of these general terms and conditions of business shall apply accordingly to the relationship between the buyer and seller.


E.9. Defect claims

(1) The Objects are second hand and are not newly manufactured, unless expressly stated otherwise in an individual case. The seller hereby guarantees to the buyer hat it is authorised to dispose of the Object and that the Object is not encumbered by any third party rights.
(2) Second hand and non-newly manufactured items are sold without any warranty, unless otherwise agreed. The exclusion shall not apply to damages claims due to a grossly negligent or intentional breach of obligation, or due to injury to life, body or health.


Düsseldorf, January 2017

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