Standard Business Terms & Conditions
I. Contractual Basis
The following Standard Business Terms & Conditions (T&Cs) control the relationship between the retained contractor (“Contractor”) and its customer (“Customer”) provided Customer is a business as defined by Section 14 German Civil Code [Bürgerliches Gesetzbuch – BGB]. They apply to all proposals, products and services supplied by Contractor to Customer subject to specific, differ- ently-worded arrangements or exclusive agreements between the contractual parties.
Any standard reference to Customer’s Standard Business Terms & Conditions is rejected.
II. Contract Conclusion
- The contract is concluded upon signature of the contract document or the Contractor’s written order confirmation.
- Contractor’s information referred to as “cost basis”, “cost estimate”, “rough cost calculation” are non-binding.
III. Lease-based Transfer of Custody
- If Contractor’s items were transferred into the custody of Customer based on a borrowing or rental arrangement, the rented item must be formally returned upon Contractor’s request immediately following the end of the trade fair or event. Customer is required to participate in the return ap- pointment, or must be represented by an appropriately authorized representative.
- Items whose custody was transferred based on a borrowing or rental arrangement must be treated by Customer with care, and returned immediately following the end of the event.
- Contractor will only confirm the return subject to a specific inspection.
- Unless specifically agreed to differently, rental fees are charged based on calendar days. The rent- al starts on the date of transfer, the rental ends on the date the rented item is returned. If Customer returns rented item late for reasons attributable to Customer, the full rental fee for one day is owed for each additional day.
- Customer is entitled to demand an appropriate security for the duration of a rental-based transfer of custody of items. The security does not bear interest.
- Even when not expressly designated as such, all prices and pricing details are stated in EUROS not including statutory taxes and fees, and any other ancillary public taxes.
- Quoted prices are only valid if purchase orders are not split.
- Offer prices are valid for 4 months from contract conclusion. If performance or delivery deadlines are agreed that exceed this 4 month period, the service provider is entitled to pass on to the client the increases in the manufacturers’ or suppliers’ prices, or increases in wages. The Contractor may cancel the contract if the price exceeds the price at the time of concluding the contract by more than 5%. In this case the service provider is entitled to remuneration for the services provided up to that time, and the services provided also include claims by third parties which the service provider has engaged in reliance on the contract being performed. Further claims by either party are ex- cluded.
- If commencement, progress or completion of the works is delayed for reasons outside the Contrac- tor’s responsibility, he will be entitled to charge any additional expenses arising from this sepa- rately. The charge rates for working hours by the Contractor will be those valid on the day of execu- tion.
- Services not quoted in the proposal and rendered based on a Customer request, or additional ex- penses incurred due to incorrect information provided by Customer, late or inappropriately ren- dered preparatory deliverables of the Customer or other third parties (to the extent that these are not Contractor’s vicarious agents) are additionally charged to Customer. Obtaining the required government permits, concessions, or other permits is only a component of the proposal when this is expressly stated. The same applies to customs processing formalities for international ship- ments.
- Supplies and errands undertaken for the Customer at his request within the scope of planning and undertaking his participation in the exhibition are payable separately. For any amounts so incurred, the Contractor is entitled to charge an advance commission. The Contractor is further entitled to assign such supplies in the name of the Customer to third party contractors.
- When services are rendered at trade fairs, the quoted prices do not include expenses and costs for products and services that must be purchased exclusively from trade fair companies or third parties contracted by these, such as freight services on the trade fair grounds (e.g. transportation on the trade fair grounds, provision of forklifts and pallet jacks, empty container handling, disposal, etc.), unless these services are expressly itemized in the proposal.
- If no express deadline has been agreed for the commencement and completion of the works, the completion/delivery date stated will only be deemed an estimate.
- In case of any changes or rearrangements to the operations introduced by the Customer after con- clusion of this contract, even confirmed completion/delivery dates will no longer be binding. The same goes for any impediments occurring through no fault of the Contractor, especially for any of the Customer’s documentation and materials being made available late
- Should any business interruptions occur through no fault of the Contractor or his own supplier or subcontractor, specifically walk-outs, strikes and lock-outs and cases of force majeure based on unpredictable events or occurrences which are not his fault, and leading to serious interruptions in operations, the delivery/completion deadline will be extended accordingly. If due to the stated inter- ruptions it becomes impossible to fulfil the contract, both parties are entitled to withdraw from the contract. In this case, the Contractor will be entitled to payment for supplies provided to that date, where supplies provided also include any claims by third parties the Contractor has placed orders with believing the contract could be brought to its conclusion.
- The Contractor’s products, unless otherwise agreed, always travel at the Customer’s cost and risk. If no special instructions were issued, Contractor is free to determine shipping at its discretion with- out being responsible for the lowest cost or fastest method. Packaging desired, or regarded as necessary by Customer is invoiced separately. Freight shipped with transports initiated by Cus- tomer is only insured upon Customer’s express instructions and at its expense. Unless agreed oth- erwise, all risk is transferred to Customer when the goods leave Contractor’s facilities, or otherwise when these are made available to Customer. This also applies in cases when freight-free delivery was agreed.
- Customer’s supplies used to render the deliverables must be delivered to the deployment location free of charge at the agreed to date. Contractor is not required to return such supplies. Return shipments Contractor initiates based on Customer’s instructions are shipped FOB deployment loca- tion at Customer’s cost and risk.
- If the goods are ready to ship and cannot be shipped or made available to Customer for reasons attributable to Customer, the risk of accidental destruction or accidental degradation of the goods is transferred to Customer on the date the goods are ready to ship. Contractor’s duties will be deemed fulfilled after delivery of a Ready for Shipment notice to the Customer.
- If exhibits belonging to the client are (also) to be transported, the above provisions apply accordingly.
Contractor’s obligations to render services are conditional on Customer’s creditworthiness. Con- tractor is not required to render services if Customer has provided inaccurate or incomplete details about circumstances affecting its creditworthiness or has discontinued its payments. In these cas- es, Contractor can demand advance payment or other suitable collateral for the remuneration claim. If Customer fails to comply with this requirement, Contractor can terminate the contract for cause pursuant to Section XVI of these T&Cs, or withdraw from the contract and demand compen- satory damages. The provisions in Section XVI, No. 2 of these T&Cs apply with respect to the amount.
- Approval or handover will as a rule take place formally and immediately upon completion. The Cus- tomer undertakes to be present on the day of approval himself, or to have himself represented by an authorised representative. In this respect, it is expressly acknowledged that in special cases, even an approval deadline of one hour before commencement of the exhibition is not an unreason- able one.
- If Customer has used the deliverable or a portion of the deliverable without a prior formal accep- tance review, the deliverable is regarded as accepted upon use unless prior deficiencies were noted that would prevent acceptance.
- Outstanding partial deliverables or noted deficiencies will be provided or remedied as soon as pos- sible. Customer is not entitled to withhold acceptance for deficiencies that do not materially dimin- ish the function of the contractual deliverable.
- If the deliverable consists of planning or conducting events, acceptance reviews are performed regularly by way of rehearsals or trial runs. This does not apply to planning deliverables that are considered complete and ready for acceptance upon receipt by customer.
VIII. Assignment of claims/set-off
- Set-off against disputed counterclaims which have not been legally established or in respect of which judgement is pending is prohibited for the client. The same applies to the claiming of rights of retention. This does not apply if the claim originates from the same contractual relationship as the one against which set-off is to be exercised.
- The Customer’s rights arising from this contractual relationship are only transferable with the Con- tractor’s prior consent.
IX. Defect Liability
- The defect liability is governed by statutory regulations whenever this is not alternatively provided for in these Standard Business Terms & Conditions.
- If a defect is attributable to Contractor, Customer is principally only entitled to initially demand rem- edy in the form of a defect repair. The method of the appropriate defect repair is determined at Contractor’s discretion. Contractor is entitled to make a replacement shipment at any time.
- Customer’s statutory right to assert deficiency claims against Contractor expires one year from the date risk is transferred. The aforementioned limitations do not apply to claims for compensatory damages or cost reimbursement based on gross negligence, intent, or a breach of contractual du- ties whose proper fulfillment are a fundamental condition for implementing the contract and on whose fulfillment the customer can routinely rely (hereinafter: “Cardinal Duties”). Said limitations also do not apply to claims for compensatory damages or cost reimbursement based on death, bodily injury, or health injuries, or claims based on the German product liability act [Produk- thaftungsgesetz].
If a cardinal duty is breached in a negligent manner, the amount of Contractor’s liability is limited to those foreseeable damages and expenses typically associated with the contract.
Unless specifically declared in writing, product descriptions, samples, or presentations do not con- stitute a warranty declaration or a warranty of certain features.
- The service provider’s liability for losses and expenditure incurred based on simple negligence is excluded if the claims are not based on the breach of contractual duties the proper performance of which is a prerequisite for the performing of the contract and on the performance of which the client may normally rely (hereinafter termed “cardinal duties”), or unless claims due to death, bodily injury or impairment of health are involved. Claims which have their basis in the Produkthaftungsgesetz [German Product Liability Act] are likewise unaffected. The aforementioned also applies to breaches of duty by the service provider’s servants and legal representatives. In the case of a claim to payment, the contractor’s claims to default interest remain unaffected by the foregoing. The same applies for a payment demand comprising the flat-rate charge pursuant to Section 288 Para. 5 German Civil Code (BGB), or the payment of damages relating to the costs of the legal ac- tion.
- If a cardinal duty is breached in a negligent manner, the amount of Contractor’s liability is limited to those foreseeable damages and expenses typically associated with the contract.
The aforementioned also applies to breaches of duty by the Contractor’s servants and legal repre- sentatives.
- The Customer is liable for all items he is provided with on a hire or rental basis, including the exhi- bition stand, for an amount of up to a total reconstruction costs, or, in case of loss, of up to the amount of the cost of a new replacement item.
- For any type of transport arranged or undertaken by the Customer, the shipped items will only be insured, to the value of purchasing them as new, at the express instruction of the Customer, and at his cost.
- Readily apparent transport damage must be immediately reported to Contractor. When shipment is made by a freight contractor, any readily apparent damage must be noted on the bill of lading; when shipment is made by rail, an official rail operator certification describing the damage must be demanded and forwarded to Contractor. Claims against the freight contractor will be assigned to Contractor on request.
- Any of the Customer’s items taken in by the Contractor for storage under a written agreement, unless otherwise agreed, will be insured at the Customer’s expense, for the duration of such stor- age, for the cost of newly acquiring such items, against fire, water damage and burglary.
XII. Retention of title
- All delivery items will remain the property of the Contractor until all liabilities under the contractual relationship between the parties have been completely met.
- Any transfer of usage and commercialization rights only goes into effect after all obligations from the contractual relationship between the parties have been fulfilled.
- Without the Contractor’s express agreement, the Customer is not entitled to sell on the Retained Title Goods, or to process or use them in any way. Irrespective thereof, the Customer here and now assigns to the Contractor the receivables from a resale of the goods subject to retention of title, the amount of said assignment being equal to the final invoice total (value of the delivery plus value-added tax). The Contractor accepts this assignment.
XIII. Commercialization and Usage Rights, Ancillary Rights
- All rights to Contractor’s proposals, plans, drafts, drawings, fabrication and assembly documenta- tion, concept descriptions, descriptions of exhibition and event concepts, printed forms and video material remain the Contractor’s property, even when these were submitted to Customer. They are in this regard submitted into Customer’s care as defined by Section 18 of the German Unfair Trade Practices Act [Gesetz gegen unlauteren Wettbewerb – UWG]. Customer agrees to refrain from any other form of commercialization, in particular copying and distribution, modifications, forwarding to third parties, or direct or indirect reverse engineering/copying. A transfer of usage rights above and beyond those required to fulfill the contract requires a prior express written agreement, irrespective of the whether or not industrial property rights or copyrights exist.
- Unless agreed to otherwise in writing, only the Contractor is authorized to make changes to plans, drafts, concepts, etc. This also applies when these documents have become the Customer’s prop- erty.
- Customer’s breach of these obligations is assumed when Customer conducts exhibitions or events that are essentially consistent with Contractor’s plans and concepts. Customer is then has the right to provide evidence to the contrary.
- If the obligations itemized in this section are breached and the deliverable results are transferred on a rental basis, Contractor is entitled to compensatory damages of 50 % of the agreed-to rental price, in particular for cases involving unauthorized reverse engineering/copying. Customer has the right to demonstrate that no damages were incurred, or that damages were not incurred in the specified amount.
- If any materials or documentation for producing the contract item are handed over by the Cus- tomer, the Customer warrants that by producing and undertaking the supply of works as per his documentation, no third party protective rights are infringed upon. The Contractor is not obliged to check whether details and documentation handed over by the Customer for production and supply are infringing on any third party protective rights.Customer shall indemnify Contractor against any and all claims in connection with a breach of such industrial property rights or copyrights.
- Contractor is entitled to record the event and to use the recording in addition to background infor- mation about the project for purposes of documentation and its own promotional activities.
- If desired by Customer, Contractor is required to name Customer in all publications.
- The Customer is entitled to cancel the contract at any time.
- If Customer terminates the contract without Contractor having given cause for such termination, Contractor is in this case entitled to compensation for the deliverables rendered up to that point in time. Deliverables in this case also include third party claims sub-contracted by Contractor on the belief that the contract is being implemented. 40 % of the remuneration agreed to for not yet ren- dered deliverables shall be agreed to as not-incurred expenses on these. Contractor agrees to have this rate credited against its remuneration claim, unless Contractor demonstrates that the ac- tually not-incurred expenses were lower. Conversely, Customer has the right to demonstrate that Contractor’s actually incurred expenses were lower.
- The right to cancel on account of an important reason remains unaffected. The precondition for this is that a written request has previously been made to rectify the important reason within a reasonable period and the period allowed has expired to no effect. An important reason exists in particular if the Customer has persistently or grossly breached its obligations, in particular if it has not properly complied with its financial obligations or if it is insolvent.
- In the event of cancellation by the Contractor on account of an important reason or withdrawal on account of reasons for which the client is responsible, the above provision of paragraph 2 applies accordingly. The Customer is free to prove that a loss has not arisen, or has not arisen to the stated amount. The making of a claim in respect of further loss is not excluded.
XV. Concluding Provisions
Place of Performance and Court of Jurisdiction for any disputes arising between the parties from this contractual relationship is the Contractor’s base, as long as the Customer is a General Mer- chant, a legal entity of public law or of separate estate public law.
German law governs the contractual relationship to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law.