GENERAL TERMS AND CONDITIONS of Holtmann GmbH & Co. KG
I. Basis of contract
(1) All orders placed with the Contractor shall be based on the following order:
- the content of a contract concluded between the parties - the order confirmation - the offer - these General Terms and Conditions - the statutory provisions of the Civil Code of the Federal Republic of Germany, in particular the provisions of the law on leases and contracts for work and services - the Fee Regulations for Engineers and Architects.
(2) Deviations from these Terms and Conditions shall require written agreement.
II. content of the contract
(1) The following terms and conditions shall apply to all deliveries and services. They shall also apply to all future legal relationships between the Contractor and the Customer. Contractual terms and conditions of the Customer shall only become part of the contract if they are accepted in writing by the Contractor.
(2) Acceptance of the Contractor's services shall be deemed acceptance of these General Terms and Conditions.
III. offer, offer and design documents
(1) Unless otherwise stated in the offer, it is subject to change.
(2) If offers are prepared according to the information provided by the Client and the documents provided by the respective exhibition management, the Contractor shall not assume any liability for the correctness of the information and documents received, unless their incorrectness and unsuitability are not recognized intentionally or due to gross negligence.
(3) Unless otherwise expressly agreed in writing, offers, plans, drafts, drawings, production and assembly documents as well as descriptions of event concepts shall remain the property of the Contractor with all rights, even if they have been handed over to the Client. In this respect, they are business secrets within the meaning of § 2 sentence 1 GeschGehG.
IV. Conclusion of contract
(1) The contract shall be concluded with the Contractor's written order confirmation. However, orders placed shall also be deemed accepted if they are not rejected within one month of receipt.
(1) The offer prices are only valid for undivided orders of the offered object.
(2) All prices are net ex manufacturing plant or shipping warehouse and do not include packaging, freight, postage, insurance, etc.
(3) The offer prices shall be valid for 4 months from the conclusion of the contract. After the expiry of these 4 months, the Contractor shall be entitled to pass on to the Customer any price increases of the manufacturers or suppliers or wage increases. The Customer may withdraw from the contract if the price is more than 5% higher than the price at the conclusion of the contract. In this case, the Contractor shall be entitled to remuneration for the services rendered up to that point, whereby the services rendered shall also include claims by third parties which the Contractor has commissioned in reliance on the performance of the contract. Further claims are excluded on both sides.
(4) If the start, progress or completion of the work is delayed for reasons for which the Contractor is not responsible, the Contractor shall be entitled to charge separately for the additional expenses incurred as a result. The calculation rates for working hours (including travel and loading times), motor vehicle equipment, material prices and other prices of the Contractor valid on the day of execution shall then apply.
(5) Services not estimated in the offer, which are carried out at the request of the Client, or additional expenses, which are caused by incorrect information provided by the Client, the exhibition organizers, transport delays through no fault of the Client, insufficient hall and floor conditions, preliminary services of third parties which are not on schedule or professional, insofar as these are not vicarious agents of the Contractor, shall be additionally invoiced to the Client. Item V.4. of these terms and conditions shall apply as the basis for calculation.
(6) Services and errands performed for the Client at the Client's request in connection with the planning and implementation of its participation in the exhibition shall be remunerated separately. The Contractor shall be entitled to charge a presentation commission for amounts disbursed in this respect. The Contractor shall further be entitled to subcontract such services to third party companies on behalf of the Client.
VI. delivery time and assembly
(1) If no express deadline has been agreed for the start of execution or completion, the stated completion/delivery date shall only be approximate.
(2) Even firmly agreed execution/delivery dates shall lose their binding force if the Customer makes changes or rearrangements to the execution after conclusion of the contract. The same shall apply to impediments for which the Contractor is not responsible, in particular for the untimely provision of documents and materials by the Customer.
(3) If disruptions in business operations occur for which the Contractor or its upstream suppliers or subcontractors are not responsible, in particular cases of force majeure, strike and lockout, which are based on an unforeseeable event for which the Contractor is not responsible and which lead to severe operational disruptions, the delivery/completion period shall be extended accordingly. If performance of the contract becomes impossible due to the aforementioned disruptions, both parties shall be entitled to withdraw from the contract. In this case, the Contractor shall be entitled to remuneration for the services rendered up to that point, whereby the services rendered shall also include claims of third parties which the Contractor has commissioned in reliance on the performance of the contract. Further claims for damages are excluded on both sides.
VII Freight and Packaging/ Transfer of Risk
(1) The Contractor's products shall always travel at the expense and risk of the Customer, unless otherwise agreed. Any packaging requested and deemed necessary by the Contractor shall be invoiced separately. The same shall apply to goods shipped by the Customer.
(2) Parts of the Customer which are to be used in production or assembly must be delivered free to the factory or assembly site on the agreed date. Unless otherwise agreed, such parts shall be returned carriage forward ex works or place of use at the risk of the Customer.
(3) Unless otherwise agreed, all risks shall pass to the Customer when the goods leave the Contractor's premises or are made available to the Customer. This shall also apply in cases where carriage paid delivery has been agreed.
(4) If the goods ready for dispatch cannot be delivered for reasons for which the Customer is responsible, the risk shall pass to the Customer on the date of readiness for dispatch. The Contractor's services shall be deemed to have been performed after delivery of the notice of readiness for dispatch to the Customer.
(5) If exhibits of the Customer are to be (co-)transported, the above provisions shall apply accordingly.
VIII. Acceptance / Handover
(1) Acceptance or handover shall regularly take place formally and immediately after completion. The Client undertakes to attend the acceptance meeting itself or to be represented by a duly authorized representative. In this respect, it is expressly acknowledged that in special cases an acceptance date one hour before the start of the trade fair is not unreasonable.
(2) Any outstanding partial services or notified defects shall be made good or remedied as quickly as possible. Provided that they do not significantly impair the function of the subject matter of the contract, they shall not entitle the Customer to refuse acceptance.
(3) If the Client has used the service or part of the service without prior formal acceptance, acceptance shall be deemed to have taken place with the act of use.
(4) If the Contractor's deliveries and services have been provided to the Customer on a rental basis, a formal handover of the rental object shall take place immediately after the end of the trade fair at the Contractor's request. The Customer shall be obliged to attend the handover meeting or to be represented by a duly authorized representative.
(1) The warranty shall be governed by the provisions on the contract for work and services of the German Civil Code, and in the event of transfer by way of lease by the provisions of the lease agreement.
(2) As a warranty, the Customer may initially only demand subsequent performance in the form of rectification of defects. The manner of proper rectification shall be at the discretion of the Contractor. The Contractor shall be entitled to make a replacement delivery at any time. Further claims, in particular claims for reduction or withdrawal from the contract, may be asserted by the Customer if two attempts at rectification have failed due to the same defect.
(3) The warranty does not extend to such defects that occur at the Customer's premises as a result of natural wear and tear, moisture, strong heating or improper handling or improper storage. In the same way, the warranty does not extend to reasonable deviations in shape, dimensions, color and condition of the material.
(4) The Customer shall be obliged to notify the Contractor of any defects without delay and to give the Contractor the opportunity to make the corresponding determinations.
(5) If the notification of defects is made late or if reservations were not made at the time of acceptance due to known defects, the warranty claims shall lapse entirely.
(6) The warranty claims shall also expire if the Client itself makes changes or makes it difficult or impossible for the Contractor to determine and rectify the defects, which is regularly the case in the event of a notification of defects after the end of the trade fair for defects that occurred or became known during the trade fair.
(1) Claims for defects and damages arising from the provision of supplies and services by third-party companies on behalf of the Customer shall be excluded unless the Contractor has breached its duty of care in the selection of the third-party companies.
(2) The Contractor shall not be liable for the Exhibitor's goods unless safekeeping has been expressly agreed in writing. In this case, the Contractor shall only be liable to the extent of the insurance benefits, unless it is accused of intent or gross negligence.
(3) If only planning and designs are the subject matter of the contract, the Contractor shall only be liable for the fact that it is itself in a position to realize the plans or designs accordingly. Further claims are excluded.
(4) No liability shall be assumed for advice, information or other services provided free of charge.
(5) Claims for compensation for damages of any kind, including such damages that did not occur to the delivery item itself, for example, from delay or breach of duty, are excluded insofar as the damage was not caused by intentional or grossly negligent actions and insofar as the exclusion of the claims for compensation does not thwart or jeopardize the fulfillment of the contract. The limitation of liability shall apply to the same extent to the Contractor's vicarious agents and assistants. Claims for damages arising from injury to life, body and health as well as claims under the Product Liability Act shall remain unaffected.
(6) The Client shall be liable to the Contractor for all items loaned or rented to it, including the exhibition stand, in the total amount of the restoration costs (in the case of repairable damage) or in the amount of the new acquisition value (in the case of destruction and loss).
(1) For transports arranged or carried out by the Customer, the goods to be shipped shall only be insured to the amount of the replacement value upon the express instruction and at the expense of the Customer.
(2) Transport damage must be reported to the contractor immediately. In the case of forwarding shipment, damage must be noted immediately on the bill of lading; in the case of rail transport, a railroad official certificate of damage must be requested and sent to the contractor.
(3) Unless otherwise agreed, goods of the Customer accepted for storage by the Contractor on the basis of written confirmation shall be insured by the Contractor at the Customer's expense against fire, water damage and burglary for the duration of the storage in the amount of the new acquisition value.
XII. credit basis
(1) The creditworthiness of the Customer shall be a prerequisite for the Contractor's performance obligations. If the Customer has provided incorrect or incomplete information about his person or about the facts determining his creditworthiness or has suspended his payments, or if insolvency proceedings have been instituted against his assets or an application has been filed for the institution of such proceedings, the Contractor shall not be obliged to perform. In such cases, the Contractor may demand advance payment or other suitable security for the claim to remuneration. If the Customer does not comply with this request, the Contractor may terminate the contract for good cause in accordance with Section XVII of these Terms and Conditions or withdraw from the contract and claim damages. With regard to the amount, the provision under Section XVII, 3. of these Terms and Conditions shall apply.
XIII Retention of title
(1) All delivery items shall remain the property of the Contractor until all liabilities arising from the contractual relationship between the parties have been fulfilled in full.
(2) Without the express consent of the Contractor, the Customer shall not be entitled to resell the reserved goods or any processing or treatment thereof. Irrespective of this, the Customer hereby assigns to the Contractor any claims arising from the resale of the reserved goods. The contractor accepts this assignment.
XIV. Property rights and rights of use
(1) Plans, drafts, drawings, production and assembly documents, concept descriptions as well as descriptions of exhibition and event concepts etc. shall remain the property of the Contractor with all rights, even if they have been handed over to the Client. They have been entrusted to the Client as business secrets within the meaning of § 2 sentence 1 Gesch-GehG. Any transfer of rights of use beyond those required for the performance of the contract and irrespective of whether special protection rights (e.g. copyrights) exist or not shall require express written agreement. The client undertakes to refrain from any other exploitation in all forms, in particular reproduction and distribution, transfer to third parties or direct or indirect reproduction, unless this is necessary for the fulfillment of the contract.
(2) It shall be presumed that the Client has breached the obligations under Item 1 if it holds exhibitions or events that are essentially in accordance with the Contractor's plans and concepts. The Client shall then be at liberty to provide evidence to the contrary.
(3) In the event of a breach of the obligations set out in Section 1, the Contractor shall at least be entitled to additional remuneration for the planning, design and conceptual services, the amount of which shall be determined in accordance with the provisions of the HOAI. Further claims for damages shall remain unaffected.
(4) Furthermore, in the event of a breach of the obligation set out in item 1 above, the Contractor shall be entitled to compensation for damages in the amount of 50% of the agreed rental price in the event of the results of the performance being provided on a rental basis, in particular in the event of reconstruction. The Customer shall be at liberty to prove that no damage or no damage in the aforementioned amount has been incurred.
(5) If materials or documents for the manufacture of the subject matter of the contract are handed over by the Customer, the Customer shall warrant that the manufacture and delivery of the work performed in accordance with its documents do not infringe the property rights of third parties. The Contractor shall not be obliged to verify whether the information and documents handed over by the Customer for manufacture and delivery infringe the property rights of third parties. The Customer undertakes to immediately indemnify the Contractor against any claims for damages by third parties and to pay for any damages arising from the infringement of property rights.
XV. Terms of payment and payment schedule
(1) Unless otherwise agreed, invoiced amounts shall be due for payment immediately upon receipt of the invoice. Deductions of any kind shall be excluded; no interest shall be paid on down payments.
(2) Unless otherwise agreed, the Contractor shall be entitled to issue interim invoices or to demand partial payments. Unless otherwise agreed in the individual contract, the following payment schedule shall be agreed between the parties according to the progress of the project and shall be due as follows:
- 40% of the agreed total remuneration as payment on account for conception, planning, work, services in the run-up to the event as well as payments on account to service providers or hotels directly after signing the contract and in accordance with the invoice. -20 % of the agreed total remuneration at the latest eight calendar weeks (receipt of payment) before the event. -15 % of the agreed total remuneration no later than six calendar weeks (receipt of payment) before the event. - The remaining amount 10 working days after issuing the final invoice for the services which were handled by the contractor.
(3) If the Client fails to meet its payment obligations or fails to do so in a proper manner, it shall not be entitled to use the Contractor's services. In the event that the services or the trade fair stand are handed over on loan, the Client undertakes to grant the Contractor possession of the handed-over services and materials or the trade fair stand as a whole again without delay at the Contractor's request.
XVI Set-off and assignment
(1) Offsetting with disputed and not legally recognized counterclaims shall be excluded for the Customer. The same shall apply to the assertion of rights of retention.
(2) The rights of the Customer arising from this contractual relationship shall only be transferable with the prior consent of the Contractor.
XVII Termination / Cancellation
(1) The Client is entitled to terminate the contract at any time.
(2) If the Client terminates or cancels the contract without the Contractor having given good cause for this, the Contractor shall in this case be entitled to compensation for the services rendered up to that point, whereby the services rendered shall also include claims by third parties which the Contractor has commissioned in reliance on the performance of the contract. Instead of the concrete calculation of the compensation for the termination, the Contractor may, taking into account the usually saved expenses, assert the following lump-sum claim for pro rata compensation. The lump-sum costs in the event of premature termination shall be: - up to fourteen calendar weeks before the start of the event 0 % of the agreed remuneration - up to twelve calendar weeks before the start of the event 25 % of the agreed remuneration - up to ten calendar weeks before the start of the event 50 % of the agreed remuneration - up to eight calendar weeks before the start of the event 60 % of the agreed remuneration - up to six calendar weeks before the start of the event 75 % of the agreed remuneration - from four calendar weeks before the start of the event 90 % of the agreed remuneration - thereafter 100 % of the agreed remuneration.
The basis for calculation is the remuneration agreed with the Client plus VAT less the expenses saved (travel costs, accommodation, meals, etc.). The Customer shall be at liberty to prove that no or lower costs were incurred in connection with the termination than the costs stated by the Contractor in the lump sum. In addition, in the event of termination by the Client, the Contractor shall be entitled to all third-party costs, cancellation fees, etc. incurred in connection with the contract up to the time of termination.
(3) The right to terminate for good cause remains unaffected. However, it is a prerequisite that a corresponding written request for the elimination of the good cause has been made in advance within a reasonable period of time and that the period of time has elapsed fruitlessly. Good cause shall be deemed to exist in particular if the Client fails to meet its payment obligations or violates the cease and desist obligations under these Terms and Conditions.
(4) In the event of termination for good cause by the Contractor or withdrawal for reasons for which the Customer is responsible, the above provision of paragraph 2. shall apply accordingly. The Customer shall be at liberty to prove that no damage or not the aforementioned amount of damage has been incurred. The assertion of further damages is not excluded.
XVIII. Data protection
(1) It is pointed out that within the scope of the business relations or in connection with them, personal data, regardless of whether they originate from the Contractor itself or from third parties, are processed within the meaning of the Federal Data Protection Act and the European Data Protection Regulation.
XIX Place of Performance and Jurisdiction
(1) The place of performance and jurisdiction for all disputes arising between the parties from the contractual relationship shall be the Contractor's registered office, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law. The contractual relationship shall be governed by German law.
XX. Final provisions
(1) Should individual provisions be wholly or partially invalid, this shall not affect the validity of the remaining provisions.