General terms and conditions of WUM Brand Spaces GmbH & Co. KG, Aschaffenburg
(limited partnership with a limited liability company as general partner)
- Basis of contract
- All orders placed with WUM Brand Spaces GmbH & Co. KG(“contractor”) are based on these general terms and conditions (“GTC”),which shall likewise apply to all subsequent offers even if the contractor does not always confirm that anew. Orders are accepted on these terms exclusively. GTC of the customer deriving from these GTC wholly or partially are not recognized, unless they were explicitly accepted in writing. These GTC shall apply exclusively even if the contractor with knowledge of the customer’s terms and conditions that conflict with or deviate from these GTC, executes the customer’s order without reservation.
- Deviations from these GTC are subject to written agreement. The contract is concluded on the basis of these delivery terms as well as our offer or order confirmation in writing.
- Subject matter of contract
The subject matter of the contractual service results from the acceptance of the offer or our order confirmation in writing.
III. Offer, offer documents and draft documents
- If offers are prepared according to the customer’s data and/ or to documents and information provided by the respective exhibition management, the contractor is under no contractual obligation to check them. If he nevertheless discovers the inaccuracy or incompleteness of the received data and/ or documents, he will report that immediately.
- Offers, designs, drafts, drawings, production and assembly documents, as well as descriptions of concepts shall remain the contractor’s property with all rights reserved even if they were handed over to the customer, unless explicitly stated otherwise in writing. In this respect, they are entrusted to the customer as laid down in §18 of the Unfair Competition Law (UWG). The customer is required to obtain the contractor’s explicit assent in writing before handing them over to third parties. They have to be returned free of charge to the contractor at his request. For the scope of permitted use of contractual services, §14 of these GTC applies
- Conclusion of contract
The contract will be concluded by virtue of the confirming the order in writing or starting to execute the order. Placed orders, however, will be regarded as accepted if they are not rejected within one month after receipt.
- Offer prices are valid only in the case of the complete order of the offered object and no longer than 1 month from the date of the offer unless specified otherwise.
- The statutory value added tax is not included in the price. It shall be reported separately at the statutory rate in the invoice. All prices are quoted ex works, ex place of production, ex warehouse, and ex logistics warehouse and do not include packaging, freight, postage, insurance, etc.
- The agreed prices are valid for 6 months from the date of offer preparation unless stated otherwise. Upon expiry of that period, the contractor is entitled to pass on any unforeseen adjustments of prices made by the producers, the suppliers, or the exhibition organizers or the adjustments of wages becoming applicable after the expiry of the aforementioned 6 months to the customer. The customer may withdraw from the contract if the price exceeds the price agreed at the time of concluding the contract by more than 10 percent. In this case, the contractor is entitled to remuneration for the services rendered until that date which comprise claims of third parties commissioned by the contractor in reliance on the performance of the contract. Any further claims are mutually excluded.
- If commencement, progress, or conclusion of the works is delayed for reasons falling outside the contractor’s responsibility, he shall be entitled to charge the additional expenditure resulting from this event separately according to the record of the expenditure. The charge rates for working hours (including travelling and loading times), vehicles, prices for material and other prices chargeable by the contractor or by a third party commissioned to a necessary extent to execute the order are those valid on the day of execution.
- Additional remuneration will have to be paid by the customer for services that are not included in the offer and rendered on demand of the customer, or for additional expenditure arising from the customer’s or the exhibition organizers’ incorrect data and information, from delayed transport falling outside the contractor’s responsibility, from an inadequate condition of the ground, from the customer’s failure to observe or to report the exhibition organizer’s regulations, or from advance services rendered neither on schedule nor professionally by the contractor’s agents.
- Additional remuneration according to time will have to be paid by the customer for services rendered on the customer’s demand or in his discernible interest in a proper contractual performance, particularly as part of the planning and/ or staging of his participation in the exhibition. The contractor is entitled to charge an advance commission of 15 percent for expenses that were or are incurred in that way. The contractor is entitled to assign services of that kind to third party companies in the name of the customer. These include, for instance, the installation of supply connections (for example electricity and water) by the exhibition organizer or by his agents.
- Delivery time and assembly
- If no fixed delivery time is explicitly agreed for the commencement or completion of the work, the specified delivery date is only approximate.
- If the works or plans are changed or rearranged by the customer or on his demand after the conclusion of the contract, firmly agreed deadlines and fixed delivery date in particular shall no longer be binding. The same applies to impediments falling outside the contractor’s responsibility, particularly as regards the untimely provision of the customer’s documents and materials. Apart from that, changes in assembly times on the part of the exhibition organizers which the contractor has to compensate for extend delivery and assembly times. The contractor may demand additional remuneration for expenditure arising if the contractor only successfully compensates for the postponements of assembly times in the interest of the customer by means of a higher expenditure of staff and/ or higher costs.
- If any interruptions in business operations occur that fall outside the contractor’s or his suppliers’ and subcontractors’ responsibility, in particular cases of force majeure, strikes and lockouts resulting from an unforeseeable event through no fault of the customer and causing serious interruptions in operations, the time of delivery and completion shall be extended accordingly. If it is impossible to fulfil the contract due to the interruptions mentioned above, both parties are entitled to withdraw from the contract. In this case, the contractor is entitled to remuneration for the services rendered until that date which comprise claims of third parties commissioned by the contractor in reliance on the performance of the contract. Any further claims for damages are mutually excluded.
- If the room for the exhibition and/ or the event is booked or provided by the customer, employees and workers commissioned by the contractor shall be granted access to the facilities on the days for assembly and disassembly and during the event in order to assemble and dismantle the exhibition stand and stage constructions, to install lighting technology and sound systems, as well as to perform stage tests. The customer is obliged to pass on any information about regulations and restrictions on the part of the exhibition organizer to the customer immediately and in detail.
VII. Freight and packaging/ passing of risk
- If not agreed otherwise in writing, the contractor’s products always travel at the customer’s cost and risk. Additional remuneration will have to be paid by the customer for any packaging requested and deemed necessary and obligatory by the customer.
- Items of the customer that shall be used for production and assembly have to be delivered free of charge to the place of assembly or production by the agreed date. These items are returned from the place of assembly or production or the location of use at the customer’s cost and risk.
- If not agreed otherwise, any risk is passed on to the customer as soon as the goods leave the contractor’s company or are made available to the customer. This also applies to instances of agreed carriage free delivery.
- If any goods ready for shipment cannot be shipped for reasons imputable to the customer, the risk is passed on to the customer the day on which the goods are ready for shipment. With the notification of readiness for shipment sent to the customer, the contractor’s services are deemed fulfilled.
- The regulations stated above likewise apply if exhibits of the customer shall be transported.
VIII. Acceptance/ handover
- The acceptance and handover of goods and services regularly takes place formally and immediately after their completion. The customer commits himself to accept the goods in person on the agreed date or to appoint a proxy to take his place. In this respect, it is explicitly acknowledged that an acceptance taking place one hour prior to the commencement of the exhibition is not inappropriate in specific cases. The contractor fixes the day of acceptance and communicates it with the customer according to the planned completion. Additional remuneration must be paid by the customer for the contractor’s waiting times imputable to the customer or his agents, for example in the case of a late arrival of the customer.
- Any outstanding minor partial services will be performed as quickly as possible and any defects will likewise be rectified. If they do not significantly hinder the functioning of the subject matter of the contract, the customer is not entitled to refuse to accept. Payments may only proportionally be retained.
- If the customer makes use of the service or part of it without any prior formal acceptance, the service is deemed accepted upon the act of use.
- If the services were put at the customer’s disposal by way of lease, the rented items have to be handed over to the contractor formally at his request immediately after the end of the exhibition.
- Warranty is in compliance with the regulations on contracts for work and services and, in the case of rented services, with the regulations on rental agreements as laid down in the Civil Code of the Federal Republic of Germany (BGB).
- In principle, the customer can only demandas warranty supplementary performance in the form of rectification of defects. The type and manner of proper rectification is subject to the contractor’s discretion. The contractor may at any time choose to replace defective items. Any further claims on behalf of the customer, especially claims for price reduction and withdrawal from the contract, may be valid if two attempts at rectification of the same defect proved to fail.
- Warranty does not cover defects that arise from natural wear, dampness, strong heating, improper treatment, or improper storage at the customer’s site. Nor does the warranty cover reasonable deviations in shape, size, color, and quality of the material, insofar as the suitability for use is not affected as a matter of fact.
- The customer commits himself to check the contractual services for discernible defects immediately and to inform the contractor without delay about defects in writing, and to give him the opportunity to draw conclusions accordingly.
- The claims for warranty shall expire completely if the contractor is informed about the defect late or if the customer checking the contractual services properly did not object to known and discernible defects at the time of acceptance.
- The claims for warranty shall likewise expire if the customer makes modifications himself or if he makes it difficult or impossible for the contractor to record and rectify the defects, which regularly applies to defects that occurred or were known during an exhibition and only notified after the end of the exhibition.
- Claims for damages and compensation resulting from external companies’ deliveries and services provided by the contractor on behalf of the customer are excluded, unless the contractor violated the principle of diligence in choosing external companies.
- The contractor is not liable for the customer’s property, unless the storage of the property was explicitly agreed in writing. In this case, the contractor is only liable for the amount of the compensation paid by the insurance, unless willful intent or gross negligence is attributable to him.
- If only planning and drafts form the subject matter of the contract, the contractor only guarantees that he himself is able to realize the designs or drafts accordingly. Any further claims are excluded.
- Advice, information, or any other services free of charge may not become the subject matter of business decisions or dispositions. No liability is assumed if they are nonetheless used.
- Any claims for damages of any kind, including those that are not directly linked to the item of delivery arising, for instance, from delay or breach of duty, are excluded, unless the damage arose from willful intent and gross negligence or from the culpable violation of a contractually essential obligation. In the latter case, an obligation for compensation is limited in scope to typical damages foreseeable at the conclusion of the contract. Compensation for purely pecuniary loss in the form of lost profit is excluded. This limitation of liability applies to the same extent to the contractor’s agents and third parties assisting the contractor to perform the contract. Any claims for damages arising from the injury of life, body, and health, as well as claims according to the Product Liability Law (ProdHaftG) shall remain unlimited to the extent permitted by law.
- The customer is liable to the contractor for all items put at his disposal by way of lease and loan including the exhibition stand. Total liability amounts to the costs for reconstruction (in case of repairable damages) and to the amount of new purchase value (in case of destruction and loss) respectively.
- Shipping goods are insured for any transports only on the customer’s explicit instruction in writing and at his cost with the insurance amounting to the new purchase value of the shipping goods. If the customer fails to provide or to order insurance, the contractor is exempted from any liability amounting to the otherwise existing insurance benefit.
- The contractor must be informed about transport damages immediately. If the goods are shipped by a forwarding agency, damages have to be recorded on the consignment note immediately. In the case of rail transport, it is necessary to require a damage report from the railway authorities and to send it to the contractor.
- Unless otherwise stated, the contractor provides insurance for the customer’s goods accepted for storage due to written confirmation against fire, damage caused by water, and burglary at the customer’s cost for the time of storage. The insurance amounts to the new purchase value of the goods in storage.
XII. Credit basis
The customer’s creditworthiness is the prerequisite for the contractor’s obligation to perform the contract. If the customer provided false or incomplete information concerning his person and facts that determine his creditworthiness, or if the customer ceased payment, or if insolvency proceedings over the customer’s assets were opened, refused for lack of assets, or applied for by the customer himself, the contractor is not obliged to perform the contract. In these cases, the contractor may demand advance payment other appropriate guarantees for his claim for remuneration. If the customer does not meet the contractor’s request for payment or remuneration, the contractor is entitled to terminate the contract for important reasons according to paragraph XVIIof the present general terms and conditions, or withdraw from the contract and claim damages. As far as the amount of damages is concerned, the regulation as laid down in paragraph XVIIof these general terms and conditions applies.
XIII. Retention of title
- All delivery items shall remain the contractor’s property until all commitments arising from the contractual relationship between the parties are entirely fulfilled.
- The customer is not entitled to resell or to modify and process the goods that are subject to retention of title without the contractor’s explicit assent in writing. Irrespective of this, the customer assigns claims arising from reselling the goods subject to retention of title to the contractor. The contractor accepts this assignment.
XIV. Property rights and rights of use
- The customer obtains the right to use the contractual services rendered by the contractor only in simple, non-transferable form, and only within the placed order and to an extent necessary to use the contractual services for the contractually agreed purpose or by himself. Designs, drafts, drawings, production and assembly documents, descriptions of concepts, as well as descriptions of exhibition and event concepts etc. shall remain the contractor’s property with all rights reserved even if they were handed over to the customer. In this respect, they are entrusted to the customer as laid down in §18 of the Unfair Competition Law (UWG). It is required to obtain an explicit agreement in writing to transfer further rights of use than those necessary to perform the contract, irrespective of whether or not special rights (for example copyrights) exist. The customer commits himself to refrain from any further use in all forms, especially from duplication and distribution, from the passing on to third parties, or from indirect or direct replica, if this is not necessary to perform the contract.
- The customer is assumed to have violated the obligations as laid down in paragraph XIV, clause 1.of these general terms and conditions if he organizes exhibitions or events which substantially accord with the contractor’s designs and concepts. The customer then remains free to provide rebuttal evidence.
- If any of the obligations as laid down in paragraph XIV, clause 1. of these terms and conditions is violated, the contractor is at least entitled to additional remuneration for services concerning planning, drafts, and conceptions, which are measured according to the contractor’s corresponding offer or, in the absence of an offer, according to the regulations of the Official Scale of Fess for Services by Architects and Engineers (HOAI). Further claims for damages shall remain unaffected
- If the regulations as laid down in paragraph XIV, clause 1. concerning service outcomes put at the customer’s disposal by way if lease, particularly in the case of replica, are violated, the contractor is entitled to additional, lump-sum damages amounting to 80 percent of the rent agreed for the time of offer. The customer remains free to provide evidence that no damage or no damage of the stated amount occurred.
- If the customer hands over to the contractor materials and documents for the production of the subject matter of the contract, the customer guarantees that property rights of third parties are not violated through the production and delivery of the work executed according to his documents. The contractor is not obliged to check whether data and documents handed over by the customer for production and delivery violate property rights of third parties. The customer commits himself to immediately exempt the contractor from any asserted or pending claims for damages of third parties and to compensate for damages resulting from the violation of property rights.
- Conditions for payment
- The amounts stated on the invoices are due for payment immediately upon invoice receipt if not agreed otherwise. Discounts of any kind are excluded and no interest is paid on deposits.
- If not agreed otherwise, the contractor is entitled to issue intermediate invoices or to demand instalments. 50% of the order total are due for payment at the placing of the order, 25% at the start and 25% at the end of the project (handover) on a regular basis. Additional or reduced costs actually incurred by the contractor are balanced together with the final statement by means of a final account.
- If the customer does not meet his payment obligation at all or in due form, he is not entitled to use the services rendered by the contractor. If the services or the exhibition stand are handed over on loan, the customer commits himself to immediately grant the contractor possession again of the services and materials that were handed over or the exhibition stand as a whole at his request.
XVI. Offset and assignment
- The customer is not entitled to offset any costs by claims that are disputed and not legally binding. The same applies to the assertion of liens.
- The customer’s rights arising from this contractual relationship may not be assigned without the contractor’s explicit, prior assent.
XVII. Termination/ cancellation
- If the customer terminates or cancels the contract, the contractor is entitled to 100 percent of the agreed remuneration for the services rendered until that date. As far as services that have not been rendered are concerned, the contractor is, after deducting 40 percent of the remuneration agreed for the services as saved expenditure, entitled to 60 percent of the agreed remuneration, unless the customer provides evidence that the contractor was able to avoid higher expenditure.
- The right to cancel the contract for good cause shall remain unaffected. It is, however, a prerequisite that the customer called on the contractor in writing before to remove the good cause in sufficient time with the contractor failing to perform before the expiry of the deadline. A good cause particularly exists when the customer does not meet his payment obligation and violates the obligation to cease and desist according to these general terms and conditions.
- If the contractor terminates the contract for good cause or withdraws from it for reasons imputable to the customer, the regulation as laid down in paragraph XVII, clause 1. applies accordingly.
XVIII. Data protection
It is recalled that personal data are processed within the business relationships or in connection with them according to an to the extent permitted by the Federal Data Protection Act (BDSG), irrespective of whether the data are provided by the contractor himself or by third parties.
- Place of performance and of jurisdiction
Place of performance and of jurisdiction for all disputes between the parties arising from the contractual relationship is the contractor’s registered place of business, Aschaffenburg, insofar as the customer is a general merchant, a legal person under public law, or a special fund under public law. The contractual relationship is subject to German Law.
- Press releases and other regulations
- The contracting parties are mutually entitled to issue press releases or to use orders as references. The contractor has to be specified at his request as author and performing agency in publications. This does not affect property rights of third parties.
- Both of the contracting parties commit themselves not to give any information concerning the agreed fee to third parties.
- The contractor is entitled to document the production on image and recording media of any kind and to distribute or to publish for self-promotional or editorial purposes all photographs, video recordings, shots, and any other technical reproductions resulting from the contractual relationship with the territorial, material, and temporal scope unlimited. The contractor retains a veto right on the customer’s or third parties’ use or distribution of image and recording media of any kind that go beyond the contract.
XXI. Final provisions
- Verbal ancillary agreements are deemed as not made. Changes of and amendments to the contract, as well as the non-individual alteration of this stipulation requiring written form are to be made in writing.
- If individual provisions of this contract become wholly or partly invalid, the validity of the other provisions shall remain unaffected. The contracting parties have to replace the invalid provision with a valid one corresponding to the nature and purpose of the contract.
- To all legal relationships between customer and contractor the substantive and procedural law of the Federal Republic of Germany shall apply excluding the rules on conflict of laws. The application of the “United Nations Convention on Contracts for the International Sale of Goods (CISG)” is excluded.
- Aschaffenburg shall be the only place of jurisdiction for all disputes arising from the contract between the contractor and the customer as general merchant, legal person under public law, or special fund under public law. This does not apply if the litigious claim concerns disputes not relating to property rights, which are assigned to local courts (Amtsgericht) independent of the value of the subject matter of the dispute, or if an exclusive place of jurisdiction exists. The contractor reserves the right to bring an action at the customer’s place of general jurisdiction.
WUM Brand Spaces GmbH & Co. KG, Aschaffenburg, March 2013.