General Terms and Conditions
for customers / contractual partners (“hereinafter referred to as “Customer” or “Principal”) of B+ Markenkommunikation GmbH (hereinafter referred to as “B+” or “Supplier”)
Customer / Principal on the one side and B+ / Supplier on the other side hereinafter separately also referred to as “Party” and together also referred to as “Parties”.
I. Contractual Basis
- The following contractual documents shall govern any contract relationship between Supplier and Principal and shall all form integral parts of the relevant contract. In the event of uncertainties or discrepancies between the relevant documents, they shall apply in the following order:
- The content of the contract concluded between the Parties (“Main Contract”)
- Supplier´s order confirmation.
- Supplier´s offer
- These General Terms Conditions, even if Supplier executes the relevant contract without any reservations and knowing any opposing or deviating contractual contents of Customer.
- The legal provisions of the German Civil Code (BGB), in particular its provisions on contracts for work law and rental contract law.
- the German fee structure imposed on architects and engineers („HOAI –Honorarordnung für Ingenieure und Architekten“).
- Any deviation from these Terms and Conditions are valid upon express written agreement only.
II. Contract Content
- These Terms and Conditions apply to any supply and services delivered by Supplier. They also apply to all potential future legal relationships between Supplier and Customer. Customer´s terms and conditions become integral part of the contract only upon Supplier´s express written acknowledgement.
- Customer´s acceptance of Supplier´s services and / or performance shall be automatically considered as Customer´s acknowledgement and acceptance of these Terms and Conditions.
III. Offer, Offer- and Design Documents
- Any Supplier´s offer is non-binding unless the offer itself expressly provides otherwise.
- In the event Supplier prepares its offer based on and according to information of Customer and / or documents and / or information which are being provided by the relevant exhibition or event management, Supplier cannot be held liable for the correctness of the information and documents received by Customer and / or exhibition management. This does not apply in the event the Supplier intentionally or gross negligently fails to identify that information received is faulty or inappropriate.
- Supplier retains any property rights (in particular intellectual property) of offers, plannings, plans, drawings, manufacturing and assembly documents as well as specifications of event concepts unless Supplier and customer expressly agree otherwise in writing. This shall also apply if said documents have been handed over to Customer. To this extent said document shall be considered as entrusted within the meaning of §18 of the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb).
IV. Contract Conclusion
The contract comes into force with Supplier´s written order confirmation only. Nevertheless, orders awarded to Supplier shall also be considered as accepted by Supplier, unless they are rejected by Supplier within one month upon its receipt.
- Any prices contained in Supplier´s offer in particular but not limited to lump sum prices or fixed prices bindingly apply only upon Customer´s undivided order of the scope of supply offered by Supplier.
- All prices are net ex works (EXW) Supplier´s premises or shipping depot and do not include packaging, freight, postage, insurance etc.
- The prices contained in Supplier´s offer are firm and remain unchanged four (4) months upon contract conclusion only. Upon expiry of such 4 months term, Supplier may pass on price increase to Customer that Supplier himself faces towards its contractual partners and sub-suppliers (e.g. salary increases etc.). Customer may terminate the relevant contract with Supplier if a price increase as mentioned before is in excess of original contract price by more than 5%. In the event Customer opts for the termination of the contract, Customer shall pay to Supplier any services already delivered by Supplier plus any Supplier´s already rendered or unavoidable out of pockets costs to be paid to third parties or occurred within Supplier itself. Other claims of or payments to Supplier shall be excluded.
- In the event Supplier´s services or performance are delayed as regards commencement, progress, or accomplishment for reasons not attributable to Supplier, Customer shall compensate Supplier for any additional expenses or effort at Supplier´s rates fo work hours (including travel and loading times) vehicle appliances, material costs and other prices chargeable by Supplier at the relevant execution date.
- Supplier may charge to Customer any services which are not agreed in the contract and not calculated in Supplier´s original offer, which however are being executed by Supplier on Customers request. Supplier may also charge to Customer any additional expenses which occur from (i) Customer´s or exhibition organizer´s incorrect statements or details, (ii) transport delay not attributable to Supplier, (iii) inadequate hall or ground condition, (iv) delayed or incorrect preparatory performance by third parties unless they are Supplier´s sub-contractors. Section V.4 of these terms shall serve as calculation basis for any additional expenses.
- Services and errands that Supplier executes upon Customer´s request within Customer´s planning and execution of his exhibition participation, which, however, have not been contained in Supplier´s offered original scope of supply, but which are being offered by the exhibition or a third party supplier, shall be reimbursed by Customer separately. Supplier may invoice an advance commission for disbursements provided by Supplier. Supplier may assign such services to third parties on a sub-supplier basis.
- Unless expressly provided for in Supplier´s offer, the offer prices do not contain any effort and expenses for deliveries and performances, which Customer is supposed to exclusively source from exhibition / event corporations or from third parties assigned by exhibition corporations, such as forwarding services on the exhibition site (e.g. transport on exhibition site, provision of forklifts or elevating trucks, empties management, waste disposal etc.). Customer shall additionally reimburse such expenses. Supplier may charge Customer for Supplier´s coordination and / or advances made based on surcharges as defined in the offer.
- Supplier may issue invoices in electronic form in PDF copy.
VI. Delivery Time and Installation
- The defined execution date / accomplishment date is an estimate only unless Customer and Supplier have expressly agreed otherwise.
- Any changes or switching of execution requested by Customer after conclusion of contract do affect the execution / delivery dates originally agreed by Customer and Supplier and lead to adequate time extension. The same applies to hindrances and interruptions not attributable to Supplier, in particular if arising from Customer´s delay in delivery of documents and material.
- Supplier shall be entitled to an automatic extension of time in the execution of its services in the event of interruptions in its business operations or the business operations of its sub-suppliers not attributable to Supplier or its sub-suppliers, in particular in the event of force majeure, strikes, lockouts which are based on unpredictable events or occurrences not attributable to Supplier and relevant sub-suppliers and leading to significant interruptions of business operations. In the event such interruptions lead to objective impossibility of contract performance, Customer and Supplier may terminate the contract ex nunc. Supplier shall however be entitled to compensation of its services delivered until that date. Compensation shall also contain any Supplier´s expenses to third parties for third party services that Supplier reasonably assigned to them. Further compensation or damages shall on both sides be excluded.
VII. Freight and Packaging / Transfer of Risk
- Unless otherwise agreed, Supplier´s goods are always shipped at Customer´s cost and risk. Packaging requested by Customer or considered required by Supplier will be charged to Customer separately. The same applies to Customer´s own shipment pieces.
- Material of Customer that shall be used for the manufacturing or the installation must be delivered by Customer at the agreed date carriage paid to Supplier´s workshop or to assembly site. The return shipment of such items shall occur carriage unpaid ex works or processing site at Customer´s risk.
- Unless otherwise agreed, passing of risk of the goods to the Customer shall occur ex works Supplier´s premises or when made available to the Customer, whatever occurs earlier. Afore said shall also apply in the event the Parties have agreed to freight-paid delivery.
- In the event goods ready for shipment cannot be delivered for reasons not attributable to Supplier, risk of loss and damage shall pass to Customer at the date Supplier notifies Customer about its readiness for shipment. Supplier´s scope of delivery shall be considered as performed upon Supplier´s notification to Customer about readiness for shipment.
- In the event Customer requests from Supplier co-transport of his own exhibits, afore provisions apply accordingly.
VIII. Acceptance / Handover
- Acceptance or handover of Supplier´s scope of supply shall as a rule take place formally and immediately upon accomplishment. Customer shall participate in person at the date of acceptance or shall send an authorized representative to act on his behalf. Customer and Supplier mutually agree that an acceptance date even one hour before commencement of the relevant event only shall be considered as appropriate. Acceptance may occur verbally and does not require written form.
- Any remaining partial services still to be rendered or reported defects will be completed or repaired by Supplier as soon as possible. Customer shall not be entitled to reject acceptance unless such partial services or reported defects significantly affect contract´s subject matter.
- In the event Customer has started to use Supplier´s scope of supply as a whole or partly without a prior formal acceptance, the acceptance shall be considered occurred at the moment of commencement of use.
- In the event Customer has leased services or performance from Supplier, Supplier may request a formal return handover from Customer immediately upon event / fair conclusion. Customer shall participate in person at the date of handover or shall send an authorized representative to act on his behalf.
IX. Defect Liability
- Any defect liability obligations shall be governed and in accordance with the provisions of the German Civil Code (BGB – Bürgerliches Gesetzbuch).
- Customer´s defect liability rights are at first limited to rectification. The type and the manner of rectification shall be at Supplier´s discretion. Supplier may however opt for replacement any time. Customer may only claim exceeding defect liability remedies, in particular reduction of contract price or termination of contract, if Supplier has failed twice to rectify the same defect. A Customer´s right to withdraw from the contract (Rücktritt vom Vertrag) shall expressly be excluded.
- Defect liability shall be excluded in the event defects arise from normal wear and tear, moisture, excessive heating or improper handling or storage. The same applies to reasonable deviations in form, size, color, and quality / condition of material.
- Customer is obliged to immediately inform Supplier about defects and enable him to identify the relevant findings.
- Defect liability entitlements shall elapse completely in the event Customer notifies defects with delay or has not made provisions to known defects at the time of acceptance.
- Defect liability rights shall also elapse if Customer itself makes changes to Supplier´s scope of supply or impedes or makes impossible Supplier´s determination or rectification of defects. This shall usually be the case if Customer notifies defects only after event / fair conclusion even though defects have occurred or were known to Customer already during event or fair.
X. Supplier´s Liability
- Supplier shall not be liable for defect liability claims or damage claims arising from scope of supply and service assigned by Supplier to third parties directly on behalf of Customer or on a sub-supplier basis unless Supplier lacked reasonable duty of care choosing such third parties.
- Supplier cannot be held liable for loss of or damage to Customer´s goods unless storage of such goods has expressly been agreed in writing between Supplier and Customer. In this event, however, Supplier´s liability shall be capped at the amount of compensation payments actually rendered by Supplier´s insurance. This limitation of liability shall not apply in the event of Supplier´s willful misconduct or gross negligence.
- In the event Supplier´s scope of supply only comprises of planning and design, Supplier only warrants its own capability to realize such planning and design accordingly. Any additional claims shall expressly be excluded.
- Supplier shall not be liable for free advice, free information or any other free services provided.
- Customer´s claims against Supplier for damages of any kind, including such damages which have not been occurred to the supply itself such as damages arising from delay of breach of obligations are excluded unless (i) the relevant damage was caused by Supplier´s willful misconduct or gross negligence or (ii) contractual performance is being significantly jeopardized or prevented by such exclusion of damages. Afore mentioned limitation of liability shall to the same extent apply to Supplier´s agents and subcontractors, shall however not apply in the event of damages arising from injury to life, body and health as well as from German Product Liability Law (Produkthaftunsgesetz).
- Customer shall be liable to Supplier for any and all items Supplier has provided to Customer on a hire or rental basis including the exhibition booth in the aggregate and up to the amount required for reconstruction or – in case of loss or destruction– up to the replacement-as-new-value.
- Goods being shipped by Customer or upon its request will only be insured by Supplier (to the value of purchasing them as new) upon Customer´s express directions and at Customer´s cost.
- Customer is obliged to immediately inform Supplier about any damages as a result of transport. As regards freight forwarding transport any damages must be marked on the consignment note, in the event of train transport Customer must request from railway a confirmation about the damage and mail it to Supplier.
- Unless otherwise agreed, Customer´s goods being stored by Supplier upon Supplier´s written confirmation will be insured by Supplier to the value of purchasing them as new against fire, water damage and theft. Such insurance shall be concluded at Customer´s expenses and only for the agreed term of storage.
- Customer´s creditworthiness is the key requirement für the conclusion of a contract and Supplier´s relevant contractual obligations. Supplier shall not be obliged to comply with his performance obligations in the event Customer has made false or incomplete statements about his person (individual or legal) or his creditworthiness. The same shall apply in the event Customer has suspended payment or bankruptcy or composition proceedings have been initialed or have been applied for. In this event Supplier may insist on advance payment or other appropriate securities to safeguard its payment entitlement.
- In the event Customer fails to comply with the afore mentioned request of advance payment, the Supplier may terminate the contract for an important reason according to number XVIII of these terms or withdraw from the contract and claim damages. As regards the damages amount, the provision under number XVIII.2.of these terms shall apply.
XIII. Retention of Title
- The title to any goods delivered under the contract shall remain with the Supplier until any and all Customer´s obligations under the relevant contract have been completely been fulfilled by Customer.
- Customer shall be entitled to resell, further process or install the retained goods with Supplier´s express consent only. Irrespective of the foregoing the Customer already now assigns the accounts receivable accruing from the resale to the Supplier, an assignment which the Supplier already now accepts.
XIV. Protecting Ownership and Usage Rights
- Any plannings, designs, drawings, manufacturing, assembly and erection documents, concept descriptions as well as exhibition and event concepts etc. remain together with all associated rights Supplier´s property. This applies even in the event if and to the extent they have already been handed over to Customer. They shall be considered as entrusted to the Customer within the meaning of Section 18 of the German Unfair Competition Act (§18 Gesetz gegen den unlauteren Wettbewerb, UWG).Granting of using rights which are not required for the execution of the contract, regardless whether or not special protection rights (e.g. copyrights) exist, are subject to the Parties´ express written agreement. Customer undertakes to refrain from utilizing afore mentioned documentation in any other shape or form, in particular by copying or distributing them to third parties or the direct and indirect replication, unless required for the execution of the relevant contract.
- A breach of Customer´s obligations under above number 1 shall be considered if and to the extent Customer executes exhibitions or events which essentially correspond with Supplier´s design, plans and concepts. Customer shall at any time be entitled to demonstrate otherwise.
- In the event of Customer´s breach of any obligation under above number 1 Supplier shall be entitled to at least claim additional remuneration for its planning, design and concept services. The amount of remuneration shall be in accordance with the provisions of the German fee structure imposed on architect and engineers acting as public contractors (HOAI – Honorarordnung für Architekten und Ingenieure) Supplier´s right to claim additional compensation shall remain unaffected.
- In the event Supplier rents out its performance outcome to Customer, Supplier may – if Customer breaches its obligations under above number 1, in particular in the event of replica rendered by Customer – claim damages in the amount of 50% (fifty per cent) of the agreed rental price. Customer may demonstrate that a loss has not occurred at all or not the extent claimed.
- In the event Customer provides material or documents for the purpose of producing the object of contract, the Customer guarantees that by production and delivery of any and all works executed based on such documents, no third party intellectual property shall be infringed. The Supplier is not obliged to verify whether or not documentation delivered by Customer infringes third party rights. Customer shall immediately indemnify and hold harmless Supplier from any third party damage claims and all other losses arising from its infringement of third party intellectual property rights.
XV. Additional special terms for the execution of special services and errands (e.g. services in exhibition construction etc.)
- In the event Supplier executes services, deliveries and errands (“Services”) upon Customer´s request within the scope of Customer´s planning and execution of its exhibition presence and exceeding the scope of the Parties´ contract, Customer shall pay such Services additionally. In the event Supplier procures such Services from third parties, Customer may only place warranty claims or delay claims against third party suppliers directly. To this extent relevant claims against Supplier are excluded and Customer may only claim from Supplier the assignment of Supplier´s relevant rights against third party suppliers.
- In the event Customer or exhibitor requests from Supplier the processing, installation, storage, or transport of exhibits or material, Customer or exhibitors shall even without Supplier´s express request provide Supplier with written treatment or processing guidelines. If Customer fails to provide such guidelines, Supplier shall not be liable for losses that may arise from improper processing or handling. Supplier shall further not be liable for goods in the property of Customer unless Supplier has in writing warranted storage of such goods. Customer shall be obliged to keep its exhibition booth insured against damage, theft etc. during the construction and dismantling period and for the duration of the exhibition / event.
- Customer shall be liable up to the value of a relevant item of purchasing it as new for all items that Supplier has provided to Customer on a lending or rental basis, Customer shall suitably protect or insure such items or goods accordingly.
- In the event Customer provides to Supplier items for the setup of the exhibition booth and Supplier confirms relevant hand over in writing, Supplier shall – for the duration of takeover – insure such items against fire, piped water damage and burglary for the cost of newly acquiring such items. Any designs, drawings, models, planning and assembly / erection documents remain Supplier´s property with any and all rights. Changes of Supplier´s designs, drawings etc. require Supplier´s prior approval.
- If Supplier accepts orders based on documentation provided by Customer, Customer guarantees that Supplier´s delivery and services based on such documentation do not infringe third party intellectual property rights. To this extent Customer shall indemnify and hold Supplier harmless from any and all third party damage claims. Customer shall guarantee the accuracy and correctness of any documentation, plans, drawings, dimension specifications or further technical information provided, unless Supplier´s review is expressly included in the Supplier´s agreed scope of supply.
- Supplier shall not be liable for losses that arise on Customer´s side on the occasion of Supplier´s execution of an exhibition, event, or trade fair order despite Supplier´s technical know-how and commercial care, unless Customer can demonstrate that Supplier acted with gross negligence. Supplier´s liability in this event but not limited to this event and arising from the relevant order shall always be limited to the relevant order value.
- Unless otherwise agreed in writing, Supplier shall – upon completion – deliver to Customer the exhibition booth in a reasonable clean condition. Such reasonable clean condition shall not contain a comprehensive and sophisticated cleaning and does not replace the ultimate cleaning of the entire booth and the relevant exhibits prior to exhibition commencement.
XVI. Terms of Payment
- Invoice amounts are due for payment immediately upon invoice receipt unless Customer and Supplier have agreed otherwise. Customer must not make any deductions and no interest is paid to advance payments. Deviations from this provision are always subject to written agreement.
- Supplier may issue interim invoices or request partial payments unless Customer and Supplier have agreed otherwise. Partial payments for (advance) services rendered will be due in the amount of 50% of contract price upon order award and in the amount of 50% of the contract price upon handover of the relevant booth unless expressly agreed otherwise. Handover of the booth occurs only simultaneously against payment.
- In the event Customer does not comply with its payment obligations in whole or not adequately, Customer is strictly prohibited to use Supplier´s scope of supply. In the event Supplier rents out and hands over its services, scope of supply, or exhibition booth respectively to Customer, Customer shall – upon Supplier´s request – immediately return and re-grant comprehensive possession of services, material or exhibition booth.
XVII. Set-Off and Assignment
- Set-off by Customer is […] permitted only with claims that are undisputed or have been upheld by final decision of a court[…] of competent jurisdiction. The same applies to Customer´s ights of retention.
- Customer may only transfer its rights and obligations arising from a contractual relationship with Supplier´s prior written consent.
XVIII. Termination / Cancellation
- Customer may terminate a contract for convenience at any time.
- In this event Customer is obliged to pay Supplier the agreed remuneration according to the following termination curve:
- until six (6) months prior to relevant event commencement: twenty (20) per cent of agreed remuneration.
- less than six (6) months until sixty (60) days prior to relevant event commencement: fifty (50) per cent of agreed remuneration.
- sixty (60) days or less prior to event commencement date: eighty (80) per cent of agreed remuneration.
- Customer may demonstrate any time that a loss has not occurred or has not occurred to the extent claimed by Supplier.
- Customer´s or Supplier´s termination right for an important reason remains unaffected. Such right however requires a prior written demand for rectification within reasonable time and such deadline has unsuccessfully passed. An important reason for Supplier in particular exists if Customer does not comply with its payment obligations or is in breach of his omission obligations according to these terms.
- In the event Supplier terminates the contract for an important reason or withdraws from contract for reasons attributable to Customer, afore mentioned provision in number 2 of this section applies accordingly. Customer may demonstrate that losses have not occurred at all or not to the extent alleged by Supplier. Supplier always reserves the right to claim damages exceeding the percentage rates stipulated under no. 2 of this section.
XIX. Data Protection
Supplier expressly informs that – within the business relationship or in connection therewith, individual related data within the meaning of the German Federal Data Protection Act (Bundesdatenschutzgesetz) or within the Data Protection Basic Regulation are being processed.
XX. Place of Performance and Jurisdiction
Place of performance and jurisdiction for any disputes arising between the Parties from the contractual relationship shall be Supplier´s place of business, if Customer is either a registered trader or a legal entity under public law or public special assets. German law shall exclusively apply under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
XXI. Final Provisions
If any provisions of these terms and conditions should be invalid or unenforceable in whole or in part, the validity of the remaining provisions shall remain unaffected.
B+ Markenkommunikation GmbH, revision March 2019