General Terms and Conditions of Business Blue Wheels Veranstaltungstechnik GmbH, Essen
SPHERE OF VALIDITY
- Only our general terms and conditions of business shall apply. They shall also apply for all future business transactions as well as for all business contacts made with the Buyer, such as entering into contractual negotiations for example or setting up a contract, even if they are not expressly agreed again or if no express reference is made to them again.
- If, in a given instance obligations are entered into with persons who are not to become a party to the contract, the liability provisions of these general terms and conditions shall also apply to these third parties, provided that they have been included with effect towards the third person when the obligation is established. This shall be the case above all when the third party became aware of, or was already aware of, the general terms and conditions of business when the obligation was established.
- We shall not recognise the Buyer’s terms and conditions if they differ from, or are contrary to, our own terms and conditions of business. Agreements made earlier and former versions of our terms and conditions of business shall be cancelled by these terms and conditions of business.
- Taking delivery of goods and services shall constitute recognition of the validity of these general terms and conditions of business.
CONCLUSION OF THE CONTRACT
- Offers submitted by our Company shall be binding for two weeks from the date of submission unless agreed otherwise.We shall only be bound to an order if it has been confirmed by us in writing or if we have begun to carry it out (Entered into preparatory negotiations e.g. ordered goods).At our request the Buyer shall be obliged to confirm the written acceptance of his order by us in writing. If the Buyer does not submit this declaration within five working days from the receipt of being called upon to do so by us, we shall no longer be bound by the order.
- If our order or order confirmation is based upon technical information supplied by the Buyer (diagrams, drawings, weights and dimensions etc.) our offer shall only be binding in those cases in which the order can be carried out in accordance with the Buyer’s technical specifications, If, after entering into the contract, it turns out that the order cannot be carried out in accordance with the Buyer’s technical specifications, we shall be entitled to withdraw from the contract, unless the Buyer is prepared to accept the alternative technical solution suggested by us and if necessary take over any additional costs which may actually be incurred.
In the event of a withdrawal from the contract for which we are not to blame, we shall be entitled to demand a lump sum of 15% of the net order value from our Buyer as compensation for damages. The Buyer shall be at liberty to prove that the loss we have incurred is less than this figure of 15%. In this case the Buyer shall only have to pay the small proven amount. We shall still be entitled to assert a claim for a higher amount than the above lump sum compensation for damages.
- If we submit samples prior to an order being placed, they shall consequently be regarded as being non-binding samples for testing or display purposes. If an order does not materialise we shall be entitled to invoice the Buyer for them at cost price. The same shall apply for transport, dispatch or other ancillary costs incurred. The samples shall remain the property of our company until payment has been made for them in full.
GOODS / SERVICES
- Our written offer or our order confirmation shall define the scope of the goods / services. Side agreements and amendments shall be subject to our written confirmation.
- We shall be entitled to supply part consignments for goods and services in all our orders to a reasonable extent.
- Periods of time and delivery dates set for goods / services constitute the best possible statements but they are in general non-binding. The beginning of the period set for goods or services to be supplied / rendered (Despatch of the order confirmation) as well as compliance with delivery dates or dates for performance shall always be subject to the Buyer having fulfilled his obligations to co-operate or to render assistance as required and on time, and having provided all the documents he has to furnish and having paid any advance payments which may have been agreed. If we hand over the ordered goods to a haulier or notify the Buyer that the goods are ready for despatch, the hand-over date or the date of notification that the goods are ready for despatch shall be regarded as the date on which the goods have been supplied / the service has been rendered.
- The documents attached to our offers, such as drawings, weights and dimensions for example, shall only apply as approximations unless expressly marked as being binding. The Buyer shall have to check all dimensions and features again on site straight away and notify us of any discrepancies there may be without having to be called upon to do so.
- In so far as it has been agreed that goods / services are to be supplied when called off, the Buyer shall have to take delivery of all the goods or the entire service within a reasonable period of time, but within three months from the call-off order having been agreed at the latest. At the end of this period we shall be entitled to invoice the entire order concurrently with all the goods / service ordered being made available for the Buyer.
- If the goods or services are delayed as a result of instances of force majeure such as labour disputes, strikes, lock-outs or other events in Germany or in other countries for which we are not responsible, the delivery period or period for performance shall consequently be extended as appropriate by the duration of the impairment and its after effects. This shall also apply in those cases in which these events affect our suppliers. In so far as the occurrence of force majeure results in permanent impossibility, we shall be entitled to withdraw from the contract. We shall not be responsible for the reasons causing force majeure if they occur when we are already in default without us being to blame. In important cases we shall notify our customers straight away of the beginning and end of such hindrances.
- We shall not be in default as a result of delays in supplying goods / services in those cases in which we or our agents are only accused of ordinary negligence. We shall not be in default in the event of force majeure or other exceptional circumstances for which we are not to blame. In this case we shall also be entitled to withdraw from the contract if we are already in default. If, in such cases we do not make a statement within a reasonable period of time in response to being asked by the Buyer whether we shall still render the performance owed, the Buyer shall on the one hand consequently be entitled to withdraw from the part of our performance not yet fulfilled.
- If the Buyer is in default with taking receipt of the goods or if despatch is delayed at the Buyer’s request, he shall be invoiced the costs incurred as a result of storage on our premises or with a third party beginning on the date on which the Buyer was notified that the goods were ready for despatch. Having set a reasonable period of time which has expired without success, we shall be entitled to dispose of the item to be supplied / service to be rendered otherwise and then supply the Buyer again with a delivery period extended as appropriate.
- If we are in default, the Buyer shall be entitled to assert a claim for his proven default damages. Compensation for damages shall be limited in cases of ordinary negligence to 0.5% of the value of the total consignment for each full week of default, not, however, to exceed 5% of the value of the value of the total consignment.
- In the event that we are in default with our performance, the Buyer shall be entitled to set us a reasonable subsequent period for performance. After this period has elapsed unsuccessfully he shall be entitled to withdraw from the contract unless we should not have had to reckon with his withdrawal in spite of us having been set a period for performance. In the event of culpable action on our part, the Buyer may demand compensation for damages instead of performance. In instances of ordinary negligence the compensation claims for damages shall be limited in accordance with the above paragraph.
- If we are obliged under the contract entered into to render advance performance, we may consequently refuse to carry out the performance incumbent upon us if, after signing the contract, it becomes apparent that our claim to a counter-performance is jeopardised as a result of the other party being unable to render his performance. This shall be the case in particular if the counter-performance to which we are entitled is jeopardised as a result of the other Party’s poor financial circumstances or if there is a threat of other impediments to performance such as export or import bans for example, events of war, collapses in suppliers or key employees being unable to carry out their work due to illness.
- We may refuse our obligations to supply or manufacture if this requires an expense which, in consideration of the content of the order and the principle of acting in good faith, is a gross misunderstanding to the interest of the Buyer in having the performance rendered. This shall be the case in particular if the performance or manufacture not carried out by us or contrary to our duty does not have a detrimental impact upon the Buyer or, if it does, the detrimental impact is only minor, such as, for example, if there are cosmetic defects.
We shall only take back packing in so far as we are under a statutory obligation to do so.
SPECIAL INFORMATION FOR FLAT SCREENS
Flat screens (Plasma, LCD etc.) are to be transported in accordance with the instructions on the cardboard packing. In order to reduce claims for damages if the goods are to be despatched with a transport business it makes sense to send a pallet in order to prevent the display screen glass from breaking. Specific transport instructions are to be observed.When using the flat screens it is absolutely essential that the instructions for use attached are observed. High-contrast still pictures or picture parts shown on a regular basis over several minutes in the same position should be avoided since they result in the flat screen burning in and wrecking the television completely.
PASSING OF RISK
- The risk of deterioration or loss of the goods passes over to the Buyer when the goods are handed over and to be more precise, even in those cases in which part deliveries are made / part services are rendered. This shall also apply in those cases in which we have taken on additional services as well as despatch costs or delivery and set-up for example. If despatch is delayed for reasons attributable to the Buyer’s person, the risk shall pass over to him as soon as he has been notified that the goods are ready for despatch.
- If rendering work is incumbent upon us or if it has been agreed that an acceptance test is to be conducted, risk shall consequently pass over when the work has passed acceptance. If acceptance is delayed or withheld for reasons not attributable to us, risk shall pass over to the Buyer on the day on which he is notified that the goods are ready for collection.
- In so far as we have been contracted to install hardware or software, risk shall pass over to the customer upon start-up. The first time hardware or software is used shall constitute start-up.
AMENDMENT OF THE SCOPE OF PERFORMANCE
We shall reserve the right to carry out minor modifications normal within the trade prior to delivery, in particular improvements to the goods if as a result of this the interests of the Customer are not impaired to an unreasonable extent.
- Our prices are always “ex works“ (EXW Incoterms 2000) plus value added tax. Despatch costs, customs duty and transport insurance and other expenditure associated with the delivery, including the costs for preparing officially prescribed safety and conformity certificates shall be for the Buyer’s account.
- If our suppliers increase their prices during the period of time between the contract being signed and delivery with regard to the product concerned or its primary materials, and if more than four months elapse between the point in time at which the contract is signed and the point in time agreed for the delivery of our goods or rendering of our services, we shall consequently be entitled to also increase our prices to the Buyer as appropriate. The additional price must not however, exceed more than 25 percent of the original price agreed.
TERMS AND CONDITIONS OF PAYMENT
- Our account shall become due for payment upon receipt of invoice. The Debtor shall be in default with the payment after 30 days have elapsed from the receipt of invoice even if we have not sent him a payment reminder. From this point in time onwards he shall have to compensate us for default damages we incur, in particular by paying us interest amounting to 8% above the base rate charged by the European Central Bank. If the Customer is in default with the payment of a due sum or part-sum for longer than 14 days, all the outstanding claims under the business relationship shall become payable immediately. The same shall apply if the Buyer’s cheques are not honoured, he stops making his payments, becomes insolvent or if he attempts to enter into composition proceedings.
- Without express agreement, the debtor shall not be entitled to make deductions from the amount payable to us. We shall be entitled to demand down payments for services rendered.
- Payment by cheque or acceptances is only allowed by express agreement and in those cases shall only be regarded as being on account of performance. Discount and collection fees shall be for the Buyer’s account. They are payable immediately. If payment is made by cheque it shall not be the receipt of the cheque but the date on which it is credited to our account that shall be regarded as payment.
- Only uncontested or adjudicated accounts may be offset against our claims for remuneration. The same shall apply with regard to the assertion of a right of retention. The Buyer shall, moreover, only be authorised to exercise a right of retention provided that it is based upon the same contractual relationship.
The Buyer may not assign claims against us.
SCOPE OF RIGHT OF BENEFICIAL FOR SOFTWARE (PURCHASED)
- Software licence for the Buyer:Provided that an agreement has not been made otherwise, with delivery and payment the Buyer shall acquire a software licence for the non-exclusive and non-transferable and at the same time unlimited simple right to use the software constituting the subject-matter of the contract the programme on the number of applications specified in the respective delivery contract, each application either on a temporary or permanent memory. The production of a copy for back-up purposes is allowed. This onward transfer of the right of use or granting of sub-licenses shall be subject to our prior written consent. The resale of software licences for which the licensed software has already been played by us on hardware sold with it is only allowed if the hardware is sold together with it, regardless of any requirement for consent. In so far as parts of the programme supplied are software individually written for the Buyer, the Buyer shall acquire an exclusive, non-transferable right of use to use these individual parts – described in detail in our order confirmation – on the number of applications specified on the respective supply contract. The Buyer is not entitled to have the source codes transferred.We shall only withhold our consent to the transfer of exclusive and non-exclusive rights of use for the software supplied to third party buyers if there is an important reason for doing so. The Buyer shall in this case be obliged to transfer all software copies as well as all documentation over to the Buyer and to place the Buyer under an obligation to submit to these terms and conditions of delivery. If the Buyer culpably breaches this obligation, he shall owe a contractual penalty amounting to EUR 15,000.00 (Euro: fifteen thousand) per breach.The Buyer may only use the software as well as the documentation for it on the scale described. In the event of breaches by the Buyer, we shall not be liable for indirect or for direct subsequent damages. The Buyer shall undertake not to allow third parties access to the software or documentation without our prior consent – unless this is for processing or for information purposes. If the Buyer culpably breaches this obligation, he shall owe a contractual penalty amounting to EUR 15,000.00 (Euro: fifteen thousand) per breach.The Buyer is not authorised to decompile or disassemble the supplied software or to convert it by other means to generally other code forms. This shall also apply with regard to part of the supplied software produced individually for the Buyer. If the Buyer culpably breaches this obligation, he shall owe a contractual penalty amounting to EUR 15,000.00 (Euro: fifteen thousand) per breach.
- The terms and conditions of licences for dealers: Provided that we have supplied the Buyer with software specifically for the purposes of resale, he shall be obliged to resell the software or to grant corresponding sub-licences. Prior to reselling the software or granting sub-licenses the reseller has to ensure that his buyers submit to these terms and conditions of supply. It is forbidden for the reseller to reproduce all or part of the and / or the written documents supplied together with the software. If the Buyer culpably breaches this obligation, he shall owe a contractual penalty amounting to EUR 15,000.00 (Euro: fifteen thousand) per breach.
- The terms and conditions of licences from other manufacturers: The standard and individual software supplied by us may contain software components from other manufacturers or be designed for use on other manufacturers’ software platforms. Consequently the licence terms and conditions of the holders of the rights to the components of other manufacturers listed in our terms of order shall constitute part of the contract. Licence agreements at the licence terms and conditions used by the manufacturers of the software components listed on the order confirmation shall materialise between the Buyer and the manufacturers when the Buyer accepts our consignment. The relevant terms and conditions of licence may be obtained from us.
RESERVATION OF TITLE
- We shall reserve the title to the goods supplied by us (This includes software) until all our accounts created by the order have been repaid in full. If, in addition to the account to which we are entitled as a result of the order, we also have other accounts owed to us by the Buyer at the point in time of delivery, we shall consequently reserve the title to the goods supplied by us until all the accounts described above have been repaid (extended reservation of title). If we supply software, we shall, in addition to the title, consequently be entitled to the exclusive right of use to this software, until we have no outstanding accounts receivable created by the order or other accounts receivable existing when the goods were supplied.
- If the Buyer makes payments by cheque, the account receivable created by the order and delivery shall continue to exist until the Buyer’s cheque has been honoured and credited to our account.
- The extended reservation of title shall apply in each case for the balance of account if the accounts receivable have been allocated to a current account.
- If the Buyer processes or treats the supplied goods, the processing or treatment shall be carried out for us in such a way so that we shall acquire co-ownership to the new thing in proportion to the purchase value of the supplied thing in proportion to the total sale value of the new thing. If the goods supplied by us are processed together with goods not belonging to us by the Buyer, we shall be entitled to the co-ownership of the newly created thing in proportion to the value of our goods subject to the reservation of title in proportion to the sale value of the new thing at the point in time of processing. This processing clause shall continue to apply for all accounts which the Buyer acquires in future from the resale of the things subject to this processing clause. The Buyer shall assign the accounts created from the resale of this thing up to the amount of our claims for payment to us. We accept this assignment.
- If the goods supplied subject to reservation of title are indivisibly combined, mixed or blended together with other goods, we shall acquire co-ownership to the whole thing in proportion to the value of the goods we have supplied in accordance with Sections 947 and 948 of the German Civil Code [BGB]. If the Buyer acquires sole ownership as a result of combining, mixing or blending, he shall consequently assign to us here and now co-ownership in proportion to the value of the goods subject to reservation of title to the value of the newly created thing at the point in time of combining, mixing or blending. We accept this assignment. In this case the Buyer shall have to keep the goods owned by us in safekeeping for us free of charge.
- The reservation of title shall be extended to cover all the Buyer’s accounts acquired by him from the resale of the goods supplied by us to him or from the resale of newly created goods. The accounts shall be assigned to us for the amount of the outstanding sum invoiced by us to him. As a security, the Buyer shall assign these future accounts to us at the point in time at which they are created. We accept this assignment. The Buyer shall only be entitled resell the goods subject to reservation of title and / or the newly created goods subject to the proviso that his account for items he sells or for work he has done passes over to us in accordance with the above provisions. The Buyer is not entitled to dispose of the goods otherwise.
- The Buyer must not pledge the supplied items or rights of use to the software supplied or assign them by bill of sale as a security. The Buyer must notify us immediately in the event that execution is levied as well as confiscation or other disposals by third parties.
- Our liens shall not prevent the Buyer from disposing of items belonging to us or accounts assigned to us as a security in a normal commercial transaction. If the Buyer is more than one month in arrears with his payment obligations to us, if he stops making his payments or an application is made for insolvency, the sale by him of our goods subject to reservation of title shall not constitute a normal commercial transaction. In this case the Buyer shall, at our request, be obliged to inform his buyers that the accounts have been assigned to us, refrain from collecting the accounts himself and to allow us to collect the accounts. At our request the Buyer shall, moreover, be obliged to inform us at first call of the addresses of his buyers.
- If the Buyer is no longer capable of conducting normal commercial transactions, we shall be entitled to take back the goods subject to reservation of title at the Buyer’s expense. Taking back our goods in such circumstances, asserting our reservation of title and levying execution on the goods shall not constitute a withdrawal from the contract, provided that this is allowed by law.
- At the Buyer’s request we shall be obliged to release the securities to which we are entitled in accordance with the above provisions as we choose, in so far as the achievable value of the securities to which we are entitled exceeds the accounts to be secured.
- Security interest for the supply of software for resaleProvided that the Buyer is entitled under the content of the contract entered into with us, to assign the rights of use we have acquired to another party, and / or to grant sub-licences, the following arrangements shall apply:
- The reservation of the right of use regulated under a. shall be extended to cover all the Buyer’s accounts acquired by him from the resale, sub-licensing or hiring out the assigned right of use to the software. The accounts shall be assigned to us for the amount of the outstanding invoiced sum.
- Our liens shall not prevent the Buyer from disposing of items belonging to us, software and right of use to it belonging to us, or accounts assigned to us as a security, in normal commercial transactions – subject to our reservation of rights of use being secured. A commercial transaction shall no longer be normal if the Buyer is in arrears with his payment obligations to us for more than one month, his drafts are protested, he stops making his payments or an application is made for bankruptcy. In this case the Buyer shall at our request be obliged to inform his buyers that the accounts payable by them have been assigned to us, refrain from collecting them himself and to allow us to collect the accounts. At our request the Buyer shall, moreover, be obliged to notify us of the addresses of his buyers at first call.
- If the Buyer is no longer capable of conducting normal commercial transactions, we shall be entitled to take back the goods subject to reservation of title at the Buyer’s expense. The Buyer agrees to us taking back the goods subject to reservation of title under such circumstances here and now. Taking back our goods in such circumstances, asserting our reservation of title and levying execution on the goods shall not constitute a withdrawal from the contract, provided that this is allowed by law.
- If the Buyer is a registered trader, he shall consequently have to inspect our goods or services immediately upon receipt – above all for visible damage, defects, weight and dimensions. Manifest defects in our performance are to be notified to us by the Buyer immediately upon receipt. Non-manifest defects are likewise to be notified to us immediately upon being discovered. If the Buyer fails to submit a compliant within an exclusion period of 7 days, our performance shall be regarded as having been approved, also with regard to the defect.
- We cannot be held liable for defects in goods supplied by us having an impact upon the area surrounding assembly and installation at the Buyer’s premises or attributable to force majeure, in particular for defects and damage caused by heat, strong electro-magnetic fields, damp, dust, fire, lightning, water damage, vandalism, static loads as well as defects caused by unstable power supplies, provided that we are not responsible.Also excluded from our liability are other damages not caused by us and for which we are to blame such as damages, caused by defective data carriers, improper installation by the Buyer, software operated in parallel, viruses, repair or maintenance work not authorised by us, operating errors, interference by the Buyer or third parties in the software or similar.Given the best technology currently available defects cannot be ruled out in application programmes in all application environments. Consequently we only assume liability for the programmes supplied being free of defects which limit the fitness for use significantly or totally. This means that the application programmes supplied by us can be used in accordance with their specifications or performance agreed in the functional specifications.
- If a moveable good is to be purchased, and if the Buyer is a consumer within the meaning of the German Civil Code [BGB] (consumer good purchase), the Buyer may consequently demand a cure, a reduction in purchase price and withdrawal from the contract in accordance with the statutory liability regulations. These claims shall become time-barred with regard to used things 1 year from the statutory beginning of the period of limitation. No compensation claims for damages may be asserted on the basis of ordinary negligence not constituting an important contractual duty (cardinal duty), provided that the result is not death, physical harm or personal injury. The claim for compensation for damages on account of non-performance, late performance, or faulty performance shall become time-barred one year from the statutory beginning of the period of limitation.
- In all other cases in which a consumer good is not being purchased, the Buyer shall only be entitled to a cure, reduction of the purchase price, withdrawal from the contract and compensation for damages in accordance with the following provisions:
- If the Buyer accepts a defective thing although he has identified a defect, he shall consequently be entitled to the rights to have a cure, to withdraw from the contract reduce the price or to withdraw from the contract only if he reserves these rights on account of the defect when taking delivery of the goods.
- Liability for quality and statutory defects with regard to the sale of used things is ruled out.
- If a new thing does not have the agreed features or if it has another quality defect in accordance with Section 434 of the German Civil Code [BGB], if a defect is notified on time we shall, for a period of one year, rectify the defect or supply a fault-free thing (cure) as we choose.If as part of a cure we choose to supply a new thing, the Buyer shall have to provide us with the defective thing after a replacement has been delivered, as well as remunerate us for the use he has already derived. Provided that the Buyer is unable to provide that his use was minor or if we are unable to prove that his use was greater, the Parties shall assume that the compensation for use shall be as follows:If the duration of use
– is more than one and up to three months 10 % of the selling price, – is more than three and up to six months 20 % of the selling price, – is more than three and up to twelve months 30 % of the selling price, – is more than twelve and up to twenty months 50 % of the selling price.
If we have made a second attempt to rectify the defect or supplied a replacement fault-free part once and have been unable to rectify the existing defect as a result, the Buyer may consequently reduce the purchase price instead of having the defect rectified or a fault-free part supplied or, after having set a reasonable amount of time, demand that the contract entered into with us is rescinded.
- If the performance owed by us is not rendered or rendered late or with a fault, the Buyer may consequently only demand compensation for damages for a period of one year from the passing of risk:
- for damages arising from death physical harm or personal injury, attributable to our intentional or negligent breach of contract or to an intentional or negligent breach of contract by one of our statutory representatives or agents.
- for other damages attributable to an intentional or grossly negligent breach of duty on our part or to an intentional or grossly negligent breach of duty by one or our statutory representatives, senior staff or agents or to the intentional or negligent breach of important contractual duties (cardinal duties) on our part or to an intentional or grossly negligent breach of duty by one or our statutory representatives, senior staff or agents;
- for damages covered by a guarantee furnished by us (warranty) or a quality or durability guarantee.
Additional liability as a result of malice shall not be affected.
In the event of a negligent breach of an important contractual duty liability shall be limited by amount to the damages typically to be expected. Exceptions to this are damages arising from death, physical harm and personal injury.
In so far as nothing is agreed otherwise in these terms and conditions, none of the Buyer’s compensation claims for damages of all types, in particular those not incurred to the supplied item itself as well as claims based upon dialect will be admitted. This shall also apply for claims asserted on account of, and against, our agents. In such cases the limitation of liability shall not apply either, if we or our agents have been accused of intent or gross negligence or the result of our actions is death, physical harm or personal injury.
- Should third parties be contracted or included to set up or handle the obligations between the Parties, the warranty and liability limitations designated above shall also apply for the benefit of third parties.
- If a contract is reversed in accordance with the regulations in Sections 346 et seq of the German Civil Code [BGB], compensation for the value of the benefits enjoyed shall consequently be determined in accordance with the figures designated under No 4 c). The Buyer shall remain at liberty to prove that the benefits he enjoyed were less, and we shall be at liberty to prove that the benefits he enjoyed were more.
- The Buyer shall have to bear the cost of all groundwork, bedding work, construction work, electrics work, scaffolding work, plastering work and decorating work and other ancillary trades including the building materials required to carry them out and the Buyer must ensure that such work is carried out in time.
- The Buyer shall have to take the necessary steps to protect our property and our fitters on the assembly site. Above all, he shall have to provide lockable rest rooms and storage rooms for our staff, our materials and tools as well as sanitary installations, heating and lighting. If the protection of our property necessitates round the clock security, the Buyer shall consequently have to ensure that it is provided. The relevant costs shall be for the Buyer’s account. The Buyer shall moreover have to instruct our staff and agents of existing safety risks and safety regulations.
- Before assembly work begins, the Buyer shall have to furnish the necessary information about the location of concealed electricity cables, gas pipes and water pipes or similar.
- If the setting up, assembly or start-up is delayed as a result of circumstances on site for which we are not to blame, the Buyer shall have to bear all the costs for waiting time and other additional trips necessary for the installers or fitters. The additional provisions under Number 3 “Delivery“ shall not be affected.
- We shall only be liable for handling and setting up or assembling the supplied items properly. If we are accused of being in breach with a contractual duty, we shall, subject to a complaint being notified on time, as we choose, rectify the defect or supply a fault-free thing (cure). If we have made two attempts to rectify the defect or one attempt to supply a fault-free thing and have been unable to rectify the existing defect as a result, the Buyer may consequently reduce the purchase price or demand that the contract entered into with us is rescinded after a reasonable period of time has elapsed instead of having the defect rectified or a fault-free thing supplied. The Buyer shall only be entitled to claim compensation for damages subject the preconditions described under Number 12 No 4 d).
- We shall not be liable for the work carried out by our installers or fitters or other agents in so far as the work is not arranged by the Buyer to be carried out straight away after delivery and assembly.
- The Buyer shall remunerate us for the agreed costs for labour, travelling time, travelling expenses as well as supplements for working overtime, night work, Sunday work and work on public holidays in accordance with the price list in force when the contract was signed. Ancillary expenses incurred (Such as hotel fees, parking expenses etc.) will be invoiced separately.
- It is the Buyer’s responsibility to arrange the proper disposal of waste generated in the course of maintenance and customer service work. The Buyer shall also have to bear the cost of such waste disposal.
- The subject-matter of the rental agreement is the individual appliances listed in our order confirmation. We shall reserve the right to replace the appliances named therein with other appliances having the same functions.
- The prices in the prices lists valid at that time shall apply, unless other prices have been agreed in writing. The rented items shall be despatched at the hirer’s expense.
- The accidental loss or accidental deterioration of the rented items after risk has passed over to the hirer shall not release the hirer from having to fulfil the obligations he has taken on in the rental agreement, in particular payment of the rent. The hirer is obliged to inform us immediately in writing if one of these occurrences takes place.
- Provided that nothing has been agreed otherwise, the Buyer shall be obliged to insure the rented items against theft, destruction, damage and accidental loss. Insurance cover must include the period of time between the hand-over of the goods in our loading bay and the return of the goods to our loading bay. The insurance policy is to be taken out with a recognised insurance company. Proof of insurance cover is to be handed over to us upon request.The Buyer shall assign here and now his future claims against the insurance company under the insurance policy he has taken out to us by way of security. We accept the assignment.If there is a damaging event the Buyer must notify the insurance company of this immediately and instruct it only to make payments to one of our accounts. The Buyer shall have to do his best to provide assistance in the handling of the claim, above all hand over to us and to the insurance company all the documents required for dealing with the claim.Provided that reference its made to it in our offers and order confirmations, that the goods will be insured by our Company, the Buyer shall not be obliged to take out an insurance policy. In this case we shall be entitled to invoice the costs incurred by our Company to the Buyer. The costs shall be set as a lump sum equal to 2% of the net hire price. The Buyer is allowed to prove that the costs incurred by our Company are less than the above lump sum or that we have not incurred any costs at all.
- We are to be notified immediately of defects as well as damage incurred in transit. The same shall apply for flaws not identified in the hire items.
- Compensation claims for damages on account of defects in the hire appliances will not be admitted in so far as we or our statutory agents cannot be accused of intent or gross negligence or a breach of important contractual duties.
- We may demand that the Buyer lodges a deposit with us for the duration of hire period amounting to the value of the appliance at that time. The deposit shall be returned to the Buyer upon return of the hired appliance. The deposit may be lodged not only in cash, but also with a cheque or with a directly liable guarantee issued by a bank or insurance company licensed in the EU.
- In the event that the agreed rent exceeds the gross sum of 2,500 EUR, we shall be entitled to demand an advance payment towards the rent amounting to 2/3 of the agreed rent.
- If the Buyer is for reasons within his sphere of control (E.g. withdrawal from the contract, serving notice of termination or similar), not interested in going ahead with the rental agreement entered into, we shall consequently be entitled to invoice him the following sums:
Notice given less than 1 week prior to beginning of hire period 90 % Notice given less than 2 weeks prior to beginning of hire period 75 % Notice given less than 4 weeks prior to beginning of hire period 50 % Otherwise: 30 %
of the respective agreed gross rental price. In the course of raising our invoice we shall be taking into account expenditure we have saved and our ability to hire out the appliances elsewhere, in so far as they exceed the percentage deductions stated above. The Buyer shall in each case be entitled to prove that the deductions to be made are greater than those stated by us.
- The Buyer shall undertake to handle the appliances and the accessory parts belonging to them properly and with care. The hirer shall be liable for deterioration in the hired thing in so far as, and provided that he, or one of his statutory agents, is to blame. The hirer shall have to observe the regulations governing transport, use, maintenance and care in particular. The hire items may only be transported in the original packing intended for them.
- The hirer shall only be entitled to carry out modifications, installations, extensions and similar to the hirer thing without prior written consent. At our request the hirer shall be obliged to return the hired thing to its original condition at the end of the rental agreement at his own expense. If we do not make use of this right at the end of a rental agreement and if the hirer returns the hired thing in the condition created by him, the hirer may consequently not demand any compensation for expenses he has incurred for modifications, installations, extensions and similar to the hired thing.
- The hirer may only use the hired item for his own use. Persons other than those named in the order confirmation are not entitled to use the hired thing or to repair it without our authorisation.
Sub-hiring for a fee or otherwise, handing over the hired thing for use and similar arrangements are only allowed with our express written consent. This shall not apply for hirers who sub-hire the hired thing as part of their business operation.
- After the hire period has ended, the hirer shall have to return the hired thing to us at his cost and risk immediately and properly in its original packing. We shall reserve a 2-week period within which we may inspect the returned hired thing to verify that it has been returned properly.If the hired item is returned late, the hirer shall consequently have to pay the agreed hire fee until the hired thing is returned regardless of his other obligations to pay compensation for damages. If we find ourselves in default to a third party on account of the hired item being returned late to us, the hirer shall, in particular, have to bear the costs for obtaining a replacement. Our other compensation claims for damages shall not be affected by this as a result.If the hired item is not returned in a proper condition, the hirer shall have to compensate us for the damages incurred by us as a result and in particular pay the agreed hire fee for the duration of any repair which may have to be carried out.
- If the Buyer carries out a repair to the hired appliances, of his own accord – without consulting us or obtaining our consent – the Buyer shall consequently be liable for damages incurred as a result. The Buyer shall also be liable for damages arising as a result of improper operation, transportation or change in location.
If, in the countries in which the Buyer intends to sell our appliances, there are product liability and product safety laws differing from those in Germany, in particular they are stricter, the Buyer shall consequently have to draw our attention to this when placing an order. In this case we shall be entitled to withdraw from the contract within one month. If the Buyer fails to make this declaration, we shall consequently be entitled to withdraw from the contract within one month from finding out finding out about the relevant legal position. In the latter case the Buyer shall be obliged to exempt us from all third party claims in excess of our duty to render performance in a comparable product liability case in Germany. This shall also apply in those cases in which we do not withdraw from the contract.
We shall reserve all rights of ownership and copyrights to the written documents we have made available (E.g. cost estimates, drawings, presentations, images, concepts, designs). The documents, corporate logos and similar pictorial presentations and / or texts must not be used or put into circulation or reproduced by third parties without our consent. The Buyer is to handle these documents in a confidential manner and shall oblige his staff and sub-hirers if there are any, to do likewise.
- If, in the course of the respective order we owe the rendering of work performances or if another form of acceptance of our performance is agreed, the Buyer shall consequently be obliged after appropriate notification of completion by our Company, to declare in writing that our contractual performances have been rendered. Start-up of our performance is to be regarded as acceptance of the same. Start-up will be extant in particular if the software is resold, or used for commercial purposes or if it is made possible for third parties to use it.
- If acceptance is delayed without it being our fault, our performance shall be regarded as having been accepted after 7 calendar days have expired from notification of completion or start-up. Our liability for manifest defects shall lapse with start-up, in so far as the Buyer has not reserved the right in writing to assert a claim for a specific defect. The remuneration shall continue to be payable in full without taking such a reservation into account.
- Part acceptance is to be conducted at our request. Given this, the above provisions shall apply analogously
Participants in software familiarisation events or training staged by our Company shall be obliged to handle information passed over to them on the occasion of such training courses or which the participants become aware of as being confidential. The production of copies of our training programme, training documentation or literature is not allowed. If a training course student culpably breaches this obligation, the Buyer for whom the person concerned has attended the event shall consequently have to pay a contractual penalty of EUR 5,100.00 (Euro: fifteen thousand) per breach.
NAMING THE BUYER AS A REFERENCE
Provided that the Buyer does not expressly forbid it, we shall be entitled to transmit, disseminate and publish the results of our work for him on picture, sound and data carriers without his express permission to do so.
We shall be entitled to name the Buyer together with a description of the work we have done for him as part of our advertising. But this shall however in particular not apply just for brochures, web sites press releases and other digital media.
- The place of fulfilment and place of jurisdiction for all disputes arising between the Parties from their contractual relationship is Essen, provided that the Buyer is a registered trader, statutory entity established by public law or a special fund created by public law or if he does not have a regular general place or jurisdiction in the Federal Republic of Germany or if he has relocated his place of jurisdiction to a court outside Germany.
- Should a provision in these General Terms and Conditions of Supply and Payment or a provision forming part of other agreements be or become invalid, the validity of all the other provisions or agreements shall not be affected as a result.
- Contractual and other statutory relationships with our customers shall be governed by German law with the exclusion of the UN law on sales.
- The Buyer states his agreement to his order data being saved and analysed by us (Section 26 of the Federal Data Protection Act).