GES GmbH & Co. KG
General Terms & Conditions (Link zu den Allgemeinen Geschäftsbedingungen)
Preliminary Remark:
GES GmbH & Co. KG is active in the areas of construction for trade fairs and exhibitions as well as interior construction and store fixtures and renders the related services. The company renders services in the following contract areas: Sales, labor and materials, leasing and service.
The general terms & conditions below apply to all contract areas. The special conditions apply to the contract area for which the contract has been made and are supplementary to the general terms & conditions.
Hereinafter the terms “we” and “us” will be used when referring to GES GmbH & Co. KG. Should any gaps in regulations surface during processing of the contract, or should a regulation be in need of interpretation, amendments to the existing norms of the contract shall be made in the following sequence:
1 Individual Contract
2 General Terms & Conditions
a) Special Conditions
b) General Conditions
1 VOB/VOL (Deliveries & Services/Construction Services) Part B
2 HGB (German Commercial Code)
3 BGB (Code of German Federal Regulations)
4 acknowledged principles of commercial trade
5 the prerequisites developed based on case law For the application of good faith
I. Exception provisions regarding construction services and services for public contract partners and quasi-public contract partners who are acknowledged to process their contracts in accordance with VOB/VOL
1.1 The hiring regulations for construction services “VOB” Part B applies to the completion of interior construction services, construction carpentry work and other construction and installation services.
1.2 The regulations for services other than construction (VOL) – Part B – for our commercial relations with legal persons of public law and public separate estate should that be stipulated by the customer.
II. General Conditions
The following conditions apply to our commercial relations with our contract partners, to the extent not contained in VOB/VOL – Part B – and constitute an addendum to our General Terms & Conditions.
Our services and offers are made exclusively based on these terms and conditions. They shall also apply to any future business relations, even if they have not been specifically agreed to. We herewith specifically do not accept the terms and conditions of the contract partner. Such conditions shall not obligate us, and especially not even if they have not been specifically objected to again. Our terms and conditions shall also apply if we make unconditional deliveries to the contract partner while knowing about their contrary and divergent terms and conditions.
1. Offers and Acceptance
1.1 Our offers are subject to confirmation. Illustrations, drawings, measurements and weights supplied with our offers are only close estimates, unless we have specifically indicated them as binding.
1.2 Orders placed by the contract partner are binding. Our acceptance shall be in the form of service delivery or order confirmation.
2. Prices and Payment Terms
2.1 Prices are understood ex works and exclude packaging, which will be invoiced separately.
2.2 The legal value-added tax is not included in the price. It will be added to the invoice as a separate line item in the amount applicable on the day the invoice is rendered.
2.3 Any discounts require a separate written contract.
2.4 Each party to the contract may request a price adjustment in case of continuing obligation, or after expiration of an agreed to delivery time for goods and services of more than 4 months, if prices for the total of needed materials or wages and benefits have risen by more than 5% because of legal or wage contract changes. The party making the request for adjustment must provide proof of these prerequisites.
2.5 The contract partner is obligated to pay the agreed to invoice amount in the following installments: 50% on acceptance of delivery, 30% on the day installation begins, and 20% upon completion. Legal regulations apply to payment delays. Bank drafts and checks will be accepted for processing only if agreed to in the contract. Bank draft or check fees are at the expense of the customer and are due immediately. Checks and bank drafts are counted as payment only after they have been honored. In case of a check or bank draft protest we shall have the right to demand payment in cash as and when bank drafts and checks are returned, including for payments due in the future and for all further demands against the contract partner.
2.6 In case of payment delays we shall be entitled to interest payments on the open invoice amount in the amount of 8% above the current base rate plus reimbursement for any additional damage. We shall have the right to demand prepayments for any deliveries still to be made as well as demand security deposits in sufficient amount and form to be determined by us and shall be calculated upon the agreed to scope of services relative to services already rendered. Payments for partial deliveries shall fall under the above-mentioned rules.
2.7 If partial deliveries have been contractually agreed to, we shall have the right to demand partial payments.
2.8 We shall have the right to demand payments on account. Should the contract partner not make the payments on account, we shall have the right to halt further work towards completion of the contractual project. The threat to the contractual fulfillment of the contractual project will then be the fault of the contract partner.
2.9 Should we hear of situations that make the creditworthiness of the contract partner questionable, we shall have the right to halt the contracted work and to invoice the costs already incurred, even if checks or bank drafts have been honored. Additionally, we may also cancel the contract and demand payment of costs already incurred. We reserve the right to the assertion of further claims for damages. Incorrect or incomplete statements regarding the creditworthiness of the contract partner, or one of his sub-contractors, entitle us to the same rights as under Sections 1 through 3.
2.10 If the contract partner enters into this contract with us under his name, but is externally working for a third party, the contract partner shall immediately assign his rights against the third party regarding payment to us in the amount of our demands against him, plus late payment interest and legal expenses. We herewith accept such assignment. The assignment is not accepted instead of litigation. We shall have the right anytime to demand payment to us of the assigned third party account under our name. However, we shall assert such right only if the contract partner is getting late with payment. Delayed payment shall have occurred if invoices are not paid within 2 weeks of receipt. Possible deficiency claims shall not be an obstacle to exercising the rights under the assignment. Otherwise, the contract partner remains obligated to make his demand on the third party and, failing timely payment, to promptly proceed legally and word the motion for judgment in such a way that in case of conviction payment is made to us. The contract partner shall be obligated to keep us fully informed of the status of the proceedings at all times. A breach of this obligation shall entitle us to a claim for damages against the contract partner.
2.11 The contract partner shall be entitled to an offset against counterclaims only if they have been found to be uncontested and valid or acknowledged by us. The return of goods is not permissible without our approval. Should return goods be received anyway, we shall have the right to store such goods at the expense of the contract partner.
3. Delivery Time, Contractual Obligations, Force Majeure
3.1 The delivery time quoted by us begins when all technical questions have been resolved.
3.2 Keeping our delivery promises is also dependent on the timely and orderly fulfillment of obligations by the contract partner. We reserve the right to object to an unfulfilled contract.
3.3 Should the contract partner delay acceptance or should he culpably breach any other cooperative duties, we shall have the right, but not the obligation, to provide the work ourselves after dutiful consideration, and to demand reimbursement of the costs incurred plus any additional expenses. Further demands are reserved.
3.4 Should the conditions under 3.3 exist, the danger of an accidental demise or deterioration of the contractual object shall pass to the contract partner on the day he delayed acceptance or payment.
3.5 Should the contract partner leave items behind when leaving the exhibit stand, we shall have the right to dispose of such items according to our judgment.
4. Transfer of Risk
4.1 The place of performance of our service obligations is the location of our company.
4.2 Loading and shipment are made, insured for the value of the contractual object, at the risk of the contract partner.
5. Liability
5.1 Our liability applies only if damage is caused by culpable breach of a contractual obligation and in a manner that endangers the contractual objective, through service delay or through impossibility of rendering the service which is our responsibility.
5.2 Other than that, we are liable only for intention and gross negligence. The culpability of our representatives or fulfillment assistants is ours. The liability is limited to the foreseeable and typically occurring damages.
5.3 We are not liable for collateral damages, consequential damages and lost profit.
5.4 The limits of liability also apply to our employees, representatives and fulfillment assistants.
5.5 Our liability is also limited to the legal regulations granted to the contract partner in case of delays in the delivery of services which have damaged his interest in the contractual obligations. The liability is limited to the foreseeable and typically occurring damages.
5.6 Cases of force majeure and other unforeseeable and unusual situations caused through no fault of our own, such as difficulties with obtaining materials, operational disruption, lockout, legal regulations, transportation losses, etc., including on the part of our vendors, are not our responsibility. They entitle us to delay services or deliveries by the length of time caused by the disruption, plus an appropriate ramp-up time. Should the named causes make it impossible or unreasonable for us to render the services or deliveries, we shall be discharged of our responsibilities. Should delivery be delayed for the above-mentioned reasons, or we have been discharged of our responsibilities, it shall not entitle the contract partner to any damage claims. We pledge to promptly inform the contract partner of any such circumstances.
5.7 We assume responsibility according to legal regulations for damage to life, body and health, which is due to negligent or intentional breach of duty by us, our legal representatives or our fulfillment assistants, or for damages which legally fall under product liability to the extent that the law considers us the manufacturer.
6. Joint and Several Liability
6.1 Any liability claims beyond what is provided under No. 5 are excluded, regardless of the legal nature of the claim. This applies specifically to damage claims based on culpability at contract closing, other breaches, or because of criminal filing of damage claims according to §823 BGB.
6.2 The limitation per 6.1 applies also should the contract partner make demands for useless expenses instead of a damage claim.
6.3 To the extent that damage claims against us are excluded or limited, it also applies to any personal damage claim against our employees, representatives and fulfillment assistants.
7. Intellectual Property Rights
7.1 This is to clarify that any ideas, intellectual work, samples, models, etc. developed by us may fall under the legal regulations regarding intellectual property rights or trademark protection. Any unauthorized usage is forbidden and will be prosecuted accordingly.
7.2 Our work and services may be stored on media and used by us for our advertising purposes at no cost. Our contract partner gives us express permission herewith.
7.3 The contract partner ensures that the services provided by us do not infringe upon similar protection rights of third parties and releases us from any such claims brought by third parties.
8. Applicable Law, Place of Fulfillment and Place of Jurisdiction
8.1 Unless otherwise contractually agreed to, the place of fulfillment for deliveries and acceptance is the place of lading. For all other obligations on the part of both parties the place of fulfillment is the location of our company.
8.2 The contract made with the contract partner as well as our General Terms & Conditions and their applicable rights and responsibilities are subject to the laws of the Federal Republic of Germany; the UN Convention of Contracts for the International Sale of Goods (CISG) is excluded.
8.3 Changes and additions to the concluded contract between the contract partners shall be subject to written form. This also applies to changes to this written form clause. Verbal side agreements shall not be made.
8.4 The place of jurisdiction for all litigation, including the document and change process, shall be the location of our company in Germany. This also applies to any litigation regarding the legal validity of the contract. In addition, we shall have the right to litigate at the location of the contract partner.
III. Special Conditions regarding the Sale of Goods
1. Delivery
1.1 The sale is understood ex our warehouse.
1.2 We have the right to make partial deliveries to the extent that they are commercially customary for the delivery of the contractual object in question.
2. Reservation of Ownership
2.1 The product delivered shall remain our property until such time that it has been paid for; in case of payment by check or bank draft, until they have been honored. The product shall also remain our property until such time that any other demands on the contract partner have been fulfilled. Breaches of contract by the contract partner, especially payment delays, shall give us the right to retrieve the object of the sale. Retrieval of such object by us shall be considered breach of contract by the contract partner. We shall have the right to use such retrieved objects and offset the use value against the contract partner’s obligations, minus appropriate usage costs.
2.2 Goods to which we have usage rights shall be described as “goods subject to retention of title”. We shall gain co-ownership of such goods through our re-processing in relation to the value of the goods subject to retention of title and the re-processed value at the time of re- processing. If our co-ownership is terminated through connection, it is now agreed that the value of co-ownership by the contract partner to the whole shall be assigned to us based on the invoice value. The contract partner shall store our co-owned goods at no charge.
2.3 Should the value of the security deposit made to us exceed 20% of our demands, we shall release such security at our option.
2.4 In case of attempted seizure of goods subject to retention of title by third parties, the contract partner is obligated to point out our co-ownership and to advise us immediately so that we can begin litigation according to §771 ZPO (third party motion to vacate). Should the third party not be obligated or able to bear the court and other expenses of the third party motion to vacate, the contract partner agrees to bear such cost. Any further liability of the contract partner shall be unaffected.
2.5 At our request, the contract partner is obligated to report to us the inventory of all goods subject to retention of title.
3. Warranty regarding Purchase Contracts
3.1 Warranty claims on the part of the contract partner require that he has fulfilled all of his obligations of investigation and of giving notice of defect according to §377 HGB.
3.2 Warranty claims are excluded from used goods; for new goods, the expiration time for
warranty claims is 1 year from the date of delivery or pick-up of the goods.
3.3 Should a product deficiency exist, we shall deliver a replacement or we going to improve that product. The choice is at our option. In case of defect repair, we shall bear all costs of such repair, specifically for transport, labor and material costs if the goods are still at the delivery location.
3.4 Should the repair or replacement fail after an appropriate time, the contract partner shall have the right to demand either a price reduction or a cancellation of the contract. The right to return shall not apply in case of a minor contract breach and especially minor deficiencies. This applies especially to exhibit stands supplied by us as long as there is no significant deficiency regarding the usefulness of the exhibit stand in terms of advertising value from an objective point of view. Customary variations in color and grain of textiles, leather, wood or wood-like surfaces are reserved and are as little a reason for deficiency claims as are minor and reasonable deviations in measurements and finish, especially for reorders, unless adherence to color tones and measurements has been especially agreed to.
3.5 If a contract partner chooses cancellation of the contract because of a legal or material defect after replacement has been made, he is not entitled to additional indemnification. If he chooses indemnification after replacement has been made, the goods shall remain with the contract partner if that is reasonable. The indemnification will be limited to the difference between the purchase price and the value of the defective material. This does not apply to bad faith on our part.
3.6 Basically, our product description or the product description of the manufacturer shall apply to the quality of the product represented to the contract partner. Public statements, product blurbs or advertising by the manufacturer shall not be interpreted as our quality statement of the products.
3.7 Should the contract partner receive defective installation instructions, we shall be responsible only for the delivery of correct installation instructions, but only if the defective installation instructions are contrary to those of a proper installation.
3.8 All warranties are null and void if our processing or other instructions, or those of the manufacturer, have not been followed, if changes have been made to the product or components have been exchanged and the contract partner does not contradict a fully substantiated assertion that the defect was caused by such actions.
3.9 Warranty claims against us are for the direct benefit of the contract partner only and cannot be assigned to others.
IV. Special Conditions regarding Delivery of Labor and Materials
The provisions under III shall apply to contracts for delivery of labor and materials.
V. Special Conditions regarding Delivery of Services
1. Warranty regarding delivery of services
1.1 Obvious defects are to be pointed out promptly by the contract partner. That is part of his contractual obligations. Should a defect be discovered later, it should be reported to us immediately after discovery. A breach of this obligation releases us from all our warranty obligations. This does not apply if bad faith on our part is present.
1.2 Excluded from warranty claims is a minor defect in an exhibit stand, which does not materially affect the advertising effectiveness of the exhibit stand. Customary variations in color and grain of textiles, leather, wood or wood-like surfaces are reserved and are as little a reason for deficiency claims as are minor and reasonable deviations in measurements and finish, especially for reorders, unless adherence to color tones and measurements has been especially agreed to.
1.3 We honor warranty claims first at our option by either repair or replacement.
1.4 If the fulfillment by us is seriously and ultimately refused, the repair of the defect is refused because of undue costs, the repair fails or cannot reasonably be accepted by the contract partner, he shall have a choice between a reduction of the invoice or cancellation of the contract instead of warranty fulfillment, as provided below. Contract cancellation rights of the contract partner shall not apply if only a minor contract breach exist, specifically a minor defect as described in 1.2.
1.5 If we are not culpable of a defect-related breach of contract, the contract partner shall not have the right to cancel the contract.
1.6 Rights of the contract partner regarding defects, which are not related to construction work planning and supervisory services, expire one year after acceptance of the work.
1.7 In case bad faith concealment of defects or quality guarantees are present, further indemnification rights are not affected.
1.8 Guarantees in the legal sense are not made by us to the contract partner.
1.9 The contract partner is obligated to accept a properly completed work. The acceptance is made by accepting the work without making claims at the time the work is due and acceptance can be made; otherwise, if acceptance is not possible, at the time the work is completed.
1.10 Warranty claims against us are for the direct benefit of the contract partner only and cannot be assigned to others.
VI. Special Conditions regarding Leasing
1. Lease Term, Transport
1.1 The lease contract is firm for the term agreed to. An extraordinary cancellation right of the contract partner for an important reason is not affected. Legal notices apply to long-term lease contracts. Pick-up and return of the leased object can only be made during regular business hours. The contract partner is responsible for pick-up and return. Transportation by us requires and appropriate contractual agreement.
1.2 The lease rate is payable in advance and is invoiced as agreed by the day, week or month, unless a lump sum remuneration has been contractually agreed to. The leased object must be returned on the last day of the lease term, otherwise the lease rate continues to be payable, without extension of the lease term, until the leased object is returned.
1.3 Should the contract partner not fulfill his payment obligations, we have the right to keep the leased object.
1.4 If the leased object is on our premises, we shall have the right to dispose of the leased object at the expense of the contract partner once he is at least two weeks in arrears with payment.
1.5 If the contract partner cancels the lease contract prior to the agreed term, he shall reimburse us for our disposal costs.
2. Right of Use by the Lessee
2.1 The contract partner is to maintain the leased object as agreed and have any necessary repairs done at his expense. Sub-leasing the lease object requires our approval.
2.2 Further costs incurred through repeated use of the lease object are to be borne by the contract partner, including the removal of signs of usage.
3. Demise/Insurance/Reporting Responsibilities
The danger of demise, loss, theft, destruction, damage or the premature wear and tear of the lease object is at the expense of the contract partner, unless these conditions occurred because of our culpability. Such occurrences do not release the contract partner from his contractual obligations. Upon occurrence of such conditions he must advise us without delay. The contract partner shall purchase insurance for the lease object for the term of the lease contract against the risk of fire, storm or water damage as well as against the risk of theft or vandalism. We have the right to demand proof of such insurance. Possible claim payments against such insurance are herewith assigned to us. We accept the assignment herewith. The contract partner herewith agrees to the assignment.
4. Interventions by Third Parties
The lease object is to be kept free or made free of seizure by third parties at all times. The contract partner is obligated to immediately inform us of any interventions by third parties, which interfere with our rights, by providing us with the appropriate documentation and to take all necessary measures that serve the protection of our interests. Any related costs incurred are borne by the contract partner.
VII. Special Conditions regarding Services
We have the right at any time to assign contractual services to a sub-contractor of our choosing. Should the sub-contractor provide services on the basis of General Terms & Conditions, they shall apply to the contract partner if our General Terms & Conditions do not provide a regulation.
VIII. Mediation Clause
Should disputes arise between the contract partner and us about whether and which deficiencies exist in connection with this contract, we have the right to have the question mediated by a public sworn expert to arrive at a binding decision between the parties. The expert is to be named by our local chamber of commerce. The findings and assessments of the expert as to whether or not deficiencies exist shall be binding upon both parties in all cases.
July 26, 2010 Edition