General terms and conditions for subcontractors

 

§1 General

  1. The following General Terms and Conditions regulate the relationship between the client ("Client") and the subcontractor ("Contractor").

  2. The following terms and conditions shall apply to all services provided by the Contractor, subject to any individual agreements to the contrary. The Client commissions the Contractor to perform the services described in the individual contract on the basis of these GTC. The Client executes orders for customers at events, trade fairs and exhibitions. A very essential part of the orders is the absolutely timely provision of the services, as any delay can lead to considerable damage and, in particular, jeopardize the timely opening of the Customer's exhibition contribution. Taking into account these requirements and the need to guarantee a timely and quality event, trade fair and/or exhibition of the Customer, the following terms and conditions regulate the legal relations between the Customer and the Contractors in addition to the provisions in the Contract/Order.

  3. The form reference to the general terms and conditions of the contractor is contradicted.

 

§2 Scope of services

  1. The Contractor shall be responsible for all services mentioned in the individual contract, in the specifications or in the service description together with all attachments. In addition, the Contractor undertakes, insofar as it falls within its scope of performance, to provide all services not expressly mentioned which are indispensable for the proper and quality fulfillment of the services mentioned. This includes in particular, without this being intended as a restriction, compliance with the generally recognized rules of construction and construction technology as well as trade fair, exhibition and stage construction and event technology, as well as all relevant statutory and official regulations. The Contractor shall be obliged to obtain in good time all permits and authorizations required for the performance of its services.

  2. The Contractor shall also be obliged to prepare the work plans and documents required for the performance of its services, unless these are specified by the Client.

  3. The Contractor is aware that for the realization of the respective projects or the performance of the services, the exhibition organizer requires strict compliance with specifications and general conditions. This regularly applies to environmental protection, logistics, organization of the construction site, power and water supply, communication connections and general working conditions. The Contractor is therefore obliged to observe such specifications and framework conditions in the course of providing its services. The Contractor shall procure the respective corresponding conditions of the exhibition organizers itself.

 

§3 General contractual obligations of the contractor

  1. Execution

    (a) When performing the services, the Contractor shall comply with the specified and defined implementation planning without fail or ensure compliance therewith. Unless otherwise specified in the contract, the Contractor may perform an equivalent service instead of the service described. If the Contractor considers deviations from the specified execution planning to be necessary or reasonable during the realization of its services, it shall notify the Customer thereof in writing without delay. In case of doubt, he shall prove the equivalence of the execution.

    (b) Deviations from the specified implementation planning may be made without objective reason only with the prior written consent of the Customer. In the event that the Contractor carries out deviations from the already specified execution planning without the corresponding consent of the Customer, the Contractor shall bear all additional costs caused by the deviation.

  2. Execution documents

    The Contractor's responsibility for the correctness and suitability of work plans, drawings, calculations and other technical documents shall not be affected by the Client's acceptance or consent or approval. The client does not assume any liability through the approval. This also applies to suggestions and recommendations of the contractor.

  3. Duty to cooperate

    (a) The parties are obliged to cooperate closely during the performance of the contract. 

    (b) The Contractor further undertakes to cooperate with all third parties involved in the Project in any way as often and as far as necessary.

    (c) The Parties agree that joint meetings and other gatherings, including with third parties, may be necessary for the performance of the Contract. These meetings and gatherings shall be arranged by the Customer in such a way as to ensure the best possible performance of the Services in accordance with the Contract. The Contractor shall therefore be obliged to participate, unless this is unreasonable in the individual case.

  4. Material delivery and storage

    All deliveries to the construction site or place of use are to be coordinated in good time with the client or his representatives. Logistics concepts of the client and the exhibition organizers must be observed in any case and their specifications followed.

  5. Employees of the contractor

    (a) The Contractor undertakes, if required for the proper and timely provision of the services, to employ a sufficient number of employees to guarantee compliance with the contractual obligations. The Contractor assures compliance with the legal regulations applicable at the place of performance, in particular the provisions of labor and social law and the special provisions of the Exhibition Organizer in connection with the employment of employees. The Contractor undertakes to continuously monitor the personnel employed by it; the Contractor alone shall be responsible for the selection and monitoring obligation.

    (b) The Contractor shall, insofar as this is necessary according to the services to be provided by it or is required by the Client, immediately after conclusion of the contract appoint to the Client one or more superior contact persons as well as an expert representative. The latter shall be present at the site of construction or use at the required times.

    (c) The Contractor guarantees that the designated contact persons are authorized to issue instructions and make decisions and are authorized to effectively commit the Contractor. Any change of these contact persons shall be notified by the Contractor to the Customer in writing in advance. In the event of imminent danger, the Customer shall make the necessary decisions and issue the necessary instructions itself. The Contractor shall be solely responsible for all personnel administrative and disciplinary measures; however, the Customer may demand the removal of Contractor's employees from the construction site or place of use if they prove to be personally or professionally unsuitable.

    (d) The Contractor shall ensure that all workers employed by it conduct themselves in an environmentally sound manner and in a manner that is conscious of safety and fire protection.

  6. Commissioning of third parties

    (a) The Contractor shall only be entitled to engage third parties for the performance of contractually owed services or parts thereof with the written consent of the Customer.

    (b) The Customer shall be notified in writing of the type and scope of the services as well as the name and address of the intended subcontractor prior to the intended commissioning. In this context, the Contractor undertakes to assign services only to subcontractors who are competent, efficient and reliable. This also includes that they have fulfilled their legal obligations to pay taxes and social security contributions and that they meet the requirements under trade law. The use of third parties does not release the contractor from its sole obligation to the client to fulfill the contract in full.

  7. Surveillance right

    (a) The Customer shall be entitled to monitor the performance of the Services and to enter the sites where the Services are performed during normal business hours. The Contractor shall pass on the corresponding obligation to third parties acting on its behalf. The Customer shall be entitled to inspect all documents relating to the performance of the Services, including all electronically stored data.

    (b) In order to ensure the quality standard, the Customer shall be entitled to issue instructions to the Contractor regarding the execution at any time. The Contractor shall observe and implement these instructions.

 

§4 Special contractual obligations of the contractor

  1. Price guarantee

    If the parties have agreed on a lump-sum remuneration, the Contractor guarantees that its services can be and will be performed within the scope of this lump-sum remuneration. This lump-sum price shall cover all services necessary for the functional and defect-free, timely and ready-for-occupancy completion of the order.

  2. Schedule guarantee

    (a) The Contractor guarantees unconditional compliance with agreed dates and deadlines. Such agreed deadlines and dates may only be changed by mutual agreement if this is necessary due to the stage of development of the project or other circumstances. The Contractor shall also guarantee compliance with dates and deadlines amended accordingly by mutual agreement.

    (b) If there is reason to believe that the Contractor's services cannot be completed at the scheduled times, or if delays have already occurred, the Contractor shall in any case notify the Customer thereof in writing without delay, stating the reasons, and submit proposals as to how completion of the services on schedule can be ensured. This shall also apply in the case of changes to services or additional services provided.

    (c) If the Contractor is nevertheless culpably in default with the completion of the Services, the Customer may claim damages and assert a contractual penalty for each case of exceeding each individual deadline or deadline in the amount of 0.15% of the net order sum per calendar day of exceeding the deadline, but not more than 5% of the net order sum. The Contractor shall be at liberty to prove that it is not at fault for the failure to meet the deadline and/or that no damage or no damage in the amount of the contractual penalty has occurred. Further claims for damages of the Customer shall remain unaffected. The contractual penalty shall be offset against such claims for damages.

    (d) The Contractor may only invoke lack of fault if it has notified an impediment, unless the impediment is obvious.

  3. Subject to change / additional services

    (a) The Contractor acknowledges that the final decision-making right on all essential questions concerning the performance of the services lies with the Customer. If the Customer requests changes or additions to the Contractor's services and if, in the Contractor's opinion, these lead to additional costs, the Contractor shall notify the Customer thereof in writing without delay and provide a detailed breakdown of the scope of the additional expenditure to be expected. Only if the Customer nevertheless demands the implementation of such instructions shall these additional services be performed and only then shall the Contractor be entitled to the further remuneration.

    (b) If the Client's customer requests the Contractor to carry out changes or additional services directly, the Contractor shall in any case be obliged to notify the Client thereof without delay. The Contractor shall not be entitled to perform such services without the Customer's written declaration of release. If the Contractor nevertheless performs such services without the Customer's declaration of release, there shall be no claim to remuneration and the Contractor shall be obliged to reimburse the Customer for any additional expenses incurred as a result. If the Contractor does not notify delays due to service changes or additional services at the latest when submitting its service change or additional offer, an extension of the contractually agreed execution time due to the service change or the additional service shall be excluded, unless the necessity of the service is obvious.

  4. Due diligence

    (a) If, in connection with the provision of its services, the Contractor is entrusted with items or goods (documents, exhibits, stand construction materials, vehicles, tools, software, etc.) that are the property of the Client or other third parties, the Contractor shall be obliged to treat them with particular care and diligence. Unless otherwise stipulated in the order, the Contractor shall be liable for any damage and/or loss resulting from a culpable breach of this duty of care.

    (b) The Contractor shall immediately notify the Customer of any damage and/or loss to these objects and goods, also describing the cause of the damage. The Contractor shall be obligated to perform all acts of cooperation required to realize any insurance claims in this regard.

    (c) If the Contractor accepts objects or goods (documents, exhibits, stand construction materials, vehicles, tools, software, etc.), in particular from third parties, which are the property of the Client or other third parties and exceed the scope of the existing scope of services (e.g. list of materials), the Contractor shall take these into its personal care and shall be liable for damage and/or loss resulting from culpable violation of this duty of care.

  5. Use of vehicles of the client

    (a) If the Contractor is involved in a traffic accident, damage caused by game, fire or similar during the use of the vehicle, either through fault or through no fault of its own, it shall immediately arrange for the accident or damage to be recorded by the police. Furthermore, the Contractor shall hand over to the Lessor a written accident report, if necessary with a sketch of the accident, in which the Contractor shall also record in writing the names and addresses of the parties involved and witnesses.

    (b) The Contractor shall be liable for all culpably caused damage to the vehicle with a maximum excess of 800.00€ net for cars and vans and 1500.00€ net for trucks per damage event. In case of gross negligence the legal liability rules apply. The contractor is liable in the same way for damages caused by his relatives, workers, employees, co-drivers, etc.

    (c) Compliance with existing ordinances and laws, in particular the Road Traffic Act, during the use of the vehicle is the sole responsibility of the Contractor. The Contractor shall indemnify the Client against all fines and warning fees, charges or other costs levied by authorities against the Lessor on the occasion of such violations.

    (d) If, upon return of the vehicle, damage is discovered that was not listed in the handover report, it shall be assumed that the Contractor is responsible for the damage, unless the Contractor can prove that the damage already existed at the time the vehicle was taken over.

 

§5 Acceptance

  1. Acceptance shall generally only take place after complete performance of the contractual services. Each acceptance shall be made formally; tacit acceptance, e.g. by commissioning of a specific work, shall be excluded.

  2. If all or part of the services have not been performed in accordance with the contract, the customer may refuse acceptance if there are significant defects. The refusal must be made in writing and must state the reasons.

  3. A corresponding acceptance protocol must be signed for each acceptance. This does not exclude the assertion of subsequently discovered defects.

  4. The Contractor shall immediately remedy or have remedied any defects discovered at the time of acceptance or subsequently discovered, provided that the Contractor is responsible for such defects. The Contractor shall bear the expenses and any additional costs for the elimination of the defects.

 

§6 Offsetting / Retention

A set-off or the assertion of a right of retention by the Contractor may only be made with undisputed, legally established or ready-for-decision claims against the Customer. This shall not apply insofar as the claim originates from the same contractual relationship against which the set-off is to be made.

 

§7 Remuneration

  1. Unless otherwise agreed in the contract/order, the agreed remuneration shall cover all other costs and ancillary costs, such as costs for the planning of the work and the preparation of other documents, communication costs, travel costs, etc. The agreed remuneration shall also cover the transfer of rights of use and exploitation according to these Terms and Conditions.

  2. The transfer of the rights of use and exploitation in accordance with these terms and conditions shall also be compensated for with the agreed remuneration.

  3. If the Contractor is not obligated in the order/contract to provide security, in particular guarantees, the Client may make a security retention in the amount of 10% of the agreed remuneration.

  4. Invoices shall be sent to the address designated by the Customer and shall contain the information required by the Customer (e.g. order number, project designation, etc.) and the corresponding proof of performance. The Client shall be entitled to reject invoices that are not properly marked.

 

§8 Liability of the contractor

  1. Unless otherwise stipulated in the contract/order, the Contractor shall indemnify and hold harmless the Client from and against all costs, expenses, losses, claims for damages and obligations on first demand which the Client incurs or may incur as a result of a culpable breach on the part of the Contractor of any provision of the order/contract or these Terms and Conditions, in particular from such claims of the Client/Customers.

  2. The Contractor shall also indemnify the Customer and the persons entrusted by the Customer with the implementation or supervision of accident prevention, environmental protection, fire protection and hazardous goods regulations against all claims on first demand which are directed against the Customer or the aforementioned persons for damage arising from a breach of the regulations to be observed by the Contractor in connection with the provision of its services.

  3. The Client's liability for damages and expenses based on simple negligence shall be excluded unless the claims are based on the breach of contractual obligations whose proper fulfillment makes the performance of the contract possible in the first place and on whose fulfillment the Contractor may regularly rely (hereinafter referred to as "cardinal obligations") or claims based on injury to life, limb or health are affected. This shall also apply to breaches of duty by vicarious agents and assistants of the Customer. Claims which find their basis in the Product Liability Act shall also remain unaffected. In the event of a claim for payment, the Contractor's claims to interest on arrears shall remain unaffected by the above. The same shall apply to the claim of a claim for remuneration to the lump sum pursuant to Section 288 (5) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) or to the compensation of the damage which is justified in costs of legal prosecution.

  4. Insofar as a cardinal obligation is negligently breached, the Client's liability shall be limited in amount to such damages and expenses as are typically associated with the contract and are foreseeable.

 

§9 Confidentiality

  1. The Contractor undertakes to use the data and documents provided to it exclusively for the provision of the Services. The Contractor undertakes to maintain secrecy with regard to all information or processes that become known as a result of the business relationship between the Parties and the provision of the Services as well as with regard to all documents received. This shall also apply with regard to all other internal matters of the contracting parties or other third parties involved. Any disclosure of documents or data, in whatever form, shall only be permitted with the written consent of the Customer.

  2. The Contractor shall be obliged to maintain strict secrecy with regard to all information or processes that become known in connection with the provision of the Services. This applies in particular, but not exclusively, to developments, ideas, contents of offers, customer data, purchasing sources and conditions.

  3. The Contractor may only disseminate or release for dissemination public statements relating to the activities for the Customer and in particular to the provision of the Services with the express written consent of the Customer. The Contractor shall only be entitled to refer to its services for the Customer within the scope of its own public relations work with the express written consent of the Customer.

  4. For each case of culpable violation of this non-disclosure agreement, the Contractor promises to pay a contractual penalty, the amount of which shall be at the reasonable discretion of the Customer and, in the event of a dispute, shall be reviewed by the competent court for its appropriateness. This shall not affect the right to claim further damages. Any breach of the confidentiality obligation shall justify termination of the contractual relationship without notice by the Client, as well as the assertion of claims for damages.

 

§10 Confidentiality

  1. Insofar as the services to be provided by the Contractor within the scope of the contract establish or include industrial property rights (such as trademarks, patents, licenses, utility models and design) or copyrights in favor of the Contractor or one of its employees, the Contractor hereby assigns to the Client the comprehensive, exclusive, temporally and spatially unlimited rights of use to these protected performance results for exploitation in all forms and media, as well as the right to pass them on to third parties, in particular the Client, insofar as this is covered by the purpose of the contract.

  2. The Contractor shall be liable for ensuring that the services provided by it can be used without restriction and, in particular, that no industrial property rights (such as trademarks, patents, licenses, utility models and designs) or copyrights/service protection rights and rights of third parties are opposed or corresponding statutory provisions are violated.

  3. The Contractor shall indemnify the Client against all claims arising from an infringement of such industrial property rights or copyrights/service protection rights. The Contractor warrants that its services are free from third party industrial property rights which could impair their use.

  4. To the extent that the Client is granted corresponding rights of use, the Client shall also be entitled to edit the results of the performance or to have them edited or changed in any other form, taking into account the moral rights of the author and preserving the intellectual character of the work, and to use the results of the performance thus changed. If the results are used beyond the specific purpose of the contract and the specific project, the Contractor shall be entitled to further appropriate remuneration.

  5. Any plans, drafts, drawings, concept descriptions, etc. of the Customer that come to the attention of the Contractor shall remain the property of the Customer with all rights, even if they have been handed over to the Contractor. The authorization for use by the contractor requires an express written agreement, regardless of whether special protection rights or copyrights exist or not. The documents are considered entrusted to the contractor in the sense of § 18 UWG. The Contractor undertakes to refrain from any other use in all forms, in particular reproduction and dissemination and transfer to third parties as well as making changes without the express consent of the Contractor.

 

§11 Customer protection clause

  1. The Contractor undertakes vis-à-vis the Customer to protect the Customer and to refrain from any direct or indirect competition with regard to the Customer's customer, for whom the contractual services are ultimately to be provided, for the duration of the contractual relationship and until 2 years after termination of the contractual relationship.

  2. Furthermore, the Contractor shall refrain from enticing away employees of the Customer.

  3. For each case of culpable infringement of this customer protection requirement, the Contractor promises a contractual penalty, the amount of which shall be at the reasonable discretion of the Customer and, in the event of a dispute, shall be reviewed by the competent court as to its appropriateness. This shall not affect the right to claim further damages.

 

§12 Contract termination

  1. The Client may terminate the order/contract in whole or in part at any time until the services have been rendered in full, in particular if the Client/Customer has in turn terminated the contract with the Contractor. In the event of such termination, the Contractor shall only be entitled to remuneration for the services provided until receipt of the termination.

  2. In addition, the Customer may terminate this contract without notice for good cause. The prerequisite for this right of termination is that the Customer has previously requested the Contractor without success to eliminate the good cause by setting a reasonable deadline. Good cause shall be deemed to exist in particular if the Contractor has persistently or grossly breached its contractual obligations, in particular fails to meet agreed deadlines or to provide agreed securities or fails to properly meet its financial obligations or is insolvent. Setting a deadline is not required in the cases specified in §§ 636, 281 II and 323 II BGB.

  3. In the event of termination for good cause, the services rendered by the Contractor up to the time of termination shall be remunerated in accordance with subsection (1) of this provision, unless the services are useless. Any claims for damages on the part of the Customer shall remain unaffected.

  4. Any termination must be made in writing.

  5. In the event of termination of the contract, irrespective of the legal grounds, the Contractor shall be obliged to immediately return to the Customer all documents and data received or created by it in relation to its services. The rights of use and exploitation granted to the Customer shall not revert to the Contractor. In this respect, any rights of set-off and retention shall be excluded.

 

§13 Final clauses

  1. These Terms and Conditions shall govern all legal relationships between the Customer and the Contractor, irrespective of whether reference is made to them in individual cases in subsequent agreements.

  2. The place of performance and jurisdiction for all disputes arising from the contractual relationship shall be the registered office of the Customer, insofar as the Contractor is a fully qualified merchant, a legal entity under public law or a special fund under public law or the Contractor has its registered office abroad. The contractual relationship shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and private international law.