General Terms and Conditions IMA Interna­tional GmbH
I. General provisions
§ 1 Scope, data protection
(1) If the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), the business relationship between us and the customer is governed exclusively by the following General Terms and Conditions in the version applicable at the time of the order. Deviating terms of the customer are not recognised unless we have expressly agreed to their application in writing.
(2) An entrepreneur is a natural person, a legal entity or a legal partnership that, when concluding a legal transaction, is acting in exercise of their commercial or independent professional activity. A legal partnership is a partnership that has the legal capacity to acquire rights and incur liabilities.
(3) Where business needs require, we are entitled to store and process the customer's data electronically within the framework of data protection law (in particular § 28 BDSG).
§ 2 Offers, amendments, trade clauses
(1) Our offers are non-binding; a contract is only formed once we have confirmed the order in text form (§ 126b BGB) or once orders have been executed by us.
(2) Amendments, additions and/or the cancellation of a contract or of these terms must be made in text form.
(3) Where trade clauses under the International Commercial Terms (INCOTERMS) are agreed, INCOTERMS 2010, 6th revision, shall apply.
§ 3 Passing of risk, type of shipment, delivery dates
(1) Unless otherwise agreed, we deliver and perform EXW (ex works) our warehouse; we determine the type of shipment, route and carrier.
(2) Partial deliveries or partial performances are permitted insofar as they are reasonable for the customer.
(3) Any delivery or performance period stated by us starts once all technical questions have been clarified and once the customer has fulfilled its obligations on time and in due form.
(4) If an agreed delivery or performance date is exceeded for reasons we are responsible for, the customer must give us a reasonable grace period for delivery or performance in writing. This grace period is at least three weeks. If delivery or performance is not made after the grace period has expired and the customer therefore wishes to withdraw from the contract or claim damages instead of performance, the customer is obliged to give us prior express written notice, setting a further reasonable grace period and demanding delivery or performance. At our request, the customer is obliged to declare within a reasonable period whether, on account of the delay in delivery or performance, the customer will withdraw from the contract and/or claim damages instead of performance, or insist on delivery or performance.
§ 4 Subcontractors
If we are additionally commissioned with assembly or other works services, we are entitled to use subcontractors.
§ 5 Force majeure
In cases of force majeure, our delivery or performance obligations are suspended; if a material change in the circumstances existing at the time the contract was concluded occurs, we are entitled to withdraw from the contract. The same applies in case of energy or raw material shortages, industrial disputes, official orders or traffic or operational disruptions. If our sub-suppliers fail to supply us at all, on time or properly for the aforementioned reasons, § 3 (4) applies accordingly.
§ 6 Prices, payment, set-off, retention
(1) Our prices apply EXW (ex works) our warehouse. Unless otherwise agreed, our prices do not include packaging, insurance, freight or VAT.
(2) If the delivery or performance date is later than three months after the conclusion of the contract, we are entitled, after timely notification of the customer and before performance of the service or delivery of the goods, to adjust the price of the goods or service as required by general price developments outside our control (such as exchange rate fluctuations, currency regulations, customs changes, significant increases in material or production costs) or as required by changes of suppliers. For deliveries or services within three months, the price applicable on the day the contract is concluded applies in any case. For framework agreements with price arrangements, the three-month period begins when the framework agreement is concluded.
(3) Unless otherwise agreed, the customer must pay the agreed remuneration to us within 14 days of delivery of the goods or rendering of the service, but not before receipt of the invoice, without deductions. After this period, the customer is in default in accordance with § 286 (2) no. 2 BGB.
(4) We may demand partial payments or advance payment if the customer is placing their first order with us, if the customer is based abroad or if delivery is to be made abroad, or if there are reasons to doubt timely or full payment by the customer. If one of the above conditions occurs after the contract has been concluded, we are entitled to revoke agreed payment terms and to make payments due immediately. (5) The customer may only offset against claims that are undisputed or legally established. The customer is entitled to rights of retention only insofar as they are based on the same legal transaction.
§ 7 Retention of title
(1) Goods sold remain our property until all claims arising from the business relationship have been settled.
(2) If the goods are processed or treated by the customer, our retention of title extends to the entire new item. In the case of processing, combination or mixing with goods belonging to third parties by the customer, we acquire co-ownership in the proportion that the invoice value of our goods bears to the other items used by the customer at the time of processing, combination or mixing.
(3) If the goods subject to retention of title are combined or mixed with a main item of the customer or of third parties, the customer hereby already assigns to us its rights in the new item. If the customer combines or mixes the goods subject to retention of title for a fee with a main item belonging to third parties, the customer hereby already assigns to us its remuneration claims against the third party.
(4) The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. If the customer in turn resells these goods without receiving the full purchase price in advance or concurrently with delivery of the item, the customer must agree a retention of title with their own customer in accordance with these terms. The customer hereby already assigns to us its receivables from such resale as well as the rights arising from the retention of title agreed by it. At our request, the customer is obliged to notify the buyers of the assignment and to provide us with the information and documents necessary to assert our rights against the buyers. Despite the assignment, the customer is only authorised to collect the claims from the resale as long as it duly fulfils its obligations towards us.
(5) If the value of the securities provided to us exceeds our claims in total by more than 10 percent, we are obliged, at the customer's request, to release securities at our discretion.
§ 8 Customer's rights in case of defects
(1) Products and services we deliver comply with the applicable German regulations and standards. We assume no warranty for compliance with other national regulations. When using our products abroad, the customer is obliged to check the conformity of the products with the relevant legal systems and standards themselves and, if necessary, to make adjustments.
(2) The customer cannot assert any rights for defects in our deliveries and services if the value or fitness of the delivery and service is only insignificantly reduced.
(3) If the delivery or service is defective and the customer has complied with the inspection and complaint obligations of § 377 HGB, we will, at our discretion, either provide a replacement or remedy the defect (subsequent performance). For this purpose, the customer must give us the opportunity within a reasonable period of at least 10 working days.
(4) The customer may demand reimbursement of the expenses required for the purpose of subsequent performance, provided that the expenses are not increased because the item delivered has subsequently been moved to a place other than the original place of delivery, unless this move corresponds to its intended use. (5) If subsequent performance fails, the customer may reduce the remuneration or withdraw from the contract. However, withdrawal is only permitted if the customer has previously expressly threatened us with this in writing, setting a further reasonable grace period.
(6) The customer's recourse claims under § 478 BGB exist against us only insofar as the customer has not entered into agreements with its own buyer that go beyond the statutory defect rights.
§ 9 Liability for damages
(1) Unless otherwise stated below, claims by the customer that go beyond the provision in § 8 regardless of the legal grounds are excluded. We are therefore not liable for damages that have not arisen on the goods themselves; in particular, we are not liable for loss of profit or other financial loss of the customer. Insofar as our contractual liability is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents.
(2) The above limitation of liability does not apply where the cause of the damage is based on intent or gross negligence, where there is personal injury, where a claim for damages arises under the Product Liability Act, or where the customer has a warranty claim against us.
(3) If we negligently breach a material contractual obligation, the duty to compensate for damage to property is limited to the typically foreseeable damage; material contractual obligations are those whose fulfilment defines the contract and on which the customer may rely.
(4) Beyond that, we are only liable within the scope of our existing insurance coverage, insofar as we are insured against the damage that has occurred and subject to the condition precedent of the insurance benefit.
(5) Otherwise, our liability for damages is excluded.
(6) The assignment of the customer's claims governed in § 8 and § 9 is excluded. § 354 a HGB remains unaffected.
§ 10 Limitation period
(1) The limitation period for claims due to defects in our deliveries and services as well as for claims based on our liability for damages is one year. This does not apply where longer periods are prescribed under §§ 438 (1) no. 2 (buildings and items for buildings), 479 (1) (recourse claim) and 634a (1) no. 2 BGB (construction defects), nor in cases of injury to life, body or health, in the event of intentional or grossly negligent breach of duty on our part, or in the case of claims for damages under the Product Liability Act. (2) If we are additionally commissioned with assembly or works services, the warranty period for the services begins with their acceptance. Where there are several independently acceptable assembly or works services, the warranty period for these partial services begins with the respective acceptance. § 11 Property rights (1) Industrial property rights and copyrights on planning, designs, drawings, production and assembly documents as well as on trade fair structures are exclusively held by us, even if they have been handed over to the customer.
(2) We grant the customer a simple right of use limited in time to the duration of the trade fair and limited in content to the commercial and customary use of the trade fair stand. Changes to planning, designs, etc. and structures may only be made by us. In particular, the customer is not entitled to reproduce, distribute or otherwise make publicly accessible to third parties the planning, designs, etc. referred to in paragraph 1 without our prior written consent.
(3) For the execution of orders based on information or documents provided by the customer, the customer warrants that no third-party property rights will be infringed by manufacture and delivery. The customer will indemnify us from all third-party claims in this respect.
§ 12 Storage, risk-bearing
We only store items belonging to the customer on the basis of a separate written agreement. Unless otherwise expressly agreed, we store customer items before or after the event at the customer's risk. The same applies where we store large exhibits or trade fair stands purchased by the customer at our premises until further use, as well as transport to and from our warehouse and the exhibition venue. At the customer's express request and expense, we will insure the stored items and/or the transport at the values stated by the customer. Otherwise, during storage we owe the same care as in our own affairs.
§ 13 Miscellaneous
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is the registered office of IMA International GmbH; if we bring an action, the customer's general place of jurisdiction shall also apply.
(2) German law shall apply to all legal relationships between the customer and us.
II. Special provisions for assembly or other works services
In the case of orders for assembly or other works services (in particular special trade fair constructions), the following additional provisions apply:
§ 1 Acceptance
(1) If, after completion, possibly also before the agreed execution period has expired, we request acceptance of the service, the customer must carry out the acceptance within 12 working days; a different period can be agreed. On request, self-contained parts of the service must be accepted separately. Acceptance may only be refused on account of material defects until they are remedied.
(2) If no acceptance is requested, the service is deemed to have been accepted after 30 working days from written notification of completion of the service. If no acceptance is requested and the customer has taken the service or part of the service into use, acceptance is deemed to have taken place after 6 working days from the start of use, unless otherwise agreed. The use of parts of a structural facility to continue work does not constitute acceptance.
(3) The customer must assert reservations due to known defects or contractual penalties no later than the times specified in paragraphs 1 and 2. With acceptance, the risk passes to the customer, insofar as the customer does not already bear it under II.3 (1).
§ 2 Energy and water supply of trade fair stands, media technology
(1) We are entitled, on behalf of and at the expense of the customer, to commission the supply of the trade fair stand with electrical, water and other customary and/or agreed connections at the trade fair from the organiser.
(2) The supply of the trade fair stand with media technology is the responsibility of the customer.
§ 3 Customer's liability for the trade fair stand
After the trade fair stand has been handed over, the customer is liable to us and to third parties under statutory provisions for culpable acts of injury arising from the use of the trade fair stand for the entire duration of the fair. If the customer hands the trade fair stand back to us before the end of the fair, that point in time shall apply. The customer will indemnify us against all third-party claims that can be traced back to its culpable conduct.
III. Special provisions for the rental of standard trade fair structures
The following provisions apply additionally and, in case of doubt, with priority for the rental of standard trade fair structures:
§ 1 Rental period
The rented item, usually the trade fair stand including the fit-out we provide, is made available solely for the agreed purpose and, in the absence of any other agreement, for a fixed period covering the respective trade fair. Ordinary termination of the rental agreement is excluded.
§ 2 Subletting
Subletting is not permitted without our prior written consent. § 3 Handover / passing of risk / condition of the rented item
(1) The customer must check the condition and completeness of the rented item at handover and record this in a handover protocol.
(2) If the rented item, as agreed, consists of used materials and items, normal signs of wear do not give rise to any warranty or repair claims. The same applies to material-specific colour and surface variations.
(3) The rented item is cleaned by us once, immediately after completion. We are not responsible for soiling that occurs after cleaning due to surrounding trade fair construction work in the exhibition hall. Since dust contamination is to be expected, based on experience, up to the evening before the fair, we recommend commissioning professional stand cleaning for the evening before the start of the fair.
(4) The risk of accidental loss or damage passes to the customer when the rented item is handed over. The customer must report any loss of or damage to the rented item to us without delay. The customer's risk-bearing only ends when the rented item is returned to us.
§ 4 Liability
During the rental period, the customer is liable under statutory provisions for all loss and damage to the rented item itself as well as for damage caused to third parties through the use of the rented item.
§ 5 Customer's duties during the rental period
(1) The customer is obliged to handle the rented item with care during the rental period and to maintain it at its own expense. Damage or other impairments to the rented item as well as any apparent sources of danger emanating from the rented item must be reported to us without delay.
(2) The customer is responsible for the safekeeping and supervision of the entire rented item from handover until 2 hours after the end of the fair or earlier takeover of the trade fair stand by us. If the customer breaches the duty of safekeeping and supervision, the customer must compensate for the resulting damage.
(3) The customer is obliged to fully vacate the rented item at the end of the rental period. Soiling, adhesive tape, stickers, etc. must be carefully removed before return. Otherwise, we are entitled to charge for the cleaning effort. We are entitled to dispose of items left at the trade fair stand by the customer at the customer's expense and without compensation.