General Terms of Delivery and Payment
I. General information
- The following Terms of Delivery and Payment shall apply to all offers and order acceptances of Bestmann Messebau International GmbH from Remagen (hereinafter referred to as Contractor), insofar as the orderer is an entrepreneur within the meaning of Section 14 German Civil Code [Bürgerliches Gesetzbuch – BGB]. They shall apply exclusively to all offers, deliveries and services of the Contractor towards the orderer subject to individual understandings and agreements to the contrary between the contractual partners. The reference in forms to General Business Terms and Conditions of the orderer is hereby objected to.
- Deviations from these Business Terms and Conditions shall require a written agreement.
- By the placement of orders the orderer shall declare its agreement with these terms and conditions, even if its Terms of Purchase contradict these Terms of Delivery and Payment.
II. Offer, offer and blueprint documents
- The Contractor is bound to its offer for 10 workdays from the date of the offer.
- The offers will be drawn up according to the details of the orderer and the documents made available by it and by the respective exhibition management. The Contractor shall not be liable for the accuracy of these documents, in particular for those of the exhibition management.
- The Contractor shall submit an offer to the orderer. The contract shall be concluded with the receipt of the declaration of acceptance of the offer by the orderer within the binding period of the offer.
- Services not estimated in the offer, which are additionally carried out at the orderer’s request or which become necessary owing to missing documents of the orderer or the exhibition management, will be invoiced additionally.
- Planning, blueprints, CAD plans, drawings, production and assembly documents will remain, if not otherwise agreed, with all rights the property of the Contractor. Changes to planning, CAD plans, blueprints, etc. may only be carried out by the Contractor. These documents may neither be reproduced, nor made accessible to third parties without the Contractor’s consent. If the order is not placed, they are to be returned to the Contractor and/or to be deleted/destroyed without delay.
III. Services of the Contractor
- The contract consists of two service phases.
In service phase 1 the Contractor shall create a concept for the orderer for a trade fair stand / a showroom / a display or another work service.
In service phase 2 the Contractor shall provide the services that are to be stipulated for the implementation of the concept by producing the trade fair stand / the showroom / the display or any other work service including assembly and dismantling.
The service phase 1 shall be commissioned by placement of the oral or written order for the production of the blueprint.
- The service phase 2 shall be commissioned after presentation of the concept to the orderer.
The further contractual services will then be stipulated between the parties.
- Within the scope of service phase 2 – depending on the individual agreement – the Contractor shall provide the following services:
- Assembly and dismantling of the trade fair stand. The law governing contracts for work and services of the BGB shall apply to this work.
- Renting of rental objects (e.g. stand system and stand construction, furniture, floor coverings, walls and other items of equipment) for use for the duration of the trade fair. The rental objects are not new but are repeatedly rented out for trade fair stands. They have a condition that corresponds with their wear and tear. The prices for use can be derived from the reached agreement. The law governing rental agreements of the BGB shall apply to the rental objects.
- Individual creation of objects for the orderer. The objects, which are produced individually for the orderer, shall become its property. The prices for the creation can be derived from the reached agreement. The law governing contracts for work and services of the BGB shall apply to the individually created objects.
- Sale of objects. Furthermore, objects shall be sold to the orderer and shall become its property. The purchase law of the BGB shall apply to the sale of objects.
IV. Delivery time and assembly
- If no explicit deadline has been agreed for the commencement of the execution or the completion then the stated delivery date will only apply as an approximate date, if it does not fall at the same time as a certain start of an exhibition.
- Firmly agreed execution/delivery dates will also cease to be binding with changes or conversions to the executions submitted by the orderer after conclusion of the contract. The same shall apply to impediments for which the Contractor is not responsible, in particular if documents and materials of the orderer are not made available in time.
- In case of interferences in the business operation for which the Contractor or its subsuppliers or subcontractors are not responsible, in particular outstanding work, strike and lock-out as well as cases of force majeure, which are due to an unforeseeable event and an event without fault and which lead to serious interferences to operation both at the Contractor as well as at its subsuppliers or subcontractors, the delivery/completion deadline will be extended accordingly. In these cases the Contractor is entitled to carry out services for the account of the orderer or to place an order for such services which are necessary to ensure the timely completion and for remedying impediments with the assembly and dismantling. If the fulfilment of the contract becomes impossible owing to the stated interferences, both contractual parties are entitled to rescind the contract. In this case the Contractor is entitled to remuneration of the services provided until this time, whereby the provided services shall also include claims of third parties, which the Contractor commissioned in reliance on the execution of the contract. Claims for damages are excluded.
V. Prices and terms of payment
- All prices are also deemed without an explicit designation as those in EURO without statutory taxes and duties and without other, possibly due secondary duties under public law.
- The offer prices will only be valid with an undivided order of the offered object.
- Value added tax in the respective statutory amount will be added to the offered prices, if not explicitly listed in the offer.
- All prices are deemed pure net from the manufacturing plant or shipping warehouse and shall not include packaging, freight, postage, insurance etc.
- The offer prices shall apply 4 months from conclusion of the contract. After expiry of these 4 months the Contractor is entitled to pass on the price increases of the manufacturers or suppliers, or wage increases to the orderer. The decisive time for the price calculation is then the time of commencement of the implementation work. The orderer can however rescind the contract if the price requested at the start of the execution for the entire object is more than 5% above the price upon conclusion of the contract. In this case the Contractor is entitled to remuneration of the services provided until this time, whereby the provided services shall also include claims of third parties, which the Contractor commissioned in reliance on the execution of the contract. Further claims are excluded for both parties.
- If the start, the continuation or the completion is delayed for reasons for which the Contractor is not responsible, then it is entitled to charge the additional expenses incurred hereby separately. The settlement rates valid on the day of the execution for working hours (excluding travel and loading times) motor vehicles, material prices and other prices of the Contractor will then be decisive.
- Services not estimated in the offer, which are carried out at the orderer’s request, or however additional expenses which are caused by incorrect details of the orderer, the exhibition organiser, by delays in transport without its fault, insufficient floor conditions, preliminary services of third parties not within the deadlines or not carried out in a qualified manner, insofar as they are not vicarious agents of the Contractor, will be additionally invoiced to the orderer. Subclause IV. shall apply as a calculation basis 6.
- Services and supplies which are carried out for the orderer at its initiation within the scope of the planning and implementation of its participation in the exhibition (Full Service), will be charged separately. The Contractor is entitled to charge advance commission for amounts that are accordingly laid out. The Contractor is entitled to award contracts for such services to third party companies in the name of the orderer. The obtaining of necessary official permits, concessions or other approvals is only part of the offer if this is explicitly stated. The same shall apply to the customs formalities with deliveries overseas.
- Insofar as services are provided with trade fairs, the offer prices shall not comprise the work and the costs for deliveries and services, which must be exclusively used from trade fair companies or third parties commissioned hereby, such as freight forwarding services on the exhibition grounds (e.g. transport on the exhibition grounds, provision of forklifts and lift trucks, handling of empties, waste disposal, etc.), unless these services are explicitly named in the offer.
- Planning, blueprints, CAD plans and drawings are, insofar as not otherwise explicitly agreed in writing, also liable to payment, if no special remuneration is shown for these in the offer or in the order confirmation. This shall in particular apply if the contractual relationship ends after the planning and blueprint production of an exhibition stand. The basis for calculation is the German Fee Ordinance for Architects and Engineers [Honorarordnung für Architekten und Ingenieure – HOAI].
- Price agreements within the scope of multi-year contracts can be terminated if the economic conditions change due to serious price increases, in the case of material purchase prices, energy costs, etc.
- The following payment plan according to progress of the project is agreed between the parties – if no agreements were reached to the contrary by individual contracts – and is due as follows:
Ø 40% of the agreed total remuneration as a payment on account for conception, planning, work, services in advance as well as payments on account to service providers or hotels directly after signing of the contract and according to the invoicing,
Ø 20% of the agreed total remuneration at the latest eight calendar weeks (receipt of payment) before the trade fair/event and according to the invoicing,
Ø 15% of the agreed total remuneration at the latest six calendar weeks (receipt of payment) before the trade fair/event and according to the invoicing,
Ø The remaining total and compensation of the actually incurred additional or shortfall in costs shall be carried out 10 workdays after creation of the final invoice of the services, which were processed through the Contractor.
Ø 10% of the agreed total remuneration at the latest with the hand-over of the services or delivery and according to the invoicing.
The settlement of the actually incurred additional or shortfall in costs shall be carried out as soon as possible after the period of the event, directly after determination and settlement with service providers and component suppliers, if applicable in several partial invoices, of which the last will be designated a final invoice.
VI. Freight and packaging
- The products shall always travel at the costs and risk of the orderer if not otherwise agreed. If no special instructions have been given, the Contractor will determine the shipment at its discretion without responsibility for the cheapest and fastest way. If the Contractor has assumed the freight it shall be at liberty either to deliver carriage paid or to remunerate the freight envisaged according to the contract, requested packaging, which is considered necessary by the Contractor, will be invoiced separately. For transports initiated by the orderer the shipped goods will only be insured at the explicit instruction and costs of the orderer.
- Parts of the orderer which are to be used in the production or assembly must be delivered by the agreed date free to the factory or assembly site. Return deliveries of such parts shall be carriage forward ex works or place of use at the risk of the orderer.
- Objects of the orderer which are to be used with the provision of the service must be delivered by the agreed date free place of use. The Contractor is not obliged to return such objects. If it is commissioned with the return delivery by the orderer this shall be carriage forward ex place of use at the risk of the orderer.
VII. Passing of risk
- The risk shall pass, insofar as not otherwise agreed, to the orderer when the goods leave the Contractor’s plant or are made available to the orderer. This shall also apply in cases in which carriage paid delivery is agreed.
- If the goods ready for shipment cannot be delivered for reasons for which the orderer is responsible, the risk of accidental loss or accidental deterioration of the goods shall pass to the orderer on the day on which they are ready for shipment. The service of the Contractor shall be deemed as fulfilled after service of the report that the goods are ready for shipment to the orderer.
- The loss during transport or loss of the delivered materials at the place of assembly, for which the Contractor is not responsible, shall be for the expense of the orderer.
- Should shipped goods or exhibits of the orderer (also) be transported, the aforementioned regulations shall apply accordingly.
VIII. Acceptance / take-over / rental objects
- With regard to the acceptance or hand-over the regulations of Section 12 [German Tendering and Contract Regulations for Construction Works-Part B – VOB/B] shall apply with the condition that this has to be carried out formally and without delay after completion. The orderer undertakes to take part in the acceptance date itself or to be represented by a corresponding authorised agent. It is explicitly recognised that an acceptance date up to 6.00 pm before the day of the commencement of the trade fair or one hour before commencement of the trade fair is not unreasonable.
- If the orderer has started to use the service or a part of the service without a prior formal acceptance, the acceptance shall be deemed as carried out with the act of use insofar as defects are not reported previously which oppose the acceptance.
- Possibly still outstanding smaller partial services or the rectification of defects will be subsequently carried out or remedied as soon as possible. If they do not substantially impair the function of the object of contract, they shall not entitle to refuse the acceptance. Retentions of payments are only permitted pro rata.
- If the services of the Contractor have been handed over to the orderer on a rental basis, then at the request of the Contractor, a formal hand-over of the rental objects must take place directly after the end of the trade fair or event. The orderer undertakes to take part in the hand-over date or to be represented by a corresponding authorised agent. Such objects provided on a rental basis have to be treated with due care and attention by the orderer. Confirmations of return of the Contractor shall always only be carried out subject to a specific check.
- Rental fees, insofar as not explicitly otherwise agreed, will be calculated according to calendar days. The day of the hand-over shall be deemed as the start of the rental, the day on which the rental object is returned shall be deemed as the end of the rental period. If the orderer is responsible for a late return of the rental object, the full rental fee for a day will be owed for each further day. The Contractor is entitled to request a reasonable deposit for the duration of the provision of objects on a rental basis. The deposit is non-interest-bearing.
IX. Warranty and report of defects
- The liability for defects is oriented to the statutory provisions, insofar as not otherwise agreed in these General Business Terms and Conditions.
- The liability for defects is limited to a period of 12 months at the longest since delivery or acceptance and/or hand-over. This warranty period shall not apply with the erection of building structures within the meaning of the BGB (5 years) and with the agreement of the VOB/B (4 years). The report of defects will not interrupt the warranty period.
- If the orderer acquires the object of contract then complaints owing to incomplete or incorrect delivery or services or complaints owing to obvious defects are to be reported without delay, at the latest 7 days after receipt, delivery or acceptance/ hand-over to the Contractor directly and in writing. If, despite careful inspection, a defect is only determined at a later time, this is to be reported without delay, at the latest 7 days after knowledge is gained thereof.
- If the trade fair stand erected by order of the orderer is provided on a rental basis, the complaints listed under Subclause 2 are to be reported to the Contractor without delay, at the latest 6 hours before the end of the trade fair.
- In case of a defect for which the Contractor is responsible, the orderer can principally initially only request subsequent performance in the form of subsequent improvement. The manner of the appropriate subsequent improvement is oriented to the discretion of the Contractor. The Contractor shall be entitled to subsequent delivery at all times.
- If the trade fair and exhibition stand is provided on a rental basis, the orderer can only assert warranty rights with regard to such defects, which occurred during the rental period.
- The Contractor can refuse to remedy defects as long as the orderer has not properly satisfied its contractual obligations.
- The warranty shall not cover those damages which are suffered at the orderer’s premises as a result of natural wear and tear, moisture, excessive heat, improper handling or improper storage. This shall in particular apply to graphics.
- Reasonable deviations in the form, dimensions, colour and condition of the material are deemed as per contract and shall not entitle to a complaint due to defects.
- If the defect is reported late or if reservations owing to known defects were not expressed during an acceptance/hand-over, the warranty claims will lapse completely. The same shall apply if the orderer makes changes itself or renders the completion of the defect more difficult for the Contractor.
- Claims due to defects from procuring deliveries and work services from third party companies (Full Service) against the Contractor are excluded if it is not proven that the Contractor breaches the duty of care when selecting the third party companies.
- The subsequent improvement or subsequent delivery shall not inhibit or interrupt the warranty period.
- Insofar as not explicitly declared in writing product descriptions, samples or presentations shall not constitute any guarantee declarations or warranted properties.
X. Liability and insurance
- The liability of the Contractor for damages and expenses which are a result of simple negligence, is excluded, insofar as the claims are not due to the breach of contractual obligations, the proper fulfilment of which makes the execution of the contract possible at all and the fulfilment of which the orderer may as a rule rely upon (hereinafter: “Cardinal Obligations”) or claims owing to the injury to life, the body or the health are affected. Claims, which are based on the German Product Liability Act [Produkthaftungsgesetz], shall also remain unaffected. In the event of a remuneration claim, the claims of the orderer for default interest shall remain unaffected by the aforementioned regulation. The same shall apply to the order’s claim for remuneration on the flat rate according to Section 288 Para. 5 BGB or for compensation of the damages, which is substantiated in costs for the legal assertion.
- Insofar as a cardinal obligation is breached negligently, the liability of the Contractor is limited with respect to the amount to those damages and expenses that are typically associated and foreseeable with the contract. The aforementioned shall also apply to breaches of obligations of the vicarious agents and legal representatives of the Contractor.
- No liability shall be assumed for defective deliveries or services of third party companies if it is not proven that the Contractor breached the duty of care when selecting the third party companies. The orderer can, if applicable, request the assignment of the claims of the Contractor towards it.
- The Contractor shall not be liable for direct or indirect damages to buildings or equipment of the organiser or to the goods of the orderer, unless the safekeeping has been confirmed in writing.
- In case of contracts for the provision of special advice or information, the Contractor shall only be liable up to the amount of the considerations to be paid by the orderer.
- If merely planning and blueprints are the object of contract, no liability of the Contractor will be substantiated at all. The Contractor shall insofar only be responsible for the fact that it is in the position itself to erect the planned or designed exhibition stand.
- The Contractor shall not be liable for the accuracy of the documents handed over by the orderer or the documents made available by the respective exhibition management. The reservations accordingly expressed by the exhibition management will also be used by the Contractor.
- The orderer shall be liable for all objects provided to it on a rental basis including the exhibition stand on the whole, if provision on a rental basis is agreed, up to the amount of the restoration costs or in case of loss up to the amount of the new procurement value. This shall also apply to the tools and to the assembly of the Contractor, if the orderer takes these into safekeeping.
- No liability will be accepted for graphics that become detached from the carrier material if increased air humidity or major temperature fluctuations prevail in the event halls. This shall in particular apply if the temperature is less than/equivalent to +10°C.
- For transports initiated or carried out by the Contractor the shipped goods will be insured in the amount of the new procurement value, if not otherwise agreed, at the request and costs of the orderer.
- Transport damages are to be reported to the Contractor without delay. In case of shipment by carrier, damages are to be noted on the consignment note immediately, in case of transport by rail an official rail certificate of the damages must be requested immediately and be sent to the Contractor. Claims against the transport company will be assigned to the Contractor upon request.
- Goods of the orderer taken over for storage by the Contractor owing to a written confirmation will be insured by the Contractor at the orderer’s costs for the duration of the storage in the amount of the new procurement value against fire, water damages and burglary and theft.
- Should work and production documents handed over to the Contractor, such as originals, drawings, negatives, etc. be insured against any risk, then the orderer has to arrange for this insurance. The Contractor will only be liable for the loss or theft of such documents if it can be accused of wilful intent or gross negligence.
- It is the responsibility of the orderer, if not otherwise agreed, to insure the trade fair and exhibition stand during the assembly and dismantling time and for the duration of the event against loss and damages, no matter of what kind. It will appropriately, in case of assemblies outside of the business premises of the Contractor, also include its tools and assembly accessories in this insurance cover.
- In case of transports overseas the orderer additionally has to insure the objects to be stored under customs seal against loss and damages. Originals, work and production documents which may be handed over to the Contractor or objects and materials that are made available must be insured by the orderer against theft, fire, water and all other risks.
XI. Reservation of title
- If the acquisition of the Contractor’s delivery is agreed between the parties, all objects of delivery will remain the property of the Contractor until the full satisfaction of all liabilities from this contractual relationship.
- The orderer is only entitled to resale of the reserved goods in proper business transactions. It is not permitted to pledge or assignment such goods as collateral. The orderer hereby now already assigns its claims from the resale of the reserved goods to the Contractor. The Contractor hereby accepts this assignment. Upon request the orderer has to provide the Contractor the details of the assigned claims that are necessary for the collection and to inform the debtors of the assignment.
- The orderer has to notify the Contractor in writing without delay of enforcement measures of third parties over the reserved goods or over the claims assigned in advance by handing over the documents necessary for intervention. If the orderer suffers from a substantial deterioration in assets or gets into payment difficulties, then the orderer is no longer entitled to sell the reserved goods. At the request of the Contractor the orderer is obliged to return the goods delivered under the reservation of title to the Contractor without delay.
XII. Property rights, CAD plans, blueprints, drawings, etc.
- Planning, CAD plans, blueprints, drawings, production and assembly documents, descriptions of exhibition and event concepts, printing templates and film material shall remain with all rights the property of the Contractor, even if they have been handed over to the Orderer, unless the contractually agreed service of the Contractor merely comprises the blueprint production, in any case the transfer of property rights and rights of use shall require a written form.
- The orderer undertakes to refrain from all other utilisations in all forms, in particular the reproduction and distribution, the undertaking of changes, forwarding to third parties or the direct or indirect reproduction. A transfer of rights of use beyond those purposes, which are necessary to fulfil the contract, and irrespective of whether industrial property rights or copyrights exist or not, shall require an explicit written agreement.
- Changes to planning, CAD plans, blueprints, etc. may only be carried out by the Contractor, also if these documents have become the property of the orderer, unless the exclusive rights of use hereto were transferred in writing. The Contractor is always entitled to sign and therefore advertise its documents.
- In the event that the orderer reproduces the documents stated under Subclause 1 or makes these accessible to third parties without the Contractor’s consent, the Contractor is entitled to assert lump sum damages according to Subclause VIII.4 of these terms and conditions.
- It is presumed that the orderer has breached the obligations according to this Subclause XIII. if it carries out exhibitions or events which essentially correspond with the planning and concepts of the Contractor. The orderer will then reserve the right to provide proof to the contrary.
- For the execution of orders according to details or documents provided by the orderer it will assume the warranty for the fact that property rights of third parties are not infringed by the production and delivery of the work carried out according to its documents. The Contractor is not obliged to verify whether the editions or documents, handed over by the orderer for production of the delivery, infringe property rights of third parties.
- The order undertakes to indemnify the Contractor from all possible claims for damages of third parties immediately and to pay for all damages which are suffered from the infringement of property rights, and, if requested, to make advance payments.
- The Contractor is entitled to record the event and to use the recordings together with background information about the project for the purpose of documentation and its own advertising.
- If requested by the Contractor, the orderer is obliged to name the Contractor with all publications.
XIII. Termination of contract / rescission of the orderer
1. In case of rescission by the orderer, the Contractor can request reasonable compensation for the services rendered, including loss of profit and its expenses, whereby the provided services shall also include claims of third parties which the Contractor commissioned in reliance on the execution of the contract. Instead of the concrete calculation of the compensation for the rescission the Contractor can assert the following lump sum claim for pro rata remuneration by taking the usually saved expenses into consideration. The flat rate costs in case of premature termination will then amount to:
Ø up to 25 calendar weeks before the start of the trade fair/event 0% of the agreed remuneration
Ø up to 15 calendar weeks before the start of the trade fair/event 25% of the agreed remuneration
Ø up to 13 calendar weeks before the start of the trade fair/event 50% of the agreed remuneration
Ø up to eight calendar weeks before the start of the trade fair/event 60% of the agreed remuneration
Ø up to six calendar weeks before the start of the trade fair/event 75% of the agreed remuneration
Ø from four calendar weeks before the start of the trade fair/event 90% of the agreed remuneration
Ø after this 100% of the agreed remuneration.
The basis for the calculation is the remuneration agreed with the orderer plus value added tax minus the saved expenses (travelling costs, overnight accommodation, meals, etc.).
- The orderer remains at liberty with regard to the flat rate damages according to Subclause 1. to provide the proof that no or less costs were incurred in connection with the rescission than the costs disclosed by the Contractor in the flat rate. In addition, in the event of a rescission by the orderer the Contractor is entitled to all third party costs, cancellation fees, etc. incurred until the time of the rescission in connection with the contract.
XIV. Force majeure
1. In case of force majeure, such as war, strikes, terrorism, natural disasters, epidemics, seizure, removal or retention by a government, customs, authority or power, etc. the Contractor will not assume any responsibility for the delays and losses for the orderer.
2. In case of non-provision of the contractual service by the Contractor or its authorised agents as a result of force majeure or special events all claims from this contract will cease to apply. In these cases, the Contractor shall retain the claim for the fee shares that have already become due and, as proven, incurred third party costs pursuant to the payment plan. For the services of contractors which were provided after the last due instalment pursuant to the payment plan, the Contractor will be entitled to a fee share that corresponds with this service.
XV. Offsetting and assignment
- An offsetting or the assertion of a right of retention by the orderer can only be carried out against undisputed, final and binding declared claims. This shall not apply insofar as the claim stems from the same contractual relationship, against which the claim is to be offset.
- The rights of the orderer from the contractual relationship are only transferrable with the prior consent of the Contractor. This shall in particular apply to those cases, in which the contractual relationship ends after the planning and blueprint production of an exhibition stand by the Contractor.
XVI. Data protection
Data protection is very important for the Contractor. You can find our privacy statement under https://bestmann.com/datenschutz/
XVII. Final provisions
- Should one provision in the contract be invalid or null and void, the other provisions of the contract shall continue to exist.
- The place of performance and place of jurisdiction for all disputes arising from the contractual relationship is the registered seat of the Contractor, insofar as the orderer is a merchant, legal entity under public law or special fund under public law or the registered seat of the orderer is overseas. In case of business with foreign orderers the application of the law applicable in the Federal Republic of Germany shall be deemed as agreed.
- The contractual relationship shall be governed by German law under the exclusion of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG) and of international private law.
BESTMANNMESSEBAU INTERNATIONAL GMBH