General Terms and Conditions of Purchase
insglück Gesellschaft für Markeninszenierung mbH
as per May 2017
(1) These General Terms and Conditions of Purchase shall govern the relations between the client (“Client”) as service recipient and the contractor as service provider (“Contractor”).
(2) All of the Contractor’s services shall take guidance from the Terms and Conditions below, subject to agreements otherwise made individually. Agreements on secrecy and rights of use made prior to entering into the contract shall remain valid and prevail over the provisions herein.
(3) Any form-based reference to general terms of purchase of the Contractor is opposed.
II. Scope of Service
(1) The Contractor shall perform all services mentioned in the individual contract/order, in the specifications or service description and all annexes thereto. Deviations therefrom, especially with regard to the agreed quantities and qualities, shall only be permissible with the Client’s written approval. In addition, the Contractor undertakes, wherever this falls within the scope of its service, to further perform such other services not explicitly mentioned as are indispensable for the expert and high-quality provision of the services mentioned. This shall include but not be limited to the observance of the generally acknowledged rules of architecture and construction engineering, as well as trade fair/exhibition stand and stage construction and event engineering, and compliance with all relevant legal and official regulations. The Contractor shall be obligated to procure and obtain in due course all of the approvals and permits required for the execution of its work.
(2) The Contractor shall perform the services entrusted to it hereunder in person. Without the prior written consent of the Client the Contractor shall not be entitled to delegate the services or any part thereof to third parties. In any case the Contractor warrants that third parties engaged by it will comply with the provisions of this contract, ensuring this by appropriate contractual agreements. This shall apply, in particular, with regard to the confidentiality clauses agreed in Section IX.
(3) Extensions of the size of orders shall require commissioning by the Client in writing.
(4) All offers and requests of the Client are subject to change.
III. Minimum Wage
(1) The Contractor undertakes to pay to its employees the minimum wage provided for by law and to fulfil the standard minimum requirements according to the laws governing employee assignments [Arbeitnehmerentsendegesetz] and temporary employment [Arbeitnehmerüberlassungsgesetz] and to pay social insurance and accident insurance contributions accordingly. This shall analogously apply to similar provisions in foreign jurisdictions, if and to the extent that works are performed abroad.
(2) The Contractor shall, if so requested by the Client, provide the Client on a regular monthly basis with evidence of payment of the minimum wage with supportive documentation pursuant to sec. 17 para. 1 of the Minimum Wage Act. For this purpose the Contractor shall make available an anonymised list showing the employees and other personnel (freelancers, trainees, interns, etc.) assigned, the hours worked by them and the wage paid in each case. The Client undertakes to treat these records as confidential and to comply with the applicable data protection laws.
(3) The Contractor shall ensure that the subcontractors and agents engaged by it undertake in writing to observe the provisions set forth in paragraphs 1 and 2 above. If so requested, the Contractor shall submit to the Client copies of the agreements made for this purpose.
IV. Duty of Cooperation
(1) During the performance of the contract the parties shall be under the obligation to cooperate closely and they shall, ideally, resolve potential differences of opinion in an amicable manner.
(2) The Contractor undertakes to cooperate with all third parties involved in the project in any way as often and on such scale as is required and reasonably demanded by the Client.
(3) The parties are agreed that for the purpose of fulfilling the contract it will be necessary to arrange for joint meetings and other get-togethers, also with third parties. The Contractor will therefore be under the obligation to participate, except if the Contractor cannot reasonably be expected to do so in individual cases.
(4) The duties of cooperation shall be compensated for by the agreed remuneration.
V. Time Limits/Budget/Contract Penalty
(1) The Contractor shall perform its services within the periods fixed in the contract, taking into account the given budget.
(2) In each case of failure to perform the agreed service within the time limit fixed, the Contractor undertakes to pay contract penalty equal to 5% of the net contract value, provided that the Contractor has caused the delay.
VI. Reports and Document Management
(1) If this is wished by the Client, the Contractor shall prepare interim reports on the progress of its works, especially with regard to meeting deadlines and complying with budgets fixed. These reports shall be submitted to the Client upon its request no later than within 3 business days.
(2) The Contractor shall keep all documents relating to the performance of the contractual services in its custody and shall, if so requested by the Client, surrender them to the Client within 5 business days, notably after the termination of the contract.
VII. Remuneration, Security, Time Limits
(1) Except if agreed otherwise, remuneration shall not be due and payable before the overall work results are accepted and delivered and a proper invoice is made out.
(2) The work performed by the Contractor shall be formally accepted in writing, except if agreed otherwise.
(3) When entering into a contract involving a net contract value in excess of Euro 50,000.00 the Client may – for the purpose of securing its claims in the case of non-performance or poor performance – demand that the Contractor should provide reasonable security. Reasonable security shall be deemed to be an amount equal to 10% of the gross contract value. Such security may be provided by way of a guarantee. If so, an absolute guarantee, unlimited in time, issued by a German bank shall be submitted. In the event that the Contractor fails to provide such security within two weeks after a relevant written request by the Client, the Client may withdraw from the contract.
(4) The amount of security shall be released no later than one year after the contractual services have been fully completed, unless claims relating to this agreement have been asserted against the Client by such point in time. The Client may refuse to surrender the security even beyond this period, provided that the Client submits on or before the date when the waiting period for the release expires actual indications to suggest that third parties threaten to have recourse to the Client because the Contractor has breached any of its obligations under Section III of these General Terms and Conditions of Purchase.
(5) The agreed remuneration shall also cover the transfer of rights of use and exploitation according to these Terms and Conditions.
(6) The reimbursement of other incidental costs or travelling expenses shall invariably require an additional explicit agreement. Should a refund of travelling expenses be agreed, the Client’s Travel Expense Policy shall apply.
(7) Invoices shall be sent to the address indicated by the Client and shall contain the details requested by the Client (e.g. order number, project description, etc.), with relevant performance records attached. The Client shall have the right to reject invoices not properly labelled.
(8) Unless agreed otherwise between the contracting parties, the Contractor shall render accounts within 14 days after formal acceptance or completion of the work, as the case may be.
(9) The Client shall pay the agreed amount of remuneration 30 days after receipt of the invoice.
(1) Claims under warranty, claims for damages and other claims of the Client shall be governed by the rules set forth in the Civil Code of the Federal Republic of Germany [BGB].
(2) The Client’s liability for damage and expenses caused by ordinary negligence is excluded, unless claims arise from the breach of contractual duties whose proper fulfilment is essential for performing the contract in the first place and on whose fulfilment the Contractor may normally rely (hereinafter “cardinal duties”) or claims arising from injury to life, limb or health. Claims based on the Product Liability Act shall not be affected either. In case of a demand for payment of money the Contractor’s claims to default interest shall remain unaffected by the above. The same shall apply to the right to assert a claim involving lump sum payment according to sec. 288 para. 5 BGB or to a claim to compensation for damage relating to the cost of legal action.
(3) To the extent that a cardinal duty is breached negligently, the Client’s liability shall, in terms of amount, be limited to such damages and expenses as are typically associated with the type of contract and are foreseeable.
(4) Such limitation of liability shall equally apply to the persons engaged or employed by the Client for the performance of works or services.
(5) The Contractor shall be obligated to enter into a third-party liability insurance contract covering damage and/or other forms of impairment which might be asserted against the Contractor in connection with the exercise of rights and fulfilment of obligations hereunder and, if this is requested by the Client, the Contractor shall furnish proof of the existence of such insurance. The insurance policy shall contain the insurance company’s obligation to pay the amount insured even in cases where the responsibility for the damage and/or other form of impairment in connection with the assertion of rights and fulfilment of obligations hereunder lies with the customer. The aforesaid insurance shall cover a sufficiently large territory and, in particular, the territory where the agreed supplies are made and/or services performed. The minimum sum insured per event of damage or other form of impairment must be EUR 3,000,000.
(6) It shall be incumbent upon the Contractor to insure its equipment against transport damage and other damage.
(1) The Contractor undertakes to maintain secrecy about all information or transactions becoming known to and all records received by the Contractor because of the business relationship between the parties and the performance of its services. This shall also apply with regard to any other internal affairs of the contracting parties or other third parties involved.
(2) The Contractor shall only be entitled to refer to its services for the Client as part of its own PR activities with the Client’s express written approval.
(3) Any transfer of records or data, no matter in which form, shall only be permissible with the Client’s written approval.
(4) In each case of non-compliance with this duty to secrecy at the Contractor’s fault the Contractor promises to pay contract penalty in an amount to be determined at the Client’s reasonable discretion which shall, in the case of a dispute, be subject to review on points of adequacy by the competent court. The assertion of more extensive damages shall not be affected thereby. Any breach of the duty of secrecy shall justify notice of termination with immediate effect by the Client and the assertion of damages.
X. Rights of Exploitation and Use
(1) To the extent that the works to be performed under the contract create or involve industrial property rights (such as trade marks, patents, licences, utility models and designs) or copyrights in favour of the Contractor or any of its employees, the Contractor hereby transfers to the Client absolute and exclusive rights of use thereto, unlimited in terms of time and territory, for exploitation in any form and media, including the right of transfer to third parties, especially customers, provided that this right is covered by the purpose of the contract.
(2) It shall be the Contractor’s responsibility to ensure that the works performed by it may be used without any restriction and, in particular, that no industrial property rights (such as trade marks, patents, licences, utility models and designs) or copyrights/related rights and third-party rights will be infringed or relevant laws and regulations be violated.
(3) The Contractor shall indemnify and hold the Client harmless from and against any claims arising from an infringement of such industrial property rights or copyrights/related rights. The Contractor warrants that its works are free from protected third-party rights that might affect their use.
(4) To the extent that the relevant rights of use are granted to the Client, the Client shall also be entitled to process or otherwise change the work results, or cause the processing of the work results, duly considering the author’s personality right and preserving the intellectual uniqueness of the work, and to use the work results thus changed. If the results are further used beyond the scope of the specific contractual purpose and the specific project the Contractor shall have a claim to additional reasonable remuneration.
(5) Plans, designs, drawings, conceptual descriptions, etc., of which the Contractor gains knowledge, shall remain the property of the Client with all rights attached thereto, even if they have been handed over to the Contractor. Any entitlement to use by the Contractor shall require an explicit written agreement, irrespective of whether or not special protected rights or copyrights exist. The records shall be deemed to have been entrusted to the Contractor in the manner defined in sec. 18 UWG [German Act against Unfair Competition]. The Contractor undertakes to refrain from any other type of exploitation in any form, especially copying, dissemination and transfer to third parties, and from making any changes without the Contractor’s explicit approval.
XI. Customer Protection Clause
(1) The Contractor undertakes vis-à-vis the Client to observe customer protection rules and shall refrain from any direct or indirect competition with respect to the Client’s customers, for whom the works are ultimately to be performed, throughout the duration of the contractual relations and for 2 years after the contractual relationship has ended.
(2) In each case of non-compliance with the requirement of customer protection at the Contractor’s fault the Contractor promises to pay contract penalty in an amount to be determined at the Client’s reasonable discretion which shall, in the case of a dispute, be subject to review on points of adequacy by the competent court. The assertion of more extensive damages shall not be affected thereby.
XII. Termination of the Contract
(1) The Client shall be entitled to ordinary contract termination at any time. The right to give notice of termination for cause shall remain unaffected.
(2) If an event for which the Contractor has provided services is cancelled or changed for reasons which the Client is not responsible for, the Client may adjust the scope of the services to be provided
accordingly. To the extent reasonable, the Contractor shall be required to perform additional works. The amount of remuneration shall be agreed separately between the parties.
(3) To the extent that the contract is adjusted, the duty of remuneration shall be suspended. However, the Contractor may demand a refund of costs already incurred.
(4) If the contract is terminated on ordinary or extraordinary grounds the Contractor shall have a claim to be remunerated for the services provided by such point in time. More extensive claims are excluded.
(5) Should the performance of the contract become impossible for reasons which none of the contracting parties is responsible for, the contract shall be deemed to be terminated. In this case the rights of use transferred shall be retransferred to the Contractor.
(6) In the event that the contract is terminated, no matter on which legal ground, the Contractor shall be under the obligation to promptly surrender to the Client all records and data received or prepared by the Contractor in the course of providing its services.
(7) Unless otherwise provided for or agreed, the rights of use granted shall not be affected by a termination of the contract.
XIII. Final Provisions
(1) Place of performance and place of jurisdiction for any disputes arising between the parties from their contractual relationship shall be the Client’s principal place of business, provided that the Contractor is a merchant, a legal entity under public law or special fund under public law.
(2) 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.
(3) Reference marketing shall only be permissible for the Contractor with the Client’s explicit approval.
Travel Expense Policy
(1) The Contractor’s remuneration shall cover travel expenses incurred in compliance with the principles described in this contract. The Contractor undertakes to follow the principles of utmost economy and efficiency when planning, approving and undertaking duty travels in connection with the provision of the supplies and/or services. Travels on duty will only be permissible if the provision of the agreed supplies and/or services involves matters that cannot be dealt with otherwise (by letter, fax, phone, telex, video conference, etc.). Duty travels for dealing with such matters are customarily undertaken only by one person required per specialist field.
(2) Merely the following types of travel expenses will be accepted:
- 2nd class tickets for public means of transport;
- Economy class flight tickets;
- Cost of using a private vehicle at a level of EUR 0.30 per km driven against presentation of supportive
documents (such costs include fuel, tolls and parking fees, plus other expenses associated with the use
of the vehicle). There will be no compensation for any loss in value of the vehicle;
- Cost of hotel accommodation up to a maximum (net) amount of EUR 80 per night/room, except if the
parties agree otherwise in view of special local conditions;
- Cost of using a rented vehicle or taxi, if such service is required.
(3) If the estimated services of the Contractor are billed by the hour, compensation for travel time shall be equal to 30% of the hourly rate of the person concerned; where no hourly rate has been agreed, travel times will not be remunerated.
(4) Subsistence expenses (entertainment and/or living expenses) are covered by the Contractor’s daily fee rates and will not be refunded separately.
(5) Travel expenses will only be accepted if the relevant travel is undertaken according to the customer’s instructions and if relevant receipts are submitted to the customer. Travel expenses will only be accepted within the scope and at the level of the budget approved by the Client.
(6) The Client will neither accept allowances nor pocket money (per diem/daily flat rate).
(7) If the Client provides the Contractor with one or more vehicles, the Contractor shall be required to keep a proper logbook for each of these vehicles when travelling on duty.