And Conditions for the Sale and Rental of Event Engineering
I. General Terms and conditions
Validity, conclusion of contract, offers
All deliveries shall be based exclusively on these terms and conditions even if they are not expressly agreed subsequently. We hereby expressly contradict letters of confirmation from the purchaser referring to their terms and conditions of business.
Offers are subject to possibility of delivery and are subject to change without prior notice regarding delivery time and quantity. We expressly reserve the right to make intermediate sales. Compensation claims in this respect cannot be asserted.
The purchase agreement is concluded when the purchaser has confirmed in writing acceptance of the order of the more precisely described purchase object or has performed the delivery. In the event of a refusal, however, the seller is obligated to provide notification in writing immediately after clarification of deliverability.
Written confirmation of the order by the seller shall be definitive for the purposes of the scope of the delivery. Specified dimensions, weights, pictures and drawings as well as other documents, which form part of the delivery, are only approximate dimensions unless they have been expressly designated as binding.
The seller reserves the right of ownership to cost estimates, drawings and other documents. They may not be made accessible to third parties.
All agreements must be in written form. This also applies to ancillary agreements and warranties as well as to subsequent contractual changes.
Transfer of rights and obligations of the purchaser from the purchase agreement require the written permission of the seller.
Offers, rights and obligations
Insofar as no reservation period is named in the offer, all offers are subject to change without notice.
The rental company shall be obligated to transfer the leasing object to the lessee for the agreed leasing period. The lessee is obligated to use the leasing object solely in accordance with its intended purpose, to carefully adhere to the relevant accident prevention and work-protection provisions, to pay the rental amount as agreed, to handle the leasing object correctly and to return same in clean condition when the leasing period has elapsed.
Method of payment, Retention, Offsetting
The price of the object of purchase is understood to be ex manufacturer’s works/import warehouse in Germany without discount and other deductions, plus VAT (purchase price). Agreed ancillary services such as for example transport costs shall be charged additionally.
The total amount named in the purchase contract is payable as the purchase price not more than 30 days after the invoice date net cash without discount deduction.
In the event of failure to fulfil the payment conditions or if it becomes known to the supplier after conclusion of the contract that entitlement to payment is endangered through deficient ability to pay on the part of the client, the seller shall be entitled to perform still outstanding deliveries and services solely against advance payment or payment of security.
The retention of payments or offsetting against the purchaser’s outstanding accounts, which are disputed by the seller, is excluded.
Commitment, Retention, Offsetting
Unless a special commitment period has been agreed, the rental company shall remain committed to the submitted prices for 14 days.
The separately calculated mandatory VAT must be paid in addition by the lessee.
The lessee’s right to withhold and to offset exist only in the case of outstanding accounts which are not disputed by the rental company.
III. Delay, Liability, Obligations
Partial payments, Delay
If partial payments have been agreed, the entire remaining debt will immediately become payable if the purchaser falls into arrears either in part or entirely with two consecutive payments. If the purchaser falls into arrears – with two consecutive payments if partial payments have been agreed, the seller can, notwithstanding his other rights, and in accordance with the provisions set out below, withdraw from the contract after setting an appropriate subsequent deadline, or demand compensation for non-fulfilment.
Interest on arrears shall be levied at 6% p.a. above the base interest rate of the Central European Bank plus VAT respectively.
It is to be set higher or lower if the seller provides evidence of a burden at a higher interest rate or the purchaser at a lower one.
Delayed payment, Liability, Duties and Obligations of the Rental company
The payment targets named in the rental company’s confirmations are binding.
If the lessee is in arrears with his payment, the rental company shall no longer be bound by his duty to perform, without losing his claim to payment.
The lessee is entitled to view the lease object in good time prior to commencement of leasing and to lodge a complaint in respect of any deficiencies. The lessee shall bear the costs of any examination.
Deficiencies recognisable upon handing over, which do not inconsiderably hinder use, can no longer be the object of complaint if the rental company is not notified of them in writing immediately following examination. Other defects, which were already present upon handing over, must be identified to the rental company in writing immediately after their discovery.
The rental company must remedy any deficiencies, which were present upon handing over, and in respect of which a complaint was lodged in time. The rental company shall bear the costs of remedying any such defects. The rental company can also have the defects remedied by the lessee; the necessary cost will then be borne by the rental company. The rental company is also entitled to make available to the lessee a lease object of equal functional value. The lessee’s payment obligation shall be deferred by the period of necessary repair if the lease object is essentially compromised.
The lessee is obliged to sufficiently insure the lease objects. The lessee is fully liable after handing over of the lease object (completion of erection to commencement of disassembly), in the case of dry hire from release of the lease object until return. The lessee’s liability refers to all dangers and causes of damage and/or loss. In the event of loss or total write-off, liability shall be to the value of new replacement; in the case of partial damage to the amount of repair costs or replacement procurement costs respectively plus procurement costs and loss of use or procurement from another source (rental) until new or replacement procurement. The rental company shall not be liable for the correct erection of leased modules if the lessee/ordering party provides deficient or incomplete details regarding the nature and condition of the venue and/or access ways.
Insofar as the leasing contract provides for the making available of personnel for erection and dismantling and security, the lessee must provide same at its own costs. Non-present assistant personnel for erection and disassembly will be invoiced by the rental company at the rate of 33.00 €/hour.
The lessee shall ensure that the leased object is secured against storms and wind for the duration of the leasing contract.
The lessee shall independently take care of all authorisations, permits and concessions.
The lessee shall ensure correct earthing and power supply of the erected structures by a master electrician.
Damage to items other than the lease object itself can only be the subject of claims by the lessee against the rental company, especially for damages, in the event of gross culpability by the rental company or culpable infringement of essential contractual obligations, insofar as the achievement of the purpose of the contract is endangered regarding the contractually typical, foreseeable damage or damages arising out of injury to life, limb or health, which are due to a negligent dereliction of duty on the part of the rental company or a premeditated or negligent dereliction of duty of a legal representative or fulfilment assistant of the rental company, or in the event that the rental company in accordance with product liability law is liable for personal injuries or damage to privately used property.
Liability is excluded in all other respects.
If through the fault of the rental company the lease object cannot be used by the lessee in accordance with the contract as a result of the absence of or faulty execution of proposals and advice before or after conclusion of the contract as well as other ancillary contractual obligations – especially instruction in operation and maintenance of the lease object – the above provisions shall be applicable accordingly to the exclusion of further claims by the lessee.
The lessee is aware that the rental company also uses objects leased in from third parties.
The lessee is also obligated in this case to sufficiently insure such lease objects. The lessee expressly releases the rental company and any sub-lessees from claims to recourse to insurance.
IV. Delivery And Delayed Delivery, Withdrawal, Compensation
Delivery and Delayed Delivery
The rental company shall choose the despatch route most favourable to him.
The purchaser shall bear the costs of despatch. Complaints regarding quantity and damage to the goods must be confirmed by the delivering party and must be reported within one week. Risk is transferred to the purchaser as soon as the delivery is handed over to the persons or institutions implementing transportation.
The place of performance for the delivery is the headquarters of the seller in Muenster.
Delivery dates or deadlines, which can be agreed bindingly or unbindingly, must be specified in writing. Delivery deadlines commence upon conclusion of the contract. If changes are agreed subsequent to signing of the contract, a new delivery date or deadline is to be agreed at the same time, if necessary.
The seller reserves the right to make changes to design or shape, and deviations in colour as well as changes in the scope of delivery during the period of delivery insofar as the object of purchase is not substantially modified and the purchaser can reasonably be expected to accept the changes. Specifications in descriptions valid at the time of signing relating to the scope of delivery, appearance, performances, dimensions and weights, fuel consumption, operating costs etc. of the object of purchase form part of the contract; they are to be considered as approximate and do not constitute assured characteristics, but rather they serve as a yardstick to determine whether the object of purchase is fault-free, unless an expressed assurance is given.
Insofar as the seller or manufacturer makes use of symbols or numbers to designate the order or the ordered object of purchase, no rights can be derived from this fact alone.
Withdrawal of the Lessee, Compensation
In the event that the lessee withdraws, the following cancellation costs shall apply:
30% of the contractual amount up to 90 days prior to commencement of erection work,
50% of the contractual amount up to 30 days prior to commencement of erection work,
75% of the contractual amount up to 10 days prior to commencement of erection work,
after which period the full contractual amount will be payable.
Should it become impossible for the rental company to render his services due to unforeseeable circumstances, the latter shall be obligated to render a service of equal value.
The provisions below concerning a guarantee apply to industrial clients and re-sellers. For private consumers, however, legal provisions shall apply in relation to the type and scope of guarantee.
The goods will be supplied in version, finish and equipment as is usual in the market. Complaints must be submitted within 7 working days of the delivery date. Any guarantee is expressly excluded for used goods unless a guarantee assurance has been agreed.
Any non-time-limited performance guarantees shall be applicable no longer than the cessation of production of the spare part by the manufacturer.
Furthermore, only consumables and spare parts tendered to the seller are to be used for the operation of the unit. Repairs and maintenance may only be carried out by the seller or a specialised company authorised by same.
VI. Reservation of Ownership
Reservation of Ownership, Re-Sale, Assignment
Every delivery is subject to retention of ownership. The goods shall remain the property of the seller until payment in full of the purchase price and any outstanding ancillary accounts. The goods may be neither pawned nor their ownership transferred as security until payment in full has been made.
Reservation of ownership shall also be retained for all outstanding payments, which the seller subsequently obtains against the purchaser in relation to the object of purchase, e.g. because of repairs or spare parts deliveries as well as other services.
Reservation of ownership also applies to outstanding payments, which the seller claims against the purchaser with respect to its on-going business relationship.
Conditional goods bought by the purchaser for cash through correct business dealings may not be re-sold by same below the purchase price payable by same.
The purchaser hereby now assigns to the seller its claims arising from the re-sale of the conditional goods. This assignment also covers any ancillary claims. To secure this claim, the assignment shall be in the amount for which the seller has invoiced the purchaser for the jointly sold conditional goods. Further assignment of this claim to third parties, especially within the framework of a global concession to financing institutions, is not permitted.
As long as the purchaser correctly fulfils its payment obligations with respect to the seller, the former shall be entitled to call in, in its own name, any claims assigned to the seller arising from re-sale for the purchasers invoice. The seller is authorised to notify the re-seller about the assignment of the claim, who must be named upon request. Failure to adhere to this agreement will result in the institution of legal proceedings.
If the purchaser ceases to make payment, the seller shall be entitled to re-possess the conditional goods. Such a re-possession does not constitute an exercise of the right of withdrawal as defined in the relevant legal provision.
VII. Place Of Jurisdiction, Applicable Law, Partial Nullity
The place of jurisdiction between business people is Muenster. The laws of the Federal Republic of Germany are applicable.
Should a provision in these general terms and conditions or a provision within the framework of other agreements be ineffective, the remaining provisions shall not be affected.
Legal provisions shall replace the ineffective provisions. Should the former be insufficient, the ineffective provision is to be rephrased such that the commercial success sought by both parties is achieved to as great a degree as possible.
Kultour Veranstaltungsservice GmbH
Wolbecker Windmühle 51
Telefon: +49 (25 06) 812 40-0
Fax.: +49 (25 06) 812 40-24
Geschäftsführung: Hans von Burkersroda
Registergericht: Amtsgericht Münster, HRB 5373
Umsatzsteuer ID Nr.: DE 811709839
Inhaltlich verantwortlich: Hans von Burkersroda