General Terms and Conditions (GTC)
GTC of Schilling Messe- und Ausstellungsbau GmbH
§ 1 General - Scope of application
1.1 ► These General Terms and Conditions shall apply to all contracts concluded between us, Schilling Messe- und Ausstellungsbau GmbH, and our customers (hereinafter referred to as “Customers”) if they are entrepreneurs within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law.
1.2 ► These GTC shall apply exclusively. Conflicting, supplementary or deviating terms and conditions of the Customer shall not become part of the contract; they are hereby expressly rejected. These GTC shall also apply if we are aware of conflicting or deviating conditions and perform the service and delivery without reservation or do not mention or do not include these GTC in future transactions with the same customer.
1.3 ► Deviating contractual terms and conditions as well as collateral agreements shall only apply, if we have expressly confirmed them in writing.
1.4 ► Rights to which we are entitled according to the statutory provisions beyond these GTC remain unaffected.
§ 2 Offer and conclusion of contract
2.1 ► Our offers are generally non-binding and subject to change. They only represent an invitation to the customer to submit a legally binding offer to us by placing an order.
2.2 ► We can accept such a legally binding offer from the customer within 14 days of its receipt. Acceptance is effected by a separate order confirmation by us, the beginning of the processing or delivery of the ordered goods.
2.3 ► We may electronically store and process the data required for the execution of the contract. The data may also be used for the further maintenance of the business relationship for direct advertising, unless the customer objects to this. The data will not be passed on to third parties.
2.4 ► The customer is obliged to provide all information and documents and to obtain any necessary permissions, licences, authorisations and releases required for export, transfer or import. Refusal to provide such documents does not entitle the customer to withdraw from the contract, to claim damages or other claims.
§ 3 Description of goods, fulfilment of order
3.1 ► References to DIN-regulations are not part of the contract. Deviations in quality, quantity, dimension or weight which are customary in the trade and deviations which are based on legal regulations are permissible and shall be deemed to be in accordance with the contract, provided they do not impair the usability of the goods.
3.2 ► Information on the goods sold (e.g. weights, dimensions, utility values, load capacity, tolerances and other technical data) as well as representations of the same (e.g. drawings, illustrations and samples) are only approximate unless the usability for a specific purpose is contractually agreed upon and in any case do not constitute an agreement on quality or a guarantee of quality or durability. Nor do we give any guarantee with regard to the marketability of the goods or their appropriateness or suitability for a specific purpose or use.
3.3 ► We are entitled to engage third parties to perform the Service.
§ 4 Prices/ price adjustment
4.1 ► The prices stated in our respective order confirmation are in Euro plus the respective statutory value added tax, ex works Besigheim (Incoterms® 2020 EXW/ex works) and shall apply to the scope of services and delivery stated in the order confirmation. In particular not included are costs for packaging, freight, insurance, customs duties, the creation of customs tariff numbers, public charges or other ancillary costs.
4.2 ► If, between the conclusion of the contract and the delivery or call-off of the ordered goods, cost increases occur which we cannot be held responsible for and which were unforeseeable at the time of the conclusion of the contract, in particular due to changes in market prices, material and raw material prices, and which result in the fact that we can only obtain goods from our supplier under worse economic conditions than were foreseeable at the time of the conclusion of the contract with the customer, we shall be entitled to adjust the prices agreed with the customer within the framework of the changed circumstances and without calculating an additional profit if the goods – even in part – are not to be delivered until at least four months after the conclusion of the contract.
4.3 ► We shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if the customer cooperates with us for the first time or if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which endangers the payment of outstanding claims. This shall apply accordingly if the customer refuses to pay outstanding claims by us or does not pay them, does not pay them regularly or does not pay them on time and there are no undisputed objections to our claims that are recognised by us or have been legally established.
§ 5 Terms of payment
5.1 ► Our invoices shall be paid without any deduction immediately, but at the latest within 30 days of the invoice date, free of postage and expenses, in the currency invoiced on the original invoice to the account named by us. The receipt of payment is decisive
5.2 ► We are entitled to demand a down payment and partial payments. The customer undertakes to settle them in the respective contractually agreed amount.
5.3 ► If the customer defaults on a due payment, we shall be entitled to charge interest per invoice from the due date in the amount of 9 percentage points above the respective base interest rate plus a default fee of EUR 40.00, reasonable debt collection costs and attorney’s fees, and to make all outstanding invoice amounts due immediately.
5.4 ► Bills of exchange and cheques are only accepted on the basis of an express written agreement and only on account of payment. However, we reserve the right to refuse cheques. Discount charges and other bill and cheque costs are to be borne by the customer. Our rights under clause 10 shall remain in force until all bill of exchange requirements have been met in full.
5.5 ► We shall be entitled to set off payments made by the customer against his oldest debt first. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the principal claim.
5.6 ► If the customer does not accept goods after expiry of a grace period granted to him (default of acceptance), the due date for payment of the total price shall be the date of our declaration of readiness for dispatch. At the same time, we may demand a lump-sum payment for maintenance costs from the date of default of acceptance. This shall amount to 0.5% of the total amount per week or part thereof and shall be limited to 5% of the total amount. The customer and we are at liberty to prove that no, lower or higher storage costs have been incurred in connection with the non-acceptance of goods. Other claims remain unaffected.
5.7 ► If the customer’s financial circumstances deteriorate considerably after conclusion of the contract, e.g. if insolvency proceedings are opened against his assets or if deteriorations in his financial circumstances become known only after conclusion of the contract, we shall not be obliged to make delivery until the customer has made payment or provided appropriate security.
§ 6 Set-off, retention, assignment
6.1 ► Counterclaims of the customer shall only entitle the customer to set-off and to assert a right of retention if they have been legally established, acknowledged by us or are undisputed. This does not apply to a counterclaim due to a defect based on the same contractual relationship as our cost claim.
6.2 ► The assignment of any claims and rights of the customer against us from this contractual relationship requires our written consent to be effective. We shall refuse our consent only for justified interests.
§ 7 Delivery, delivery and performance time and partial deliveries
7.1 ► Deliveries shall be ex works in Besigheim (Incoterms® 2020 EXW/ex works).
7.2 ► Delivery periods and dates stated by us are probable, non-binding periods and dates. We are therefore not liable for delays in delivery. Delivery periods and dates are only binding if we have expressly designated or confirmed them as binding in writing. Unless otherwise agreed, deliveries are deemed to have been fulfilled by us on time if the goods are handed over ex works to a transport person or if we have notified the customer that the goods are ready for dispatch after the customer has delayed acceptance. The same applies to performance periods and Dates.
7.3 ► Bindingly agreed delivery or service periods shall not commence before clarification of the technical questions still open at the time of conclusion of the contract and before complete provision of the documents, permits and releases to be procured by the customer, clarification of all questions, in no case before receipt of an agreed down payment. Compliance with the bindingly agreed delivery period or delivery date presupposes the lawful and proper fulfilment of this and all other obligations of the customer.
7.4 ► Compliance with bindingly agreed delivery periods and dates is subject to timely and proper delivery to us. If, for reasons for which we are not responsible, we do not receive deliveries or services from manufacturers, sub-suppliers or sub-contractors through no fault of our own despite proper congruent supply, or do not receive them correctly or in time, or if events of force majeure or other obstacles to performance for a period of more than three months occur through no fault of our own, we shall inform the customer in writing in good time. In these cases we are entitled to postpone the service or delivery for the duration of the hindrance or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled. Force majeure shall include strikes, lock-outs, official interventions, shortages of energy and raw materials, epidemics and pandemics, transport bottlenecks for which we are not responsible, operational hindrances for which we are not responsible, e.g. due to fire, water, cyber- or other causes, attacks, damage to plant or machinery and all other hindrances which, if objectively assessed, have not been culpably caused by us.
7.5 ► Partial deliveries are permissible if the partial delivery can be used by the customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the customer does not incur any considerable additional work or considerable additional costs as a result.
§ 8 Dissolution of the contract before completion
8.1 ► Insofar as the contractual relationship between us and the customer is legally classified as a contract for work, termination by the customer is only permissible for good cause.
8.2 ► The termination must be in writing to be effective. If the good cause consists of a breach of contractual obligations, the contract can only be terminated after a warning has been issued or a deadline set and they were unsuccessful.
8.3 ► The customer shall reimburse all costs for services already rendered by us as a result of a termination permitted under Sections 8.1 and 8.2.
8.4 ► For the part of the services not yet provided by us, the customer shall pay 15 % of the agreed total remuneration for the part of the services not yet provided up to the date of termination, which as a rule results from our order confirmation, as a lump-sum compensation. However, if the customer can prove that our actual services and expenses were actually significantly lower, our claim shall be limited to this amount. We shall be free to prove and demand higher costs incurred.
8.5 ► The customer’s rights in connection with the frustration of contract, e.g. the cancellation of an event for which the exhibition stands were planned and manufactured, are superseded by the above clauses 8.1 to 8.4.
§ 9 Transfer of Risk / Dispatch
9.1 ► The risk of accidental loss and accidental deterioration of the goods shall pass to the customer as soon as the goods are handed over to the forwarding agent, carrier or other person designated to carry out the dispatch or transport ex works Besigheim (Incoterms® 2020 EXW/ex works). This shall also apply if partial deliveries are made, we take over the export or installation and it has been agreed that the goods are to be sent free of charge or carriage paid for the customer.
9.2 ► If the handover or dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which the goods are ready for dispatch and we have notified the customer of this.
9.3 ► If we select the type of dispatch, the dispatch route and/or the dispatch person, we shall only be liable for intent or gross negligence in the selection concerned.
9.4 ► The customer may not refuse to accept deliveries due to minor defects.
§ 10 Retention of Title
10.1 ► The delivered goods shall remain our property until full and unrestricted payment of all claims against the customer to which we are entitled from the business relationship.
10.2 ► The customer is obliged to treat the goods subject to retention of title with care. In particular, he shall be obliged to insure the goods at his own expense against fire, water and theft at the original value. The customer assigns to us already now all claims for compensation from this insurance. We hereby accept the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make any payments only to us. Any further claims shall remain unaffected. Upon request, the customer shall provide us with evidence of the conclusion of the insurance.
10.3 ► At the customer’s request, we shall be obliged to release the securities to which we are entitled to the extent that the realisable value of the securities, taking into account customary bank valuation discounts, exceeds our claims from the business relationship with the customer by more than 20%. The valuation shall be based on the invoice value of the goods subject to retention of title and the nominal value of the receivables.
10.4 ► In the case of deliveries of goods to other legal systems in which the reservation of title in accordance with clause 10.1 does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security interest. If further declarations or actions are required for this purpose, the customer shall make these declarations and cooperate in all measures which are necessary and beneficial for the effectiveness and enforceability of such security rights.
§ 11 Claims for Defects
11.1 ► The customer’s rights in respect of defects presuppose that he has fulfilled his obligations to inspect and give notice of defects with regard to the identity and completeness of the goods as well as their fault-free condition, the customer must have checked the delivered goods upon receipt and before they are installed in or attached to another object with the usual care, documented this and notified us in writing of obvious defects and deficiencies that are recognisable during such an inspection without delay, i.e. no later than three working days after receipt of the goods, stating the concrete complaints and deficiency symptoms, the place, number and date of their occurrence and the goods complained about in detail. The customer must notify us in writing of hidden defects immediately after their discovery. The notification shall be deemed immediate if it is made within three working days of the discovery of the defect at the latest, whereby the dispatch of the notification or complaint shall be sufficient to meet the deadline. If the customer fails to properly inspect the goods and/or notify us of defects with the relevant information in accordance with this provision, our liability for the defect not, not properly or not timely notified is excluded.
11.2 ► The customer shall immediately give us the opportunity and the necessary time to inspect notices of defects and the quality of the goods complained about by us, the pre-supplier or other third parties.
11.3 ► The customer shall ensure at his own responsibility that the goods are suitable for his purposes and uses and shall check them to that effect prior to the planned use.
11.4 ► If the goods to be delivered are processed by us on behalf of the customer, the customer undertakes to provide us with clear written and binding instructions for this purpose and to point out things that may be essential for the use of the goods. The customer shall provide us with drawings that are accurate and correspond to the actual conditions. We shall not be liable for damages based on incorrect or incomplete specifications of the customer.
11.5 ► In the event of a justified notice of defect, we shall be entitled to choose, at our own discretion and within a reasonable period of time, between subsequent performance by remedying the defect or delivery of goods free of defects. Further claims for defects shall only exist in case of refusal, impossibility or failure of the subsequent performance. Our right to refuse subsequent performance in accordance with the statutory requirements remains unaffected. We are entitled to make the subsequent performance owed dependent on the customer paying the price due. However, the customer shall be entitled to retain a reasonable part of the price in relation to the defect.
11.6 ► If, after a reasonable period of grace for subsequent performance, we seriously and finally refuse subsequent performance, or if subsequent performance fails or is unreasonable, the customer may, at his option, withdraw from the contract or reduce the price. In the case of an insignificant defect, there is no right of withdrawal; however, the customer may reduce the price.
11.7 ► We shall bear the customer’s expenses necessary for the purpose of inspection and subsequent performance due to defective goods delivered, in particular transport, travel, labour and material costs, if it turns out that a defect actually existed at the time of delivery. This does not apply to that part of the expenses which have increased due to the fact that the goods have been taken by the customer to a place other than the delivery address, unless the goods were by their nature intended to be moved. With the supplementary performance we shall only assume the necessary dismantling costs of defective goods directly related to the exchange and installation costs of identical replacement goods delivered by him free of defects, provided that the customer has installed or processed the goods in accordance with the intended purpose, the expenses have contributed to the removal of the defect and the customer has proven their occurrence and his bearing of the costs by appropriate documentation in text form. The customer shall only be entitled to reimbursement of expenses for necessary expenditure which a reasonable, economically thinking customer would have incurred, which must be presented and proven by the customer. The hourly rate for the removal of the defective item and the installation of the repaired or subsequently delivered defect-free item is solely the hourly rate customary in the industry, which would have to be paid to a professionally dependent employee, and is therefore solely decisive. Consequential damages caused by the defect, such as loss of profit or costs of operational failure as well as profit shares, sorting costs and other business-as-usual costs are not direct, necessary dismantling and installation costs and cannot be reimbursed within the scope of subsequent performance. In all other respects, claims for reimbursement of removal and installation costs are excluded regardless of fault. If the defect is due to our fault, the customer, who must prove this, can demand reimbursement of his necessary expenses under the conditions specified in Clause 13. If the customer’s request for the removal of defects or the claim for defects turns out to be unjustified, which the customer could have recognized upon careful examination, we can demand reimbursement of the costs incurred by us from the customer.
11.8 ► The customer’s rights due to a defect are excluded if he knew of the defect at the time of conclusion of the contract or when the goods were called off or if the defect remained unknown to him due to gross negligence. Similarly, claims of the customer for dismantling and installation costs are excluded if the customer knew of the defect when processing the goods or when delivering his products processed with them or if the defect remained unknown to him due to gross negligence. The latter shall not apply in the event of an argument list or a quality guarantee by us. Gross negligence shall be deemed to have occurred in particular if the customer fails to carry out reasonable inspections of the goods, also with regard to the internal properties and their documentation, before or during processing.
11.9 ► Warranty claims of the customer due to defective goods shall lapse if the customer attempts to repair or otherwise process the rejected goods himself or through third parties without prior written notification to us, if the otherwise possible rectification of the rejected goods is made impossible or unreasonably difficult.
11.10 ► The period of limitation for the customer’s claims for defects shall be 12 months, unless the defective goods have been used for a building in accordance with their normal use and have caused its defectiveness. The period of limitation begins with the transfer of risk, at the latest with the delivery of the goods. This also applies to any recourse claims in the supply chain. Our unlimited liability for damages resulting from the breach of a guarantee or from injury to life, body or health, for malice, intent and gross negligence and for product defects remains unaffected.
11.11 ► A statement by us in response to a notice of defect by the customer shall not be deemed to be an acknowledgement of a defect or entry into negotiations concerning a claim or the circumstances substantiating a claim, unless the customer has expressly asserted a claim in writing or negotiations between the parties are not expressly entered into in accordance with the customer’s evidence.
§ 12 Rental
12.1 ► We only rent out the objects for the agreed purpose and time. An ordinary termination is excluded. Clause 8 applies accordingly.
12.2 ► The customer shall receive the rented objects not in a brand-new condition but in a used condition, which shall be recorded at the time of handover in a handover protocol signed by the customer and us. If such a protocol does not come about due to a circumstance for which the customer is responsible, the rented items shall be deemed complete, in accordance with the contract and free of defects.
12.3 ► Normal signs of use as well as material-typical colour or surface deviations do not justify any claims for rectification of defects, subsequent delivery, reduction or compensation by the customer.
12.4 ► The customer undertakes to treat the rented items owned by us carefully and professionally and not to make any changes to them without our prior consent.
12.5 ► The risk of accidental loss or damage shall pass to the customer upon handover of the rented objects. The customer’s obligation to supervise the rented items and to bear the risk ends when the rented items are returned to us.
12.6 ► The customer shall adequately insure the rented objects against loss and damage for the duration of the agreed rental period. The customer hereby assigns to us all claims for compensation under this insurance. We hereby accept the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make any payments only to us. The customer must provide us with proof of the conclusion of the insurance policy on request. Any further claims against the customer himself for conduct for which he is responsible shall remain unaffected.
12.7 ► Our claims for compensation with regard to changes or deterioration of the rented objects shall become statute-barred 12 months after the retransfer of the same after the end of the agreed rental period. The condition of the rented items after the agreed rental period shall be recorded in a retransfer protocol signed by the customer and us.
12.8 ► If the agreed payments according to clause 5 are not demonstrably made before the handover of the rented objects, we are entitled to refuse the handover of the rented objects until full payment has been made.
§ 13 Liability
13.1 ► We shall have unlimited liability for damages resulting from the breach of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence, to the mandatory statutory liability under the Product Liability Act and to liability for the wilful concealment of defects. For simple negligence, we shall otherwise only be liable in the event of a breach of an essential contractual obligation which results from the nature of the contract, the fulfilment of which is essential for the proper execution of the contract and on which the customer regularly relies and may rely. In case of negligent violation of essential contractual obligations, our liability is limited to the typically occurring damage foreseeable at the time of conclusion of the contract up to a maximum of EUR 100,000.00 per case of damage. Unless otherwise regulated above, our liability, regardless of the legal basis, is excluded.
13.2 ► The exclusions and limitations of liability mentioned in clause 13.1 shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
13.3 ► We shall not be liable in cases of force majeure, in particular strikes, lock-outs, official interventions, shortages of energy and raw materials, epidemics and pandemics, transport bottlenecks through no fault of our own, operational hindrances through no fault of our own, for example due to fire, water, cyber attacks, damage to plant or machinery and all other hindrances which, from an objective point of view, have not been caused by our fault.
§ 14 Final Provisions
14.1 ► The place of performance for performance and subsequent performance is our registered office. However, we are also entitled to subsequent performance at the customer’s registered office and at the location of the goods.
14.2 ► Place of jurisdiction for all disputes arising from and in connection with the contractual relationship is our registered office. However, we shall also be entitled to assert our claims and rights in court at the customer’s registered office and at any other permissible place of jurisdiction.
14.3 ► The contractual relationship, including its interpretation and execution, shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.4 ► Should any provision of these GTC be or become invalid or unenforceable in whole or in part, or should there be a gap in these GTC, the validity of the remaining provisions shall not be affected thereby. In their place, the effective or feasible provision that comes closest to the purpose of the invalid or unenforceable provision shall be deemed agreed upon; the same shall apply if a matter requiring regulation has not been expressly regulated.
14.5 ► In the event of questions of interpretation, the German version of these General Terms and Conditions shall prevail.