General terms and conditions TUUBA GmbH

General terms and conditions

Effective [0ctober 1st, 2009]

 

A: General conditions

 

Our terms and conditions apply for this contract and for all future contracts, goods and services, including consultations within the business relationship, even though we do not relate to it explicitly in an individual case. Terms and conditions of the contracting partner that conflict our own terms and conditions are not valid and cannot become a part of the contract.

All agreements that were made between us and the contracting partner have to be fixed in written form. This is also valid for amendments, modifications, deletions or other agreements. Further agreements and oral commitments are not made. Individual declarations of employees are only binding when the declarations were confirmed by us in written form.

 

1. Offer and acceptance

Our offers are subject to change and without commitment. In the legal sense they present the request to make an offer for a contract. A binding contract is concluded when we accept the offer of the contracting partner (order) in written form, otherwise through the completion of the order.

The contracting partner is committed to the immediate examination of our order acceptance/ confirmation. Possible deviations from the order of the contracting partner have to be contested immediately (at the latest three days after signing the contract). In case no complaint is made the subject matter of the contract is determined by the subject matter of the order acceptance/ order confirmation given by us. If no formal order acceptance/ order confirmation is given the aforesaid conditions apply correspondingly for delivery notes, partial payments and final bills.

Requests of the contracting partner can only be considered as long as the execution of an order has not been started (production, cut or other processings). After that, a consideration is not possible or additional charges arise.

 

3. Delivery and service

Delivery dates are regarded as approximately only unless a binding consent is explicitly stated by us. An agreed delivery period begins with the day of clarification of all technical and other details of the order. The delivery period is extended by the length of time during which the contracting partner is in default of his contractual obligations including those arising from other contracts in an ongoing business relationship.

Our goods and services are supplied ex works. In case the delivery is made using our own vehicles the handover is considered to be completed as soon as the goods have been assembled or transferred to the buyer at the delivery destination.

In case of delayed deliveries and services an additional time limit of four weeks is to be set by the contracting party.

Liability for damage, contractual penalty and other consequences of default caused by a delayed delivery are excluded. Moreover, we are insofar exempted from the obligation to deliver without counter-claims as the supplying industry may assert the right to exemption according to their sales conditions.

 

4. Shipping and Packaging

Package, despatch methods and transport means are left to our choice taking account of transport-related, production-related and environmental factors. The largest measurement always specifies the package length.

 

5. Risk

5.1 With the handover of goods the delivery is regarded as completed and the buyer bears the risk of damage, breakage or loss of goods. Insurances against damage and transport risks are only taken over on special request and against payment of the costs incurred. All returns, also returns by reason of complaints or defects, are made at the expense and risk of the customer.

 

6. Payment

6.1 Purchase price is due at time of delivery; discounts require prior agreement. Payments shall always be used to settle the oldest due outstanding items, plus default interest incurred thereon and in the following order: costs, interests, principal claim.

6.2 Payments shall only be regarded as having been effected when the amount is finally available on seller's account.

6.3 Should the buyer default on payments or if circumstances arise casting reasonable doubts concerning the credit-worthiness or insolvency of the buyer, we shall be entitled to take back the goods, and to enter, for this purpose, the buyer's premises. The taking back shall not represent a withdrawal from the contract.

Default of payment occurs after 14 days at the latest after delivery and /or receipt of the invoice.

Withholding by the customer is excluded.

The customer may only offset against claims that are undisputed or which have been determined as legally valid.

We shall be entitled to demand part payments. We shall also be allowed to provide partial services as far as the acceptance of these services is reasonable for the contracting partner. In this case the contracting partner is committed to an immediate payment of the service or goods provided.

In case the contracting partner does not pay the due amount (part payments) we shall be entitled after a fruitless expiry of an appropriately set period of grace, that should not extend more than two weeks, to require compensation because of non-performance or to withdraw from the contract.

We are authorized to require default interest in the amount of 12% per annum over the current base interest rate, the right to claim further damages or higher interest for another legal reason shall remain unaffected.

All our requirements shall become immediately due in case of cheque and bill protests of the customer, stopped payments and a request to open insolvency proceedings against the customer’s objects.

Moreover, we are entitled -in case we become aware of a substantial degradation of financial circumstances of the buyer- to refuse performance until payment or guarantees have been made by the customer.

 

7 Complaints

Notices of defects must be submitted to the supplier immediately after receipt or processing of the goods in writing, the maximum period provided is eight days. It is the full responsibility of the buyer to provide proof and verification of all claims, particularly those relating to the defect itself, at the moment in which such a defect is detected, and to ensure the timely submission of the corresponding complaint.

 

8. Rights of the buyer in case of defects

The defect claims of the customer are restricted to the right to subsequent fulfillment. The buyer shall give the seller twice the opportunity for reworking or to remedy the defect.

 

9. Compensation and limitation of liability

9.1 Claims for damages and reimbursement of expenses of the buyer regardless of which cause in law particularly due to infringement of contractual duties and tortious act are exempt. This shall not apply in cases of assumption of a guarantee or a procurement risk. Moreover, it shall not apply in case of mandatory liability, e. g. under the German Product Liability Act (Produkthaftungsgesetz), in case of gross negligence, injury of life, body or health, or due to the breach of essential contractual duties. The claim for damage in case of the breach of fundamental contractual obligations is limited to the contract-typical, foreseeable damage if there is no willful misconduct or gross negligence or if there is liability on account of injury of life, limb or health. Any alteration of the burden of proof to the detriment of the buyer shall not be valid in conjunction with this provision.

9.2 This regulation shall apply accordingly to buyer.

 

10. Reservation of proprietary rights

10.1 The seller reserves the ownership of the goods until all payments specified in the purchase contract have been received. For goods which buyer purchases from us in the course of an ongoing business relationship, we reserve title until all our claims from the business relationship, including the claims originating in future - also from contracts concluded simultaneously or later - have been settled. This shall also apply if individual or all claims have been put together by us in one invoice and the balance has been drawn and recognised. If liability for a bill is substantiated by us in connection with the payment of the purchase price by buyer, the right of retention shall not expire before honouring of the bill by buyer as drawee. In the event of a default in payment by buyer, seller is entitled to retain or take back the products after appeal, and the buyer is obliged to return the products.

10.2 If the buyer is a registered trader or the sales contract is part of his business, or if the buyer is the legal person of public law or special fund under public law, we will retain in addition title and ownership of goods supplied until such time as all claims arising from the business relationship, including future claims, are met.

 

11. Ancillary services

As far as we provide assistance or partial assistance in preparing plans, proposals, drafts which are not directly relevant for the processing of the order placed with us, this is carried out under the exclusion of all liability. The plans and drafts remain our intellectual property and costs must be paid without exception in case the processing is not carried out by us. We reserve the right that cost estimates are subjected to a charge at our discretion. The costs will be charged according to time, labour and material needed and will be between 5 and 10 % of the cost estimates in total including VAT, but these costs will be refunded when placing the order.

 

12. Place of jurisdiction and applicable law

The place of performance and jurisdiction for orders placed with the contractor and for payments (including claims receivable from cheques and bill transactions) as well as all disputes arising between the parties -if the buyer is a registered trader or the legal person of public law or special fund under public law- is the principal place of business of the seller. However, the seller is entitled to sue the buyer at his principal place of business or his place of residence. The relationships between the contractual parties are dictated exclusively according to the applicable laws in Germany excluding UN purchase law.

 

B. Renting

The following terms and conditions are valid for the rental of movable objects of Tuuba GmbH, especially device and equipment for music playback, lighting systems, video playback, telecommunication and decoration material.

 

1. General

1. Rental and delivery shall exclusively take place on the basis of the following terms and conditions. In case of deviations from these general terms and conditions, additional agreements and collateral agreements require the written form or the explicit written confirmation by the lessor. A tacit waiver of the lessor concerning the compliance of a written form in case of deviations and additional agreements in the past will not constitute a waiver of our right to comply with hereby affected rules and regulations of the conditions at hand.
2. Possible terms of hire of the lessee are hereby rejected. The lessor is not committed to these terms even if these possible conditions are not explicitly rejected when the contract is concluded.
3. The possible ineffectiveness or amendment of individual provisions of these conditions does not affect the validity of the remaining provisions.

 

2. Offers and prices

1. An order is only to be regarded as accepted after it has been confirmed in writing by the lessor. Likewise, modifications, supplements or amendments shall be legally binding only if confirmed in writing by the lessor. Otherwise, they are made without obligation.
2. Drawings, diagrams, measurements and weights described in our brochures and on our website are approximate only. We cannot take on warranty for their compliance.
3. Fees and other costs that are related to the compliance with authority requirements shall be at the expense of the lessee.
4. All prices are subject to value added tax.

 

3. Performance of the contract

1. If the acquisition of a certain device or equipment by the lessor is not possible he can fulfill the contract by providing equivalent rental property.

 

4. Conditions of payment

1.    The issuing of an invoice will be made when the objects or services are supplied. The lessor reserves the right to demand advance payment or the deposit of a security. The payment has to be made regardless of the right to notice of defects. Compensation and retention because of any counter-claims of the lessee are excluded. This is not valid in the case of an uncontested or legally established claim.

2.    If the payment of the lessee is not on schedule the lessor is entitled to include default interest in the amount of 3% above the current discount rate of the German Federal Reserve Bank, but at least 9% p.a. for each started month.

 

5. Duty to cooperate and communicate information

1. The lessee is committed to inform the lessor immediately in case of malfunctioning or other disturbances relating to the rental property. In the event of a breach of this obligation the lessor reserves the right to claim damages.
2. The lessee informs the lessor immediately about possible modifications or changes that are related to the rental property. This is especially valid for confiscation, distraints or similar measures taken by third parties., - in case of changes of operating conditions for the rental property, that cause or increase the damage or endangerment of the rental property., -in case of bankruptcy or application for a composition concerning the property of the lessor as well as in case of a liquidation of the lessee’s business.
3. The lessee is committed to inform the lessor in written form about the place of issue of the rental property.

 

6. Subletting

1. A subletting to the lessee will only be authorized by the lessor in written form
2. The delivered object remains the property of the lessor. It is not permitted to transfer them to third parties as security or otherwise bind them with the rights of third parties.

 

7. Warranty and liability

1. The lessee or his/her representative declares in written form when receiving the rental object that it is free of defects.
2. The warranty claim expires, if –concerning obvious defects - the damage is not immediately reported after discovery in written form to the lessor; if the lessee does not fulfill his/her contractual duties, especially if the lessee fails to fulfil his payment obligations or does not meet the dates of payment; if the rental object has been changed by third parties through replacing or implementing of parts manufactured by third parties and damage is caused in connection to changed parts; if the lessee did not follow the rules on the handling of the rental object. Warranty shall also be excluded for damage due to normal wear and tear, and for damage caused by negligence or incorrect operation and in case the lessee does not provide appropriate time and opportunity to the lessor to execute any repairs and replacement deliveries which are considered to be necessary.
3. A liability that goes beyond the upcoming warranty of the lessee, especially due to consequential harm caused by a defect, is excluded. In case of culpably delayed delivery and provision of the rental object by the lessor the lessee is only entitled to demand compensation for the replacement but not for lost profit. In case of unforeseen events the lessor does not accept liability.

 

8. Return

1. At the end of the rental period the lessee is committed to return the rental object to the lessor in due form and without defects. The lessor is committed to return the rental object in the same perfect condition as it was handed over.
2. The lessor is committed to confirm the receipt of the rental object immediately.
3. In the event of delayed return the rental period extends automatically until the moment of final return. In that case the lessor is entitled to claim an adequate loss-of-use compensation for the corresponding period of time.

 

9. Specific obligations of the lessee

1. The lessee is committed

• to protect the rental equipment in every way against excessive strain
• if required, to attend to the care and maintenance of the rental equipment
• to carry out necessary repairs at the lessee’s own expense including spare parts for the maintenance of the operational capability in an appropriate and professional way and by the use of genuine spare parts or -with approval from the lessor- spare parts of matching quality. The costs for repairs resulting from tear and wear will be at the expense of the lessor. The lessor reserves the right to carry out the necessary repairs during the rental period. The required spare parts are to be purchased by the lessor. If the lessor does not immediately declare upon request of the lessee that he will obtain the required spare parts in the same period of time and at no higher costs than the lessee, the lessee is entitled to obtain the spare parts by himself/ herself. The lessee is not entitled to undertake changes of the rental object without prior agreement of the lessor, particularly to implement special additions and installations or to remove markings that were fixed by the lessor. The lessor is not allowed to grant third parties rights at the rental object or to transfer any rights arising from this contract.

 

10. Breach of contract and compensation

1. If the rental object is not returned in the condition according to contract the rental period will be extended by the required time to carry out the contrary-to-contract deferred maintenance or other works that are necessary according to operational considerations and under normal circumstances.

 

11. Right to inspection and examination of the rental object

1. The lessor is entitled at any time to inspect the rental object himself/herself or to inspect it by a representative.

2. The lessor is entitled by prior arrangement with the lessee to day and time of the examination to inspect and to examine the rental object himself/herself or by a representative at any time. The lessee is committed to support the examination of the lessor in every way. The lessor bears all costs of the examination.

 

12. Works of the lessor

1. If certain works have to be carried out, such as the set up of equipment or the assembly of devices, the following regulations of this paragraph apply.

2. As long as such works are carried out at no charge by the lessor he shall be liable only in case of gross negligence. The liability of the lessor shall -as a matter of principle- be limited to the insured sum of the third-party liability insurance.

3. The lessee and purchaser of the product/services is obliged at his/her own expense to take all necessary actions to ensure that work can begin on time and can be accomplished without any disturbances. Before assembly work begins, without prompting, the orderer must have ready and make available the necessary information about the position of covered electricity, gas or water conduits or similar installations, particularly he has to inform the lessor about accident prevention regulations that have to be considered.

4.If circumstances arise that lead to the interruption of works and for which the lessor cannot be held responsible the risk for the so far provided services for the duration of interruption shall pass to the lessee.

5. An acceptance certificate has to be filled in including the acceptance of the works of the lessor. With the start-up of service the acceptance certificate must be provided.

6. For inaccurate or defective work delivered by extra-ordered personnel the lessor is not liable if he proves that he neither gave erroneous instructions nor breached obligatory supervision duties.

 

13. General

1. If the parties agree on the occasion of an open-air event that the lessor supervises the functions of the rental object the lessor reserves the following rights:

·         The lessor is entitled to close the system or devices down and to remove them, if the weather conditions endanger the rental object or the physical integrity of the persons present.

·         The lessor is entitled to switch off the system or remove it, if riots or uproars endanger the system and devices. If the system or device is closed down or removed according to these preceding conditions the lessee is not entitled to assert damage claims whatever kind against the lessor.

·         As far as official permits are necessary for the organization of an event the lessee has to obtain authorization at his/her expense. For any damage that arise from a missing official permit the lessee is liable.

 

14. Instructions of the lessor

1. In case the lessor is informed by third parties or is aware that by installing devices from the lessor persons or assets, including own assets of the lessor, are endangered or could be damaged, the lessor is entitled to give instructions to avoid these risks. The lessee is committed to address possible risks, also including third parties. If the lessee fails to do so, the lessor will be released from all arising damages. This also applies before the acceptance of indication.

 

15. Liability of the lessee

1. The lessee is committed to take out all standard insurances that are necessary for the rental object, including an insurance against theft and fire.

2. If the lessee withdraws from the contract or if he refuses the acceptance of services provided by the lessor for other reasons the lessee has to pay a compensation for the costs incurred and the reduced opportunities for a further letting according to the following regulations. In the following it is understood that the quantity of orders comprises 100% of the due performance of the lessee that consists of the rent plus -if applicable- agreed compensation for works and services of authorized subcontractors by the lessor. All prices include the Value Added Tax for Germany. The calculation of the following time limits depends on the date on which the contract between the parties had been closed. In case of cancellation the lessee has to pay the following cancellation fees:

·         cancellation of leasing after closing the contract, but more than four weeks before start of the term of lease = 25% of quantity of orders

·         cancellation of leasing after closing the contract, four weeks before start of the term of lease = 50% of quantity of orders

·         cancellation of leasing within the remaining two weeks before start of the term of lease = 90% of quantity of orders

If an ordered rental object is not picked up after the due date the lessee is committed to pay compensation in the amount of 90% of quantity of orders. The lessor is entitled after the due date and an appropriately set period of grace with a fruitless expiry to let the rental asset elsewhere.

 

C. Other provisions

1. If any of the provision of these terms or of any further agreements and contracts between the parties become impracticable or invalid all other provision of these terms or of any further agreements/contracts shall remain in full force and effect. In such cases, the contract partners will replace the invalid condition with a valid agreement which should adhere as closely as possible to the intended economical purpose of the invalid clause.

2. Any changes and amendments to this agreement have to be made in writing in order to become effective.

3. In case that the contractual agreements contain event services according to paragraph A and rental services according to paragraph B the provisions A6 exclusively apply for the calculation of compensation and damage claims.

4. In case fees have to be paid when organizing an event the customer shall pay. The client is also committed to make the required registrations concerning this matter, unless a written agreement has been negotiated elsewhere.

5. Place of jurisdiction and applicable law for registered traders and legal persons of public law is Bremen.

6. Contracts and all orders given shall be subject to the laws of the Federal Republic of Germany.