General Terms and Conditions of Business, Supply and Performance of Archimedes Solutions GmbH (Germany) for tradefair system and display system URBAN116

§1 Subject of contract, scope, entry into contract

(1)
Archimedes Solutions GmbH (“the Contractor”) supplies trade fair and display systems (hereinafter called “the goods” or “the subject of supply”) to the Client. All supplies, performances and offers by the Contractor are made to business undertakings and are based exclusively on these General Terms and Conditions of Business, Supply and Performance (“the contract terms”). The Client confirms that in entering into contract with the Contractor, the Client is acting in exercise of a commercial enterprise or independent business occupation. These contract terms shall also apply to all future business relations even if not again expressly agreed. The Client’s general terms of business shall not form part of the contract, even if not expressly repudiated by the Contractor.

(2)
In case of doubt the scope of the order and the manufacturing and delivery times shall be as stated in the written offer by the Contractor.

(3)
The terms of the offer and/or the order confirmation by the Contractor and these contract terms shall also apply to any precontractual performances by the Contractor which may be connected with the subject of the contract (in particular consulting or advisory services prior to entry into contract).

(4)
Offers made verbally, by telephone or via the Internet are without obligation and shall be binding only when confirmed in writing by the Contractor. Written offers by the Contractor are without obligation unless otherwise expressly stated in the offer. In the event that the Contractor issues a binding offer, the Contractor shall be bound by the offer for a period of six (6) weeks.

(5)
Contracts will be entered into and other agreements reached with binding effect when the offer by the Contractor is accepted without reservation by the Client, and moreover only when confirmed by the Contractor in written or text form.

§2 Contract execution, delivery, transfer of risk

(1)
The Contractor is permitted to assign performances under this contract either in whole or in part to suitable third parties.

(2)
If no delivery date is expressly specified in the offer, the time of delivery will be determined by mutual agreement between the parties in the course of the execution of the contract.

(3)
All delivery and performance dates are subject to supplies being made to us, the Contractor, correctly and in good time. Delivery and performance dates are in particular without obligation when the agreed delivery concerns supplies of panelling, since delivery is dependent on stocks held by the panelling manufacturer and no binding commitment with regard to stock levels can be given at the time of entry into contract.

(4)
Goods will be dispatched at the discretion of the Contractor to the agreed destination (sale to destination). The costs of shipment must as a matter of principle be paid by the Client, unless it has been agreed in writing between the parties that delivery will be made “free house”.

(5)
Should dispatch be delayed due to circumstances for which the Contractor is not responsible, risk transfers to the Client upon notification that the goods are ready for dispatch.

(6)
The Client is obliged to inspect the goods for transport damage immediately upon receipt. Apparent damage to the goods must be confirmed on the consignment note by the carrier or the carrier’s agent. Concealed damage must be reported to the carrier and the Contractor within fourteen (14) days.

(7)
The risk of accidental loss must be borne by the Client. The Client is obliged to treat the Contractor’s goods with care and adequately insure the same. Claims against the insurer are deemed to be assigned until such time as all sums due the Contractor have been paid in full.

(8)
In cases of force majeure or unforeseen events beyond the control and/or sphere of influence of the Contractor, the time of delivery or performance will be extended accordingly. Such events will justify termination of the order in question only if the Client cannot reasonably be expected to wait longer; waiting longer is generally considered to be unreasonable after more than four (4) weeks following commencement of downtime. The Contractor shall not be liable for any resulting loss or damage.

§3 Performance changes, change requests

(1)
It is permissible for the Contractor to make changes that are in the interests of technical progress or which become necessary due to unforeseen difficulties, provided that the subject of supply is not materially altered and it is reasonable for the Client to accept the changes.

(2)
When requests by the Client for changes or supplementary works are accepted by the Contractor, the agreed manufacturing and/or delivery dates will cease to apply. Should the agreed implementation of changes affect the parties’ contractual obligations, the parties shall forthwith make written modification to the contract and in particular to the prices charged by the Contractor. If no such express agreement on remuneration is reached, but the desired works are nevertheless carried out by the Contractor, these must be additionally and appropriately paid for. In case of doubt, the Contractor’s usual prices will apply.

(3)
Retrospective changes instigated by the Client including the machine downtimes thereby caused will result in production downtime costs which must be reimbursed by the Client.

§4 Cooperation on the part of the Client

(1)
The Client must become acquainted with the essential functional characteristics of the goods before placing an order. Moreover the Client is responsible for ensuring that the goods correspond with the plans, concepts, desires and needs of the Client. In case of doubt the Client must seek advice from employees of the Contractor or qualified third parties before entering into contract. Should the Client prepare designs with the aid of design software provided by the Contractor free of charge for this purpose, the Client shall do so upon its own responsibility.

(2)
The Contractor is under no obligation to inspect supplies provided by the Client or by a third party appointed by the Client. This does not, however, apply to supplies that are evidently not processable.

(3)
Completion dates and deadlines will cease to be binding if the Client fails to fulfil its duty to cooperate in good time.

(4)
Should the Client cause a delay in production which has not been notified to the Contractor in writing in good time prior to the time at which production is scheduled to begin, the production downtime costs must be reimbursed by the Client. In calculating production downtime costs, an hourly rate of € 60.00 plus statutory VAT as appropriate will be applied.

§5 Duty of the Client to examine the goods

(1)
Claims by the Client for defects in the goods supplied will be dependent on the Client having immediately examined the goods for defects and reported any defects that may exist.

(2)
The nature and quality of the goods will be deemed to be accepted if no written complaint is received by the Contractor within seven (7) calendar days following handover of the goods, unless the defect concerned is a concealed defect.

(3)
A concealed defect will be deemed to be accepted if no written complaint is received by the Contractor within seven (7) calendar days following discovery of the defect.

§6 Prices

(1)
The prices stated in the offer by the Contractor will apply subject to the proviso that the order data on which the offer is based remain unchanged. The prices charged by the Contractor are plus value added tax at the statutory rate as applicable. The Contractor’s prices apply ex works. They do not include packing, freight, toll charges, postage, insurance or other transport and dispatch costs.

(2)
Packing, freight, toll charges, postage, insurance and other transport and dispatch costs are dependent on current market prices and fees and are therefore subject to regular change.

(3)
Sketches, drafts and similar preparatory works instigated by the Client will incur an additional charge.

§7 Payment

(1)
Payment must be made net within fourteen (14) days of receipt of the respective invoice. Unless otherwise contractually agreed, 50 % of the order total will be invoiced at the time of order and 50 % upon delivery of the goods or – if the Client is in default of acceptance – upon notification that the goods are ready for delivery (default of acceptance).

(2)
The Contractor is entitled to request adequate advance payments to cover part-performances and extraordinary disbursements (for example, advance payments for performances by third parties) insofar as these are not covered by settlement of the invoice issued at the time of order.

(3)
Should settlement of the Contractor’s claim to payment be at risk due to a material deterioration in the financial circumstances of the Client which becomes apparent after the contract is concluded, the Contractor may demand payments in advance and withhold performances not yet rendered and cease further work until such time as the advance payments are received. A material deterioration in financial circumstances will in particular be deemed to apply if a business information or similar institute warns against entering into business with the Client or recommends that a transaction equal to the volume of the order should be declined or accepted only against payment in advance. Rather than demand payment in advance, the Contractor is at its discretion entitled to demand that security sufficient to cover the Contractor’s claim (including subsidiary claims) in full be provided at the expense of the Client. Until such time as the corresponding security is received, the Contractor shall be entitled to withhold performances not yet rendered and cease further work.

(4)
The Client may only set off or exercise a right of retention in respect of such claims as are undisputed or recognized by declaratory judgment. A right of retention on the part of the Client will potentially arise only in respect of claims deriving directly from this contract.

§8 Reservation of ownership

(1)
Goods supplied under this contract will remain the property of the Contractor until such time as all existing or future claims arising from the business relationship have been paid in full.

(2)
The Client is permitted to resell or process the goods in the normal course of its business only on condition that the claim arising from such resale is assigned to the Contractor, irrespective of whether the goods are resold with or without being processed. The Client following said assignment is authorized to collect the claim. However this shall not affect the Contractor’s entitlement to itself collect the sum receivable. The Contractor undertakes not to collect the claim so long as the Client duly and properly fulfils its payment obligations and is not in default. In the event of default the Client shall be obliged on demand to inform the Contractor of the claims assigned and the parties by whom these are owed, provide all details necessary to collect the claim and surrender the associated documents and notify the debtor of the assignment.

(3)
Processing or transformation of the goods is undertaken at all times for the Contractor. Should the goods be processed together with other items which do not belong to the Contractor, the Contractor shall acquire joint title to the new item in the ratio of the value of the goods to that of the other processed items at the time of processing.

(4)
Should the goods be mixed with other items which do not belong to the Contractor, the Contractor shall acquire joint title to the new item in the ratio of the value of the goods to that of the other mixed items at the time of combination. Should the property of the Contractor be regarded as the principal article, the Client must transfer pro rata joint title to the Contractor.

(5)
Should attempts be made by third parties to attach the goods which are subject to the reservation of ownership, the Client is obliged to draw attention to the fact that these are the property of the Contractor and notify the latter forthwith. It is not permissible to assign the goods by way of security or pledge.

(6)
If goods are taken back by the Contractor, this is only ever undertaken by way of security. In no case does this constitute a withdrawal from the contract, even if instalment payments have been allowed. The Contractor is in such case entitled to dispose of the goods by private sale or auction. The right is reserved to assert more extensive claims for compensation, in particular for loss of profit.

(7)
The Contractor undertakes to release the securities in its favour insofar as the value of the securities exceeds the secured claims yet to be satisfied by more than 20 %.

§9 Liability for defects

(1)
Should a defect exist, the Contractor will at its discretion either rectify the defect or supply a replacement (“remedial performance”). The Contractor may refuse the chosen form of remedial performance or refuse remedial performance entirely if it possible only at unreasonable cost. In the case of replacement supply, the Contractor is obliged to bear the necessary costs entailed, in particular transport costs, provided that these are not increased by conveying the replacement goods to a location other than the contractually agreed destination. If the Contractor supplies defect-free goods by way of remedial performance, the Client is required to hand back the goods originally supplied.

(2)
Should the Contractor be unwilling or unable to make remedial performance, or should this be delayed beyond a reasonable period of time for reasons for which the Contractor is responsible, or should the remedial performance in some other way fail, within the provisions of the law the Client shall be entitled to assert its rights to withdraw or demand a reduction in price and also compensation, whereby the latter shall be within the scope defined in § 10 of these general contract terms (“Liability on the part of the Contractor”). Remedial performance will be considered to have failed only after three attempts have proven unsuccessful.

(3)
Further claims by the Client, in particular compensation claims including loss of profit or other financial loss on the part of the Client, will apply only within the scope defined in § 10 of these general contract terms (“Liability on the part of the Contractor”).

(4)
Defects affecting a part of the goods supplied shall not constitute grounds to object to the entire delivery, unless the part delivery is of no interest to the Client.

(5)
The Contractor will accept liability for deviations in the nature or quality of the materials used in manufacturing to the extent of the Contractor’s own claims against the supplier in question, provided that the supplier or the materials used to manufacture the goods were determined or selected by the Contractor. Liability on the part of the Contractor in this case will cease if and when the Contractor assigns the corresponding claims against the Supplier to the Client, unless no enforceable claims exist against the supplier for reasons for which the Contractor is responsible.

(6)
The warranty period is one year calculated from the commencement of the statutory period of limitation.

§10 Liability on the part of the Contractor

Liability on the part of the Contractor and independent liability on the part of the Contractor’s employees and vicarious agents – irrespective of on what legal grounds – are subject to the following terms:

(1)
Liability on the part of the Contractor for compensation is limited as follows:

a) Liability on the part of the Contractor for infringements of essential duties occasioned by minor negligence shall be limited in amount to loss or damage typically foreseeable at the time the contract was concluded;
b) The Contractor shall have no liability for infringements of non-essential duties occasioned by minor negligence.

(2)
In case of impossibility ab initio, the Contractor shall be liable if the Contractor was aware of the impediment, or was unaware thereof as a result of gross negligence.

(3)
The time limit on compensation claims against the Contractor shall be one year calculated from the commencement of the statutory period of limitation, unless the loss or damage was occasioned by wilful negligence.

(4)
The aforementioned exclusions, restrictions and limitations of liability do not apply to claims under the German Product Liability Act [Produkthaftungsgesetz], nor to claims for loss of life, physical injury or impairment of health.

§11 Liability in the case of performances rendered free of charge by the Contractor
The Client shall have no claim in the event of any defect in performances rendered free of charge by the Contractor (for example, free-of-charge provision of design software). Compensation claims resulting from free-of-charge performances are excluded other than in case of gross negligence on the part of the Contractor.

§12 Industrial property rights, trade name / company symbols

(1)
Unless otherwise expressly agreed in writing, or otherwise specified in these contract terms, no transfer of industrial property rights or rights to use and exploit works protected by copyright is included in the performances by the Contractor.

(2)
The Client shall be solely liable if third party rights, in particular copyright, are infringed as a result of the execution of the Client’s order. The Client must indemnify the Contractor against all claims by third parties resulting from such infringement of rights. The parties shall notify one another forthwith in writing in the event that claims are made against them on grounds of the infringement of industrial property rights.

(3)
The Contractor’s own materials, media, films, drawings, calculations, print and data media and all other documents used by the Contractor in fulfilment of its contractual obligations remain the sole property and copyright of the Contractor.

§13 Archiving

The Contractor is entitled to archive the data and information provided by the Client in the interests of complying with statutory archiving requirements and for evidentiary purposes.

§14 Concluding provisions

(1)
The Client may not – subject to the assignment of monetary claims pursuant to § 354 a of the German Commercial Code [HGB] – assign individual rights arising from this contract or the contract as a whole to third parties, other than with the express written consent of the Contractor. The Contractor will give its consent if the justified interests of the Client in assigning such rights outweigh the interests of the Contractor.

(2)
The place of fulfilment shall be the then current domicile of the Contractor. The exclusive place of jurisdiction for all disputes arising from the contractual relationship, including summary procedures for cheques, bills of exchange and instruments, shall be the then current legal domicile of the Contractor. The Contractor is, however, also entitled to bring suit at the statutory place of jurisdiction.

(3)
This contract is subject exclusively to German law. Application of the “Uniform Law on the International Sale of Goods” and the “Uniform Law on the Formation of Contracts for the International Sale of Goods” as well as the “United Nations Convention on the International Sale of Goods” is excluded.

(4)
Verbal collateral agreements are invalid. Deviating or supplementary conditions and alterations to this contract including this clause will be valid only if agreed in writing or text form and expressly identified as an alteration or amendment.

(5)
Should one or more terms be ineffective, this will not affect the validity of the remainder.