General Terms and Condition for transactions with customers and contractors

General Terms & Conditions for the provision of services by UEBERKOPF GmbH Rigging­service & Veranstaltungs­technik

§ 1 SCOPE AND APPLICABILITY

(1) These General Terms and Conditions shall apply to all commercial transactions with business entities as defined in Section 14 of the German Civil Code (BGB) and shall constitute both the basis and an integral part of all contractual agreements concluded by and between UEBERKOPF GmbH and its contracting partners (the ‘Customer’ in the following).

(2) By signing the contract with UEBERKOPF GmbH the Customer accepts these terms in full and agrees that they are valid for all future transactions with the Customer. The Customer accepts that these regulations take precedence over conflicting provisions within their own terms and conditions. Individual agreements always take precedence over the terms and conditions of both contracting partners. Any other contrary terms and conditions of the Customer shall apply only if explicitly confirmed in writing by UEBERKOPF GmbH.

§ 2 QUOTATION AND CONCLUSION OF CONTRACT

UEBERKOPF GmbH quotes are not binding and are to be regarded as quotes ad incertas personas. The ‘Order’ shall be placed by the Customer in writing (email, fax, letter) and is understood as an offer to conclude a contract on the basis of the quote. UEBERKOPF GmbH shall be free to decide whether to accept it. The acceptance of the order by UEBERKOPF can either be made by an order confirmation, or can also be implied (through coherent action on the part of UEBERKOPF GmbH).

§ 3 TERMINATION / CANCELLATION BY THE CUSTOMER

(1) Cancellation (termination of the contract by the Customer before provision of service) is only possible in accordance with the following rules. For the cancellation to become effective it must be made in writing (email, fax, letter).

(2) In the event of an order cancellation, the Customer is obliged to pay compensation to UEBERKOPF GmbH according to the following scale:

a. Cancellation 30 days before the work or the contractual rental period begins: 50 % of the total amount
b. Cancellation 15 days before the work or the contractual rental period begins: 80 % of the total amount
c. Cancellation 5 days before the work or the contractual rental period begins: 90 % of the total amount.

(3) The date of cancellation shall be determined as the date on which UEBERKOPF GmbH receives the written notice of cancellation. The obligation to pay compensation shall not apply insofar as the Customer can prove that UEBERKOPF GmbH has either incurred no loss or that the loss incurred is significantly significantly smaller than the indicated compensation.

(4) In the event of default by the Customer or a deterioration of the Customer’s credit rating, UEBERKOPF GmbH is entitled to terminate this agreement prematurely. In such a case UEBERKOPF GmbH can make the further provision of services dependent on an appropriate advance payment.

(5) An agreement may be terminated for good cause by both parties, with the exception of the provisions in paragraphs 1 – 4 and the regulations listed below for the respective types of contract.

(6) Good cause for UEBERKOPF GmbH’s purposes shall be deemed given if, in particular

a. the Customer uses the rented items in violation of the contractual agreement;
b. the Customer requests actions that violate any applicable law, generally accepted practice or technical regulations, or could cause a hazard that in the opinion of UEBERKOPF GmbH cannot be reduced to an acceptable level by reasonable means and is therefore unacceptable.
c. the Customer is in such dire arrears with payment obligations arising for them from another contract relationship that payment of the work appears to be at risk.

§ 4 OBJECT OF SERVICE AND METHOD OF SERVICE PROVISION

(1) UEBERKOPF GmbH provides services for customers in the field of event technology, including planning and documentation work. Details are specified in writing between the parties.

(2) UEBERKOPF GmbH will perform the tasks and activities incumbent on it in close professional consultation with the Customer and others involved in the project. However, as a contractor it works independently and is not subject to instructions with regard to the technical provision of the service. In particular, there is no incorporation into the Customer’s staff structure in this connection. An employment relationship is not established.

(3) UEBERKOPF GmbH does not have to provide the service itself. It is permitted to commission other service providers to fulfil the contractual service. The selection and type of commission is at the sole discretion of UEBERKOPF GmbH.

(4) Before beginning work, UEBERKOPF GmbH will inspect the event venue to determine whether it can provide its services without danger or subsequently occurring defects. In this connection, UEBERKOPF GmbH shall be briefed and instructed by the operator, the organiser, the Customer or a duly authorised representative at the venue, and undertakes to brief its contracted service providers accordingly, or have them briefed by a duly qualified and authorised person.

(5) The Customer shall make the documents necessary for fulfilling the services available to UEBERKOPF GmbH. Upon receipt, UEBERKOPF GmbH will check the documents submitted for the execution of its work, and has the right to refuse the provision of services if they are incomplete.

(6) An appropriate extension of the deadline for completion of the service shall be considered as agreed if the Customer is not able to provide UEBERKOPF GmbH, in good time, with the information necessary or useful for the completion of the service, or if it subsequently amends such information.

(7) If the Customer does not provide assistance as agreed and by the agreed deadline, the Customer must additionally reimburse UEBERKOPF GmbH employees for the resulting delays at the hourly rate agreed in the individual project contract.

(8) Unless otherwise agreed, it is the Customer’s responsibility to ensure that health and safety measures for a given production are coordinated in accordance with Section 8 ArbSchG (Germany’s Labour Protection Act) and that the relevant safety regulations are adhered to. UEBERKOPF GmbH will support it within the context of the powers of organisation, instruction and decision-making it is granted and will comply with instructions of the Customer’s staff responsible for coordination.

(9) UEBERKOPF GmbH will carry out its work in such a way that other contractors working on the production and their staff are not hindered or endangered. The Customer shall equally ensure that other persons involved in the production do not impede the work of UEBERKOPF GmbH or endanger UEBERKOPF GmbH personnel. The Customer shall further ensure that all the necessary coordination and briefings regarding technical workflows and timing are carried out in good time. UEBERKOPF GmbH shall not be held responsible for delays, including those that are only indirectly attributable to external influences. The Customer shall pay for any damages incurred by UEBERKOPF GmbH that are caused by other project participants.

§ 5 TRADEMARK RIGHTS, RIGHTS OF USE

(1) UEBERKOPF GmbH grants the Customer a transferable right to use the results of the work that is the object of the contract, without any restriction on location and time, unless contractually agreed otherwise.

(2) Where inventions benefiting the Customer are created by employees of UEBERKOPF GmbH, UEBERKOPF GmbH will inform the Customer about them in good time so that the Customer can decide whether it wishes to lay claim to UEBERKOPF GmbH’s invention. If the Customer wishes to make a claim it is granted a free, exclusive, unrestricted, and transferable right to use the invention, provided the Customer agrees to pay any remuneration owed to the employee for the invention.

§ 6 PAYMENT

(1) The level of remuneration is agreed in individual contracts. Remuneration is billed per project, or monthly in the case of long-term projects.

(2) The above-mentioned rates are quoted for local provision of services. Travel expenses shall be reimbursed if UEBERKOPF GmbH employees are required or authorised by the Customer to make work-related trips. In particular, travel expenses include costs of travel, accommodation and meals per diems. In such cases, time spent travelling is to be compensated at the full hourly rate.

§ 7 TERMS OF PAYMENT

(1) UEBERKOPF GmbH shall issue the Customer with an invoice in accordance with Section 14 para 4 UStG (German VAT Act). This obligation also applies to all contracting parties making claims for payment against UEBERKOPF GmbH. Without receipt of a proper invoice, UEBERKOPF GmbH has the right to refuse payment.

(2) Unless otherwise agreed, the UEBERKOPF GmbH invoice is payable immediately upon receipt without deductions / discounts.

(3) In each case, payment shall be deemed to be on time based on when UEBERKOPF GmbH is in receipt of the money.

(4) After the expiry of the agreed payment period, but no later than 30 days after invoice date, the Customer is deemed to be in arrears. In accordance with Section 288 of the German Civil Code (BGB), interest of eight percentage points above the base rate as defined in Section 247 of the BGB is payable from the first day on which the Customer
was deemed to be in arrears. UEBERKOPF GmbH reserves the right to assert further claims on the legal basis of the default.

(5) Any offsetting against disputed claims, or against counterclaims that have not been legally established, is excluded, as is any right of retention.

(6) Each contracting party is responsible for their own compliance with all tax and social security obligations arising for them from this agreement.

§ 8 INDEMNIFICATION AND LIMITATION OF LIABILITY

(1) The Customer is only entitled to contractual and statutory damages if they result from an intentional or grossly negligent breach of duty by UEBERKOPF, its legal representatives, executives or agents.

(2) The above-mentioned limitation of liability does not apply for the violation of essential contractual duties / cardinal obligations. In such a case, however, liability is limited to typical damages foreseeable at the time of the contract signing and in accordance with the purpose of the contract, and to the amount covered by the liability insurance of UEBERKOPF GmbH.

a. Material damages: 3,000,000.00 €
b. Personal injury: 3,000,000.00 €
c. Pecuniary loss: 3,000,000.00 €

(3) Liability for damages arising from injury to life, limb or health remains unaffected by this limitation.

(4) Any liability by UEBERKOPF GmbH for consequential damages (in particular but not limited to lost earnings, financing costs, production downtime) is excluded.

§ 9 OBLIGATION TO EXCLUDE LIABILITY

In agreements with its contractual partners (artists, athletes, spectators, etc.) the Customer shall include a limitation of liability in favour of UEBERKOPF GmbH, corresponding to the content of the provisions of Section 8. If UEBERKOPF GmbH issued for damages due to non-implementation of the aforementioned obligation, the Customer shall indemnify UEBERKOPF GmbH with regard to such claims for damages.

§ 10 FORMAL REGULATIONS

(1) Verbal agreements have no validity. All individual agreements and changes to this agreement must at least be made in writing (email, fax, letter) to be valid.

(2) Should any of the contractual provisions prove to be invalid, or become ineffective or unfeasible after the signing of the contract, the validity of the contract in general remains unaffected. Instead, the invalid or unfeasible provision shall be replaced by an effective or feasible provision whose effect most closely corresponds to the commercial objectives the contracting parties were seeking to achieve with the invalid or unfeasible provision. The aforementioned provisions shall apply correspondingly in the event of gaps or omissions in the contract.

(3) These General Terms and Conditions and all legal relations between UEBERKOPF GmbH and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on the International Sale of Goods (CISG).

(4) German shall be the language for negotiations and contractual agreements.

(5) Place of performance for planning and rental services shall be the headquarters of UEBERKOPF Inc. For other work and services the place of performance is where they are actually carried out.

(6) Insofar as the requirements defined in Section 38 of the Code of Civil Procedure (ZPO) are met, the place of jurisdiction shall be at UEBERKOPF’s place of business, including for action relating to deeds and the payment of cheques. This jurisdiction shall also apply if the Customer does not have any general jurisdiction in Germany, moves his domicile or ordinary place of residence to a foreign country after concluding the contract, or if his domicile or ordinary place of residence is unknown at the time of filing suit. However, UEBERKOPF is entitled to take legal action before any legally competent court.

GTC Services

General Rental Terms and Conditions of UEBERKOPF GmbH Rigging­service & Veranstaltungs­technik

Regulations for the rental of objects and/or related services of UEBERKOPF GmbH.

§ 1 SCOPE AND APPLICATION

(1) These General Terms and Conditions shall apply to all commercial transactions with business entities as defined in Section 14 of the German Civil Code (BGB) and shall constitute both the basis and an integral part of all contractual agreements concluded by and between UEBERKOPF GmbH and its contracting partners (the ‘Customer’ in the following).

(2) By signing the contract with UEBERKOPF GmbH the Customer accepts these terms in full and agrees that they are valid for all future transactions with the Customer. The Customer accepts that these regulations take precedence over conflicting provisions of their own terms and conditions. Individual agreements always take precedence over the terms and conditions of both contracting partners. Any other contrary terms and conditions of the Customer shall apply only if explicitly confirmed in writing by UEBERKOPF GmbH.

§ 2 QUOTATION AND CONCLUSION OF CONTRACT

UEBERKOPF GmbH quotes are not binding and do not constitute offers ad incertas personas. The ‘Order’ shall be placed by the Customer in writing (email, fax, letter) are understood as an offer to sign a contract on the basis of the offer. UEBERKOPF GmbH shall be free to decide whether to accept it. The acceptance of the order by UEBERKOPF GmbH can either be made by an order confirmation, or can also be implied (through coherent action on the part of UEBERKOPF GmbH).

§ 3 TERMINATION / CANCELLATION BY THE CUSTOMER

(1) Cancellation (termination of the contract by the Customer before provision of service) is only possible in accordance with the following rules. For the cancellation to become effective it must be made in writing (email, fax, letter).

(2) In the event of an order cancellation, the Customer is obliged to pay compensation to UEBERKOPF GmbH according to the following scale:

a. Cancellation 30 days before the work or the contractual rental period begins: 50 % of the total amount
b. Cancellation 15 days before the work or the contractual rental period begins: 80 % of the total amount
c. Cancellation 5 days before the work or the contractual rental period begins: 90 % of the total amount.

(3) The date of cancellation shall be determined as the date on which UEBERKOPF GmbH receives the written notice of cancellation. The obligation to pay compensation shall not apply insofar as the Customer can prove that UEBERKOPF GmbH has either incurred no loss or that the loss incurred is significantly significantly smaller than the indicated compensation.

(4) In the event of default by the Customer or a deterioration of the Customer’s credit rating, UEBERKOPF GmbH is entitled to terminate this agreement prematurely. In such a case UEBERKOPF GmbH can make the further provision of services dependent on an appropriate advance payment.

(5) An agreement may be terminated for good cause by both parties, with the exception of the provisions in paragraphs 1 – 4 and the regulations listed below for the respective types of contract.

(6) Good cause for UEBERKOPF GmbH’s purposes shall be deemed given if, in particular

a. the Customer uses the rented items in violation of the contractual agreement;
b. the Customer requests actions that violate any applicable law, generally accepted practice or technical regulations, or could cause a hazard that in the opinion of UEBERKOPF GmbH cannot be reduced to an acceptable level by reasonable means and is therefore unacceptable.
c. a Customer is in such dire arrears with payment obligations arising for them from another contract relationship that payment of the work appears to be at risk.

§ 4 RENTAL PERIOD

The rental period shall include the agreed date for provision of the rented items at the UEBERKOPF GmbH warehouse (commencement of rental) and the agreed date for returning the rented items to the UEBERKOPF GmbH warehouse (end of rental). This shall apply regardless of whether the transportation of the items is carried out by the Customer, by UEBERKOPF GmbH, or by a third party.

§ 5 HIRING-OUT AND DEFECTS

(1) The items hired out by UEBERKOPF GmbH are technically complex devices that are accordingly sensitive. The Customer is obligated to handle them carefully and only allow them to be used by technically qualified personnel.

(2) The rented items shall be made available by UEBERKOPF GmbH at its warehouse on weekdays (Monday to Friday) between 09:00 – 17:00, in a condition suitable for the contractually agreed use, for the duration of the agreed rental period. The Customer undertakes to examine the rented items when they are handed over to ensure that they are complete and free from defects, and shall immediately notify UEBERKOPF GmbH of any defects or missing parts. If the Customer fails to examine the rented items or does not notify UEBERKOPF GmbH of any defects or missing parts, the rented items shall be deemed to have been approved/without defects unless the defect was not discernible at the time of inspection. If such a defect is discovered later, it must be reported without delay following its discovery, otherwise the condition of the rented items shall be deemed to have been approved/ without defects even in consideration of the defect. Any defects must be reported in writing (email, fax, letter).

(3) If the rented items are defective at the time of being handed over or if a defect is discovered later, the Customer shall be entitled to demand rectification of the defects after having duly reported them. This shall not apply if the defect has been caused by the Customer and/or the latter is obliged to service - including repair - the items in accordance with. UEBERKOPF GmbH may satisfy the demand for rectification either, at its discretion, by providing an equivalent rental item or by repairing the defective item. The Customer may only demand rectification during the period specified in Section 8, paragraph 2. UEBERKOPF GmbH may make the rectification of the defect contingent upon payment of transport costs, travel expenses and labour costs by the Customer, if the rectification entails disproportionate effort and expense. This is usually the case if the rented items are abroad.

(4) The Customer shall only be entitled to demand a reduction in price or termination of the contract in accordance with Section 543, paragraph 2, No. 1 and Section 543, paragraph 3 of the German Civil Code (BGB) if the attempted rectification by UEBERKOPF GmbH is unsuccessful or if UEBERKOPF GmbH definitively refuses to carry out this rectification. If the Customer fails to report the defect or reports the defect belatedly, the Customer shall not be entitled to demand a reduction in price on account of the defect nor to terminate the contract in accordance with Section 543, paragraph 2, No. 1 and Section 543, paragraph 3 of the German Civil Code (BGB), nor claim damages. Entitlement to damages shall also be excluded if the Customer reports a defect to UEBERKOPF GmbH without delay but it was not possible to rectify the defect.

(5) If a defect is not reported or reported belatedly, the Customer shall be obliged to compensate UEBERKOPF GmbH for any resultant loss or damage. The right of termination shall be excluded if the Customer is in any way to blame for the defect

(6) If several items have been rented, the Customer shall only be entitled to terminate the complete contract on account of the defective nature of a single item if the rented items have been rented out as a complete unit and the defective nature significantly impairs the contractually presumed serviceability of the rented items as a whole.

(7) If the Customer rents technical complex equipment or equipment which is difficult to operate without making use of the specialist personnel recommended and offered by UEBERKOPF GmbH, the Customer shall only be entitled to demand rectification of the defect if they can prove that the defect has not been caused partly or entirely by operator error.

(8) The rental Customer shall be obliged to obtain at his expense and in good time all permits required under public law for the planned use of the rented items. If installation is undertaken by UEBERKOPF GmbH, the Customer shall present the necessary permits to UEBERKOPF GmbH beforehand on request. UEBERKOPF GmbH shall not be liable for the permissibility of the Customer‘s intended use of the rented items

§ 6 TRANSPORT

(1) Unless otherwise agreed, UEBERKOPF GmbH shall not be responsible for transporting the rented items. If UEBERKOPF GmbH explicitly agrees to provide transport services for the rented items, UEBERKOPF GmbH shall be free to transport the goods itself or to contract a third party for this purpose at its discretion. Section 5 of the Terms and Conditions shall apply with regard to any damages claimed.

(2) If the goods are transported by a third party on behalf of UEBERKOPF GmbH, the Customer shall first and foremost claim any damages from the third party. To this end, the Customer may demand that claims made by UEBERKOPF GmbH against the third party be assigned to the extent commensurate with the liability of UEBERKOPF GmbH towards the Customer in accordance with Section 6.

§ 7 CUSTOMER‘S DUTIES DURING THE RENTAL PERIOD

(1) The Customer shall treat the rented items with care.

(2) The rented items may only be installed, operated and removed in accordance with the technical regulations, and only by qualified personnel. If items are rented without UEBERKOPF GmbH personnel, the Customer shall ensure continual compliance with all applicable safety regulations, especially the accident prevention regulations issued by the employers‘ liability insurance associations, and the guidelines of the Association of German Electrical Engineers (VDE) and the IGVW (Entertainment Technology Industry Association).

(3) The Customer shall be responsible for servicing and - if necessary - also repairing the rented items and the replacement of consumables (e.g. lamps).

(4) The Customer shall ensure a reliable power supply during the entire period of use of the rented items. The Customer shall be liable for any damage or losses due to power failures and interruptions or fluctuations in the power supply.

§ 8 INSURANCE

(1) The Customer is obliged to take out appropriate and adequate insurance against the risks generally associated with the rented items.

(2) If UEBERKOPF GmbH and the Customer agree that UEBERKOPF GmbH handle the insurance, the Customer shall refund the costs of the insurance to UEBERKOPF GmbH.

If UEBERKOPF GmbH does not handle the insurance, the Customer shall provide UEBERKOPF GmbH with proof of appropriate insurance on request.

§ 9 RIGHTS OF THIRD PARTIES

The Customer shall ensure that the rented items remain free from all encumbrances, demands, attachments and other legal claims by third parties. The Customer shall be obliged to inform UEBERKOPF GmbH of such third-party action without delay, including making all the necessary documents available. The costs of defending against such action shall be borne by the Customer, unless the action can be ascribed to the sphere of influence of UEBERKOPF GmbH.

§ 10 RETURN OF THE RENTED ITEMS

(1) The rented items shall be returned to the UEBERKOPF GmbH warehouse in full, in orderly, clean and faultless condition during the period specified in Section 8, paragraph 2, at the latest on the last day of the agreed rental period. The duty to return items shall also encompass any defective rented items, especially lamps and other small accessory parts.

(2) The rented items shall be deemed to have been returned completely only when all rented items have been unloaded at the UEBERKOPF GmbH warehouse. UEBERKOPF GmbH reserves the right to inspect the rented items in detail. Acceptance without complaint shall not be interpreted as approval of the completeness and condition of the returned rented items.

(3) If return of the items to a place other than the UEBERKOPF GmbH warehouse has been agreed (e.g. at the exhibition hall / stand) the Customer shall notify UEBERKOPF GmbH immediately of the fact that they are ready to be returned.

(4) If the agreed rental period is exceeded, the Customer shall inform UEBERKOPF GmbH withtout delay, at least by phone. Continued use shall not lead to an extension of the rental. For every day the agreed rental period is exceeded, the Customer shall pay compensation equal to the agreed remuneration per day. This remuneration shall be calculated by assuming that for each day until it is returned, UEBERKOPF GmbH’s respective standard daily rental rate has been agreed.

(5) In the case of culpable damage to or loss of rented items the Customer shall refund UEBERKOPF GmbH the cost of repairs or, in the event of a total write-off or loss, the Customer shall refund the cost of replacement, minus any residual value if applicable. In addition, the Customer shall also repay any consequential losses incurred, especially any reduction in value, expert fees, loss of rental income and a lump sum for administrative expenses.

(6) If lamps or other small accessory parts are culpably damaged or lost, the Customer shall reimburse UEBERKOPF GmbH for the current replacement value of the parts, unless the Customer can prove that UEBERKOPF GmbH has not incurred any loss or that the loss is considerably smaller.

§ 11 PAYMENT

(1) The level of remuneration is agreed in individual contracts. It is determined on the basis of the quote, taking into account any extra work that arises as part of the project after order acceptance.

(2) Unless otherwise agreed in individual contracts, remuneration for services provided as services or work performed by UEBERKOPF GmbH is calculated based on the man-hours required for the provision of the services.

(3) If the payment rates are not covered in contracts for services or materials, and they are not evident from the UEBERKOPF GmbH price list, an appropriate, standard industry fee shall be considered as agreed.

(4) Unless agreed otherwise, the remuneration for the service UEBERKOPF GmbH has performed shall be due without deductions / discounts from the time of the contractually agreed commencement of rental.

(5) Deferral of the Customer’s payment obligation to the end of the lease term or any other date does not have to be agreed in writing, but must be clearly agreed between the parties.

§ 12 TERMS OF PAYMENT

(1) UEBERKOPF GmbH will issue the Customer with an invoice in accordance with Section 14 para 4 UstG (German VAT Act). This obligation also applies to all contracting parties making claims for payment against UEBERKOPF GmbH. Without receipt of a proper invoice, UEBERKOPF GmbH has the right to refuse payment.

(2) Unless otherwise agreed, the UEBERKOPF GmbH invoice is payable immediately upon receipt without deductions / discounts.

(3) In each case, payment shall be deemed to be on time based on when UEBERKOPF GmbH is in receipt of the money.

(4) After the expiry of the agreed payment period, but no later than 30 days after invoice date, the Customer is deemed to be in arrears. In accordance with Section 288 of the German Civil Code (BGB), interest of eight percentage points above the base rate as defined in Section 247 of the BGB is payable from the first day on which the Customer was deemed to be in arrears. UEBERKOPF GmbH reserves the right to assert further claims on the legal basis of the default.

(5) Any offsetting against disputed claims, or against counterclaims that have not been legally established, is excluded, as is any right of retention.

(6) Each contracting party is responsible for their own compliance with all tax and social security obligations arising for them from this agreement.

§ 13 INDEMNIFICATION AND LIMITATION OF LIABILITY

(1) The Customer is only entitled to contractual and statutory damages if they result from an intentional or grossly negligent breach of duty by UEBERKOPF GmbH, its legal representatives, executives or agents.

(2) No-fault liability in accordance with Section 536 para 1 of the German Civil Code (BGB) is excluded.

(3) The above-mentioned limitation of liability does not apply for the violation of essential contractual duties / car- dinal obligations. In such a case, however, liability is limited to typical damages foreseeable at the time of the contract signing and in accordance with the purpose of the contract, and to the amount covered by the liability insurance of UEBERKOPF GmbH.

a. Material damages: 3,000,000.00 €
b. Personal injury: 3,000,000.00 €
c. Pecuniary loss: 3,000,000.00 €

(4) Liability for damages arising from injury to life, limb or health remains unaffected by this limitation.

(5) Any liability by UEBERKOPF GmbH for consequential damages (in particular but not limited to lost earnings, financing costs, production downtime) is excluded.

§ 14 OBLIGATION TO EXCLUDE LIABILITY

In agreements with its contractual partners (artists, athletes, spectators, etc.) the Customer shall include a limitation of liability in favour of UEBERKOPF GmbH, corresponding to the content of the provision of Section 6. If UEBERKOPF GmbH issued for damages due to non-implementation of the aforementioned obligation, the Customer shall indemnify UEBERKOPF GmbH with regard to such claims for damages.

§ 15 FORMAL REGULATIONS

(1) Verbal agreements have no validity. All individual agreements and changes to this agreement must be at least made in writing (email, fax, letter) to be valid.

(2) Should any of the contractual provisions prove to be invalid, or become ineffective or unfeasible after the signing of the contract, the validity of the contract in general remains unaffected. Instead, the invalid or unfeasible provision shall be replaced by an effective or feasible provision whose effect most closely corresponds to the commercial objectives the contracting parties were seeking to achieve with the invalid or unfeasible provision. The aforementioned provisions shall apply correspondingly in the event of gaps or omissions in the contract.

(3) These General Terms and Conditions and all legal relations between UEBERKOPF GmbH and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on the International Sale of Goods (CISG).

(4) German shall be the language for negotiations and contractual agreements.

(5) Place of performance for planning and rental services shall be the headquarters of UEBERKOPF Inc. For other work and services the place of performance is where they are actually carried out.

(6) Insofar as the requirements defined in Section 38 of the Code of Civil Procedure (ZPO) are met, the place of jurisdiction shall be at UEBERKOPF’s place of business, including for action relating to deeds and the payment of cheques. This jurisdiction shall also apply if the Customer does not have any general jurisdiction in Germany, moves his domicile or ordinary place of residence to a foreign country after concluding the contract, or if his domicile or ordinary place of residence is unknown at the time of filing suit. However, UEBERKOPF GmbH is entitled to take legal action before any legally competent court.

GTC Rentals

General Terms & Conditions for the provision of contract for deliveries or works delivery by UEBERKOPF GmbH Rigging­service & Veranstaltungs­technik

§ 1 SCOPE AND APPLICABILITY

(1) These General Terms and Conditions shall apply to all commercial transactions with business entities as defined in Section 14 of the German Civil Code (BGB) and shall constitute both the basis and an integral part of all contractual agreements concluded by and between UEBERKOPF GmbH and its contracting partners (the ‘Customer’ in the following).

(2) By signing the contract with UEBERKOPF GmbH the Customer accepts these terms in full and agrees that they are valid for all future transactions with the Customer. The Customer accepts that these regulations take precedence over conflicting provisions within their own terms and conditions. Individual agreements always take precedence over the terms and conditions of both contracting partners. Any other contrary terms and conditions of the Customer shall apply only if explicitly confirmed in writing by UEBERKOPF GmbH.

§ 2 QUOTATION AND CONCLUSION OF CONTRACT

UEBERKOPF GmbH quotes are not binding and are to be regarded as quotes ad incertas personas. The ‘Order’ shall be placed by the Customer in writing (email, fax, letter) and is understood as an offer to conclude a contract on the basis of the quote. UEBERKOPF GmbH shall be free to decide whether to accept it. The acceptance of the order by UEBERKOPF GmbH can either be made by an order confirmation, or can also be implied (through coherent action on the part of UEBERKOPF GmbH).

§ 3 TERMINATION / CANCELLATION BY THE CUSTOMER

(1) Cancellation (termination of the contract by the Customer before provision of service) is only possible in accordance with the following rules. For the cancellation to become effective it must be made in writing (email, fax, letter).

(2) In the event of an order cancellation, the Customer is obliged to pay compensation to UEBERKOPF GmbH according to the following scale:

a. Cancellation 30 days before the work or the contractual rental period begins: 50 % of the total amount
b. Cancellation 15 days before the work or the contractual rental period begins: 80 % of the total amount
c. Cancellation 5 days before the work or the contractual rental period begins: 90 % of the total amount.

(3) The date of cancellation shall be determined as the date on which UEBERKOPF GmbH receives the written notice of cancellation. The obligation to pay compensation shall not apply insofar as the Customer can prove that UEBERKOPF GmbH has either incurred no loss or that the loss incurred is significantly significantly smaller than the indicated compensation.

(4) In the event of default by the Customer or a deterioration of the Customer’s credit rating, UEBERKOPF GmbH is entitled to terminate this agreement prematurely. In such a case UEBERKOPF GmbH can make the further provision of services dependent on an appropriate advance payment.

(5) An agreement may be terminated for good cause by both parties, with the exception of the provisions in paragraphs 1 – 4 and the regulations listed below for the respective types of contract.

Good cause for UEBERKOPF GmbH’s purposes shall be deemed given if, in particular
a. the Customer uses the rented items in violation of the contractual agreement;
b. the Customer requests actions that violate any applicable law, generally accepted practice or technical regula­tions, or could cause a hazard that in the opinion of UEBERKOPF GmbH cannot be reduced to an acceptable level by reasonable means and is therefore unacceptable.

§ 4 WITHDRAWAL

UEBERKOPF GmbH reserves the right to withdraw from the contract if a deterioration of the Customer’s assets has occurred which is liable to jeopardise UEBERKOPF GmbH’s claim to the agreed compensation. The same applies if prior to signing the contract the Customer has made false statements about their creditworthiness, or important circumstances regarding the project.

§ 5 OBJECT OF SERVICE AND METHOD OF SERVICE PROVISION

(1) UEBERKOPF GmbH provides services for customers in the field of event technology, including planning and documentation work. Details are specified in writing between the parties.

(2) UEBERKOPF GmbH will perform the tasks and activities incumbent on it in close professional consultation with the Customer and others involved in the project. However, as a contractor it works independently and is not subject to instructions with regard to the technical provision of the service. In particular, there is no incorporation into the Customer’s staff structure in this connection. An employment relationship is not established.

(3) UEBERKOPF GmbH does not have to provide the service itself. It is permitted to commission other service providers to fulfil the contractual service. The selection and type of commission is at the sole discretion of UEBERKOPF GmbH.

(4) Before beginning work, UEBERKOPF GmbH will inspect the event venue to determine whether it can provide its services without danger or subsequently occurring defects. In this connection, UEBERKOPF GmbH shall be briefed and instructed by the operator, the organiser, the Customer or a duly authorised representative at the venue, and undertakes to brief its contracted service providers accordingly, or have them briefed by a duly qualified and authorised person.

(5) The Customer shall make the documents necessary for fulfilling the services available to UEBERKOPF GmbH. Upon receipt, UEBERKOPF GmbH will check the documents submitted for the execution of its work, and has the right to refuse the provision of services if they are incomplete. An appropriate extension of the deadline for completion of the service shall be considered as agreed if the Customer is not able to provide UEBERKOPF GmbH, in good time, with the information necessary or useful for the completion of the service, or if it subsequently amends such information.

(6) If the Customer does not provide assistance as agreed and by the agreed deadline, the Customer must additionally reimburse UEBERKOPF GmbH employees for the resulting delays at the hourly rate agreed in the individual project contract.

(7) Unless otherwise agreed, it is the Customer’s responsibility to ensure that health and safety measures for a given production are coordinated in accordance with Section 8 ArbSchG (Germany’s Labour Protection Act) and that the relevant safety regulations are adhered to. UEBERKOPF GmbH will support it within the context of the powers of organisation, instruction and decision­making it is granted and will comply with instructions of the Customer’s staff responsible for coordination.

(8) UEBERKOPF GmbH will carry out its work in such a way that other contractors working on the production and their staff are not hindered or endangered. The Customer shall equally ensure that other persons involved in the production do not impede the work of UEBERKOPF GmbH or endanger UEBERKOPF GmbH personnel. The Customer shall further ensure that all the necessary coordination and briefings regarding technical workflows and timing are carried out in good time. UEBERKOPF GmbH shall not be held responsible for delays, including those that are only indirectly attributable to external influences. The Customer shall pay for any damages incurred by UEBERKOPF GmbH that are caused by other project participants.

§ 6 DELAY OR IMPOSSIBILITY

If UEBERKOPF GmbH falls behind schedule and also fails to meet a reasonable deadline set by the customer for performance or subsequent fulfilment, the Customer is only entitled to cancel the contract if a partial performance is of no interest to them. It is only entitled to further rights and claims, especially compensation for damages, for foreseeable damages that typically arise from the type of business in question. UEBERKOPF GmbH is, however, then only liable for a sum that amounts to the contract value.

§ 7 WARRANTY

(1) If the work is in some way flawed or defective, UEBERKOPF GmbH will rectify it within a reasonable period of time, replace it or redeliver it at its own discretion. Should it not succeed in remedying the defect with the chosen means, the Customer may withdraw from the contract or demand a reduction. Withdrawal is excluded for defects that only reduce the value and the suitability for the use assumed under the contract by an insignificant extent. In such cases, the Customer merely has a right to demand a reduction in fees.

(2) If the work fails to meet a quality characteristic or quality guarantee as defined in Section 633 II 1 of the German Civil Code (BGB), that was explicitly agreed in the individual contract, the Customer can demand damages – rather than a reduction or withdrawal – if repair, new manufacture or replacement do not lead to success.

(3) UEBERKOPF GmbH shall only be liable for other damages caused by the defect if the objective sense of the quality guarantee referred to in paragraph 2 directly relates to the avoidance of the loss incurred. For other damages caused by the defect, based on the breach of contractual ancillary obligations, liability shall only be assumed if the damage was caused by gross negligence on the part of UEBERKOPF GmbH or its employees.

(4) The warranty period is one year calculated from the date of the final inspection (acceptance of work), but not extending beyond the date of its deliberate dismantling or conversion.

(5) In the case of unauthorised changes and/or adaptations made to the work by the Customer or its agents, all warranty claims are excluded.

(6) The Customer agrees to inspect and test the work for completeness and proper functioning immediately after delivery. Should faults be found during this inspection or subsequent to it, the Customer is obligated to immediately issue a complaint to UEBERKOPF GmbH at least in written form (email/letter/fax, etc.) with precise details of the discovered defects; otherwise the Customer shall lose their right to claim under warranty or to any damages.

(7) If no final inspection (acceptance of work) / approval has been made within a period of 2 hours after provision, the work shall be deemed to have been accepted.

§ 8 OWNERSHIP RIGHTS AND COPYRIGHT

(1) If drawings or models are produced as part of UEBERKOPF GmbH’s fulfilment of the contract, or software is developed, as aids for performing the contract, UEBERKOPF GmbH is entitled to sole ownership and copyright of these. The Customer is not entitled to make these available to third parties or (commercially) exploit them. These work materials are to be ceded to UEBERKOPF GmbH upon request.

(2) UEBERKOPF GmbH is entitled to all rights to an invention resulting from the contractual service and/or any know­ how gained in connection with it.

(3) If the object of the contract consists of delivering a planning or otherwise predominantly intellectual service (e.g. design or planning work, as well as show programming or media content), the Customer is limited to the contractually agreed use of the service for its own purposes. A disclosure of the design and development results to third parties is subject to prior written agreement by the contracting parties.

(4) Insofar as the service consists of the development of computer software, or show programming, UEBERKOPF GmbH grants the Customer non­exclusive rights to use them as intended for the specific project. The reproduction, transfer or use of such data for purposes not related to the project is not permitted. Other uses require the prior written consent of UEBERKOPF GmbH and shall be charged for separately.

(5) If UEBERKOPF GmbH constructs, programmes and/or assembles designs or other documents in accordance with instructions from the Customer, UEBERKOPF GmbH takes no responsibility for a resulting violation of protective rights. If a third party claims the Customer has infringed on its intellectual protective rights, the Customer shall notify UEBERKOPF GmbH of this without delay.

§ 9 PAYMENT

(1) The level of remuneration is agreed in individual contracts. It is determined on the basis of the quote, taking into account any extra work that arises as part of the project after order acceptance.

(2) If the execution of work takes more than one calendar month, monthly instalment payments shall be made, the amount of which is determined by the progress made on the project during that month. In these cases UEBERKOPF GmbH will issue instalment or partial­service invoices, to be paid within 14 days of receipt.

(3) Final payment shall be made following the final inspection (acceptance of work) and receipt of the final invoice.

§ 10 RETENTION OF TITLE

The object of the contract remains the property of UEBERKOPF GmbH until payment is completed. The Customer is, however, entitled to use the object of the contract in accordance with the contractual agreement.

§ 11 TERMS OF PAYMENT

(1) UEBERKOPF GmbH will issue the Customer with an invoice in accordance with Section 14 para 4 UStG (German VAT Act). This obligation also applies to all contracting parties making claims for payment against UEBERKOPF GmbH. Without receipt of a proper invoice, UEBERKOPF GmbH has the right to refuse payment.

(2) Unless otherwise agreed, the UEBERKOPF GmbH invoice is payable immediately upon receipt without deductions / discounts.

(3) In each case, payment shall be deemed to be on time based on when UEBERKOPF GmbH is in receipt of the money.

(4) After the expiry of the agreed payment period, but no later than 30 days after invoice date, the Customer is deemed to be in arrears. In case of arrears, in accordance with Section 288 of the German Civil Code (BGB) interest of eight percentage points above the base rate is payable in accordance with Section 247 BGB. UEBERKOPF GmbH reserves the right to assert further claims on the legal basis of the default.

(5) Any offsetting against disputed claims, or against counterclaims that have not been legally established, is excluded, as is any right of retention.

(6) Each contracting party is responsible for their own compliance with all tax and social security obligations arising for them from this agreement.

§ 12 INDEMNIFICATION AND LIMITATION OF LIABILITY

(1) The Customer is only entitled to contractual and statutory damages if they result from an intentional or grossly negligent breach of duty by UEBERKOPF GmbH, its legal representatives, executives or agents.

(2) No­fault liability in accordance with Section 536 para 1 of the German Civil Code (BGB) is excluded.

(3) The above­mentioned limitation of liability does not apply for the violation of essential contractual duties / cardinal obligations. In such a case, however, liability is limited to typical damages foreseeable at the time of the contract signing and in accordance with the purpose of the contract, and to the amount covered by the liability insurance of UEBERKOPF GmbH.

a. Material damages: 3,000,000.00 €
b. Personal injury: 3,000,000.00 €
c. Pecuniary loss: 3,000,000.00 €

(4) Liability for damages arising from injury to life, limb or health remains unaffected by this limitation.

(5) Any liability by UEBERKOPF GmbH for consequential damages (in particular but not limited to lost earnings, financing costs, production downtime) is excluded.

§ 13 OBLIGATION TO EXCLUDE LIABILITY

In agreements with its contractual partners (artists, athletes, spectators, etc.) the Customer shall include a limitation of liability in favour of UEBERKOPF GmbH, corresponding to the content of the provision of Section 6. If UEBERKOPF GmbH is sued for damages due to non­implementation of the aforementioned obligation, the Customer shall indemnify UEBERKOPF GmbH with regard to such claims for damages.

§ 14 FORMAL REGULATIONS

(1) Verbal agreements have no validity. All individual agreements and changes to this agreement must at least be made in writing (email, fax, letter) to be valid.

(2) Should any of the contractual provisions prove to be invalid, or become ineffective or unfeasible after the signing of the contract, the validity of the contract in general remains unaffected. Instead, the invalid or unfeasible provision shall be replaced by an effective or feasible provision whose effect most closely corresponds to the commercial objectives the contracting parties were seeking to achieve with the invalid or unfeasible provision. The aforementioned provisions shall apply correspondingly in the event of gaps or omissions in the contract.

(3) These General Terms and Conditions and all legal relations between UEBERKOPF GmbH and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on the International Sale of Goods (CISG).

(4) German shall be the language for negotiations and contractual agreements.

(5) Place of performance for planning and rental services shall be the headquarters of UEBERKOPF Inc. For other work and services the place of performance is where they are actually carried out.

(6) Insofar as the requirements defined in Section 38 of the Code of Civil Procedure (ZPO) are met, the place of jurisdiction shall be at UEBERKOPF’s place of business, including for action relating to deeds and the payment of cheques. This jurisdiction shall also apply if the Customer does not have any general jurisdiction in Germany, moves his domicile or ordinary place of residence to a foreign country after concluding the contract, or if his domicile or ordinary place of residence is unknown at the time of filing suit. However, UEBERKOPF GmbH is entitled to take legal action before any legally competent court.

GTC Works

General Terms and Conditions for Contractors of UEBERKOPF GmbH Riggingservice & Veranstaltungstechnik GmbH

§ 1 Scope, form

(1) These Standard Purchasing Terms (‘SPT’) shall apply to all business relationships with our business partners, contractual partners and suppliers (collectively referred to as a ‘Seller’). The SPT shall only apply if the Seller is an entrepreneur (section 14 of the German Civil Code – ‘BGB’), a legal entity under public law or a special fund under public law.

(2) Without limitation, the SPT shall apply to contracts for the sale and/or delivery of movable goods (‘Goods’) and the rental of goods and related supplies of goods and services, irrespective of whether the Seller manufactures the Goods themselves or purchases them from suppliers (sections 433, 650 BGB). Unless otherwise agreed, these SPT, in the version in effect at the time the customer places an order (or ‘Lessee’ hereinafter collectively referred to as a ‘Buyer’) or, as applicable, the most recent version communicated to such party in writing, are deemed to be a framework agreement for similar contracts concluded in future without the need on our part to refer to them again in any specific case.

(3) These SPT shall apply on an exclusive basis. Any deviating, conflicting or supplementary general terms and conditions of the Seller shall only become part of the contract if and insofar as we have expressly agreed to their application in writing. This consent requirement shall apply in any case, for example even if we accept the Seller’s supplies of goods and services without reservation with knowledge of the Seller’s general terms and conditions.

(4) Individual agreements made with the Seller in specific cases (including collateral agreements, supplements, amendments) take precedence over these SPT in all cases. Subject to proof to the contrary, a written contract, or our written confirmation, shall be decisive as to the contents of any such agreements.

(5) Legally relevant declarations and notifications by the Seller with regard to the contract (e.g. setting deadlines, dunning notices, revocation) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Legal requirements as to form and additional evidence, in particular in cases of doubt as to the authority of the declaring party, remain unaffected.

(6) References to the application of the statutory provisions are solely for purposes of clarification. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these SPT.

§ 2 Contract conclusion

(1) Our order shall be deemed binding upon written submission or confirmation at the earliest. The Seller shall notify us of obvious errors (e.g. spelling and calculation errors) and incomplete information in an order, including order documents, for the purpose of correction or completion before acceptance; otherwise, the contract shall be deemed not to have been concluded.

(2) The Seller is obliged to confirm our order in writing within a period of 48 hours or, in particular, to perform it without reservation by dispatching the Goods (acceptance).

Delayed acceptance shall be considered a new offer and requires our acceptance.

(3) Our contract with the Seller is subject to the condition precedent that the contract under which we are obliged to supply goods and services to our own customer, and with regard to which we rely upon supplies of goods and services from the Seller, is not terminated or rescinded by our customer prior to the commencement of performance by the Seller on grounds for which we are not at fault and we have communicated this to the Seller. If the contract with our own customer is revoked or rescinded following the commencement of performance by the Seller but prior to the completion of performance as described above, our contract with the Seller remains effective with regard to the performance already rendered, whereas such contract is rescinded without any claim to compensation or reimbursement as to supplies of goods and services not yet provided by the Seller.

§ 3 Delivery time and delays in delivery

1) Delivery times stated by us in the order are binding. The Seller is obliged to inform us in writing without undue delay if they are likely to be unable to meet agreed delivery times on whatever grounds.

(2) If the Seller does not perform at all or within the agreed delivery time or if they are in default, our rights, including without limitation to withdraw from the contract and to claim damages, shall be governed by applicable statutory provisions. This is without prejudice to the provisions of paragraph (3).

(3) If the Seller is in default, we may, in addition to additional statutory rights, demand lump sum compensation for damage suffered by us as a result of such default in the amount of 1% of the net price per completed calendar week, limited, however, to no more than a total of 5% of the net price of the untimely delivered Goods. We reserve the right to prove that we have incurred greater losses. The Seller remains free to prove that no, or substantially lower, damages were caused.

§ 4 Performance, delivery, passage of risk, default of acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have their performance obligations rendered by third parties (e.g. subcontractors). Unless otherwise agreed in any specific case (e.g. limitation to inventory stocks), the Seller bears the procurement risk for their supplies of goods and services.

(2) All deliveries shall be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and our purchase order information (date and number). We are not responsible for any delays in processing and payment in cases where the delivery note is missing or incomplete. Shipping notice with the same contents shall be sent to us in addition to the delivery note.

(3) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon transfer at the place of performance. In the event that acceptance has been agreed, this shall be decisive for the passage of risk. For all other purposes, the statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. Default in acceptance on our part shall be deemed to be equivalent to handover or acceptance.

(4) Applicable statutory provisions shall apply in the event of our default of acceptance. However, the Seller must also expressly offer their performance to us in cases where a defined or definable calendar date has been agreed for action or cooperation on our part (e.g. provision of materials). If we are in default of acceptance, the Seller may demand compensation for any additional expenses they incur in accordance with applicable statutory provisions (section 304 BGB). If the contract relates to an object to be manufactured by the Seller that may not be re-sold (custom production), the Seller shall only be entitled to additional rights if we are obliged to cooperate and are responsible for any failure to cooperate.

§ 5 Prices and terms of payment

(1) Prices stated in the order are binding. All prices are understood to include statutory value added tax if not otherwise stated separately.

(2) Unless otherwise agreed in any specific case, prices shall include all supplies of goods and services and ancillary performance by the Seller (e.g. assembly, installation) as well as all incidental costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) We owe no interest on maturity. Applicable statutory provisions shall apply to default of payment.

(4) We are entitled to exercise rights of set-off or retention and to claim non-performance of the contract to the extent permitted by law. Without limitation, we shall be entitled to withhold any payments due as long as we are still entitled to claims related to incomplete or defective performance in relation to the Seller.

(5) The Seller may only exercise a right of set-off or retention on the basis of counterclaims that are undisputed or have been finally determined by a court.

§ 6 Confidentiality and reservation of title

(1) We reserve ownership and copyright in illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for contractual performance and shall be returned to us after completion of the contract. No such documents may be disclosed to third parties; this obligation continues to apply even after termination of the contract. This non-disclosure obligation shall only lapse when and insofar as information contained in any documents provided has become generally known.

(2) The preceding provisions shall apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, samples and other items which we provide to the Seller for manufacture. Such objects are – provided they are not processed – to be stored separately and insured to a reasonable extent against destruction and loss at the expense of the Seller.

(3) Any processing, mixing or combination (further processing) on the part of the Seller of any provided items shall be performed on our behalf. The same applies in cases where we further processed supplied Goods, such that we are considered the manufacturer and acquire ownership of the product no later than upon further processing in accordance with applicable statutory provisions.

(4) Ownership of the Goods must pass to us unconditionally and without regard to the payment of the price. If, however, we accept an offer from the Seller to transfer ownership conditioned on payment of the purchase price in a specific case, the Seller’s reservation of title lapses no later than upon payment of the purchase price for the supplied Goods. We remain entitled to sell the Goods in the ordinary course of business, even prior to payment of the purchase price, subject to advance assignment of the resulting receivable (alternatively, assertion of a simple reservation of title that extends to resales). All other forms of retention of title are thus excluded in any case, including without limitation retention of title that is expanded, transferred or extended to further processing).

§ 7 Defective supplies

(1) Unless otherwise specified below, the statutory provisions shall apply to our rights in the event of material defects and defects of title in the Goods (including incorrect and short deliveries as well as defective assembly, operating instructions or manuals).

(2) In accordance with applicable statutory provisions, the Seller shall be liable for ensuring that the Goods have the agreed quality at the time of passage of risk to us in particular. In any event, product descriptions which – without limitation by means of designation or reference in our order – are the subject of the respective contract, or which have been incorporated into the contract in the same way as these SPT, shall be deemed to be an agreement on quality. In this context, it makes no difference whether the product description comes from us, the Seller or the manufacturer.

(3) Section 442 (1) second sentence of the German Civil Code notwithstanding, we shall be entitled to claims for defects without restriction even if we were unaware of the defect concerned at the time of conclusion of the contract owing to gross negligence.

(4) The statutory provisions sections 377, 381 of the German Commercial Code shall apply to the commercial duty to inspect and give notice of defects subject to the following condition: our obligation to inspect is limited to defects that are apparent during our incoming goods inspection under external examination, including delivery documents (e.g. transport damage, incorrect or short deliveries) or that are ascertainable during our quality control by random sampling. There is no duty to inspect where acceptance has been agreed. In all other cases, the extent to which an inspection is feasible in the normal course of business, taking into account the circumstances of the specific case, is decisive. This is without prejudice to our obligation to provide notice of defects discovered later. Notwithstanding our duty to inspect, our complaint (notice of defects) shall, in any case, be deemed to have been given without undue delay and on a timely basis, if it is sent within five working days of discovery or, in the case of latent defects, of delivery.

(5) Cure shall also include the removal of the defective Goods and their re-installation, provided that the Goods have been installed in, or attached to, another object in accordance with their nature and intended use; our statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear the expenses necessary for the purpose of inspection and cure even in cases where it is determined that there was no defect. Our liability for damages in the event of an unjustified request for cure remains unaffected; however, in such cases, we are only liable to the extent that we were aware, or failed to be aware owing to gross negligence, that there was no defect.

(6) The following applies without prejudice to our statutory rights and the provisions of paragraph (5): if the Seller does not fulfil their obligation to provide cure – as per our judgement, either by remedying the defect (repair) or by delivering a defect-free item (replacement) – within a reasonable time set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the Seller. No deadline need be set if an attempt at cure by the Seller has failed or is not reasonably acceptable to us (e.g. owing to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate harm); we shall inform the Seller of such circumstances without delay and in advance if possible.

(7) In all other cases, we are entitled to reduce the purchase price or to withdraw from the contract in the event of a material defect or defect in title based on applicable statutory provisions. In addition, we are entitled to compensation for damages and expenses in accordance with applicable statutory provisions.

§ 8 Supplier recourse

(1) In addition to claims for defects, we shall be entitled to our legally defined rights of recourse within a supply chain (supplier recourse pursuant to sections 445a, 445b, 478 BGB) without restriction. Without limitation, we are entitled to demand from the Seller the same form of cure (repair or replacement) that we are obliged to provide our customer in the respective specific case. This is without prejudice to our statutory elective right (section 439 (1) BGB).

(2) We shall notify the Seller and, following brief description of the relevant circumstances, request a response before we acknowledge or satisfy a claim for defects asserted by our customer (including reimbursement of expenses in accordance with sections 445a (1), 439 (2), (3) BGB). If a substantiated statement is not made within a reasonable time and no amicable resolution is reached, any claim for defects actually granted by us shall be deemed owed to our customer. The Seller bears the burden of proof to the contrary in such cases.

(3) Our claims based on supplier recourse apply even in the event that the defective Goods have been further processed by us or another company, e.g. by installation in another product.

§ 9 Manufacturer’s liability

(1) If the Seller is responsible for a product claim, they shall indemnify us against third-party claims to the extent that the cause lies within their area of control and organisation and they are liable themselves in relation to third parties.

(2) Within the scope of their duty to indemnify, the Seller shall reimburse expenses according to sections 683, 670 of the German Civil Code arising from, or in connection with, a third-party claim including any recall actions we conduct. To the extent possible and reasonable, we will inform the Seller about the content and scope of the respective recall measures to be taken and give them the opportunity to comment. This is without prejudice to additional claims.

(3) The Seller shall purchase and maintain product liability insurance with a lump sum indemnity of at least EUR 3 million per personal injury/property damage claim.

§ 10 Limitation period

(1) To the extent not otherwise provided below, the contracting parties’ reciprocal claims shall become time-barred in accordance with applicable statutory provisions.

(2) Section 438 (1) no. 3 of the German Civil Code notwithstanding, the general limitation period for claims for defects is three years from the passage of risk. If acceptance has been agreed, the limitation period begins with acceptance. The three-year limitation period also applies accordingly to claims arising from defects of title, whereby the statutory period of limitation for real rights of a third party on the basis of which return of the purchased item may be demanded (section 438 (1)(1) BGB) remains unaffected; furthermore, claims arising from defects of title do not become time-barred under any circumstances as long as the third party can still assert the right – especially in the absence of a limitation period – against us.

(3) Limitation periods provided under the law on sales, including the above extension, apply to all contractual claims for defects to the extent permitted by law. The regular statutory limitation period (sections 195, 199 BGB) shall apply here in cases in which we are also entitled to non-contractual claims for damages owing to a defect, unless application of the limitation periods under the law on sales would result in a longer limitation period in any specific case.

§ 11 Choice of law; jurisdiction

(1) These SPT, and the contractual relationship between us and the Seller, shall be governed by the laws of the Federal Republic of Germany, excluding uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Seller is a merchant as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising  under the contractual relationship, including international disputes, shall be our registered office in Hamburg. However, we shall also be entitled to bring an action at the place of performance of the delivery commitment in accordance with these SPT or an overriding individual agreement or at the Seller’s general place of jurisdiction in all cases. This is without prejudice to overriding statutory provisions, in particular those concerning exclusive jurisdiction.

SPT CONTRACTORS