Terms and Conditions
EXCITE Europe GmbH, Franklinstr. 61-63, 60486 Frankfurt am Main
§ 1 Scope of the General Terms and Conditions
(1) These General Terms and Conditions shall apply for orders placed with Excite Europe GmbH (hereafter „EXCITE“). Conflicting or deviating terms and conditions of the Client shall not become part of the agreement even if EXCITE does not expressly object to them. This shall also apply in the event that the Client expresses that he only wishes to contract on his own terms and conditions. The Clients terms and conditions only apply, if Excite expressly agrees in writing.
(2) These General Terms and Conditions shall only apply to entrepreneurs within the meaning of Sections 14, 310 (1) of the German Civil Code (BGB).
§ 2 Offer, Offer Documents
(1) Orders or commissions shall only be deemed to have been accepted by EXCITE if EXCITE has accepted them in writing within 28 calendar days of receipt of such order/commission.
(2) Unless items are expressly designated or marked as "purchased items" in the offer of EXCITE, items are exclusively made available by EXCITE on a rental basis.
(3) In terms of quantity and quality, the pricing list of materials and services shall take precedence over design drawings.
(4) If an offer is prepared according to the information provided by the Client and the documents provided by the respective event management, EXCITE shall not assume any liability for the correctness of the information and documents received, unless their incorrectness and unsuitability are not recognised by Excite intentionally or due to gross negligence.
§ 3 Prices, Terms of Payment
(1) The prices stated in the offers and/or cost estimates are subject to change and freely revocable at any time until an order is placed. Price increases of manufacturers or suppliers or wage increases may be passed on to the Client.
(2) The statutory value added tax is not included in the offer prices; it will be stated separately on the invoice at the applicable statutory rate.
(3) Unless otherwise stated in the order confirmation, the net price shall be due for payment within 14 days of the invoice date.
(4) If the Client is in default of payment, EXCITE shall be entitled to demand default interest in the amount of 9 percentage points above the base interest rate applicable at the time. Further claims remain reserved. In the event that goods or materials are handed over on a rental basis, the Client undertakes, upon EXCITE’s request, to immediately grant possession of the handed-over goods and/or materials.
(5) EXCITE reserves the right to offer the execution of orders only against advance payment or provision of security and to demand a deposit or partial payment upon conclusion of the contract. Insofar as it has been agreed that the performance of the respective project is to be invoiced in several phases, an invoice shall be issued in each case after completion of the respective phases of the project.
(6) In all other cases, payments shall be made as follows: 50 % of the total amount contractually agreed on will be invoiced when the order is placed or at the latest 8 weeks before the start of the event, a further 25 % is due 4 weeks before the start of the event and the remaining 25 % of the total amount is due with handover of the project.
(7) Additional services that have not been ordered at least 2 weeks before the start of the event will – as far as EXCITE confirms the additional order - be surcharged with 30% of the quoted price. This also applies to additional services that are ordered during the event.
(7) Is the start, progress or completion of the contractual service delayed for reasons for which the Client is responsible, EXCITE shall be entitled to charge for the additional expenditure incurred as a result.
(8) Additional (supplementary) work at the Client’s request not covered by the order or additional expenses caused by incorrect information provided by the Client shall be invoiced on a time and material basis, unless a separate order exists on the basis of a separate offer.
In these cases, the calculation rates for working hours (including travel and loading times), motor vehicle equipment, material prices and other price lists valid on the day of execution shall apply. Surcharges for overtime, work on Sundays and public holidays shall be charged additionally on the basis of the respective valid statutory regulation and with proof of the individual hours subject to surcharges. The currently valid standard hourly rate shall also apply to work on components provided by the Client.
§ 4 Set-off and Assignment, Rights of Retention
(1) Generally, the Client shall only be entitled to rights of set-off or retention on the basis of claims that are undisputed, legally established or expressly recognised by EXCITE. This restriction does not apply to counterclaims of the Client due to defects or the (partial) non-fulfilment of the contract, insofar as these result from the same contractual relationship as the claim of EXCITE.
(2) The rights of the Client arising from this contractual relationship are only transferable with prior written consent.
§ 5 Set-up / Installation / Handover / Additional Costs Covid- 19
(1) The Client shall provide the necessary cooperation in a timely manner. The required measurements, drawings and plans shall be made available to the Client.
Insofar as it is necessary for the assembly or installation, the Client shall arrange for the necessary preparatory work or the provision of the necessary facilities at the place of delivery, in particular the assembly and operation of machines, at its own expense, insofar as the assumption of the costs by EXCITE has not been agreed on in writing in advance. EXCITE shall inform the Client in a timely manner of the necessary preparatory work to be carried out by the expected delivery date.
(2) Completion of the agreed service shall take place as agreed on with the Client, generally no later than 6 p.m. on the day before the start of the event, unless the organiser of the event expects a different time of completion. EXCITE reserves the right to carry out minor remaining work until the start of the event, provided this does not significantly impair the launch of the event by the Client. Exceptions due to special agreements because of commissioned additional services and/or event-related longer set-up times are possible. If no handover with a written protocol takes place, the overall performance shall be deemed to have been accepted upon commencement of use by the Client, unless there are special circumstances due to which the commencement of use cannot be interpreted as acceptance. From the date of handover until return by the Client to a representative of EXCITE, the traffic safety, insurance and due diligence obligations with regard to any goods and materials shall pass to the Client.
(3) In the event of a purchase, transport aids and packaging won’t be taken back, with the exception of pallets. The Client is obliged to ensure disposal of the packaging at its own expense.
(4) If the Client so desires, EXCITE shall insure the delivery with a transport insurance. The costs incurred in this respect shall be borne by the client.
(5) Services on the part of the organiser of the event (electricity, water, telephone, etc.) are to be arranged and invoiced directly by the Client as the contractual partner of the organiser himself and at his own expense. Upon request, EXCITE will assist in preparing the applications.
(6) The costs for storage, forklift truck, waste disposal, customs duties and taxes abroad will be invoiced according to actual expenditure plus an administrative surcharge of 15%.
(7) If the event takes place outside Germany and employees of EXCITE or suppliers of EXCITE have to travel abroad for the event, the Client is obliged to bear all additional costs incurred due to the ongoing COVID- 19 pandemic. This includes, in particular, obligatory COVID- 19 testing prior to entry abroad and re-entry into Germany as well as costs of any obligatory quarantine on site and after re-entry into Germany (e.g. loss of earnings, hotel and board costs).
(8) If disruptions in business operations occur at EXCITE’s or its vicarious agents or suppliers for which EXCITE is not responsible and which are due to force majeure (e.g. natural disasters, pandemics, epidemics, terrorist attacks, strikes and lawful lockouts) or other unforeseeable, extraordinary events for which ELECTA is not responsible and which prevent EXCITE from providing its services on time, the delivery and completion period shall be extended accordingly. EXCITE shall immediately inform the Client of the impediment to performance and its expected duration. If the fulfilment of the contract becomes impossible due to the aforementioned disruptions, each of the parties shall be entitled to withdraw from the contract. Insofar as withdrawal is not an option, the right of termination shall take its place. In this case, EXCITE's claim to remuneration shall be determined on the basis of the services rendered up to that point, whereby the services rendered shall also include claims of third parties commissioned by EXCITE in reliance on the performance of the contract.
§ 6 Warranties
(1) In the event of a purchase, the client's rights in respect of defects presuppose that the Client has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
In this case, the Client is obliged to notify defects without delay and to give EXCITE the opportunity to make the corresponding assessments.
If the notification of defects is made late or if reservations due to known defects were not made at the time of acceptance, the warranty claims shall expire entirely.
(2) The warranty claims shall also expire if the Client makes it impossible to determine and rectify the defects.
(3) Insofar as there is a defect in the contractual object of the contract, EXCITE shall be entitled, at its own discretion, to choose between rectification of the defect and delivery of a new, defect-free item for subsequent performance.
(4) The limitation period for claims for defects is twelve months, calculated from the transfer of risk. Deviating from this, the statutory warranty period shall apply to claims for damages due to intent or gross negligence as well as due to culpable injury to body, life or health. Acceptance shall be deemed to have taken place free of defects at the latest upon commencement of the use of EXCITE's services by the Client, insofar as the Client has not declared a reservation with regard to any defects.
(5) The warranty does not extend to such defects that occur during the Client’s possession of the goods due to natural wear and tear, improper handling or improper storage (humidity, heat). In the same way, the warranty does not extend to reasonable deviations in shape, dimensions, colour and quality of the material.
§ 7 Return/ Cleansing
(1) The parties agree that contamination of the goods and materials beyond the usual extent does not constitute contractual use, even if the purpose of use is known. The application of § 538 BGB is excluded.
(2) The Client shall be obliged to bear and pay the costs for a necessary final cleansing of the goods and materials by a suitable professional company, insofar as the deployment or use of the goods and materials by the Client gives rise to the assumption of a contamination of the goods and materials beyond the usual extent. The Client has to prove to EXCITE that the necessary final cleansing has been carried out by a suitable professional company at the time of return.
(3) If the Client does not prove to EXCITE that the necessary final cleansing has been carried out in accordance with Sec. 7 (2) at the latest at the time of return, EXCITE shall be entitled to have the necessary final cleansing carried out at the Client's expense after the unsuccessful expiry of a reasonable grace period. The assertion of further damages remains unaffected.
(4) At the Client's request, EXCITE shall obtain a corresponding offer for the necessary final cleansing and arrange for Cleansing after return at the Client's expense. The request shall be communicated to EXCITE at the latest 14 days before the time of return. The regulation according to Sec. 7 (3) shall apply accordingly. EXCITE shall inform the Client about the costs of the final cleansing 7 days before the end of the contractual relationship regarding the goods and materials.
(5) Insofar as the costs of the final cleansing exceed the replacement value of the goods and materials, the Client may refuse cleansing and reimburse the replacement value. The Client is entitled to prove to EXCITE that the replacement value is lower than the replacement value notified by EXCITE.
(6) Insofar as at the time of the return of goods and materials a deterioration or damage of goods and materials has occurred, the Client shall pay compensation for damages. Insofar as repair or maintenance is associated with disproportionate costs, the Client is obliged to reimburse EXCITE for the replacement value. Insofar as the Client has to reimburse the replacement value, he shall dispose of the goods and materials at his own expense. If the disposal is carried out by EXCITE, EXCITE is entitled to charge the Client for the disposal costs and any fees associated with the disposal. The assertion of further damages remains unaffected.
(7) Contamination of goods and materials as well as a prohibition of further use by official order or comparable authority measure (seizure, confiscation, expropriation, etc.) due to usage by the Client shall be deemed equivalent to damage.
§ 8 Limitation of Liability
(1) EXCITE shall be liable without limitation in the event of intent or gross negligence, in accordance with the provisions of the Product Liability Act and for injury to life, body and health.
(2) EXCITE shall only be liable, irrespective of the legal grounds, for damage caused by culpable breach of a contractual obligation, the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the Client may regularly rely (material contractual obligation). Insofar as none of the cases mentioned in this paragraph occurs, the liability is limited in amount to the compensation of the damage typical for the contract, the occurrence of which EXCITE must expect at the time of conclusion of the contract due to the circumstances known at that time.
(3) The above exclusions and limitations of liability shall also apply to the same extent in favour of EXCITE's employees, legal representatives, bodies and executives as well as vicarious agents.
(4) Claims for defects and damages arising from the provision of supplies and services by external companies on behalf of the Client are excluded, unless EXCITE has breached its duty of care in the selection of the external companies.
§ 9 Retention of Title
(1) In the event of a purchase, EXCITE retains ownership of the goods until payment has been made in full.
(2) The Client is obliged to treat the goods and materials with care until payment has been made in full. In particular, the Client is obliged to insure it adequately against fire, water and theft damage at replacement value at his own expense and to provide EXCITE with corresponding proof upon request. In the case of fixed installations, maintenance and inspection work must be carried out by the Client in a timely manner at the Clients own expense
(3) In the event of seizures or other interventions by third parties, the Client shall inform the third party of the existing retention of title. Furthermore, the Client shall immediately notify EXCITE in writing so that EXCITE can protect its rights. Insofar as the third party is not in a position to reimburse EXCITE for the judicial and extrajudicial costs in connection with the safeguarding of EXCITE's legitimate interests, the Client is liable for the loss incurred by EXCITE.
(4) The Client is not entitled to resell or rent out EXCITE's goods or services without EXCITE's written consent. The transfer of use to third parties is prohibited without the prior express written consent of EXCITE.
§ 10 Cancellation and Postponement
(1) If the Client cancels the order prematurely, EXCITE's claim to payment of the agreed remuneration for the commissioned service shall remain in force unless the parties have expressly agreed otherwise. However, EXCITE must allow the deduction of what it saves in expenses due to the cancellation or what it acquires through other use of its own labour or maliciously refrains from doing so. In addition, EXCITE shall be entitled to a lump-sum compensation in the amount of 5% of the amount of the non-performed service as well as to payment of any third-party services of subcontractors already commissioned at the time of the cancellation and other amounts and costs incurred insofar as these have not already been taken into account in the settlement. At the same time EXCITE is released from the obligation to perform.
(2) If the cancellation by the Client is due to a reason for which the Client is not responsible, for example the cancellation of the event as a result of force majeure (disruption of purpose), EXCITE shall be entitled to a settlement according to the stage of performance as well as third-party services already commissioned from subcontractors and other disbursed amounts and costs in corresponding application of Sec. 5 (8) insofar as these have not already been taken into account in the settlement according to the stage of performance. Postponement of the event for an indefinite period of time due to force majeure shall be deemed equivalent to cancellation.
(3) If the event which forms the basis for the commission is postponed to a later but concrete date, the due date of EXCITE's claim for payment of 100% of the remuneration shall remain unaffected. In this case, EXCITE shall be entitled to charge the Client for any additional expenses incurred as a result of the postponement (e.g. storage costs, cost increases, expenses made in vain, etc.).
§ 11 Cancellations or Postponements due to Force Majeure
(1) In justified exceptional situations, EXCITE is entitled to adjust the contractual performance obligations in the event of cancellation or postponement of the event which forms the basis for the commissioning, insofar as this is reasonable for the Client, taking into account his legitimate interests.
(2) A justified exceptional situation which justifies such a measure exists in particular if, due to force majeure (e.g. natural disasters, pandemics, terrorist attacks, strike or lockout), the event is cancelled or relocated.
§ 12 Copyrights and transfer to third parties
(1) EXCITE reserves all property rights and copyrights to illustrations, drawings, calculations and other documents. This applies in particular to such documents which are designated as "confidential". Passing them on to third parties requires the prior express written consent of EXCITE.
(2) Reservations with regards to copyrights shall also apply to all other goods and their components such as plans, drafts, production and assembly documents, concept descriptions as well as descriptions of exhibition and event concepts, designs, graphics, displays, advertising texts or models, irrespective of whether these have been sold or merely made available on a rental basis.
(3) Goods or their components may under no circumstances be copied or reproduced without the written permission of EXCITE. Any further transfer of rights of use than that required for the performance of the contract, irrespective of whether special protection rights (e.g. copyrights) exist or not, shall require prior express written consent of EXCITE.
§ 13 Confidentiality and Data Protection
(1) All business, technical or other information made accessible by the Client shall be kept secret from third parties and shall be used by EXCITE exclusively for the execution of the order. The duty of confidentiality does not apply to information,
(2) which is publicly known;
(3) which EXCITE has obtained from third parties without breach of confidentiality obligations; or
(4) that are required to be disclosed by law or by legal or regulatory order.
(5) The applicable data protection laws shall apply.
§ 14 Jurisdiction, Place of Performance, Miscellaneous
(1) If the Client is an entrepreneur, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the registered office of EXCITE.
(2) Unless otherwise stated in the order confirmation, the place of performance under the conditions specified in Sec. 14 (1) shall be the registered office of EXCITE.
(3) The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between EXCITE and the Client with the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) Should one of these provisions be invalid, the validity of the remaining provisions shall not be affected. In place of the invalid provisions, the statutory provisions shall apply.
(5) For the interpretation of these General Terms and Conditions, the German language version shall always prevail.