January 2009
1. General
The Terms and Conditions Agreement (hereinafter referred to as the TCA) applies to all rental and/or sales agreements as well as supplies and services between the JAPO Concert and Event Management Company GmbH (hereinafter referred to as the JAPO) and its clients
(hereinafter referred to as the customer) in this context. Any differing, contrary or supplementary terms and conditions of the customer do not apply and will not – despite being known – become part of the contract, unless their assertion is explicitly confirmed in writing.
2. Offers/Orders
All offers regarding services of the JAPO are not binding, unless in an individual case something else is explicitly maintained. The customer’s order that relies on the basis of a confirmed offer forms a binding offer including the confirmation of a corresponding contract
to which the customer is bound one week. Within the term of one week after the receipt of the order, the JAPO is free to confirm the binding offer of agreement. The customer renounces a declaration of acceptance. Orders of the customer are deemed to be accepted orally, in
writing or via e-mail. If the order was not carried out in writing, the customer may be requested to confirm the order in writing.
3. Prices
The prices of the JAPO are exclusive of Value Added Tax. The price agreements for rental or sale apply to all services ex stock. Any additional expenses like costs for transport/delivery, charges for packaging, insurance fees and charges for installation, may be added.
Unless agreed otherwise, the rental prices agreed refer to the period of time between the supply of the rental property and the return of the rental property when the time of rental ends.
4. Equipment Rental
4.1. Rental Property
The customer can gain further information on the items of rental property and their possible applications in the description of the products of the JAPO (www.japo.de or product portfolio). Any specifications made about measurements, the entities’ operating mode as well
as other technical details, as indicated in pricelists, catalogues, leaflets, advertisements and others, are always only approximate values. They are only binding insofar an explicit written agreement is made for this issue.
4.2. Time of Rental/Collection
The time of rental always includes the day agreed for the supply of the rental property in the storage when the handover takes place (beginning of the time of rental) and the day agreed for the return in the storage (end of the time of rental). In the event that the rental
agreement refers to an indefinite period of time, the rental agreement can be terminated in writing either on the 1st or on the 15th of each month upon the expiration time of two weeks’ notice. In the event that the time of rental is calculated on a daily basis, the termination
shall be carried out in writing upon an expiration time of one week beginning from the following day of the receipt of the termination. The customer is obliged to bear the keeping of the rental property at the event location for a period of time until the expiration of the third
day after the end of the rental agreement and to protect the rental property against thievery, destruction and damage. Until the expiration of this time limit the customer bears the risk of incidental destruction or incidental damages of the rental property. In the event that the
time of rental agreed is exceeded, the rent stipulated has to be paid until the full return pro rata temporis. The assertion of another damage shall not be affected by this agreement. It applies in general that the rental agreement shall not be prolonged automatically when the
use of the rental property is proceeded. Section 545 of the German Civil Code (BGB) does not apply.
4.3. Delivery and Collection of the Rental Property
If the delivery and the collection of the rental property and/or it’s installation and dismantling is carried out by the JAPO, the customer is obliged to provide a location that is accessible to a truck with the total weight approved of up to 40 tons of weight and that is suitable
for installing and applying the rental property. The customer is obliged to provide electric power, water and space for storage at the event location free of charge, if those are required for the delivery and the collection of the rental property and/or its installation and dismantling.
In the event that the customer does not fulfil the obligations aforementioned and in the event that due to this the delivery and/or installation may not take place, the JAPO is not obliged to wait at the event location for the set-up of the aforementioned requirements longer than two hours.
In the event that the delivery and/or installation may not take place in the absence of the requirements set up on time, the customer is obliged to bear the costs for additional delivery and installation attempts. Moreover, the customer has to pay the interest rate of the rental agreed in
the contract beginning from the first day of the failed installation attempt. By the end of the time of rental, the customer has to provide free access to the rental property for the collection and the dismantling if agreed. There is no obligation to wait longer than two hours for the
set-up enabling the dismantling and the collection. The additional costs for another attempt of the dismantling and the collection as well as the cleaning of the rental property (if necessary) accomplished by the JAPO bears the customer. For each day exceeding the end of the time of
rental and when the customer does not provide the rental property for it’s dismantling and collection, the customer owes indemnity costs with the interest rate of the rental agreed for a day pro rata. It is left to the customer to provide evidence that the JAPO suffers smaller damages
as well as being free to provide evidence of greater damage.
4.4 Customer’s Obligations for Transfer/Collection
The customer is obliged to inspect the rental property being complete and free from defects and to communicate all possible defects or all kinds of incompleteness incurred to the JAPO immediately. In the event that the customer omits the inspection or the notification, the state of the
returned rental property is regarded as being approved and free from defects, unless the defect was not distinguishable during the investigation. If such a defect may be identified later, it’s notification shall immediately be communicated after the notice. The notification requires a
written form. The collection of the rental property has to be carried out according to the agreement and includes a clean state. In the event that at the collection of the rental property damages are noticed which are traced back to improper use, incorrect application, incorrect handling
or transport of the rental property, the customer shall be charged the costs for the repair. When a loss of the rental property incurred, usually the full replacement costs will be charged. It is left to the customer to provide evidence that the JAPO suffers smaller damages. The transfer
and the collection of the rental property will be recorded in writing via a delivery note. By transferring and/or signing the delivery note, the customer takes responsibility for the rental property and its proper use.
5. Liability/Insurance
The liability for the compliance of specifications made about measurements, the entities’ operating mode as well as other technical details, as indicated in pricelists, catalogues, leaflets, advertisements and others, only applies in the event that the measurements, technical details etc.
are confirmed in writing. Concerning the proper use of the rental property only recommendations can be stated. The liability for a use not according to the recommendation is explicitly excluded. The customer is liable for any use differing from the regular use of the rental property; the
same applies in the event that the customer performs any modifications after the approval of the installations erected by the JAPO. The customer shall in such events indemnify the JAPO from third-party claims. The liability of the hirer (JAPO) is always limited to ones own gross negligence
and willful misconduct, to the gross negligence and willful misconduct of it’s legal representatives as well as to the factors, servants and assignees. In the event that the breach of substantial obligations is due to slight negligence, the liability of the hirer (JAPO) is limited to those
direct damages only which are typically predictable under the respective kind of contract. The limitation of liability also applies to the personal liability of the hirer’s (JAPO) legal representatives, employees, factors, servants and assignees. In cases of personal injury of life, body or
health, or in case of breach of fundamental contractual obligations the hirer (JAPO) is also liable for slight negligence. The hirer’s (JAPO) liability is limited per claim to an overall sum of € 500 000 per person for personal injury and is limited to € 250 000 for damage to property as
long as the hirer (JAPO) has to deal with slight negligence. All exclusions and limitations of liability between the hirer (JAPO) and the customer extend to the factors, servants and assignees of the hirer (JAPO). The liability of the hirer (JAPO) regardless of fault due to initial defects
of the rental property is excluded, unless the hirer (JAPO) fraudulently concealed major physical defects. The limited liability does not apply for claims according the product liability law. The customer is obliged to sufficiently and duly insure the particular endangerment of the rental
property (loss, thievery, damage, liability) when handed over and to provide evidence when requested by the JAPO. The JAPO is not liable for damages caused by improper handling, installation or use of the rental property.
6. Customer’s Obligations
The customer shall treat the rental property carefully. The rental property may only be moved, erected, operated and removed according to the technical requirements and exclusively by qualified personnel. The customer is obliged to provide for the constant compliance of all safety regulations
applying and the major accident prevention policy in particular.
7. Cancellation by the Customer
In the event that the customer intends to terminate the contract independently from the right of withdrawal (cancellation), this is permitted until up to three days before the beginning of the rental time and the customer is obliged to provide appropriate compensation. When cancelling, the
customer is charged an overall sum for damages for non-performance of the contract as follows:
8. Payments/Delayed Payment
Unless agreed otherwise, the invoice amount is to be fully paid without any deductions within eight days of the date of the invoice (proven with the invoice date). For the payment on due date the JAPO’s receipt of payment is significant. In case of delays in payment, we shall be entitled to charge an interest rate of 8 percentage points above the base interest rate, but at least with the statutory interest rate, for the invoice amount from the date following the end of the term of payment. The uncontradicted and/or unconditional acceptance of (partial) payments does not imply a waiver of claims for indemnity. In case of delays in payment, all discount agreements shall be cancelled, the total sum agreed in the contract will be charged with interest and without any deductions. If prepayment is agreed, the JAPO is only obliged to hand over the rental property to the customer in the event of full payment of the price agreed. The customer is entitled to charge such counter-claims up against claims of the JAPO that are established as final and absolute, beyond dispute. A right of retention may only be applied due to claims of this contractual agreement that are established as final and absolute, beyond dispute. Employees, factors, servants and assignees of the JAPO are not entitled to accept payments, unless they possess a written authority for receiving payments. The JAPO is not obliged to accept cheques or bills of exchanges. The acceptance of cheques or bills of exchanges is always proceeded on account of performance.
9. Termination
A statutory notice of termination of temporary contracts shall not be accepted for the period of the term contractually fixed. These may only be terminated for good cause. This also applies for additional services agreed. Good cause is shown in particular, in the event that the customer applies the rental property contrary to contract or when using it for purposes other than intended and with gross negligence or in the event that the customer defaults the payment of the rental interest for two consecutive dates or with the total amount of the rental interest charged for the two dates, provided that rental interest is due to be paid measured according to the periods of time. In the event that several items of rental property are hired, the customer is only entitled to terminate the whole contract by reason of faultiness of one single item, if the rental property was hired as a whole and if the faultiness significantly impairs the functional capability assured by contract of the rental property as a whole. In this case, a termination is only approvable insofar a reasonable term for reworking/repair is declared in writing before, but elapsed without any result.
10. Final Provisions
Unless contractually agreed otherwise, the JAPO is not obliged to advise the customer or to provide recommendations according to the contractual relationship with the customer. If the JAPO gives non-binding advise or provides recommendations, the JAPO is not obliged to pay possible indemnity costs resulting from complying with this advise or recommendation. All illustrations, catalogues, diagrams, technical descriptions, designs or concepts handed over by the JAPO, remain the property of the JAPO with the explicit retention of their intellectual property. Related to this is the prohibition of making copies all or part or to pass these on to third parties for notice, unless no written agreement is provided. All intellectual property for the implementation of a contract, their concepts, outlines etc. in particular, remain the property of the JAPO and may only be reused and used for further projects by the JAPO. For all technical data no accuracy is guaranteed. Items, prices and delivery options may be subject to alterations. Insofar the customer runs a business, the place of fulfillment and the court of jurisdiction is Chemnitz, Germany.
