RENTAL / SALE OF
JAPO KONZERT- & VERANSTALTUNGS GMBH
as of 01/2011
Our general terms and conditions (hereinafter called GTC) are applicable for all rental and / or sales contracts as well as all services and goods between JAPO Konzert- und Veranstaltungs GmbH (hereinafter called JAPO) and its contract partners (hereinafter called customer). Deviating, opposing or additional general terms and conditions of the customer do not apply and are not part of the contract – even if known – unless their application has explicitly been agreed to in writing.
2. Offers/signing of contract
All offers of JAPO are without engagement and obligation, unless they are explicitly otherwise determined. A placed order of a customer – on the basis of a quotation – shall constitute a binding offer to enter into a corresponding contract. The customer is bound by it for a week. Within a week after receiving the order JAPO is free to accept the binding offer. The customer renounces a declaration of acceptance. The order can be placed orally, in a written way or by email. In case of placing the order in an oral way, a written order confirmation might be requested.
All prices quoted are net prices and subject to the VAT. The agreed rental and selling prices are ex stock. Possible additional costs, e.g. freight, packing, insurance and installation costs are not included. Unless agreed otherwise, the agreed rental prices 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. Renting of property
4.1. Rental property
The customer can find useful information about rental property and their applications at the JAPO product descriptions (www.japo.de or product range). Details about measurements, functioning of the devices as well as other technical data, as stated in prices lists, catalogues, leaflets, advertisements etc., are only approximate values. They are only binding when an explicit written agreement has been made.
4.2. Time of rental/Return
The time of rental always includes the day agreed for the supply of the rental property in the warehouse upon handover (beginning of the time of rental) and the day agreed for returning the property at the storage (end of the time of rental). In the event that the rental contract has been concluded for an indefinite period of time, the customer has the right to terminate the contract in writing within two weeks by the 1st and 15th of a month. In the event that the time of rental is calculated on a daily basis, the termination shall be carried out by giving one week’s written notice beginning from the day after the receipt of the termination. The customer is obliged to bear the keeping of the rental property until the end of the third working day after the end of the contract, and to protect the rental property against theft, 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. Should the agreed rental time be exceeded, the agreed rent is to be paid pro rata temporis until the complete return of the property. The claim for further damages remains unaffected by this agreement. As a general principle, a continuing use of rental property does not automatically lead to an extension of the rental contract. § 545 BGB (German Civil Code) is excluded.
4.3. Delivery and collection of rental property
If the delivery and collection of the rental property and / or the setting up and dismantling is effected by JAPO, the customer has to ensure that the location is accessible and passable for a truck with a permitted weight of up to 40 tons, and that it is suitable for the setting up and use of the rental property. To the extent that it is necessary for delivery and collection as well as setting up and dismantling, the customer has to provide JAPO free of charge with electricity, water and storage capacities at the place of use. If the customer does not comply with the before-mentioned obligations and if, due to this reason, delivery and / or setting up cannot take place, JAPO is not obliged to wait longer than a maximum of two hours at the place of use for the provision of such facilities. If delivery and / or setting up cannot be effected due to lack of provision of these conditions in due time, the customer is obliged to bear any costs regarding further delivery and setting up attempts. Furthermore, he has to pay the rental fee from the day of the failed construction attempt. At the expiry date of the rental contract the customer is obliged to have the rental property ready for collection in a clean condition and make it accessible for collection or, if agreed, for dismantling. JAPO is not obliged to wait longer than a maximum of two hours for the provision of the readiness to collect or to dismantle. The additional costs of an additional dismantling or collection attempt as well as the cleaning of the rental property by JAPO (if necessary) have to be paid by the customer. For each day after the expiry of the rental time, which the customer does not have the property ready for dismantling or collection, the customer has to pay the contractually agreed rental fee for one day as liquidated damages. The customer shall be entitled to prove that JAPO suffered only a minor damage. If JAPO is able to prove a higher damage they are entitled to claim such higher damage.
4.4 Obligations at handing over/Return
Immediately after the handing over of the rental property, the customer is obliged to examine the property for completeness and defects, and to directly notify JAPO in case of a possible defect or incompleteness. If the customer fails to examine the rental property or does not report any defects or missing parts, the rental property shall be deemed to have been approved and without defects, unless the defect was not evident at the time of examination. If such a defect becomes apparent at a later point in time, notification must be made immediately after its detection. Every complaint must be made in writing. The return of rental property has to be effected in a clean condition and as stated in the contract. Should JAPO discover at the return that the rental property is damaged due to unintended use, wrong use, improper handling or transport, the customer has to compensate JAPO for the damage. In case of loss the replacement value is generally charged. The customer shall be entitled to prove that JAPO suffered only a smaller damage. Compensation claims of the lessor for damage, alterations or deteriorations of the rental property as well as the right of removal of the lessee expire in 12 months. The limitation period begins with the day of return of the rental property. The handing over / taking as well as the return of rental property is logged using a delivery note. The customer takes over responsibility for the rental property and its proper use by taking over and / or signing the delivery note.
The liability for the compliance of specifications made about measurements, the operating mode of the devices 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. Regarding the appropriate use of the rental property JAPO can only put forward recommendations. Liability on the part of JAPO is expressly excluded for any use deviating from the recommendations. The customer is liable for any use deviating from the intended use of the rental property; this shall also apply for any alterations made by the customer after having approved the constructions made by JAPO. JAPO shall be indemnified from all resulting claims by third parties. The lessor’s liability for compensation is limited to its own, grossly negligent or malicious conduct, to malicious or grossly negligent conduct on the part of its legal representatives or one of its vicarious agents. If the breach of contractual obligations is based on slight negligence, the lessor’s liability is limited to foreseeable, typical and direct damage. The limitation of liability shall also apply with regard to personal liability of the staff, statutory representatives and vicarious agents of the lessor. In case of fatalities, physical injuries or damage to health as well as breach of major contractual obligations, the lessor is held reliable even for slight negligence. In the event of slight negligence, the lessor’s liability is limited per claim for personal injury to an amount of € 500,000 per person and for property damages and financial damages to an amount of € 250,000. Any exclusion or limitation of liability between the lessor and lessee shall also apply in favour or the lessor’s vicarious agents. A strict liability of the lessor for damages due to pre-existing deficiencies in the rental property is excluded, unless the lessor has fraudulently concealed the defect. No liability limitation is applicable for claims under German Product Liability Act. The customer shall be obliged to take out appropriate and adequate insurance against the risks generally associated with the rental property (loss, theft, damage, third-party liability) after handing-out, and to provide proof of this to JAPO on demand. JAPO shall not be liable for damages caused through wrong operation, installation or use of the rental property.
6. Handling and Care
The customer has to treat the rental property with care. The rental property shall only be transported, mounted, operated and dismantled in accordance with its technical purpose and exclusively by qualified staff. During the rental time, the customer shall ensure continual compliance with all applicable safety regulations, especially the accident prevention regulations.
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. In the event of cancellation the customer shall pay a fixed compensation for non-fulfilment damage as follows:
– Cancellation up to 30 days before the beginning of the rental time 20 % of the rental net price agreed.
– Cancellation up to 20 days before the beginning of the rental time 40 % of the rental net price agreed.
– Cancellation up to 10 days before the beginning of the rental time 60 % of the rental net price agreed.
– Cancellation up to 3 days before the beginning of the rental time 80 % of the rental net price agreed.
Cancellation must be stated in writing in order to be effective. The date of cancellation shall be determined by the date on which JAPO receives the written notice of cancellation. The customer remains free to demonstrate that the damage incurred is of a lower value.
8. Payment/Delayed payment
Unless otherwise agreed, invoices are to be paid (without any deductions) within eight days as from the issue of the invoice (evidence by invoice date). Receipt in the JAPO account shall be decisive for determining punctual payment. In the event of non-payment of the invoice amount at its due date, JAPO is entitled to demand payment of interest amounting to 9% points above the currently applicable base rate, at least however the statutory interest rate, from the day following the end of the payment period. The irrevocable and / or unconditional acceptance of (partial) payment does not represent a waiver for claims for compensation. Any discount agreements are cancelled in the event of delay in payment; the complete contract sum will be due without any deductions, plus interest. Provided that cash in advance is agreed, JAPO shall only hand over the rental property to the customer after having received complete payment of the contracted sum. The customer may not offset any counterclaims against the claims of JAPO against them except and unless such counterclaims are undisputed or legally established. The right of retention can only be exercised in case of legally established or incontestable claims relating to this contractual relation. Members of staff and vicarious agents of JAPO are not authorized to accept payments, unless they are authorized by JAPO in writing to receive payments. JAPO is not obliged to accept cheques or bills of exchange. Cheques and bills of exchange shall only be accepted in fulfilment of the invoice.
A due cancellation of temporary contracts is excluded for the agreed duration. They can only be terminated in case of any important reasons. This shall also apply for additional services agreed on. An important reason in particular is if the customer has used the rental property contrary to the terms of the contract or misused them with gross negligence or if, in the case of a rent agreed and payable according to periods of time, the customer defaults on payments of the rent for two consecutive payment deadlines or on a total sum equal to the rent payable on two payment deadlines. If more than one item is rented, the customer is only entitled to cancel the entire contract due to the defect of a single object, if the rental property is associated with the other items in a way that the agreed function of the rental property in general is substantially affected. In this case, a cancellation is only acceptable if a reasonable deadline to rectify the defects has been set beforehand in writing and JAPO has allowed this period to elapse without any result.
10. Final provisions
Unless otherwise contractually agreed, JAPO is within the scope of the contractual relationship with the customer not obliged to render advice to the customer or to make recommendations. Should JAPO give non-binding advice or make recommendations, JAPO is not liable for any damage arising from such advice or recommendation. All illustrations, catalogues, drawings, technical data, sketches or drafts, which JAPO hands out, remain with explicit reservation of copyright the property of JAPO. Thus, it is explicitly prohibited to make copies in whole or in part, or to make them available to third parties, unless written permission has been obtained by JAPO. All intellectual properties for the realization of a contract, especially plans, drafts etc. remain the property of JAPO and may only be reused or further used by JAPO. All technical data are without engagement. All models, prices and delivery options are subject to change. The place of performance and jurisdiction shall be, insofar as the customer is engaged in business, Chemnitz.
PLANNING, ORGANIZATION AND EXECUTION OF
JAPO KONZERT- & VERANSTALTUNGS GMBH
as of 12/2014
1. Preliminary Remarks
(1) Our General Terms and Conditions are applicable for all business relations between JAPO Konzert- und Veranstaltungs GmbH and all business partners in Planning, Organization and Execution of events of all kinds.
(2) Deviating General Terms and Conditions of the contracting partner do not apply and are not part of the contract unless their application has been agreed to in writing by JAPO Konzert- und Veranstaltungs GmbH. This shall also apply for the case that JAPO Konzert- und Veranstaltungs GmbH has not expressly objected to the General Terms and Conditions of the contracting partner.
2. Conclusion of Contract
All offers of JAPO are without engagement and obligation, unless they are explicitly otherwise determined.
A given order of a customer – on the basis of a quotation – is binding after signing a contract. The customer is bound by it for 10 days. Within 10 days after receiving the order JAPO is free to accept the binding offer in written or electronic form.
The order can be placed orally, in a written way or by email. In case of placing the order in an oral way, a written order confirmation might be requested.
(1) The scope of the contractually agreed performance is determined solely by the performance description supplied by JAPO Konzert- und Veranstaltungs GmbH. Any subsidiary agreements which modify the scope of the contractually agreed performance must be explicitly confirmed in writing.
(2) JAPO Konzert- und Veranstaltungs GmbH is entitled to make any modifications or deviations of the contractually agreed performance which become necessary after conclusion of the contract unless they are substantial and/or affect the overall arrangement of the agreed performance. JAPO Konzert- und Veranstaltungs GmbH undertakes to inform the customer immediately of any changes or deviations in performance.
4. Prices and Payment Terms
(1) The customer undertakes to pay the agreed prices to JAPO Konzert- und Veranstaltungs GmbH. This applies also for expenses for third-party services which have been advanced by JAPO Konzert- und Veranstaltungs GmbH in the scope of the contractual agreements.
(2) Unless otherwise agreed, third parties shall be commissioned on behalf and at the expense of JAPO Konzert- und Veranstaltungs GmbH. In this case, JAPO Konzert- und Veranstaltungs GmbH is not obliged to detail the performances of third parties on behalf of JAPO Konzert- und Veranstaltungs GmbH in its invoices or to provide invoices submitted by the commissioned parties.
(3) Services that do not form part of the agreement, and that are performed at the request of the customer, or additional expenses incurred as a result of incorrect information given by the customer, by transport delays beyond the control of JAPO Konzert- und Veranstaltungs GmbH, preliminary services provided by third parties in an unprofessional manner or not on schedule, unless these third parties are subcontractors of JAPO Konzert- und Veranstaltungs GmbH, shall be additionally billed to the customer at the current rates of JAPO Konzert- und Veranstaltungs GmbH.
(4) The due date of the agreed payment depends on the respective payment agreement. JAPO Konzert- und Veranstaltungs GmbH is entitled to demand advance payments. Down-payments and final payments according to the contractual payment agreement, and accounting are to be made by the specified dates without a cash discount to the stated bank account of JAPO Konzert- und Veranstaltungs GmbH indicating the invoice number.
(5) JAPO Konzert- und Veranstaltungs GmbH is entitled to render accounts for each individual item of performance as soon as it has been provided. Unless otherwise agreed, any amounts invoiced are immediately due for payment upon receipt of invoice.
5. Right of Retention and Set-off Rights / Assignment
The customer may only make offset against claims by JAPO Konzert- und Veranstaltungs GmbH with undisputed or legally established claims. The customer can assert a right of retention only from such counterclaims that result from the same contractual relationship. The assignment of claims is excluded.
6. Withdrawal / Termination / Cancellation
(1) If the customer has the contractual right of withdrawal from and/or cancellation of the contract, the customer shall reimburse JAPO Konzert- und Veranstaltungs GmbH for the costs up to the time of withdrawal unless otherwise agreed.
(2) Furthermore, in case of withdrawal, the customer has to pay JAPO Konzert- und Veranstaltungs GmbH, in accordance with the contractual agreement, compensation for loss of profit as well as a pro rata amount of the cancellation fee which is calculated as a percentage of the amount of the agreed remuneration. The compensation is calculated by JAPO Konzert- und Veranstaltungs GmbH under consideration of the usually saved expenses. Providing evidence of higher damages remains unaffected. The customer is reserved the right to proof that the actual damage which has been caused to JAPO Konzert- und Veranstaltungs GmbH is lower than the one specified, or that there has been no damage at all.
(3) Notice of cancellation must be given in writing and will be effective with the date of receipt at JAPO Konzert- und Veranstaltungs GmbH.
(4) The right of withdrawal or extraordinary termination for important reason remains unaffected by the above terms.
7. Force majeure/Illness
(1) In the case of urgent reasons beyond its control or if there is force majeure, JAPO Konzert- und Veranstaltungs GmbH shall be entitled to cancel, postpone or shorten the event. If the event does not take place due to these above-mentioned reasons, JAPO Konzert- und Veranstaltungs GmbH may retain up to 25% of the invoice amount as general expenses, unless the customer proves that no damage has been caused to JAPO Konzert- und Veranstaltungs GmbH or that the amount of damage has been lower than mentioned. Additionally, there may be a further claim by JAPO Konzert- und Veranstaltungs GmbH against the customer if special, additional paid services have been commissioned.
(2) In the case that the event is significantly hindered, endangered or impacted due to force majeure that was not foreseeable when the contract was concluded, both JAPO Konzert- und Veranstaltungs GmbH and the customer may cancel the contract. If the contract is canceled, JAPO Konzert- und Veranstaltungs GmbH can demand reasonable compensation for the services that have already been rendered or must still be rendered in order to terminate the event.
(3) In the case that the planned and booked artist for an event is falling ill, this falls under the general life risk of the customer. JAPO will make every reasonable effort to find adequate replacement. If the customer decides to refrain from the event due to the artist’s illness, if they do not accept any replacement, or if no replacement can be found, the customer has to pay the used services (except any saved expenses). The customer is reserved the right to prove lower damage.
(1) JAPO Konzert- und Veranstaltungs GmbH has taken out liability insurance for personal injury and property damage in connection with the execution of the respective event.
(2) Beyond this, JAPO Konzert- und Veranstaltungs GmbH is not liable for damages to the customer due to contractual or tortuous breach of duty. This does not apply for liability for a breach of a fundamental contractual commitment, nor for liability for injury to life, physical injury or damage to health nor for damages which are based on a deliberate or grossly negligent breach of duty by JAPO Konzert- und Veranstaltungs GmbH, its legal representatives or agents. Essential contractual commitments are those which enable the fulfillment of the orderly performance of the contract in the first place, and in the compliance of which the contracting party can and will rely on a regular basis.
(3) For offered services with an above average risk, JAPO Konzert- und Veranstaltungs GmbH may demand signing a separate disclaimer of liability. JAPO Konzert- und Veranstaltungs GmbH undertakes to take out relevant liability insurance for above average risks, provided that they are insurable, at the request of the customer. In the case that the customer considers the coverage by the liability insurance of JAPO Konzert- und Veranstaltungs GmbH as insufficient, JAPO Konzert- und Veranstaltungs GmbH undertakes to take out insurance with higher coverage at the request of the customer. Insurance premiums for any additional insurance which have been taken out at the request of the customer are to be reimbursed as expenses by the customer to JAPO Konzert- und Veranstaltungs GmbH. Besides, the above-mentioned rules on liability remain applicable.
(4) JAPO Konzert- und Veranstaltungs GmbH does not accept any liability for any material, equipment, premises and places provided by the customer or third parties for the execution of events. Hereby, the customer exempts JAPO Konzert- und Veranstaltungs GmbH from all liability claims.
(5) JAPO Konzert- und Veranstaltungs GmbH is not liable for defaults connected to services or damages that are mediated as external services and/or that are expressly stated as external services in the offer.
9. Impairment of Performance
(1) If JAPO Konzert- und Veranstaltungs GmbH fails to render performance or if performance is not in compliance with the contract. The customer is obliged to notify JAPO Konzert- und Veranstaltungs GmbH immediately of the faulty performance and to demand substitute performance. The customer is entitled to refuse the substitute performance by JAPO Konzert- und Veranstaltungs GmbH only if the customer cannot reasonably be expected to accept substitute performance for good reasons, of which JAPO Konzert- und Veranstaltungs GmbH must be notified; this shall be the case in particular if the acceptance of substitute performance would severely impair the booked event.
(2) In case of any disruptions in performance, the customer is obliged, according to the mitigation of damages, to do everything that can reasonably be expected to help preventing damages or to keep them to a minimum.
(3) If the customer demands a reduction of the contract price owing to alleged faulty performance of the contract by JAPO Konzert- und Veranstaltungs GmbH, they are obliged to notify JAPO Konzert- und Veranstaltungs GmbH immediately, stating the reasons. If the customer is a businessperson, legal person or entrepreneur pursuant to Section 14 German Civil Code, claims can only be filed against JAPO Konzert- und Veranstaltungs GmbH for faulty or non-performance if the customer sends notification of faulty or non-performance to JAPO Konzert- und Veranstaltungs GmbH immediately after the planned end of the event pursuant to Section 377 German Commercial Code.
(4) If the customer provides premises and sites for execution of the event, the customer is responsible for ensuring that the premises and sites provided are permissible and suitable for execution of the event. In particular, the customer is then responsible for obtaining any necessary permits or licenses, protecting traffic areas and sites against risks and eliminating potential sources of danger. The customer is obliged to ensure that all premises and sites provided by the customer are safe for use by third parties. The customer shall indemnify JAPO Konzert- und Veranstaltungs GmbH for all liability whatsoever resulting from infringement of the foregoing obligation or from the characteristics or location of the premises and sites provided.
(1) The parties undertake to maintain strict confidentiality towards third parties concerning sensitive processes and data throughout the duration of the cooperation and also after termination of the contract. Each party will pass on this obligation to the people responsible for the tasks and agents, and impose strict confidentiality on them as well.
(2) In case of the confidentiality agreement being breached, the customer undertakes to pay a contractual penalty amount of € 5,000.00 to JAPO Konzert- und Veranstaltungs GmbH for each breach, with the exclusion of the continuing relationship. Moreover, JAPO Konzert- und Veranstaltungs GmbH has the right – independent of the claim of the above-mentioned contractual penalty – to assert any further claims for damages and claims for expenditures against the customer in full.
11. Data Protection
(1) JAPO Konzert- und Veranstaltungs GmbH treats all personal data according to law, especially according to the guidelines of the Federal Data Protection Act (BDSG). For the execution of the event, the collection, storing and processing of personal data is imperative. This is done solely as a means to the organization and execution of the event. The data will only be passed on to third parties who are directly involved in the event, and where the organizational process requires this.
(2) With the beginning of the contractual relationship, the customers declare their consent that the information provided by them may be collected, stored and processed within the organization of the respective event, and that it may be passed on to third parties according to the particular requirements. All personal data which is provided to JAPO Konzert- und Veranstaltungs GmbH for handling the event is protected against misuse according to the BDSG. The customers declare their consent to the storage of personal data which is necessary for the processing of the order.
12. Closing Provisions
(1) Should any individual provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. A provision which comes as close as possible to the economic intentions of the parties – taking into consideration the legal regulations – shall be deemed agreed in lieu of the invalid provision.
(2) Provided that the customer is commercially active, the court of jurisdiction for any claims arising from the commercial relation is Chemnitz, Germany. This does not apply to consumers. The laws of the Federal Republic of Germany shall apply.