General terms and conditions of BLUE WHEELS Veranstaltungstechnik GmbH, Essen

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1. SCOPE OF APPLICATION:

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1. Our general terms and conditions apply exclusively. They also apply to all future transactions, as well as to all business contacts with the customer, such as the initiation of contract negotiations or the initiation of a contract, even if they are not expressly agreed upon again or if they are not expressly referred to again.
2. If obligations are also established in individual cases with persons who are not intended to become party to the contract themselves, the liability provision of these general terms and conditions also applies vis-à-vis these third parties, insofar as the same was included vis-à-vis the third party when the obligation was established. This is particularly the case if the third party became aware of the general terms and conditions when establishing the obligation or had already become aware of them.
3. We do not recognize the customer's terms and conditions that deviate from or conflict with our general terms and conditions. Agreements made earlier and previous versions of our general terms and conditions are repealed by these terms and conditions.
4. Acceptance of services and deliveries is considered as acceptance of the validity of these general terms and conditions.

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2. CONCLUSION OF CONTRACT:

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1. Unless otherwise agreed, offers from our company are binding two weeks from the submission of the offer. We are only bound to an order when it has been confirmed by us in writing or we begin the execution of the order (taking up preparatory actions, e.g. ordering goods, etc.). The customer is obliged, at our request, to confirm in writing the written acceptance of his order by us in writing. If the customer does not submit this declaration within five working days of receipt of the corresponding request, we are no longer bound to the order.
2. If our offer or order confirmation is based on technical information provided by the customer (illustrations, drawings, weight and dimensions, etc.), our offer is only binding if the order can be executed in accordance with the customer's technical specifications. If, after conclusion of the contract, it turns out that the order cannot be carried out in accordance with the customer's technical information, we are entitled to withdraw from the contract; insofar as the customer is not prepared to accept the alternative technical solution proposed by us and to assume any additional costs that may actually arise. In the event of such withdrawal from the contract for which we are not responsible, we are entitled to claim 15% of the net order volume from our customer as lump sum compensation. The customer is free to prove that we only suffered minor damage. In this case, the customer only has to pay the proven lower amount. The claim by us of a higher amount than that of the lump-sum compensation is not ruled out.
3. If we provide samples before placing an order, these are considered non-binding test or inspection samples. If an order is not completed, we may charge the customer for these samples at cost price. The same applies to transport, shipping or other additional costs incurred. The samples remain the property of our company until final payment has been made.

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3. DELIVERY/PERFORMANCE:

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1. Our written offer or order confirmation is decisive for the scope of delivery/service. Additional agreements and amendments require our written confirmation.
2. We are entitled to make partial deliveries/services for all orders to a reasonable extent.
3. Delivery/service deadlines and dates always represent the best possible information, but are generally non-binding. The start of the delivery/service period (sending of the order confirmation), as well as compliance with delivery/service dates, requires that the customer performs the cooperation incumbent upon him in due time and correctly, provides all necessary documents and makes any agreed advance payments. If we hand over the ordered goods to a transport person or if we show the customer that we are ready for dispatch, the date of handover or the date of notification of readiness for dispatch shall be considered the date of delivery/performance.
4. The documents attached to our offers, such as drawings, weight and dimensions, are only approximate unless expressly marked as binding. The customer must immediately and without request check all dimensions and conditions again on site and inform us of any discrepancies.
5. If a delivery/service on demand has been agreed, the customer must accept the entire ordered delivery or service within a reasonable period of time, but no later than three months after the call order has been agreed. At the end of this retrieval period, we are entitled to bill the entire order, step by step, against provision of the entire delivery or service ordered.
6. If delivery or performance is delayed as a result of force majeure measures, such as industrial action, strikes, lockouts or other events at home and abroad for which we are not responsible, the delivery or performance period shall be extended accordingly by the duration of the impairment and its subsequent effects. This applies even if these circumstances occur with our sub-suppliers. Insofar as the result of force majeure results in permanent impossibility of performance, we are entitled to withdraw from the contract. We are not responsible for reasons of force majeure even if they arise through no fault of our own during an existing delay. In important cases, we will immediately inform our customers of the start and end of such obstacles.
7. As a result of delays in the provision of deliveries/services, we will not be in default if we or our vicarious agents are only responsible for slight negligence. In the event of force majeure or other circumstances through no fault of our own and exceptional, we will not be in default. In this case, we are entitled to withdraw from the contract even if we are already in default. In these cases, at the request of the customer, if we do not explain within a reasonable period of time whether we will still provide the service owed, the customer is in turn entitled to withdraw from our service with regard to the part of our service that has not yet been fulfilled.
8. If the customer is in default of acceptance or if shipping is delayed at the customer's request, he will be charged the costs arising from storage with us or with a third party, starting with the notification of readiness for dispatch. After setting and fruitless expiry of a reasonable period of time, we are entitled to dispose of the delivery/service object elsewhere and then to re-supply the customer with a reasonably extended period of time.
9. If we are in default, the customer is entitled to claim proven damage caused by delay. In cases of slight negligence, compensation is limited to 0.5% of the value of the total delivery for each full week of delay, but in total to 5% of the value of the total delivery.
10. In the event of a delay in our performance, the customer is entitled to give us a reasonable period of grace to perform. After this period has expired without success, he is entitled to withdraw from the contract, unless we did not have to expect the withdrawal despite setting the deadline. In the event of culpable action on our part, the customer may claim compensation instead of performance. In cases of slight negligence, the claim for compensation is limited in accordance with the previous paragraph.
11. If we are obliged to make advance payments under the concluded contract, we may refuse to provide the service incumbent upon us if, after conclusion of the contract, it becomes apparent that our claim to the consideration is jeopardized by inadequate performance by the other party. This is particularly the case when the consideration due to us is endangered due to poor financial circumstances or there is a risk of other impediments to performance, such as export or import bans, war events, supplier collapses, absences due to illness to provide necessary employees.
12. We may refuse our performance or manufacturing obligations if these require an effort which, taking into account the content of the order and the requirements of good faith, results in a gross misunderstanding of the customer's interest in performance. This is particularly the case if the failure or breach of duty does not affect the customer or only insignificantly, such as the presence of cosmetic defects.

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4. PACKING:

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We only take back packaging insofar as we are legally obliged to do so.

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5. SPECIAL INFORMATION FOR FLAT PANEL DISPLAYS:

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Flat panel displays (plasma, LCD, etc.) must be transported in accordance with the instructions on the packaging box. In order to reduce cases of damage, it is useful when shipping with a transport company to ship the device with a pallet to prevent the display glass element from breaking. Specially submitted transport regulations must be observed. When operating the flat screen, the operating instructions included with the offer must be observed. High-contrast still images or parts of images that are regularly shown in the same position for several minutes should be avoided, as they cause the flat screen to “burn in” and thus to total loss.

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6. TRANSFER OF RISK:

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1. When the goods are handed over for dispatch, the risk of loss or deterioration of the goods is transferred to the customer, even if partial deliveries/services are carried out. This applies even if we have taken on additional services such as shipping costs or delivery and installation. If dispatch is delayed for reasons relating to the customer, the risk is transferred to the customer as soon as the dispatch is notified.
2. If we owe the performance of a work or if it has been agreed to carry out an acceptance, the transfer of risk occurs upon acceptance of the work. If acceptance is delayed or omitted as a result of circumstances that are not attributable to us, the risk is transferred to the customer from the date of notification of readiness for acceptance.
3. If we are commissioned to install hardware or software, the risk is transferred to the customer when the hardware or software is put into operation. Start-up is complete when the hardware or software is started for the first time.

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7. Change in the scope of services:

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We reserve the right to make minor commercial changes, in particular improvements to the goods, until delivery, if this does not unreasonably affect the interests of the customer.

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8. PRICES:

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1. Our prices are always “ex works” (EXW Incoterms 2000) plus statutory value added tax, shipping costs, customs and transport insurance and other expenses associated with delivery, including the costs of preparing officially prescribed safety and compliance certificates, are accordingly borne by the customer.
2. If our suppliers raise prices for the relevant product or its primary materials during the period between conclusion of contract and delivery, we are entitled to increase prices accordingly, even in relation to the customer, if there is more than four months between the time of conclusion of the contract and the time agreed for our delivery or service. However, the additional price must not differ by more than 25 percent of the originally agreed price.

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9. PAYMENT TERMS:

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1. Our claim is due upon receipt of the invoice. The debtor is in default of payment 30 days from receipt of the invoice, even without a reminder. From this point on, he must compensate us for any damage caused by default, in particular interest of 8% above the base interest rate of the European Central Bank. If the customer is in default of payment of an amount or partial amount due for more than 14 days, the entire remainder of all outstanding claims arising from the business relationship is due for payment immediately. The same applies in the event of non-cashing of cheques from the customer, suspension of payments, insolvency and in the event of a settlement requested by the customer.
2. Without an express agreement, the debtor is not entitled to make deductions. We have the right to demand advance payments for services provided.
3. Payment by check or acceptance is only permitted if expressly agreed and is only valid as payment. Discount and collection charges are borne by the customer; they are due immediately. In the case of payment by check, it is not receipt of the check, but only its cashing that counts as payment.
4. Our compensation claims can only be offset against undisputed or legally established claims. The same applies with regard to the assertion of a right of retention. The customer is only authorized to exercise a right of retention if it is based on the same contractual relationship.‍

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The assignment of claims against us by the customer is excluded.

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10. SCOPE OF RIGHTS OF USE FOR SOFTWARE (PURCHASE):

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1. Software license for the customer: With delivery and payment, unless otherwise agreed, the customer acquires a software license for the contractual software in the sense of a non-exclusive, non-transferable and at the same time unlimited simple right of use of the program for use on the number of applications defined by the respective supply contract, on either temporary or permanent storage. It is permitted to make a copy for backup purposes. The transfer of this right of use or the granting of sub-licenses requires our prior written consent. A resale of software licenses in which the licensed software has already been installed by us on hardware sold at the same time is only permitted together with the sale of the hardware, regardless of the consent requirement. Insofar as parts of the delivered program are software manufactured individually for the customer, the customer acquires an exclusive, non-transferable right of use on the number of applications defined by the respective supply contract for these individual parts — described in more detail by our order confirmation. There is no claim to transfer the source code. We will only refuse our permission to transfer the exclusive and non-exclusive rights of use of the delivered software to third party buyers if there is good reason to do so. In this case, the customer is obliged to transfer all copies of the software and all documentation to the acquirer and to oblige the acquirer to comply with these terms of delivery. If the customer culpably breaches this obligation, a contractual penalty of EUR 15,000.00 (euro: fifteen thousand) per infringement is considered to have been realized. The customer may only use the software and the associated documentation to the extent described. In the event of violations by the customer, we are not liable for direct or indirect subsequent damage. The customer undertakes not to make the software or documentation available to third parties — whether for processing or simply for access — without our prior consent. If the customer culpably breaches this obligation, a contractual penalty of EUR 15,000.00 (euro: fifteen thousand) per infringement is deemed to have been realized. The customer is not authorized to decompile or disassemble the delivered software or otherwise convert it into generally different forms of code. This also applies to the part of the delivered software created individually for the customer. If the customer culpably breaches this obligation, a contractual penalty of EUR 15,000.00 (euro: fifteen thousand) per infringement is considered forfeited.
2. Licensing conditions for resellers: If we have expressly delivered software to the customer for resale purposes, the customer is entitled to resell the software or grant appropriate sub-licenses. Before reselling the software or granting sublicenses, the reseller must ensure that his buyer agrees to these terms of delivery. The reseller is prohibited from reproducing the software in whole or in part and/or the accompanying written documents. For each case of infringement of these obligations, the reseller forfeits a contractual penalty of EUR 15,000.00 (euro: fifteen thousand).
3. License conditions from other manufacturers: The standard and individual software delivered by us may contain software components from other manufacturers or be intended for use on software platforms from other manufacturers. Accordingly, the license conditions of the rights holders for the components of other manufacturers listed on our terms of order become part of the contract. As a result of the acceptance of our delivery by the customer, license agreements are concluded between the customer and the manufacturers of the software components listed on the order confirmation under the license conditions used by these manufacturers. The corresponding license terms can be requested from us.

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11. RETENTION OF TITLE:

1. Principle:

1. We reserve title to the goods delivered by us (including software) until there is no longer any claim arising from the order. If, in addition to the claim to which we are entitled from the order, there are other claims against the customer at the time of delivery, we reserve title to the goods delivered by us until all claims specified above have been settled (extended reservation). If we deliver software, we reserve the exclusive right to use this software in addition to ownership until there is no longer any claim arising from the order or other claims existing upon delivery.
2. In the case of cheque payments by the customer, the claim arising from the order and delivery persists until the cheque has been cashed by the customer.
3. The extended reservation applies to the balance in each case when the receivables are placed in a current account.
4. If the customer treats or processes the delivered goods, the processing or processing is carried out for us in such a way that we acquire joint ownership of the new item with the share that corresponds to the purchase value of the delivered item in relation to the total sales value of the new item. When processed with other goods not belonging to us by the customer, we are entitled to joint ownership of the new item produced in proportion to the value of our reserved goods used for the manufactured item to the sales value of the new item at the time of processing. This processing clause continues with all claims that the customer acquires in the future through the resale of the items subject to this processing clause. The customer assigns to us the claims arising from the resale of this item up to the amount of our payment claims. We accept this assignment.
5. If the goods delivered under retention of title are inseparably combined, mixed or blended with other goods, we acquire joint ownership of the entire quantity in the amount of the value of our delivery §§ 947, 948 BGB. If the customer acquires sole ownership by combining, mixing or blending, he is already transferring joint ownership to us based on the ratio of the value of the reserved goods to the value of the newly manufactured goods at the time of combination, mixing or blending. We're accepting this transfer. In this case, the customer must store the goods owned by us free of charge.
6. The retention of title is extended to all claims made by the customer from the resale of the delivered goods or from the resale of the newly manufactured goods. The claims are assigned to us in the amount of the outstanding invoice amount. As a precaution, the customer assigns these future claims at the time they arise. We accept this assignment. The customer is only entitled to resell the reserved goods or the newly manufactured goods with the proviso that his purchase or compensation for work is transferred to us in accordance with the above provisions. The customer is not entitled to make any other dispositions.
7. The customer may neither pledge nor assign as security the delivery item or rights to use the delivered software. In the event of seizures, seizures or other dispositions by third parties, the customer must immediately notify us.
8. Our security rights do not prevent the customer from disposing of objects belonging to us or claims assigned to us as security in normal business operations. Normal business operations cease to exist if the customer is in arrears with his payment obligations to us one month after the onset of default, payment is suspended or an insolvency application is filed. In this case, the customer is obliged, at our request, to notify his customers of the assignments, to refrain from collecting the receivables and to permit collection by us. At our request, the customer is also obliged to provide us with the addresses of his third-party customers upon first request.
9. If there is no more normal business transaction, we are entitled to take back the reserved goods at the buyer's expense. Such a withdrawal, the assertion of retention of title and the seizure of the delivery item does not constitute a withdrawal from the contract, to the extent permitted by law.
10. At the customer's request, we are obliged to release the securities to which we are entitled in accordance with the above provisions at our discretion insofar as the realizable value of the securities to which we are entitled exceeds the claims to be secured.

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1. Security rights in the case of software delivery for resale: If, in accordance with the content of the contract concluded with us, the customer is entitled to further transfer or grant sublicenses the rights of use acquired by us, the following regulations apply:

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1. The reservation of rights of use regulated under a. is extended to all claims made by the customer that the customer acquires from the resale, sub-licensing or subleasing of the transferred software usage right. The claims are assigned to us in the amount of the outstanding invoice amount.
2. Our security rights do not prevent the customer from disposing of objects belonging to us, software or rights of use, or claims assigned to us as security in normal business operations — subject to our reservation of right of use. Normal business operations cease to exist if the customer is in arrears with his payment obligations to us one month after the onset of default, bills of exchange are protested by him, payment is suspended or an application for bankruptcy is filed. In this case, the customer is obliged, at our request, to notify his customers of the assignments, to refrain from collecting the receivables and to permit collection by us. At our request, the customer is also obliged to provide us with the addresses of his third-party customers upon first request.
3. If there is no more normal business transaction, we are entitled to demand that the customer retransfer the rights of use and take back the reserved goods at the buyer's expense. The customer already agrees to this withdrawal. Such a withdrawal, the assertion of the right of use and the seizure of the delivered right of use does not constitute a withdrawal from the contract, to the extent permitted by law.