General Terms & Conditions (T&C)
for XFAIR GmbHOhmstraße 1
1.1 The following General Terms & Conditions (“T&C”) apply to all orders, sales, services and offerings – including future – of XFAIR GmbH, particularly related to:
• Technical installation, outfitting and operation of booths and associated, temporary provision of objects, particularly IT hardware (hereinafter “rental equipment”) and software (hereinafter “contractual software”) as well as rendering services (all services hereinafter collectively “trade fair services”); unless otherwise expressly stipulated, the “trade fair services” are rendered under a standard contract, particularly including work, service and/or rental contract performance components.
• (re)sale of IT hardware (hereinafter “sale of goods”).
1.2 By placing an order, the customer agrees to the following terms and conditions. These T&C shall apply exclusively, even if the customer’s order contains other restrictions or additions and XFAIR GmbH does not expressly object to them. The application of deviating general terms & conditions of the customer is excluded. This shall not apply if and when XFAIR GmbH expressly agrees to incorporating the terms & conditions of the customer in writing.
1.3 The terms of sale only apply to businesses as defined by § 14 German Civil Code.
1.4 The T&C in the version in effect at the time the customer’s order was placed apply as a framework agreement (§ 305 (3) German Civil Code), including for similar future offers and contracts, particularly for future trade fair services and/or future sales of goods without XFAIR GmbH having to reference them again.
2 Offer, conclusion of contract and limitation of the power of representation, subcontractors
2.1 All product and service descriptions of XFAIR GmbH, including information related to design types, price, delivery date and availability, regardless of the form, e.g. as individual product and/or service description for the customer in text form, in online sales, in catalogues or price lists, or on flyers, do not constitute a legally binding offer to conclude a contract but merely serve the customer submitting an offer (invitatio ad offerendum). They are provided by XFAIR GmbH subject to change and non-binding. The invitatio ad offerendum is solely directed at businesses as defined by § 14 German Civil Code.
2.2 Ownership, copyright and industrial property rights in quotations, figures, drawings or other drawings reserved. Disclosure to third parties only permitted with written approval. Placing an order does not entitle to transfer of such rights.
2.3 By placing an order for the respective goods and/or services, the customer is submitting a legally binding offer to conclude a contract (offer of contract).
2.4 By submitting the offer of contract the customer further declares being a business as defined by § 14 German Civil Code.
2.5 If the contact, commencement and execution of contract is established electronically by email, the customer is obligated to provide a correct email address under which they can receive emails sent by XFAIR GmbH. They must ensure that despite using spam filters, all emails from XFAIR GmbH can be delivered.
2.6 Acknowledgements of the receipt of assignments and/or orders and any subsequent status reports sent by XFAIR GmbH are solely to inform the customer and do not constitute acceptance of the customer’s offer of contract.
2.7 XFAIR GmbH is entitled to accept the customer’s offer of contract within one week from receipt unless the customer expressly states a shorter commitment period for their offer. The contract with the customer is concluded upon receipt of the unconditional order acknowledgement in text form. If this has not taken place by then, execution of the commissioned trade fair services and/or, in the case of sale of goods, the dispatch notice and/or timely delivery of the goods ordered shall serve as order acknowledgement. Upon expiry of the acceptance period without issuing an order acknowledgement the customer’s order is considered rejected.
2.8 Unless expressly stipulated otherwise, in the case of sales of goods any fitting and installation work necessary are not part of the services owed by XFAIR GmbH.
2.9 XFAIR GmbH reserves the right to refuse acceptance of the customer’s offer of contracts, particularly upon checking the customer’s creditworthiness.
2.10 Legal representatives of XFAIR GmbH are not authorised to assume guarantees or make agreements deviating from these terms and conditions. These agreements with representatives require the written confirmation of managing directors and/or authorised signatories of XFAIR GmbH.
2.11 XFAIR GmbH is entitled to use other persons or companies to fulfil its performance obligations. In any case of subcontracting or involvement of third parties, XFAIR remains responsible to the customer for proper fulfilment of the contracted services.
3 Reservation of changes and rights of withdrawal
3.1 All dimensions, weights, data and images in the product and service descriptions of XFAIR GmbH are non-binding and merely approximate values. Deviations are permissible within reason. In particular, colour shades may vary due to monitor and printing technology. If the customer wishes a more precise fit, this can be specified in the order and will then be taken into account as best possible during the selection process.
3.2 We also reserve the right to change models, designs and/or features provided this does not result in a change to the subject matter of the contract that is unreasonable for the customer. XFAIR GmbH will not make any changes but cannot prevent the respective manufacturers from making such changes.
3.3 XFAIR GmbH expressly assumes no procurement risk. In the event XFAIR GmbH is unable to fulfil its performance obligations under the contract with the customer due to non-delivery by suppliers, both parties are entitled to withdraw from the contract.
3.4 If upon expiry of a reasonable period set by XFAIR GmbH the customer refuses acceptance of goods and/or services ordered or expressly states their unwillingness to accept these beforehand (rejection), XFAIR GmbH is entitled to withdraw from the contract and/or demand damages in place of performance. The customer failing to meet the necessary obligations to cooperate despite notice from XFAIR GmbH in text form also constitutes rejection. XFAIR GmbH is entitled to demand a fee of 10 % of the contract value from the customer to compensate for damages due to rejection. This does not affect the right to assert claims for damages beyond the fee. The above rights of XFAIR GmbH do not apply to justified rejection.
3.5 XFAIR GmbH may further withdraw from the contract due to suspension of payments or upon becoming aware of insolvency being opened or judicial settlement proceedings, insolvency filings being rejected for lack or assets, bill or check protests or other specific indicators the customer’s financial situation has deteriorated. XFAIR GmbH may likewise withdraw from the contract with the customers if contrary to section 2.4 the customer is not a business as defined by § 14 German Civil Code. This does not affect the statutory rights of withdrawal of XFAIR GmbH.
4 Delivery / transfer of risk / partial delivery / delivery deadline / default of acceptance
4.1 Delivery, acceptance and transfer of risk of XFAIR GmbH trade fair services are subject to:
Unless otherwise agreed, XFAIR GmbH renders the agreed trade fair services on XFAIR GmbH premises and/or the agreed booth (site). Upon completing the technical installation and equipment of the trade fair booth by XFAIR GmbH, the rental equipment and the contractual software are delivered and provided to the customer for temporary use. The customer is obligated to participate in the delivery appointment announced by XFAIR GmbH with reasonable notice and cooperate in delivery. If performance components of the trade fair services are of a work nature and subject to §§ 631 et seqq. German Civil Code, the customer is further obligated to accept these on delivery. Acceptance cannot be refused for minor defects. If delivery and acceptance is delayed for reasons beyond the control of XFAIR GmbH, acceptance of performance components of a work nature as well as delivery of the rental equipment and provision of the contractual software related to the trade fair services is at the latest deemed to have taken place when the customer starts using the trade fair services.
4.2 For sales of goods from XFAIR GmbH, the following apply to delivery and transfer of risk:
4.2.1 If the customer collects sold goods from the XFAIR GmbH premises or another designated location (warehouse, affiliated company), the risk of accidental loss or damage is transferred at the time the goods are handed over to the customer.
4.2.2 The shipment of goods sold to the destination specified by the customer is always at the risk of the customer. The customer is obligated to specify the correct delivery address where delivery is possible. The risk of loss or damage to the goods is transferred from XFAIR GmbH to the customer at the time goods are handed over to the logistics company. XFAIR GmbH on principle insures goods for the entire merchandise value unless the customer objects to transport insurance in due time prior to the goods being handed over tot he carrier. Costs incurred for transport including insurance are payable by the customer as per section 5.4. To safeguard any claims against the transport insurer, the customer must notify XFAIR GmbH of any damages and losses, including a damage report from the carrier immediately after the shipments have been delivered.
4.3 XFAIR GmbH is entitled to partial performance and/or partial delivery within the agreed delivery periods and partial billing. Shipping costs incurred are subject to section 5.6.
4.4 Performance times/dates for trade fair services and sales of goods (delivery periods) promised by XFAIR GmbH are always only estimates unless a fixed delivery deadline or fixed performance date is specifically stated or agreed in the order acknowledgement, or in the case of trade fair services the latest performance time results from the fixed event date.
4.5 In cases where XFAIR GmbH concluded a specific covering transaction and is not responsible for timely availability, performance periods/dates are always subject to timely self-delivery.
4.6 XFAIR GmbH is not responsible for delivery and performance delays due to force majeure and due to events which not only temporarily make delivery or performance considerably difficult or impossible for XFAIR GmbH – particularly including operational disturbances, strikes, lockouts, official orders, raw material shortage, illness, pandemics, epidemics, including those at suppliers of XFAIR GmbH or their sub-suppliers – in the case of binding deadlines and dates (impediments). These entitle XFAIR GmbH to postpone deliveries and/or services to the extent of the effect of the hindrance for its duration plus a suitable start-up period. XFAIR GmbH is further entitled to withdraw from the contract in whole or in part due to the part not yet fulfilled.
4.7 If the hindrance as defined by section 4.6 exceeds three months from the binding shipping and/or performance date stated by XFAIR GmbH, the customer is also entitled to withdraw from the contract for the unfulfilled part of the contract after setting a reasonable grace period. For trade fair services, the customer is entitled to withdraw earlier with respect to the unfulfilled part, if the customer cannot reasonably be expected to wait, particularly due to a fixed event date or due to the event being cancelled or postponed, taking into account the interests of both contracting parties. If the time of performance is extended due to hindrances or if XFAIR GmbH is released from its obligation to perform, the customer may not derive any claims for damages from this. XFAIR GmbH may only invoke the aforementioned circumstances if it immediately notifies the customer of the impediment.
4.8 If the customer is in default of acceptance or violates any other duties to cooperate, XFAIR GmbH is entitled to extend the performance period accordingly and/or charge for the damages incurred, e.g. additional costs incurred due to delay, interruption and/or additional expenditures. The customer’s obligations to cooperate particularly include: providing a correct e-mail address and keeping this ready for the delivery of e-mails, providing the correct delivery/service address and/or the trade fair location, answering all queries – in each case in a timely manner – providing all necessary or requested information including planning documents required for the order and issuing releases or approvals from the customer, ensuring access to the trade fair location in good time and without restriction, and providing the basic technical connections or line networks at the trade fair location.
5.1 The prices agreed at the time the contract is concluded apply. If a specific price is not expressly agreed, the current XFAIR GmbH price list applies. On principle, discounts are not granted unless expressly agreed otherwise. The current price list can be requested at any time. Subject to printing errors, price changes and errors.
5.2 If a price is not agreed as fixed (i.e. firm) and the service is agreed for a date more than 4 months from conclusion of contract, XFAIR GmbH is entitled to charge the prices generally asserted by it on the market at the time of performance (market price). The current XFAIR GmbH price list at the time of performance is considered the market price in the above sense.
5.3 XFAIR GmbH reserves the right to adjust its prices appropriately due to unforeseeable cost changes, particularly due to currency fluctuations or changes in shipping or material prices.
5.4 Unless otherwise agreed, all prices for deliveries of goods and trade fair services are exclusive of packaging, transport, transport insurance and other insurance, and exclusive of the statutory value-added tax applicable to the service. Value-added tax due under the law based on the service is always charged separately.
5.5 XFAIR GmbH services are subject to value-added tax. In addition to the agreed fees, the customer is obligated to also pay the value-added tax due by law. If the service is not subject to value-added tax according to the law, the customer must provide all proof or information required under tax laws which XFAIR GmbH must submit to the competent fiscal authorities in the required form. Without this proof and information or if submitted late, XFAIR GmbH reserves the right of non-performance or to assert claims for damages. If the customer fails to provide the proof and information or provides said late, XFAIR GmbH is entitled to withdraw from the contract and/or assert claims for damages. If submitting proof after the fact is permitted, XFAIR GmbH shall set a reasonable grace period for submitting the proof or information. Compensation for damages is limited to the amount of value-added tax payable by XFAIR GmbH according to the law. We reserve the right to assert further damages, particularly lost interest or legal expenses against fiscal authorities.
5.6 In the case of partial deliveries related to the sale of goods initiated or offered by XFAIR GmbH, subsequent deliveries are free of shipping charges. If the customer specifically requests to have the delivery split, the additional shipping costs incurred due to partial deliveries will be billed to the customer.
5.7 If required for trade fair services, any supply connections, particularly for electricity, computer networks or internet, are provided by the customer free of charge.
6 Payments / offsetting / right of retention
6.1 Unless otherwise agreed, invoices are due within 30 days from receipt of invoice without deduction.
6.2 XFAIR GmbH is entitled to require a down payment or advance payment as well as instalment payments for the fee owed by the customer for trade fair services. Unless otherwise agreed, 50 % of the order price is due at the time the order is placed.
6.3 Payments with discharging effect can only be remitted directly to the bank account specified in the XFAIR GmbH invoice.
6.4 If the customer makes payments without the corresponding invoice and customer number on the remittance slip, or when paying multiple invoices, even if the individual invoice amounts are correct, XFAIR GmbH is entitled to allocate the amount received to the customer’s outstanding balance as per §§ 366 (2), 367 (1) German Civil Code.
6.5 Costs incurred due to a payment transaction being reversed for lack of funds or due to incorrect data transmitted by the customers will be charged to the customer.
6.6 XFAIR GmbH only accepts checks on account of performance and can be returned at any time.
6.7 In the event of payment default, XFAIR GmbH is entitled to charge interest in the amount of 9 percentage points above the base interest rate applicable at the time.
6.8 The customer is only entitled to offsetting if these counter-claims have been established as final and absolute, are undisputed, or are recognised by XFAIR GmbH. The customer is only entitled to a right of retention if the counter-claim is related to the same contractual relationship.
7 Transferability of claims
The customer is not entitled to transfer its claims under the contract.
8 Customer obligations for trade fair services
8.1 From the time the rental equipment related to the trade fair services as per section 4.1 are handed over, the customer is obligated
8.1.1 to only use the rental equipment in the sense of these T&C for its intended purpose and in accordance with the operating instructions, handle them properly and with utmost care, and to protect them from excessive strain,
8.1.2 when using customer staff, to only have the rental equipment used by reliable staff adequately instructed by the customer and/or trained by XFAIR GmbH;
8.1.3 to comply with their duties of care, particularly to take precautions and safety measures to prevent damage or destruction, theft, as well as other unauthorised actions of third parties, taking into account the general and specific risks of the surroundings at the agreed site. The duty of care remains in effect until the rental equipment is returned to XFAIR GmbH. XFAIR GmbH is entitled, at its due discretion, to require the customer to pay an appropriate deposit and/or obtain insurance for the above risks and/or obtain insurance itself at the customer’s expense.
8.1.4 to prove the respective location or site of the rental equipment to XFAIR GmbH on request. Using the rental equipment outside the agreed site always requires the approval of XFAIR GmbH in writing.
8.2 The customer must not sublet or otherwise allow third parties to use the rental equipment without the approval of XFAIR GmbH in text form.
8.3 Any ownership information on the rental equipment must not be removed or covered.
8.4 In the event third parties assert rights in the form of seizure or other rights to the rental equipment, the customer is obligated to immediately XFAIR GmbH of the date/time, type, location, seizure, and the third party asserting the right of seizure and inform the third party of the ownership situation and the contractual relationship with XFAIR GmbH.
8.5 The customer’s obligations to cooperate as per section 4.8 remain unaffected.
9 End of trade fair services, return of rental equipment
9.1 At the end of the agreed rental period, or at the latest on completion of the trade fair services, the customer will return the respective rental equipment including all accessories and documentation in their entirety, cleaned, and free of any damages it is liable for to XFAIR GmbH at the customer’s expense. If the rental equipment is not returned, incomplete or not in the above condition for reasons within the control of the customer, XFAIR GmbH is entitled to restore the condition owed on return at the customer’s expense and/or demand damages.
9.2 If collected by XFAIR GmbH or a third party assigned by XFAIR GmbH from the site, the customer must have the rental equipment ready at the agreed time, in a condition suitable for transport; otherwise XFAIR GmbH will charge the wait times or expenditures incurred to make the time suitable for transport separately.
9.3 If a return is not possible for reasons within the control of the customer, XFAIR GmbH is entitled to loss-of-use indemnification for the duration of withholding. The right of XFAIR GmbH to assert further claims remains unaffected.
10 Ownership for trade fair services / retention of title for sales of goods
10.1 It is hereby clarified that trade fair services do not entitle the customer to transfer of ownership in the rental equipment.
10.2 In the case of sales of goods the following retention of title applies:
10.2.1 All goods delivered by XFAIR GmbH for the purpose of sales of goods remain its property until the customer has paid all obligations for the goods supplied under the purchase agreement. This also applies to conditional claims. With respect to businesses, the retention of title remains applies until all obligations from the same business relationship with the customer have been met.
10.2.2 During the period of retention of title, pledging, transfer by way of security and resale is prohibited. The customer is obligated to handle the goods with care. Damaged or lost goods must be reported promptly by the customer.
10.2.3 Third party access to the goods owned or co-owned by XFAIR GmbH must be identified by the customer promptly. Any costs incurred by such action for third party proceedings or costs of out-of-court release are payable by the customer.
10.2.4 XFAIR GmbH undertakes to release the securities it is entitled to at the customer’s request if the value of the securities exceeds the receivables being secured by more than 20 percent.
11 Warranty, guarantee for sales of goods
For sales of goods the following warranty and guarantee terms apply:
11.1 The warranty starts on transfer of risk and is governed by the statutory provisions unless otherwise stipulated below. XFAIR GmbH makes no guarantees.
11.2 Warranty is excluded for used goods. Minor defects do not give rise to businesses filing claims for defects. XFAIR GmbH further assumes no warranty for typical wear and tear of goods, as well as for defects and damages due to unsuitable or improper use, failure to observe instructions for use, or incorrect or negligent treatment, or due to improper repairs by the customer.
11.3 Obvious defects of the goods must be reported promptly in text form, at the latest within three days from receipt of goods. Hidden defects must be reported immediately upon discovery, or at the latest 12 months from receipt of goods. If the defects are not reported in due time, the goods are considered acceptable.
11.4 The limitation period for all claims for defects is one year. It starts at the time the goods are delivered.
11.5 In the case of warranty claims, XFAIR GmbH has the option to remedy the defect by supplementary performance (remedy) or to deliver goods free from defect (subsequent delivery). Remedy is performed at the discretion of XFAIR GmbH on its premises, third-party premises, or on the customer’s premises.
11.6 The customer is at liberty to withdraw from the contract (redhibition) or reduce the price accordingly (discount) if supplementary performance fails.
11.7 Processing of third-party warranties (manufacturer warranties):
Manufacturer warranties are performances promises from the manufacturer to the customer. They therefore do not constitute any obligations for XFAIR GmbH. The customer is therefore obligated to meet the requirements for exercising warranty claims at its expense. The customer particularly bears the costs of transport to and from the manufacturer, assembly and disassembly, as well as any costs of loaners. XFAIR GmbH is expressly willing to provide the above work on behalf of the customer. This requires a separate service order from the customer, which is subject to a fee.
11.8 The above limitations of liability of XFAIR GmbH under this section 11 do not apply to claims for damages and expenditures for defects the customer is entitled to under the law. These claims are subject to section 12.
12 Warranty for trade fair services
12.1 The warranty of XFAIR GmbH for material defects and defects of title for trade fair services are governed by the statutory provisions as applicable to individual performance components, i.e. particularly for performance components of trade fair services of a work nature as per §§ 631 et seqq. German Civil Code and of a rental nature as per §§ 535 et seqq. German Civil Code, however only unless stipulated below
12.2 XFAIR GmbH makes no guarantees related to trade fair services.
12.3 The warranty of XFAIR GmbH is excluded if the trade fair services fall under statutory rental contract provisions, and
12.3.1 it is an initial defect as defined by § 536 (a) (1) German Civil Code which XFAIR GmbH is not responsible for;
12.3.2 it is a defect which arose after the rental equipment was handed over for use and which the customer is responsible for. It is assumed the customer is responsible for a material defect in rental equipment if they or another person whose actions they are responsible for, violated a duty of care as per section 8.1. The burden of proof the material defect is not due to a breach of the duty of care lies with the customer.
12.4 If performance components of the trade fair services are of a nature related to work and service contracts, the customer must report obvious defects in the trade fair services promptly during the delivery and acceptance appointment as per section 4.1. Hidden defects must be reported immediately upon discovery. If defects are not reported in due time, the trade fair services are considered approved.
12.5 Provided XFAIR GmbH did not fraudulently conceal the defects, the liability of XFAIR GmbH is limited to damages or reimbursement of expenses as per section 13.
12.6 Assignment of the warranty claims the customer is entitled to is excluded.
13 Limitation of liability
13.1 XFAIR GmbH is subject to the following clauses and only for damages it or its vicarious agents caused intentionally or due to gross negligence. Any further liability of XFAIR GmbH is excluded. The limitation of liability as per this section particularly also includes damages incurred by the customer which did not occur on the object of performance directly such as damages due to lost profits or other financial losses of the customer.
13.2 The above limitation of liability does not apply
13.2.1 the customer’s damages for injury to life, limb or health. In this respect, XFAIR GmbH is instead liable for any injuries due to wilful intent or negligence of it or its vicarious agents.
13.2.2 for damages foreseeable at the time the contract was concluded and typical for the type of contract which the customer suffered due to a major breach of contract by XFAIR GmbH or its vicarious agents or assistants, even if XFAIR GmbH is merely liable for slight negligence. A material contractual obligation in the above sense is one which must be fulfilled for proper performance of the agreement and the adherence to which the contract partner does and may routinely rely on.
13.3 If claims are asserted against the customer for infringement of property rights due to objects supplied or licensed in accordance with these terms and conditions, the customer is obligated to notify XFAIR GmbH of these claims immediately in text form.
14.1 The customer undertakes to keep all documents, e.g. quotations, figures, drawings and calculations provided by XFAIR GmbH to initiate and execute the contractual relationship as well as all company matters of confidential nature, particularly business and trade secrets which the customer becomes aware of in connection with or based on the contractual relationship with XFAIR GmbH (collectively “confidential information”) confidential (confidentiality obligation).
14.2 The customer will safeguard the confidential information with the same care as its own business and trade secrets, but at a minimum with the care of a prudent businessman.
14.3 The customer will only disclose confidential information to the required extent and only to those employees or companies which are permissibly entrusted with the trade fair services and/or purchasing objects of delivery for the customer (authorised persons). The customer will further obligate the authorised persons in writing to maintain confidentiality in accordance with this agreement. On request of XFAIR GmbH the customer shall provide the respective confidentiality agreements. Confidential information must not be made accessible to any non-authorised persons without the express written approval of XFAIR GmbH.
14.4 The confidentiality obligation does not apply to information which the customer lawfully obtained from third parties, are public, or which are subject to statutory disclosure obligations. If the customer believes they are obligated to do so, they must notify XFAIR GmbH, where permitted by law, in writing in due time prior to the disclosure to allow said to take level measures to prevent the disclosure. In this notice the customer shall inform XFAIR GmbH in a suitable manner, for example a written opinion of a solicitor, which confidential information must be disclosed. The customer will only disclose that portion of the confidential information which must be disclosed. The burden of proof for the existence of an exception to the confidentiality obligation is on the customer.
15 Place of fulfilment, jurisdiction, CISG
15.1 The place of fulfilment for the obligations of XFAIR GmbH is the registered office of the company unless otherwise stipulated in these T&C or by separate written agreement.
15.2 If the customer is a merchant or does not have a place of residence within the European Union, the place of business of XFAIR GmbH shall be the sole place of jurisdiction for all disputes between the parties, including bill of exchange and check litigation.
15.3 This contract is solely subject to German law under exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods.
16 Final provisions
16.1 These general terms and conditions contain all rights and duties of the contracting parties.
16.2 In the event individual provisions of this contract are or become invalid or unenforceable after the conclusion of contract, this does not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision closest to the economic objective pursued by the contracting parties in the invalid or unenforceable provision. The above provisions apply mutatis mutandis in the event the contract proves to be incomplete. Section 139 of the German Civil Code shall not apply.