General terms and conditions

1. Scope of application

a. Diese allgemeinen Geschäftsbedingungen sind Bestandteil aller Angebote und Verträge, insbesondere über Leistungen und Warenlieferungen der Cinetica GmbH, nachfolgend CINETICA, im Geschäftsverkehr mit Dritten, auch für alle laufenden oder künftigen Geschäftsbeziehungen.

b. These general terms and conditions apply exclusively. Deviating conditions of the customer, buyer or tenant or other deviating agreements only apply if CINETICA has expressly agreed in writing. This also applies in particular to conflicting purchase or rental conditions. These only become part of the contract after express written approval.

Such approval is expressly limited to the individual case, even in the case of current or future business relationships, without prejudice to further business transactions. Insofar as an order or rental is based on purchasing or rental conditions, a subsequent delivery or service is not to be regarded as approval of the purchasing conditions, but as a new offer including these general terms and conditions. Acceptance of the delivery or service by the customer/buyer or lessee is considered acceptance.

2. Offer, conclusion of contract, terms of payment, sales tax

a. All offers are generally non-binding. After confirmation of the acceptance of the offer and other orders by the lessee, the contract only comes into effect when CINETICA confirms the order in writing (also by fax or e-mail). This applies in particular to any supplements, ancillary agreements or deviations from these General Terms and Conditions.

If a delivery/service is provided without a prior express order confirmation from CINETICA, the contract comes into existence upon acceptance of the delivery/service by the orderer/buyer/tenant, see Section 1.b. of these general terms and conditions.

b. The properties and services specified in the offer/the description of services comprehensively and conclusively determine the scope and properties of both the delivery/rental items and the other services of CINETICA. Supplementary offer documents such as drawings, illustrations, weight and other dimensions are approximate unless they are expressly designated as binding by CINETICA.

c. CINETICA exclusively reserves all property rights and copyrights to all offer and contract documents that have been handed over. The offer/contract documents may not be made available to third parties in digital or paper form or used as a basis for tenders or in-house productions by the customer/buyer/renter, even partially or in part, without the prior express written consent of CINETICA.

d. In the case of services/deliveries whose technical characteristics are specified by the customer/buyer/renter, he is responsible for ensuring that this does not infringe on the property rights of third parties. In this respect, the customer/tenant undertakes to release CINETICA from liability in the event that claims for damages are asserted against it by third parties.

e. The prices stated in the offer/description of services apply. In the case of an ongoing business relationship, the prices valid on the day of delivery/rental apply. Invoices are issued in euros plus the applicable statutory value-added tax.

f. Unless otherwise agreed, invoices are due for payment immediately upon receipt without deduction. A discount deduction requires a separate written agreement. Default of payment occurs without further reminder 30 days after invoicing. The decisive point in time is the day of irrevocable receipt of payment by CINETICA.

Interest on arrears for all open claims of CINETICA against registered traders is 9% above the respective base rate according to Section 1 of the Discount Transition Act, for private individuals 5% above the base rate according to Section 1 of the Discount Transition Act, Section 247 of the German Civil Code.

g. Any discounts granted will be forfeited in full if the customer/buyer/renter is in default of payment.

h. CINETICA can issue interim invoices and demand appropriate advance payments accordingly.

i. If the orderer/buyer/renter is in default of payment with regard to an interim invoice, CINETICA is entitled to prohibit further use of the delivered or rented items with immediate effect and to demand their return. This applies to all claims from the business relationship.

j. Invoices are to be paid free of postage and expenses. In particular, CINETICA is not obliged to accept checks or bills of exchange. These are always only accepted on account of performance. CINETICA is entitled to offset payments against the older liabilities, even if the orderer/buyer/tenant has different purposes. Payments are always credited first to the costs incurred by CINETICA, then to the interest and finally to the main claim.

k. The orderer/buyer/renter is only entitled to set-off or retention rights due to his own claims if these have been legally established or are undisputed.

l. If CINETICA mistakenly treats a turnover as non-taxable or tax-free, although the turnover is subject to turnover tax, CINETICA can subsequently demand the actually incurred turnover tax from the orderer / buyer / tenant as soon as CINETICA has issued a corrected invoice for this.

3. Delivery, shipping, liability for previous damage

a. Delivery dates and times of performance are binding if they are included in the offer and in the order confirmation and nothing else has been agreed.

b. In the event of a delay in delivery/service, CINETICA is only liable in cases of intent or gross negligence in accordance with the statutory provisions. Liability in the event of gross negligence is limited to the foreseeable damage that is typical for the contract, insofar as liability for injury to life, limb or health is not affected.

Otherwise, liability for delays in performance is limited to 10% for damages in addition to performance and to 25% of the value of the originally agreed service for damages in lieu of performance. In the event of impossibility of delivery/service, CINETICA is only liable in the event of intent or gross negligence in accordance with the statutory provisions.

Liability in the event of gross negligence is limited to the foreseeable damage typical of the contract, insofar as liability for injury to life, limb or health is not affected. Otherwise, liability for impossibility for damages and reimbursement of wasted expenses is limited to a total of 35% of the value of the originally agreed delivery/service. Further claims of the customer are excluded. The customer's right to withdraw from the contract remains unaffected.

A change in the burden of proof to the detriment of the orderer/buyer/tenant is not associated with the above provisions.

c. The place of performance and performance is the headquarters of CINETICA or the warehouse of CINETICA, insofar as the delivery/service is provided at another location at the request of the customer/renter. The risk passes to the customer, the forwarding agent, carrier or other third party commissioned with the shipment at the latest when the delivery item is handed over.

Decisive for this is the start of the loading activity, which is the responsibility of the customer, carrier or other commissioned third party. The departure of the delivery item from CINETICA's operating or storage building is considered to be the beginning of loading, regardless of whether CINETICA is involved in loading. If other services such as construction or installation have been agreed, the risk passes when the operational readiness is established.

If the orderer/buyer/renter is in default of acceptance, the risk passes to the orderer/renter for the duration of the delay in both cases.

d. The orderer/buyer/renter is obliged to inform CINETICA comprehensively about the intended use of the rented items, as well as the exhibition location and, on request, the current location.

e. The orderer/buyer/renter is obliged to check the delivery/rented items and any accessories immediately upon handover and/or after assembly for completeness, perfect condition, full functionality and safety, as far as possible and reasonable. In any case, the customer/lessor is obliged to carry out a full test before commissioning. Any defects, errors, incompleteness, etc. must be reported to CINETICA immediately, if necessary in advance by telephone and in writing.

Otherwise, possible warranty and damage claims are void without replacement.

4. Cancellation by Customer

a. The orderer/buyer/tenant has the right to terminate the service/rental contract in accordance with the following provisions if the rented item has not yet been handed over or a service has not yet been rendered. To be effective, the cancellation must be in writing and must be received by CINETICA in good time.

b. If the orderer/buyer/renter cancels, for whatever reason, or refuses to accept the services offered by CINETICA, CINETICA is entitled to compensation for the expenses incurred and the lost sales from the orderer/renter as follows:

– up to 21 calendar days before the agreed start of delivery/rental/service: 40% of the order value;

– up to 14 calendar days before the agreed start of delivery/rental/service: 60% of the order value;

– up to 7 calendar days before the agreed start of delivery/rental/service: 80% of the order value.

If the cancellation occurs less than 48 hours before the agreed delivery time, CINETICA is entitled to 100% of the order value. This also applies if the customer/buyer/tenant refuses to accept the service after the due date. This does not affect the right of the customer/tenant to prove that CINETICA suffered no damage or less damage.

If the service offered has not been accepted by the agreed time, CINETICA is entitled, after setting a deadline, to withdraw from the contract and offer the agreed services elsewhere. The order value within the meaning of this clause is the total gross order value, i.e. the agreed remuneration for rent and other services including taxes and expenses.

5. Termination by CINETICA

a. The contractual relationship can be terminated by CINETICA for good cause. Such an important reason exists in particular if:

– the economic circumstances of the customer/buyer/tenant have demonstrably deteriorated significantly since the conclusion of the contract, i.e. in particular if seizures or other enforcement measures have been taken against the customer/tenant or insolvency proceedings or out-of-court composition proceedings have been applied for over his assets or one of these measures /proceedings are to be expected immediately. The customer/tenant can avert the termination by providing sufficient security.

– the orderer/buyer/tenant uses the rental items in breach of contract and continues to use the rental items in breach of contract despite a warning with a deadline.

– the orderer/buyer/tenant is more than three working days in arrears with the payment of two consecutive dates in the event of rent being calculated and payable according to periods of time.

b. In the event of termination for good cause by CINETICA, CINETICA is entitled to collect items already provided to the customer/buyer/tenant at the customer's/tenant's expense. In this respect, the customer/renter has no right to refuse performance or a right of retention. For this purpose, the customer/tenant already now allows CINETICA unhindered access to the rooms and areas in and/or on which the rented items are located.

Insofar as third-party rights conflict with this, the customer/renter assigns all claims against the third party for the surrender of the items to CINETICA upon conclusion of the contract. This accepts the assignment upon conclusion of the contract.

6. Liability and Warranty

a. Claims for defects do not exist in the case of an only insignificant deviation from the agreed quality or only insignificant impairment of the usability. Otherwise, CINETICA is liable as follows:

– If the delivered item has a defect at the time of the transfer of risk that makes it unsuitable for the contractual use or significantly impairs it, CINETICA has the right to choose between a remedy of the defect or a new delivery.

– Otherwise, CINETICA is only liable in the event of intent or gross negligence in accordance with the statutory provisions, due to injury to life, limb or health, or culpable violation of essential contractual obligations. The claim for damages for violation of essential contractual obligations is limited to the contract-typical, foreseeable damage, even in the case of gross negligence, provided that none of the aforementioned exceptional cases are affected.

Liability for damage to legal assets of the customer/buyer/tenant is excluded. This does not apply if there is intent or gross negligence, or because of injury to life, limb or health.

– the above regulations extend to damages in addition to performance and damages instead of performance, regardless of the legal reason, in particular due to defects, the breach of essential obligations from the contractual relationship or tort. It also applies to claims for reimbursement of futile expenses. The regulations on liability for delay and impossibility according to these conditions remain unaffected.

A change in the burden of proof to the detriment of the customer / buyer / tenant is not associated with this.

– The orderer/buyer/tenant is obliged to notify CINETICA immediately of any disruptions to performance and to help eliminate the disruption as far as possible. Otherwise, a claim for a reduction in the rental price is excluded.

– the orderer/buyer/tenant undertakes upon conclusion of the contract to indemnify CINETICA against all third-party claims that are raised against CINETICA in connection with the rental of objects. This also includes the costs incurred by CINETICA for defending itself against third-party claims.

b. The limitation period for claims and rights due to defects in deliveries/services, regardless of the legal reason, is one year. This also applies to all claims for damages against CINETICA that are related to a defect, regardless of the legal basis of the claim, and all claims for damages of any kind against CINETICA that are not related to a defect.

The aforementioned limitation periods apply with the proviso that the claims are not based on intent, the fraudulent concealment of a defect or the assumption of a guarantee for the quality of the delivery/service. In this case, the statutory limitation periods apply, as they would be applicable in the absence of fraudulent intent.

Furthermore, the aforementioned limitation periods do not apply in cases of injury to life, limb or health or freedom, grossly negligent breach of duty or breach of essential contractual obligations. In the case of claims, the limitation period begins with the delivery, for other services with the acceptance. Unless expressly agreed otherwise, the statutory provisions on the start of the limitation period, the suspension of expiry, the suspension and the new start of periods remain unaffected.

A change in the burden of proof to the detriment of the client is not associated with the above regulations.

7. Jurisdiction, Applicable Law and Final Provisions

a. For all disputes arising from the contractual relationship, insofar as the customer is a merchant, a legal entity under public law, or a special fund under public law, or he has no general place of jurisdiction in Germany, the district court or district court of Munich is responsible. CINETICA remains entitled to sue the customer/buyer/tenant at his registered office or place of jurisdiction.

b. German law also applies to the contractual relationships.

c. If one or more clauses of the above terms and conditions is ineffective, the rest of the contract remains effective. An ineffective clause is to be replaced by an effective one that comes as close as possible to the intended regulation. Verbal ancillary agreements are not made. All additional agreements between CINETICA and the customer/buyer/tenant must be in writing.

8. Subcontractors

CINETICA is permitted to commission selected subcontractors with the provision of services.

Updated 01.06.2022