General Terms and Conditions (GTC) auxamis limited
(per 01 January 2012)
Section 1 General Provisions and Scope
(1) These terms and conditions shall apply to all services rendered by auxamis Limited (hereinafter “auxamis”), provided there are no contradicting mandatory regulations. Related order content provided, these terms and conditions shall equally apply to all supplemental and follow-up orders.
(2) The respective terms and conditions of any purchaser or third party shall not apply, even if auxamis has not explicitly objected to them. Should auxamis refer to any correspondence relating to or containing such terms and conditions of any purchaser or third party, it shall not be construed as any consent whatsoever to the validity of any such terms and conditions.
Section 2 Quotation and Conclusion of Contract
(1) Any quotation issued by auxamis, provided an existing good cause pursuant to Section 3, paragraph 8, shall only be binding under the provisions and for the time set forth in the quotation. Auxamis shall be entitled to exclude any binding effect either in whole or partially, for example by adding “quotation subject to change without notice”. If auxamis excludes such binding effect in whole or partially, it shall be entitled to cancel the quotation until receipt of any declaration of acceptance, insofar as it is incapable to perform the offered service due to other orders it may have accepted in the meantime. Any such reservation to cancel shall be expressed by the phrase “quotation subject to availability”.
(2) Order confirmations issued by auxamis shall only confirm the accepted agency order and are subject to availability. Should auxamis fail to find a suitable service provider it shall be entitled to cancel such order, however, under the obligation to notify the purchaser about the non-availability and to reimburse any received remunerations.
Section 3 Services and Obligations
(1) Auxamis acts as an agency for services and service providers in the event industry. Any such placed service providers shall assign their remuneration claim against the purchaser to auxamis for non-recourse factoring. Therefore, auxamis shall settle any such claim in its own name with the purchaser. Objections of the purchaser against any such receivable shall not be permissible vis-à-vis auxamis as factor; Section 404 of the German Civil Code shall be excluded; therefore the purchaser shall waive the enforcement of its objections entitled to him vis-à-vis auxamis as factor pursuant to Section 404 of the German Civil Code.
(2) Auxamis shall be obligated to duly perform all services in full and in observance of the due date according to the contractual stipulations.
(3) Upon request of the placed service providers the purchaser shall confirm all rendered services, collect and provide all information necessary for rendering such services and provide any other required cooperative action.
(4) Any agreement on placed services shall be concluded between the purchaser and the service provider, thereby excluding auxamis.
(5) The purchaser shall monitor all works performed by auxamis or its placed service providers and review these immediately upon completion.
(6) The due date set forth for the performance of any service shall be extended appropriately in case of occurring circumstances beyond the influence of auxamis, its institutions or service providers that prevent such performance. In case of doubt, due observance of any such due date shall require the purchaser to provide all necessary documents, drawings, templates, plans, permissions, materials, information, facilities and mandatory approvals in advance and to duly observe all stipulated terms of payment. However, should the purchaser not fulfill such obligations to cooperate, the due date for the execution of services shall be moved according to the delay caused by the purchaser’s non-cooperation.
(7) Should the execution of any service be delayed due to reasons within the purchaser’s responsibility or upon its wish, auxamis shall be entitled to demand compensation for any additional expenses. Purchaser shall be entitled to provide proof of lesser expenses in each individual case.
(8) Provided the existence of a good cause, auxamis shall be entitled to reject performance of services, either in whole or partially. Good cause would be, for example, service providers working at illegal events, exceeding a credit limit granted by auxamis pursuant to Section 6, paragraph 7 or a negative credit assessment (conducted by Schufa Creditreform, Bürgel, etc).
Section 4 Liability
(1) Pursuant to Section 3, paragraph 4 of the present terms and conditions any agreement on placed services shall be concluded with the respective service provider and not with auxamis. Therefore, auxamis shall not be held liable for any damages that may incur to the purchaser due to illegal actions, unsatisfactory performance, non-performance or violations of main or ancillary obligations by any placed service provider or its respective agents. In any such case the purchaser shall consult with the respective service provider and report any damages to auxamis in writing.
(2) Liability of auxamis shall be defined as follows:
- a) The following non-liability and liability limitation clauses notwithstanding and pursuant to applicable law auxamis shall be liable for damage to life, body and health due to negligent or intentional violation of its obligations by auxamis, its institutions, its legal representatives, its employees or agents. Auxamis shall further be liable for damages covered by the German Law on Product Liability. Auxamis shall be held liable for damages both not covered by sentence 1 and due to intentional or negligent violations of obligations by auxamis, its institutions, its legal representatives, its employees or agents only to the extent pursuant to applicable law. In any such case the damage liability shall be limited to the foreseeable and usually incurring damage.
- b) Liability shall be excluded for damages not covered by sentence 1 of sub-clause a) and for damages due to simple negligent violations by auxamis, its institutions, its legal representatives, its employees or agents, provided no material contractual obligation has been violated. Provided liability of auxamis applies accordingly, its damage liability shall be limited to the foreseeable and usually incurring damage.
(3) Any technical advice or consultancy provided by auxamis that is not part of any contractual relationship shall be free of charge and any liability shall be excluded in such case.
(4) Any further liability shall be excluded, the legal nature of any damage claim notwithstanding. This equally applies to tortuous claims, claims for losses and any other pecuniary damages of the purchaser.
(5) The aforementioned liability provisions, including but not limited to the exclusions and limitations, shall equally and to the same extent apply to the institutions, the legal representatives, the employees and all other agents of auxamis.
(6) The purchaser shall continue to communicate any future changes, extensions and new orders to the placed service providers only via auxamis. The purchaser shall neither amend nor conclude any contract directly with the respective service provider. Any violation of this obligation shall be punishable by a penalty amounting to € 3,000.00, if applicable plus VAT, and the exclusion of continued relations. The purchaser shall be entitled to provide proof of lesser damage in each individual case.
(7) The purchaser shall report any defects to auxamis immediately upon gaining knowledge thereof. The aforementioned obligation to monitor shall be conditional to the gain of knowledge. Should any defect not be reported in time and in writing, the purchaser shall not be entitled to any damage claim whatsoever against auxamis.
Section 5 Termination and Withdrawal
(1) Any agreement on the placement of services and service providers may only be terminated by both parties for good cause, auxamis’ rights pursuant to Sections 2 and 3 as well as the following clauses notwithstanding. Good causes shall include but not be limited to the existence of circumstances that, under consideration of all circumstances of the individual case and all interests of the involved parties, prohibit the terminating party from further executing its contractual obligations under reasonable conditions. Should the purchaser terminate the agreement without good cause or should auxamis terminate the agreement due to a good cause within the purchaser’s responsibility, auxamis shall be entitled to the full expected or payable remuneration of the already executed parts of the order less saved expenditures.
(2) The purchaser shall be entitled to withdraw from the agreement within six weeks before commencement of the project. However, in any such case 20 % of the agreed remuneration shall be paid. Should the purchaser withdraw later and up to ten days before commencement of the project, 50 % of the agreed remuneration shall be due. Should the purchaser withdraw less than ten days before commencement of the project, the entire agreed remuneration less saved expenditures shall be due to auxamis.
(3) In each individual case the purchaser shall be entitled to provide proof of no or lesser damage incurred to auxamis.
(4) Termination and withdrawal shall be effected in writing.
Section 6 Remuneration and Terms of Payment
(1) The placement of service providers shall be invoiced by auxamis based on the performance of services by the respective service provider. No service provider shall invoice directly, as they have assigned their remuneration claim against the purchaser to auxamis for non-recourse factoring. The following provisions shall apply equally to both the claims of auxamis and to the claims of the service providers against the purchaser that were assigned to auxamis.
(2) The purchaser shall pay to auxamis the remuneration for the agreed services as per individual agreement or per quotation. All prices are net prices subject to the applicable VAT of the country of delivery (place of execution).
(3) If not otherwise agreed, the performance of any service by auxamis, including but not limited to services for new clients, shall require advance payment. Any agreed discount shall be considered accordingly.
- a) Should the purchaser fall behind on such advance payment or should auxamis gain knowledge of any circumstances justifying a significantly reduced creditworthiness of the purchaser, auxamis shall be entitled to demand the immediate payment of all due amounts payable, including amounts from other contractual relationships. Any such circumstances shall include but not be limited to the cessation of payment, the opening of insolvency proceedings or judicial settlement proceedings, bill or check protests. In any such case auxamis shall be entitled to perform further services subject to advance payments or security deposits only or to withdraw from the agreement and to file damage claim.
- b) However, should auxamis commence performing services without advance payment or upon partial advance payment only, it shall remain entitled to demand full payment less any agreed discount at any time and for good cause before further performance. Commencement of any service by auxamis does not represent any waiver of its right to receive full advance payments whatsoever.
- c) Should auxamis commence performing services and demand payment before continuing, smooth continuation of the order shall be ensured by the purchaser by producing suitable documents to proof the purchaser’s effected payment or by effecting such payment in cash.
- d) In case the purchaser does not effect immediate payment upon notice and fail to produce the necessary documents to proof such payment, auxamis shall be entitled to withdraw from the agreement and to file damage claim.
(4) Should auxamis not make use of its right to receive advance payment and if not otherwise stated in auxamis’ quotation, the invoiced amount shall be payable immediately after invoicing without any discount.
- a) Submission by fax or e-mail shall be sufficient for invoicing.
- b) Any discounts shall be agreed upon in writing and shall be based on the quotation value. Timeliness of payment and discount shall be subject to either the credit value date on the business account of auxamis or the date of handover of the invoice amount in cash.
- c) The purchaser shall bear any banking fees or other transfer costs that might incur due to payments by bank transfer to the account of auxamis with a German bank or savings bank.
(5) If not agreed otherwise in writing, all payments shall be effected via bank transfer or in cash. Checks shall only be accepted as conditional payment and only after special agreement. In case of default of payment auxamis shall be entitled to claim without any reminder default interest at a rate of 8 percentage points above applicable ECB base interest rate. Higher damages claims caused by such default shall remain unaffected.
(6) Pursuant to Section 366 of the German Civil Code auxamis shall be entitled to use payments for previous liabilities of the purchaser. If additional costs and interest have already incurred, auxamis shall be entitled to use payments to compensate first for such additional costs, then for the interest and afterwards for the principal claim (Section 367 of the German Civil Code). Should, however, the purchaser decide on different redemption terms, auxamis shall be entitled to reject payment.
(7) Terms of payment shall apply only to the individual credit limit granted per order. Determination of a new credit limit shall factor in all receivables from current or previous agreements. Upon exceedance of the currently granted credit limit auxamis shall be entitled to demand the remaining order value in advance. In case of a subsequent deterioration of the purchaser’s creditworthiness or exceedance of the current credit limit, auxamis shall remain entitled to make use of its rights under Section 6, paragraph 3.
(8) Should the purchaser remain in default of full or partial payment after a supplemental reminder, auxamis shall have the right to terminate the agreement without notice.
Section 7 Exclusion of Set-Off and Right of Retention
The purchaser shall only be permitted to set off legally established and undisputed counter claims against claims of auxamis. The purchaser shall only be entitled to execute its right of retention if it arises out of the same contractual relation.
Section 8 Non-Assignment clause and Limitation Period
(1) Assignment of the purchaser’s claims against auxamis shall not be permitted.
(2) All claims shall lapse after 12 months, regardless of their legal grounds. Begin of the limitation period shall be governed by applicable law. Any damage claims unrestricted by liability limitations shall be governed by applicable mandatory limitation periods.
Section 9 Confidentiality and Protection of Data
(1) The purchaser shall make use of operational secrets, documents, experience and know-how of auxamis, its partners and clients only to the extent required to fulfill its contractual obligations and treat any such information as confidential vis-à-vis third parties. This confidentiality obligation shall remain in full force for two more years after termination of the respective agreement.
(2) The purchaser shall treat as completely confidential all information about auxamis that are not included in the official promotional documents, releases or in the media.
(3) The purchaser shall keep all documents, materials, and data storage media provided to it by auxamis duly protected from third parties.
(4) After completion of all contractual obligations or upon completion of any individual order the purchaser shall return all order-related documents, materials, information, and copies thereof provided to it within the scope of the respective order without delay and without notice to auxamis. No right of retention shall be granted in this matter.
(5) The purchaser agrees to both use and treatment of its inventory data by auxamis to the extent required for providing consultancy services for the purchaser, for promotional and own market research purposes, and for the appropriate organization of auxamis’ services. The purchaser agrees to the use of its data for marketing purposes and permits auxamis to inform the purchaser about interesting offers via e-mail.
(6) The purchaser shall be entitled to withdraw its consent and to object to the use of its data at any time.
(7) The purchaser agrees to the storage of its data from the contractual relationship by auxamis pursuant to Section 28 of the German Data Protection Act for the purpose of data processing. Auxamis shall reserve the right to transmit any such data, to the extent required to fulfill the agreement, to third parties.
Section 10 Applicable Law and Place of Jurisdiction
(1) The underlying agreement including these general terms and conditions as well as the entirety of the parties’ legal relationships shall be governed by the law of the Federal Republic of Germany.
(2) Where the purchaser is a registered trader, a legal person governed by public law or a special entity governed by public law, the place of performance and jurisdiction for all disputes between the parties which may, either directly or indirectly, arise out of the contractual relationship shall be the registered office of auxamis. Each party’s respective right to bring action against the respective other party at its own venue of jurisdiction shall remain unaffected.
Section 11 Final Provisions
(1) All agreements between the parties in respect of the contractual relationship shall be set forth in writing in the respective agreement.
(2) Should one or more provisions of these terms and conditions be or become invalid, the remaining provisions shall remain unaffected. Any such invalid provision shall be replaced by an appropriate valid provision that comes closest to the originally intended economic purpose and distribution of risks of the respective contractual relationship.
(Per 01 January 2012)
Phone: +49 30 200 89 28 0
Fax: +49 30 200 89 28 29
Commercial register: B 138448
Court of registry: Local Court Charlottenburg
Managing Director: Patrick Harnisch