These Terms for Fitting Service Clients (in the following referred to as “these Terms” or “this agreement”) apply to all orders in which the Client commissions XTHSENSE for operation Fitting Services.

1. DEFITIONS

 

“XTHSENSE” is the company is owned by Ramón Szellatis (VAT-ID: DE310615107, TAX-ID: 124 / 5114 / 3107), with registered office at: Friedhofstraße 5, 46045 Oberhausen, NRW, Germany, 

 

“Client” is any company that requests, negotiates or commissions XTHSENSE to perform operations involving craftsmanship, for example (but not limited to) the assembly or dismantling of trade show stands and shop fitting works.

 

“Fitting Services” (in the following also referred to as “services” or “performances”) means any service of craftsmanship, such as the assembly or dismantling of stands at trade shows, exhibitions, congresses, conferences, or shop fitting, interior fitting, scene build up, staging, or any other construction services, whether mounting, demounting, installation, take down, production, maintenance, reparation or similar.

 

 

2. GENERAL PROVISIONS

 

2.1. Any terms and conditions of the Client or third parties do not apply, even if XTHSENSE does not specifically contradict their validity in individual cases. Even if these Terms refer to a letter that contains or refers to the terms and conditions of the Client or a third party, it does not constitute an agreement with the validity of those terms and conditions.

 

2.2. These Terms apply only to entrepreneurs, legal entities under public law or special funds under public law. An entrepreneur within the meaning of these Terms is any natural or legal person or partnership with legal capacity, with which a business relationship is entered into, and which acts in the exercise of a commercial or independent activity.

 

 

3. OFFERS AND ORDERS

 

3.1. Subject to an important reason according to section 4.6 of these Terms, XTHSENSE is only bound to their written offer, as set out in the respective offer. XTHSENSE may exclude the binding offer in whole or in part, e.g. by adding a non-binding offer. Insofar as these Terms exclude the binding offer in whole or in part, XTHSENSE is entitled to reserve the right to withdraw their offer until receipt of the acceptance declaration, insofar as it is prevented from executing the offer as a result of an interim confirmation of other orders. The declaration of a corresponding reservation in the offer is made, for example, by the supplement offer subject to availability.

 

3.2. A contract is only concluded with the written conclusion of an according contract or the written confirmation of the offer that XTHSENSE sends to the Client, but at the latest with the commencement of the execution of the service. The nature and extent of the services that XTHSENSE operates for the Client are determined - unless otherwise agreed - solely according to the content of the contract concluded or the confirmation of the contract offer. 

 

3.3. Information on any websites of XTHSENSE does not represent the assumption of a warranty or a risk of quality.

 

 

4. SERVICES

 

4.1. When a service contract is concluded between the Client and XTHSENSE, then XTHSENSE reserves it right to commission vicarious agents (subcontractors) for the fulfillment of the contractual obligations.

 

4.2. Complaints about or from the vicarious agents must be notified to XTHSENSE no later than on the first day of the execution of the order or immediately after the reason for the complaint becomes known. In the event of a justified complaint, the Client is entitled to request the replacement of the vicarious agents in writing. If the Client breaches his obligation to give notice, he cannot derive any rights from this.

 

4.3. The terms and dates mentioned in the contract for the performance of the service are non-binding information, unless XTHSENSE expressly designates the date of performance as binding or fixed transaction in writing. The service dates are agreed in principle according to the expected performance capacity of XTHSENSE and are without obligation and subject to timely availability of the employed vicarious agents of XTHSENSE as well as unforeseen circumstances and obstacles, regardless of whether these occur at XTHSENSE or at the vicarious agents, in particular force majeure, state measures, non-issue of official permits, industrial disputes of any kind, sabotage, etc.

 

4.4. A bindingly agreed period for the provision of the service shall be extended appropriately, insofar as XTHSENSE is prevented from complying with this by circumstances for which neither it nor its organs or vicarious agents are responsible. In case of doubt, the observance of the deadlines presupposes the prior receipt of all documents, drawings, templates, plans, permits, approvals subject to participation, the observance of agreed payment terms and the provision of material, information and facilities necessary for the successful and complete performance of the services of XTHSENSE. If the Client fails to comply with this duty of cooperation, the date of fulfilment shall be extended by the duration of the corresponding delay and subject to availability.

 

4.5. If the provision of the service is delayed due to a circumstance attributable to the Client or at his request, XTHSENSE is entitled to demand compensation of the necessary additional expenses. The Client is free to prove a lesser damage in individual cases.

 

4.6. XTHSENSE is entitled at any time to refuse the execution of the services in whole or in part and independently of a binding offer, if there are substantial reasons. An substantial reason would be e.g. the use of the service providers at an illegal event, the exceeding of a credit limit granted by XTHSENSE, or the negative result of a credit check from a rating institute or rating company (e.g. at Schufa, Creditreform, etc.).

 

4.7. If the order includes not only a service but also a contractual obligation to produce a work, a separate contract shall be concluded individually.

 

 

5. TERMS OF PAYMENT

 

5.1. The Client pays XTHSENSE for the specified services, the remuneration agreed in the order. All prices are net prices and are subject to the applicable value added tax laws. Agreed hourly rates are charged in full without deduction of breaks and for each commenced hour. The minimum operating time per working shift and per craftsmen booked, is set out in the order documents, this means that even in the case of a shorter operating time, the Client must pay the value for the minimum operating time.

 

5.2. The provision of the services by XTHSENSE takes place - especially in the case of new customers - in principle against full payment in advance. Discounts  are not agreed.

 

5.3. If the Client is in default with the advance payment, XTHSENSE is entitled to withdraw from the contract and omit any remaining operations. Any operations that should have been executed by the time at which XTHSENSE withdraws from the contract, must be paid by the Client under the agreed terms and subject to these Terms. 

 

5.4. If XTHSENSE starts providing its service without an advance payment or only a partial advance payment, it is nevertheless entitled at any time to make the further execution of the order dependent on the payment of the entire order amount in advance, if applicable. The start of the service without advance payment does not mean that XTHSENSE waives the right to demand an advance payment in the amount of the estimated order value (based on the operation parameters as set out in the order documents).

 

5.5. If XTHSENSE requires advance payment during an order that has already begun and makes further implementation dependent on the advance payment, in order to ensure the smooth continuation of the order, the advance payment must be proven by the Client using appropriate documents or made in cash. The Client warrants to make the advance payment and shall proof the advance payment by sending suitable documents (such a bank statement of transfer) to XTHSENSE, immediately upon such a request made by XTHSENSE.

 

5.6. If the Client does not make advance payment in due time or does not proof the advance payments with suitable documents upon request made by XTHSENSE, then XTHSENSE entitled to withdraw from the contract, omit any remaining operations and claim damages (including loss of profits).

 

5.7. The advance payment is obligatory from the time of order conclusion and does not require that XTHSENSE sends an invoice prior to the advance payment, i.e. XTHSENSE may send the invoice about the advance payment also after the advance payment. Any amount invoiced which does not refer to an advance payment, must be paid within 14 days after the invoice date.

 

5.8. For purposes of accounting and any other communication which does not legally require postal letters, it is sufficient if the information is sent by email. XTHSENSE does not use fax, and therefore fax is not a valid medium for any communication.

 

5.9. The Client carries all fees for transfers that the Client makes to the bank account of XTHSENSE.

 

5.10. Unless otherwise agreed in writing, all payments must be made by bank transfer to the international bank account number, that XTHSENSE has provided in the order documents. Checks are not accepted. If the Client is in default of payment (whether payment of order values or other receivables that XTHSENSE has towards the Client), XTHSENSE is entitled to charge the Client interest for the time of default in the amount of 8% (eight percent) above the applicable base interest rate, and reimbursement for administrative expenses for sending written reminders. The assertion damages caused by default remains unaffected.

 

5.11. XTHSENSE is entitled to offset any receivables and liabilities against outstanding amounts. If costs or interest have already been incurred as a result of the delay, XTHSENSE is entitled to offset payments first against such costs, then against the interest and finally against the main claim, and the Client agrees with this this, Client if the Client states that a payment serves another purpose, whereby XTHSENSE may at its own discretion refuse such payments.

 

5.12. If there are outstanding payments from an older order or defaulted advance payments from another current order, then XTHSENSE is entitled to withdraw from contract and omit remaining operations in respect of new orders, if the Client does not pay such outstanding or defaulted payments, and the Client may not claim any damages from XTHSENSE which are based on circumstances related to this context.

 

 

6. LIABILITY

 

6.1. The liability of XTHSENSE for damages, regardless of their legal grounds, (and in particular for impossibility, delay, breach of contract, breach of obligations in contract negotiations and tort), is limited in accordance with the provisions of this section 6 insofar as fault is involved.

 

6.2. XTHSENSE is not liable:

 

a) in case of slight negligence of its organs, legal agents, employees, or other vicarious agents; and

 

b) in case of gross negligence of its non-managing employees or other vicarious agents, insofar it is not a result of a breach of essential contractual obligations.

 

6.3. Insofar as XTHSENSE should be liable for damages, such liability shall be limited to damages which were foreseeable. A damage is foreseeable if it is either obvious, or if the Client and XTHSENSE know or should know about it (in the exercise of normal traffic care), or if Client and XTHSENSE knew it could occur at the time of the conclusion of the related order.

 

6.4. In the event of liability for slight negligence, the liability of XTHSENSE for damages to property or persons (even in the case of a breach of essential contractual obligations), is limited to the respective coverage amounts of the insurance of XTHSENSE. In case this liability limitation should not be applicable, then the liability limitation shall be limited to 15% (fifteen percent) of the order value of the respective order, which is subject of the damage claim, which represents the approximate margin of XTHSENSE earned through an order.

 

6.5. The exclusions and limitations to the liability of XTHSENSE as set out in the sections 6.1 - 6.4, shall apply to the same extent for organs, legal representatives, employees, and other vicarious agents of XTHSENSE.

 

6.6. Insofar as XTHSENSE provides information which exceeds the contractually agreed scope of service (as set out in the respective order documents), shall be done free of charge and without any liability, and do not represent any recommendation or consulting, but solely a subjective opinion of XTHSENSE, which the Client is responsible to evaluate on its own or with a third party professional, before making any decision for executing any operations in relation such information.

 

6.7. XTHSENSE is not liable without their own fault. The constructional and organizational planning of the building site and the delegation of tasks to our workers on site, is fully at the Client’s area of responsibility, as XTHSENSE solely provides labour based upon the requirements that the Client provides. Where compliant with applicable law, neither XTHSENSE nor its vicarious agents are liable, if XTHSENSE can provide reasonable information suggesting that the damage which is alleged to be caused by XTHSENSE or its vicarious agents, is fully or partially caused by inappropriate planning or withholding important information by the Client, in a way that it could have inhibited or impaired the possibilities of XTHSENSE or its vicarious to prevent or mitigate the damage, or could have made such a  prevention or mitigation impossible; e.g. by lack of security measurements on site, chaotic logistics, material of poor quality, instructions of the site manager, faulty building plan documents, unqualified employees of the Client, entrance barriers to the building site, or wrong information provided by the Client which XTHSENSE has used as parameters in the order documents.

 

6.8. A fault to a damage by XTHSENSE is only effective if it is legally established by a court of jurisdiction or if the fault of XTHSENSE is undisputable by applicable law.

 

6.9. The provisions set out in the sections 6.1 – 6.8 are neither meant nor to be understood as exclusion of the liability of XTHSENSE for intention, willful deception, injury to life, body or health, or under the German Product Liability Act (“ProdHaftG”), or any other circumstance which would be illegitimate or ineffective under applicable law.

 

 

7. TERMINATION

 

7.1. The contract can only be terminated by both parties (XTHSENSE and the Client) for important reasons. An important reason exists, in particular if there are facts on the basis of which the terminator can no longer be expected to continue the contract, taking into account all the circumstances of the individual case and taking into account the interests of XTHSENSE and the Client to the contract. If the Client terminates the contract without an important reason, or if XTHSENSE terminates the contract for an important reason for which the Client is responsible for, then XTHSENSE retains the full compensation claim, still open or to be expected for the contract, less any saved expenses. 

 

7.2. XTHSENSE and the Client reserve their right to prove greater or lesser damage. Contract termination shall be in writing. XTHSENSE reserves its right to terminate the contract also for reasons that justify the omission of executing remaining operations or withdrawing from the contract, where such reasons are mentioned in these Terms or in the order documents.

 

 

8. DEFAULT AND WITHDRAWAL

 

8.1. The Client is entitled to withdraw from the contract free of charge, not later than fourteen German working days prior to the commencement of the agreed operations.

 

8.2. If the Client’s withdrawal within seven German working days prior to the commencement of the agreed operations, the Client is obliged to reimburse at XTHSENSE’s discretion, up to 50% (fifty percent) of the estimated order value.

 

8.3. If the Client’s withdrawal within two German working days prior to the commencement of the agreed operations, the Client is obliged to reimburse at XTHSENSE’s discretion, up to 100% (one hundred percent) of the estimated order value. XTHSENSE may claim loss of profits grounded on the Client s withdrawal, if XTHSENSE can provide reasonable information suggesting, that XTHSENSE could not accept another order due to reserving vicarious agents to fulfill the agreed operation for the Client.

 

 

9. OFFSETTING EXCLUSION

 

The Client has the right to offset, only if his counterclaims have been legally established by a court in jurisdiction or if the claims are undisputed by law. The Client is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

 

 

10. CONFIDENTIALITY

 

10.1. The Client shall keep confidential any business secrets, documents, experience,  statements, correspondence, agreements, and knowledge of or about XTHSENSE, its vicarious agents, and its other clients. The confidentiality means that the Client must ensure at all times (and apply suitable measures), that he does neither give the confidential information to thirds nor intendedly or unintendedly enable thirds to access or view confidential information, whereby any third party which is legally entitled, remains unaffected (such as lawyers, courts, or tax authorities). Any information which is made public by XTHSENSE itself, is subject not to confidentiality.

 

10.2. This obligation to confidentiality according to section 10.1. shall remain in force for two years after the latest order between XTHSENSE and the Client has been concluded.

 

10.3. After the contractual services have been carried out or after the individual order has ended, the Client will immediately and without request send all documents, materials and information handed over as well as copies thereof created within the scope of and in connection with the individual order to XTHSENSE hand back. There is no right of retention in this respect. 

 

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11. SOURCE PROTECTION

 

11.1. Without written permission of XTHSENSE, the Client shall under no circumstance conduct any direct or indirect business with any of XTHSENSE’s vicarious agents (including any of their vicarious agents, or subcontractors of their vicarious agents), that:

 

a) have been directly or indirectly commissioned by XTHSENSE for partial or entire fulfillment of operations agreed between XTHSENSE and the Client; or

 

b) have been mentioned by XTHSENSE towards the Client upon request of the Client; or

 

c)  have been mentioned by vicarious agents of XTHSENSE during or in relation with operations that these vicarious agents have performed for the Client under commission of XTHSENSE.

 

11.2. The provisions as set out in section 11.1. (in the following referred to as “Source Protection”) shall remain effective for two years after the latest order between XTHSENSE and the Client has been concluded, but do not affect business partners that the Client itself has evidently and contractually commissioned before one of the events in section 11.1. letter a – c, has initially triggered the application of the Source Protection in respect of the particular vicarious agent.

 

11.3. Unless explicitly stated otherwise in individual case, any permission that XTHSENSE should give to the Client as exception to the Source Protection, is to be understood only for one particular order (that refers to no more than one building site) between the Client and the respective vicarious agent and shall not be deemed as general permission for the Client to commission the respective vicarious agent or other vicarious agents. Moreover, such a permitted order between the Client and the respective vicarious agent, shall be treated as renewal of the two-year period mentioned in section 11.2, as if it was an order between the Client and XTHSENSE that would renew the Source Protection.

 

11.4. The customer shall immediately notify XTHSENSE if he commissions a vicarious agent that was, within twelve months prior to this commissioning, subject matter to Source Protection.

 

11.5. If the Client should be in breach of the Source Protection, the Client is obliged to pay XTHSENSE a compensation, which is assessed based on the remuneration which the Client has paid (or has agreed to pay with the respective vicarious agent) to the respective vicarious agent for the operations that are subject matter to the breach of Source Protection (in the following referred to as “Affected Remuneration”); and this compensation is, in case of the Client’s:

 

a) slight negligent Source Protection breach, 25% (twenty-five percent) of the Affected Remuneration plus a fix penalty of 500 € (five hundred Euro); and

 

b) gross negligent Source Protection breach, 50% (fifty percent) of the Affected Remuneration plus a fix penalty of  1000 € (one thousand Euro); and

 

c) intended or knowingly accepted Source Protection breach, 100% (one hundred percent) of the Affected Remuneration plus a fix penalty of  2500 € (two thousand and five hundred Euro).

 

11.6. The fix penalty for as set out in section 11.5, shall be increased for each repeated Source Protection breach, in the amount of:

 

a) 50 € (fifty Euro), in case of slight negligent repeated Source Protection breach; and 

 

b) 100 € (one hundred Euro), in case of gross negligent repeated Source Protection breach; and 

 

c) 500€ (five hundred Euro), in case of intendedly repeated or knowingly accepted repeated Source Protection breach (“malicious intent”).

 

11.7. The Client’s obligation to pay XTHSENSE the compensations and penalties for Source Protection breach according to the sections  11.5 and

 

11.6. does not prerequisite any notification of XTHSENSE, and the receivables of XTHSENSE (and therefore also the liabilities of the Client) for these compensations and penalties come into effect in the moment of the respective Source Protection breach. 

 

11.8. Each single Affected Remuneration (per infringing order and per vicarious agent), constitutes an individual Source Protection breach, and shall be treated as renewal of the two-year Source Protection period set out in section 11.2, as if it agreed by an order between the Client and XTHSENSE that would renew the Source Protection.

 

11.9. The maximum amount (including compensation and penalty) per Source Protection breach, that the Client is obliged to pay to XTHSENSE, shall not exceed 15% of the average monthly turnover that the Client has realized within twelve months prior to the Source protection breach, whereby this limitation shall only apply, if the Client proves these turnovers to XTHSENSE.

 

11.10. If XTHSENSE should have reasonable information (not proving but) suggesting that the Client is in breach of the Source Protection (such as various or weightful indications, or a statement of a third party made under penalty of perjury), then:

 

a) XTHSENSE may notify the Client and the Client may then within fourteen days, send to XTHSENSE suitable information to oppose the alleging suggestions and a statement under penalty and perjury, that the opposing information is accurate, and that the Client has good faith belief, the suggestions are wrong (in the following referred to as “counter notification”); and

 

b) the Client will grant XTHSENSE (and/or XTHSENSE’s lawyers, accountants, or tax consultants) access to its business documents, business contacts and business correspondence (including of their employees), bookkeeping, and accounts, in a manner and to an extent, which is suitable to examine or clarify the respective suggestion.

 

11.11. If the Client fails to send XTHENSE in due time, a complete counter notification, then XTHSENSE may assume a Source Protection breach by the Client, which is subject the provisions of this underlying section 11, and treated as if it was an actual Source Protection breach.

 

11.12. An assumption of a Source Protection breach according to section 11.11, shall remain effective until the Client has disproved this assumption by court order of a court which is in jurisdiction under applicable law and these Terms, and if such an assumption becomes disproved accordingly, then XTHSENSE repay to the Client any affected compensations and penalties for the disproved Source protection that XTHSENSE has received (whether through payment from or through retaining liabilities to the Client). However, XTHSENSE shall not be liable for any damages of the Client which should have occurred in relation which the assumed Source Protection breach, and the Client warrants to release XTHSENSE from any claim grounded on assumed Source Protection breach.

 

11.13. If the Client succeeds to send XTHENSE in due time, a complete counter notification, then XTHSENSE may either waive making claims for Source protection breach or take steps (including legal steps) to enforce their rights and claims in respect of Source Protection.

 

11.14. Any data in relation with vicarious agents which are subject matter of the Source Protection, which enables to contact such vicarious agents (in the following referred to as “Agent Contact Data”), is also confidential information under the provisions of the sections 10.1 - 10.3, and if the Client infringes these provisions in respect of agent contact data, this shall be deemed as “Source Leaking”. Agent Contact Data contact data is for example, their phone numbers, their e-mail addresses, their company names, their websites, their social media or messenger profiles, or any URL or other reference to such data.

 

11.15. Source Leaking shall be treated as breach of the Source Protection, whereby the compensations set out in section 11.5 shall not apply, but the penalties shall apply as set out in section 11.5 and 11.6, but only at 20% (twenty percent) of the penalty amounts mentioned in these sections.

 

11.16. For the avoidance of doubt: The Client understands, respects, and agrees, that data of the vicarious agents is a crucial fundament and valuable and asset to XTHSENSE which forms meaningful part of XTHSENSE’s company value and market position in respect to hold existing Client and to acquire new Client, requests and orders. Therefore, Client warrants to take utmost care and measures to avoid any infringement of Source Protection and will also neither promote nor facilitate any infringement of Source Protection by thirds.

 

 

12. LEGAL BASIS AND JUSRISDICTION

 

12.1. Unless the place of jurisdiction is not unexceptionally determined by applicable law, all claims and disputes in relation with then these Terms or any aspect of the entire business relationship between XTHSENSE and the Client, including non-contractual claims or disputes and any claims and disputes that relate to the subject matter or the formation of any contract between the Client and XTHSENSE (in the following summarized referred to as “Legislation Objects”) will at our discretion, be brought either to the district court of Oberhausen (46045, NRW, Germany) or another German Court (in case of higher instances), or to a court that XTHSENSE may agree with the Client in individual case.

 

12.2. The relevant court will have exclusive jurisdiction to settle all disputes and claims, including non-contractual claims or disputes and any claims and disputes that relate to the subject matter or the formation of any contract between the Client and XTHSENSE. 

 

12.3. If the Client’s registered office is in the Federal Republic of Germany, the Legislation Objects are subject to the laws of the Federal Republic of Germany.

 

12.4. If the Client’s registered office is outside the Federal Republic of Germany, the Legislation Objects, are subject to the laws of Switzerland.

 

12.5. Where the application of Swiss to the Legislation Objects is not permitted due to German law, and the Client’s registered office is within the USA, the European Union, or the United Kingdom, then the Legislation Objects are subject to the laws of the country in which the Client has its registered office, and otherwise subject to the laws of the Federal Republic of Germany.

 

12.6. The application of laws to the Legislation Objects is excluded of any Conflict-of-law regulations and excluded of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

 

13. REMAINING PROVISIONS

 

13.1. If XTHSENSE does not notify the Client about any of the Client’s default to comply with the with a provision of the order documents or these Terms, this shall neither be deemed as waiver to claim fulfillment of the Client’s obligation to this compliance nor as the Client’s right to waive its fulfillment of its obligations for this compliance. 

 

13.2. If XTHSENSE does not enforce a right, this shall neither be deemed as waiver to their rights nor as waiver to enforce any of their rights.

 

13.3. A failure by the Client to fulfil an obligation does neither release the Client from its obligations, nor from fulfilling its obligations.

 

13.4. All provisions in these Terms are to be understood and applied only to such extent in which their application complies with applicable law, and in which they are not indisputably ineffective under applicable law.

 

13.5. Any formulation in these Terms that literally only refers to one gender or literally excludes any gender (e.g. for the to simplify writing and reading) are to be understood as if they were formulated in a way that referred, under the individual circumstances, the respectively affected gender or genders

 

13.6. If a provision of these Terms is invalid, unenforceable, or deficient, then all remaining provisions shall remain effective, and the respective invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to its original purpose, as far as legally possible without these Terms being deemed invalid.

 

13.7. No verbal additional agreements are made. Changes to this agreement must be made in writing. If XTHSENSE makes changes to this agreement, these will come into force for the Client as soon as the Client agrees to this agreement, e.g. by confirming an offer that refers to this agreement. The date of last changes to this agreement is stated at the top of this Agreement. The Client is obliged to check this date before confirming any subsequent order, and if this date has changed since the previous order confirmation, the Client must read this agreement again and take note of all changes. By confirming the respective follow-up order, the Client accepts these changes and thereby agrees to the current version of this agreement. Therefore, XTHSENSE is not obliged to explicitly inform the Client if XTHSENSE has made changes to this agreement.

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