These Terms for  Fitting Service Contractors apply to every order in which XTHSENSE commissions the Contractor to carry out fitting services.

 

 

1. Definitions

„These underlying Terms“ (also referred to as „this agreement“) means these underlying Terms for Contractors of Fitting Services.

 

“XTHSENSE” is the company: Ramón Szellatis, Friedhofstraße 5, 46045, Oberhausen, Germany, VAT-ID: DE310615107, Tax-ID: 124 / 5114 / 3107.

 

“Contractor” is the respective company commissioned by XTHSENSE to carry out fitting services.

 

“Client” is the respective company that commissions XTHSENSE to carry out such fitting services for which the Contractor is commissioned by XTHSENSE as vicarious agent to carry out fitting services.

 

“Assembler” refers to a natural person that the Contractor or his vicarious agent delegate to carry out the fitting services on the construction site, whether the assembler is the Contractor himself or employees or subcontractors of the Contractor or his vicarious agents.

 

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2. Orders

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2.1. XTHSENSE commissions the Contractor with fitting services within the scope of the respective underlying order document, e.g. assembly, disassembly, preparation, storage and maintenance in the sector of trade shows, shop fitting, congress, conference, event construction, hall construction, industrial assembly, scene construction, industrial packaging, or similar.

 

2.2. The basis for placing an order for fitting services are the underlying Terms, which are referred to in the respective order document and which the Contractor accepts through his order confirmation. The Contractor must provide XTHSENSE with the names and telephone numbers of the Assemblers within a reasonable time before start of the fitting services.

 

2.3. XTHSENSE does not guarantee any order volume. If order values are mentioned in the order document, these are only estimated values that were calculated by XTHSENSE on the basis of the Client's uncertain plan values. The local construction manager and XTHSENSE may at any time adapt the order volume to the respective requirements of the construction site or the personnel requirements.

 

2.4. If XTHSENSE can provide evidence (e.g. statements from a Client) indicating that the Contractor is not or is not entirely fulfilling its obligations; and the Client therefore ends the deployment of assemblers earlier than planned, then the Contractor has no right to be reimbursed for costs that he incurs or has incurred for the remaining time, e.g. hotel costs, meals, cancellation costs for hotel bookings or flight tickets , travel expenses and other costs.

 

2.5. Once an order has been accepted by the Contractor, but if the Contractor cannot carry out the order to be fulfilled - for whatever reason - by those fitters he has informed XTHSENSE would carry out the fitting services, then the Contractor must provide replacement fitters who at least have the same specialist knowledge and skills. The Contractor must inform XTHSENSE of the replacement, as well as the names and telephone numbers of the replacement fitters, within a reasonable time by email to info@xthsens.com.

 

2.6. XTHSENSE reserves the right to claim damages instead of the service and to withdraw from the contract in the event of non-performance or non-contractual service provision after unsuccessful service or subsequent performance deadline determination.

 

2.7. The Contractor's obligations include:

 

a) punctuality of the fitters; and

 

b) professional and quick work by the fitters; and

 

c) that the fitters bring and use their own tools and electric hand-held machines necessary for the professional execution of the order; and

 

d) polite behavior of the fitters towards persons on the construction site or other persons on the Client’s side.

 

2.8. The Contractor will not accept an order from XTHSENSE if he is not sure whether he can start the services, on time, and carry them out professionally and entirely.

 

2.9. The Contractor is responsible for compliance with labor law and social security regulations (including compliance with break times and, to the extent possible, also safety regulations), and if he appoints vicarious agents for the service, he must ensure that they also ensure such compliance. The Contractor may not appoint fitters to carry out the service if they do not have a residence permit or if they are subject to an employment prohibition.

 

2.10. XTHSENSE is entitled at any time to refuse the Contractor’s services in whole or in part and regardless of any offer commitment, provided there are significant reasons. A significant reason would be, for example, a lack of legal permission for the fitters to carry out the service, or a lack of compliance with safety regulations on the construction site, or if the Contractor does not fulfill his contractual obligations.

 

2.11. If XTHSENSE has information (e.g. statements of a Client) indicating that the fitters are violating the Contractor's contractual obligations, then XTHSENSE has the right to demand that the Contractor replaces the fitters with other fitters who fulfill the obligations.

 

2.12. Should the Contractor (or its fitters) provide more services or other services on the respective construction site than agreed with XTHSENSE in the respective order document, this is done at the Contractor's own risk and the Contractor will indemnify XTHSENSE from any claims for damages in relation to this. Such additional or different services must be documented in full on the respective timesheet and signed by the site manager and the respective fitters, e.g. consumables, purchases of materials, additional trips, parking fees, and other costs or services that were not agreed in the order document.

 

2.13. The Contractor is responsible for protecting tools and hand machines brought to the construction site by his fitters from theft, and XTHSENSE is not liable for damages arising from such theft and the Contractor will indemnify XTHSENSE from any claims for damages connection with such theft.

 

2.14. As proof that the services have taken place, the Contractor must send timesheets to XTHSENSE (by email or post) within 5 working days after the end of the service period, and such time sheets must be signed by the local site manager and the respective fitter. Time sheets that have not been signed by the site manager do not constitute valid proof of service.

 

 

3. Confidentiality

 

3.1. The Contractor must treat all business secrets, documents, experiences, statements, correspondence, agreements (in particular prices and order values) and knowledge from or about XTHSENSE (including from or about vicarious agents and customers of XTHSENSE) confidentially and ensure that the fitters also ensure this confidentiality. Confidentiality means that the Contractor shall at all times ensure and take appropriate measures to ensure that he (and the fitters) does not disclose confidential information to third parties or intentionally or unintentionally give third parties access to or insight into confidential information, unless the third parties are authorized by law. All information made available to the public by XTHSENSE is not subject to confidentiality.

 

3.2. The obligation to confidentiality in accordance with Section 3.1 remains in effect indefinitely, i.e. beyond the period of the business relationship between XTHSENSE and the Contractor.

 

3.3. After the services from an order have been provided or after completion of an individual order, the Contractor will return to XTHSENSE all information, documents and materials that he received from XTHSENSE as part of or in connection with the respective order (including any copies that the Contractor should have made therefrom), or destroy it. This does not affect information, documents and materials that the Contractor should be legally obliged to keep (e.g. for statutory retention periods). Unless prohibited by applicable law, the Contractor waives any rights of retention in this context.

 

 

4. Source Protection

 

4.1. Without written consent of XTHSENSE, the Contractor may not conduct direct or indirect business with those Clients of XTHSENSE:

 

a) for which the Contractor has already provided services commissioned by XTHSENSE; or

 

b) for which the Contractor has agreed with XTHSENSE to provide services, even if these have not been or will not be provided for any reason; or

 

c) which XTHSENSE has mentioned to the Contractor at the request of the Contractor.

 

4.2. Without written permission of XTHSENSE, the Contractor may not conduct direct or indirect business with those vicarious agents (including their vicarious agents and fitters, insofar as they are involved in the fulfillment of the respective order of XTHSENSE):

 

a) whom he meets on construction sites where the Contractor has provided services commissioned by XTHSENSE; or

 

b) which XTHSENSE has mentioned to the Contractor at the request of the Contractor.

 

4.3. The provisions according to Sections 4.1 and 4.2 (hereinafter referred to as “Source Protection”) remain in effect for two years after completion of the last order concluded between XTHSENSE and the Contractor, but do not affect those Clients or vicarious agents of XTHSENSE with whom the Contractor has already conducted business before the Source Protection would initially apply to the respective customer or vicarious agent.

 

4.4. Unless otherwise agreed in individual cases, any written authorization that XTHSENSE should grant to the Contractor as an exception to Source Protection, shall be understood only for one specific case (which relates to no more than one construction site), i.e. such written authorization is not to be considered as general permission to conduct business with the respective Client or vicarious agent. In addition, such written authorization (if given at the request of the Contractor) renews the two-year period of Source Protection, as if the written authorization was an order between XTHSENSE and the Contractor.

 

4.5. The Contractor must notify XTHSENSE immediately if he conducts business with a Client or vicarious agent of XTHSENSE who was previously the subject of Source Protection within twelve months of the end of the Source Protection period.

 

4.6. Should the Contractor violate Source Protection, then the Contractor is obliged to pay XTHSENSE compensation, which is based on the remuneration that the Contractor receives from the respective Client or vicarious agent in relations with the business that violates Source Protection, and in case of a:

 

a) slightly negligent violation of source protection, the compensation amounts to 25% (twenty-five percent) of the respective remuneration plus a fix penalty of 500€ (five hundred euros).

 

b) a grossly negligent violation of source protection, the compensation amounts to 50% (fifty percent) of the respective remuneration plus a fix penalty of 1000€ (one thousand euros).

 

c) an intentional or accepted violation of source protection, the compensation amounts to 100% (one hundred percent) of the respective remuneration plus a fix penalty of 2500€ (two thousand-five hundred euros).

 

4.7. The respective fix penalty in accordance with Section 4.6 increases for each repeated violation of Source Protection by:

 

a) 50 € (fifty euros) for slightly negligent repeated violation of source protection.

 

b) 100 € (one hundred euros) for grossly negligent repeated violation of source protection.

 

c) 500 € (five hundred euros), in the event of intentional or knowingly accepted repeated violation of source protection (“malicious intent”).

 

4.8. The Contractor's obligation to pay XTHSENSE the respective compensation and fix penalty for violations of Source Protection in accordance with Sections 4.6. and 4.7 do not require any notice from XTHSENSE, and XTHSENSE's corresponding claim (and therefore the Contractor's corresponding liability) for such compensation and fix penalty arise already in the moment of the respective Source Protection violation.

 

4.9. Each individual remuneration affected (per Source Protection violation and per Client or vicarious agent) represents an individual Source Protection violation and renews the two-year duration of Source Protection, as if the respective source protection violation was an order between XTHSENSE and the Contractor.

 

4.10. The maximum amount (including compensation and fix penalty) per Source Protection violation that the Contractor must pay to XTHSENSE, shall not exceed 15% (fifteen percent) of the Contractor’s average monthly turnover based on the turnover he has generated within 12 twelve month prior to the respective Source Protection violation, provided the Contractor proves such turnovers to XTHSENSE.

 

4.11. If XTHSENSE has information indicating that the Contractor has violated the Source Protection (e.g. various or significant indications, or a statement under perjury and prejudice of a third party), then XTHSENSE may notify the Contractor of this, and the Contractor can then either pay the corresponding compensation and fix penalty to XTHSENSE within fourteen days or:

 

a) send to XTHSENSE within fourteen days appropriate information to oppose the assumptions, as well as a statement under perjury and prejudice that his opposing information is truthful and that he has good faith belief that the assumptions are false (hereinafter referred to as “counter statement”); and

 

b) grant XTHSENSE (and XTHSENSE's lawyers, auditors and tax advisors) access to those business documents, business contacts and business correspondence (including from their employees) to an extent suitable to examine or clarify the respective assumptions.

 

4.12. The Contractor accepts and agrees that if the Contractor pays the compensation and fix penalty to XTHSENSE without counter notification, or if the Contractor fails to provide the complete counter notice to XTHENSE in time in accordance with Section 4.11, the respective Source Protection violation is be deemed as established.

 

4.13. The Contractor has the right to take legal action against a n established Source Protection violation in accordance with Section 4.12, and if is should become refuted by a judicial order of a court in jurisdiction, then XTHSENSE will reimburse the Contractor the applicable compensation and fix penalty (provided the Contractor has paid those to XTHSENSE) for the refuted Source Protection (whether by payment or offsetting against a claim that XTHSENSE has against the Contractor). However, XTHSENSE is not liable for any damages that the Contractor may suffer in connection with the respective Source Protection violation in accordance with Section 4.12, and the Contractor warrants to indemnify XTHSENSE from any claims that arise in connection with the respective source Protection violation.

 

4.14. If the Contractor sends a complete counter notification to XTHENSE in a timely manner, then XTHSENSE may either waive the claim for compensation and fix penalty or take measures (including legal measures) to enforce the rights and claims of XTHSENSE with regard to Source Protection.

 

4.15. Any data about Clients or vicarious agents which is subject to Source Protection and in particular data enabling contact (hereinafter referred to as “Source Data”) is also defined as confidential information within the meaning of Section 3, and if the Contractor violates such provisions in respect of Source Data, this shall be deemed as “Source Leaking”. Source Data includes, for example, telephone numbers, email addresses, company names, websites, profiles on social networks or messenger services, as well as links (e.g. URLs) or other references to such data.

 

4.16. Source Leaking shall be treated as a violation of Source Protection, whereby the compensation does not apply, but the fix penalty in accordance with Sections 4.6 and 4.7, however only in the amount of 20% (twenty percent) of the fix penalty mentioned therein.

 

4.17. For the avoidance of doubt: The Contractor understands, respects and agrees that Source Data represents an asset to XTHSENSE, and Source Leaking may impair XTHSENSE's market position and future order volumes. Therefore, the Contractor ensures to take appropriate measures to avoid violating Source Protection and the Contractor will neither promote nor facilitate any violation of Source Protection through third parties, nor will he accept or store any Source Data from third parties.

 

4.18. If the Contractor has knowledge or indications that a third party is violating Source Protection, he will inform XTHSENSE of this within a reasonable time. Should the Contractor, upon request from XTHSENSE, make a statement to XTHSENSE under perjury and prejudice that he believes in good faith that a third party has violated the Source Protection and should, on the basis of this, XTHSENSE obtain and receive payment of compensation or a fix penalty from this third party XTHSENSE will pay to the Contractor to 50% (fifty percent) of such payments received. However, if at any time the third party obtains a court order that XTHSENSE must reimburse the compensation or fix penalty to the third party, then the Contractor must also reimburse XTHSENSE's for the 50% the Contractor has received.

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5. Payment Conditions 

 

5.1. XTHSENSE and the Contractor agree that XTHSSENSE is not required to make payment to the Contractor for the respective order as long as:

 

a) the agreed performance period for the order has not yet ended; and as long as

 

b) the Client of XTHSENSE has not yet made payment to XTHSENSE for the respective order; and as long as

 

c) the Contractor has not yet sent an invoice for the order to XTHSENSE in the correct form and performance, and as long as

 

d) the Contractor has not yet sent to XTHSENSE a valid and actual certificate of exemption from construction deducation tax under Section 48 Letter b of the German Income Tax Act (§48b EStG), provided the Contractor’s registered office is in Germany.

 

5.2. The payment period is 30 days and begins once all criteria for XTHSENSE to pay the Contractor in accordance with Section 5.1 are met.

 

5.3. If XTHSENSE's Client has not fully paid the invoice within 60 days after XTHSENSE has issued the invoice to the customer, and XTHSENSE has not paid the Contractor as a result of this, then:

 

a) XTHSENSE has the right to assign the claim to the Contractor, that XTHSENSE has against the Client in relation to the respective order, and the Contractor must accept the assignment; and

 

b) the Contractor has the right to request from XTHSENSE right to assign the claim to the Contractor, that XTHSENSE has against the Client in relation to the respective order, and XTHSENSE must conduct the assignment and the Contractor must accept the assignment.

 

5.4. After the 60 days in accordance with Section 5.3 have been exceeded or in the event of such an assignment of claims, XTHSENSE is obliged, upon request by the Contractor, to disclose when and in what form XTHSENSE has or has not received payments from XTHSENSE's Client in relation with the respective order.

 

5.5. The claim within the scope of the assignment of claims in accordance with clause 5.3 also includes the profits that XTHSENSE would have made through the order, i.e. the Contractor can then claim against the customer those prices that XTHSENSE has agreed with the customer and, unless otherwise agreed, XTHSENSE then waives to be compensated by the Contractor for these profits.

 

5.6. Invoices may be sent in digital form via email.

 

5.7. If cash discounts are agreed, these must be expressly agreed in the order document. Unless otherwise described in the order document, a 3% (three percent) discount is deductible from the net order value if XTHSENSE pays the Contractor's invoice within seven working days from the start of the payment period.

 

5.8. Unless otherwise agreed, all payments must be made by bank transfer.

 

5.9. If XTHSENSE has claims against the Contractor, XTHSENSE can offset these against older claims against the Contractor. If costs and interest have already been incurred due to a delay, then XTHSENSE is entitled to offset claims against the costs first, and then against the interest, and finally against the main claim. If the Contractor makes a different payment provision, XTHSENSE is entitled to reject this.

 

5.10. The Contractor is responsible for fulfilling his own tax reporting and tax payment obligations.

 

5.11. If the Contractor is exempt from VAT liability in accordance with Section 13 Letter b of the German Sales Tax Act (§13b UStG), the Contractor must send a corresponding certificate to XTHSENSE at the latest upon invoicing.

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5.12. If the Contractor's registered office is in Germany and the Contractor has not sent a valid and current exemption certificate in accordance with Section 48 letter b of the German Income Tax Act (§48b EStG) to XTHSENSE at the time the contractor issues the invoice, then XTHSENSE reserves the right to pay the Contractor only 85% (eighty-five percent) of the order value (if applicable after deduction of any agreed discounts) and to issue the contractor a corresponding counter-invoice at 15% (fifteen percent) of the order value  for this.

 

 

6. Termination

 

6.1. This agreement can be terminated unilaterally by either parties (XTHSENSE and/or the Contractor) for an important reason. An important reason means, if there are facts due to which the terminating party can no longer be expected to continue this agreement, taking into account all the circumstances in individual case and taking into account the interests of XTHSENSE and the Contractor. Termination must be made in writing.

 

6.2. If the Contractor terminates this agreement without an important reason, or if XTHSENSE terminates this agreement for an important reason which the Contractor has caused, then XTHSENSE retains the entire outstanding or expected claims for damages from this agreement, less any saved expenses. XTHSENSE and the Contractor reserve the right to prove higher or lower damages.

 

 

7. Liability

 

7.1. As far as a fault of XTHSENSE is legally relevant, XTHSENSE's liability for damages, regardless of the legal basis (in particular due to impossibility, delay, breach of contract, breach of obligations during contract negotiations and tort), is limited in accordance with the provisions of this Section 7.

 

7.2. XTHSENSE is not liable:

 

a) in the event of slight negligence on the part of its bodies, legal representatives, employees or vicarious agents; and

 

b) in the event of gross negligence on the part of its non-executive employees or vicarious agents, as long as it does not concern the violation of essential contractual obligations.

 

7.3. To the extent that XTHSENSE is liable, this liability is limited to foreseeable damages. A damage is considered as foreseeable if it is either obvious or if XTHSENSE and the Contractor know or should know (with common care) that the damage could occur, for example if the damage is mentioned in this agreement or in another document of XTHSENSE.

 

7.4. In the event of liability for slight negligence, XTHSENSE's liability for property damage or personal damage (including in the event of breach of essential contractual obligations) is limited to the respective coverage amounts of XTHSENSE's insurance. If this limitation of liability is not applicable, the limitation of liability is limited to 15% (fifteen percent) of the order value in question, which corresponds to the approximate margin that XTHSENSE generates through an order. XTHSENSE and the Contractor have the right to prove higher or lower liability obligations.

 

7.5. If XTHSENSE provides information that goes beyond the respective scope of services as set out in the respective order documents (unless this information is a consulting service with a separate order document and under different provisions), this is done free of charge and to the exclusion of any liability of XTHSENSE, and does not represent any recommendation or advice, but is solely a subjective opinion of XTHSENSE, which the Contractor is responsible to estimate himself (if necessary with the help of an expert) before making or carrying out any decisions or actions based on such information.

 

7.6. XTHSENSE Clients are responsible for the entire planning and operation of the construction site. XTHSENSE neither receives sufficient information from Clients about details of the planning and operation of the construction site, nor can XTHSENSE estimate in advance the actual circumstances on the construction site, as these are subject to numerous factors over which XTHSENSE has no influence, such as the behavior of people on the construction sites or neighboring construction sites. Unless excluded by applicable law, the Contractor will not hold XTHSENSE, but rather XTHSENSE's respective Client, liable for any damage that the Contractor should incur in connection with the planning or operation of the construction site.

 

7.7. To the extent permitted by applicable law, XTHSENSE is not liable withour its own fault. A fault of XTHSENSE is only given, if it has been legally established by a court in jurisdiction or if the fault is undisputable under applicable law.

 

7.8. The provisions in the sections 7.1. – 7.7 should not be understood as an exclusion of XTHSENSE’s liability to an extent that would be illegal or ineffective under applicable law.

 

 

8. Legal Basis and Jurisdiction

 

8.1. Unless the place of jurisdiction is determined exclusively by applicable law; any legal disputes and claims in connection with this agreement or the business relationship between XTHSENSE and the Contractor, including non-contractual disputes or claims, or if relating to the subject matter of the contract or its formation (hereinafter collectively referred to as “objects of dispute”); will at the discretion of XTHSENSE, either be brought to the district court of Oberhausen (46045, NRW, Germany) or to a district court to which XTHSENSE and the Contractors agree in individual case. The respective district court has exclusive jurisdiction to resolve the respective object of dispute.

 

8.2. If the Contractor has its registered office in the Federal Republic of Germany, these underlying Terms and the entire business relationship between XTHSENSE and the Contractor, as well as any object of dispute (hereinafter referred to as “all relevant aspects”) are subject to the law of the Federal Republic of Germany.

 

8.3. If the Contractor has its registered office outside the Federal Republic of Germany, all relevant aspects are subject to Swiss law.

 

8.4. If the application of Swiss laws is - for any reason - not permitted by German law; then all relevant aspects will be governed by the laws of the country in which the Contractor has its registered office, provided the registered office it is within the USA, the European Union or the United Kingdom, and otherwise by the laws of Federal Republic of Germany.

 

8.5. The application of any legal basis is to the exclusion of any collision rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

 

9. Remaining Provisions

 

9.1. The Contractor only has the right to offset counterclaims that have been legally established or if they are undisputable by applicable law. The Contractor is only authorized to exercise the right of retention to the extent that his counterclaim is based on the same contractual relationship.

 

9.2. If XTHSENSE fails to inform the Contractor when Contractor does not comply with a provision of this agreement or of an order document, this shall neither be deemed as a waiver to the Contractor's obligation to comply with this provision nor as the Contractor's right not to comply with this provision.

 

9.3. A failure of XTHSENSE to enforce a right shall not constitute a as waiver of any right nor a as waiver to enforce any right.

 

9.4. A failure of the Contractor to fulfill an obligation does neither release the Contractor from his obligations nor from fulfilling his obligations.

 

9.5. All provisions of this agreement are to be understood and applied only to the extent at which their application is compatible with applicable law and to which they are not invalid under applicable law.

 

9.6. Unless undisputable by applicable law, any actions or statements, which XTHSENSE or the Contractor should have made or not made in good faith about the effectiveness or legality of an invalid or illegal provision; should be a justification for rights or obligations which are not provided in this agreement or in a respective order document or which are not mandatory under applicable law; but should be understood as if they had been made without the respective provision or on the basis of a permissible or effective provision.

 

9.7. If individual provisions of this agreement are or should become ineffective or contain a gap, the remaining provisions remain unaffected, and the ineffective or incomplete provision shall be replaced by an effective provision that corresponds as close as possible to the original purpose of the ineffective or incomplete provision. 

 

9.8. All formulations in this agreement and a respective order document, which literally only refer to one gender, are to be understood and treated as if they were formulated in relation to the applicable gender in each individual case.

 

9.9. 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 Contractor as soon as the Contractor agrees to this agreement, e.g. by confirming an order document that refers to this agreement. The date of the latest changes to this agreement is stated at the top of this Agreement. The Contractor is obliged to check this date before confirming any subsequent order, and if this date has changed since the previous order confirmation, the Contractor must read this agreement again and take note of all changes. By confirming the respective follow-up order, the Contractor accepts these changes and thereby agrees to the current version of this agreement. Therefore, XTHSENSE is not obliged to explicitly inform the Contractor if XTHSENSE has made changes to this agreement.