General Terms and Conditions
for Equipment Lease and Service
All deliveries on lease basis and related services of Skywalker Systems GmbH, Am Grundwassersee 8, 82402 Germany (hereinafter referred to as the “Skywalker”) rendered to another businessperson (“Unternehmer”) in the sense of § 14 BGB (German Civil Code), including but not limited to any body corporate or special fund under public law, (hereinafter: “the Company”) are subject to the following General Terms and Conditions (hereinafter: “GTC”), unless from time to time agreed otherwise by the Parties in an written offer issued by Skywalker and accepted by the Company (hereinafter: “Individual Agreement”)
- "Confidential Information" shall mean any information and data that has been disclosed by Skywalker in preparation of, in connection with or in execution of these GTC and/or an Individual Agreement, which information and data is either being marked by Skywalker as confidential information or qualify as confidential information due to its nature, irrespective of
- the medium in which such information or data is being disclosed or embedded, or
- being owned by Skywalker or by any third party, provided such third party itself has made available said information and data to Skywalker under a confidentiality arrangement.
Confidential Information shall include but is not limited to all commercial terms relating to an Individual Agreement or the technical data or functioning of the Equipment.
- “Equipment” shall mean the wire cam equipment consisting of certain hard - and software components as specified in the Individual Agreement,
- “Lease Period” shall mean the period specified in Individual Agreement during which the Equipment shall be on Site and be ready for operation as defined in the Individual Agreement.
- “Services” shall mean the on-Site services to be delivered by Skywalker in connection with the Equipment during the Lease Period, including related set up, installation, operation, dismantling services as specified in the Individual Agreement.
- “Service Team” shall mean the (Skywalker or third party) personnel described in the Individual Agreement provided by Skywalker for the delivery of Services.
- “Site” shall mean the site defined in the Individual Agreement where Company´s event shall take place during the Lease Period.
- Conclusion of the Individual Agreement
- No other Terms. No conflicting or other conditions, notably Company’s general terms and conditions, do apply, even where Skywalker has performed an agreement without expressly rejecting any such conditions.
- Binding Effect of Offers. Skywalker’s offers shall not be binding and shall be subject to modifications, unless explicitly set forth otherwise in the offer. Skywalker is entitled to accept offers issued by Company within two weeks from their receipt, unless Company specifies a longer time period.
- Written Form Requirement. Side letters, subsidiary agreements, quality specifications to the Equipment, related warranties, guarantees, representations and other agreements or conditions shall be only valid, if made in writing.
III. Delivery of Equipment and Company’s Rights and Obligations to the Equipment
- Delivery of Equipment. Skywalker shall deliver the Equipment to the Site at the beginning or a reasonable period before start of the Lease Period. Skywalker may make partial deliveries, provided such partial delivery is reasonably acceptable for Company.
- Lease and Title. Equipment is delivered by Skywalker on Site on a lease basis. Title to the Equipment, therefore, in any event and at all times during the Rental Period, remains with Skywalker. Shipment will be made at Skywalker´s costs with a forwarding company chosen by Skywalker, unless specified otherwise in the Individual Agreement. Delivery to the Site and return of Equipment to Skywalker shall be at Skywalker´s sole risk.
- Insurance on Site. From arrival of Equipment on Site until its handover to a freight forwarder for the return to Skywalker, Company shall insure Equipment at Company’s cost against any loss and damage caused by accident, third parties or by Company’s fault. Company acknowledges being fully responsible for all third parties providing services on or getting access to the Site.
- Warranty. Company hereby warrants and represents, that the use and operation of the Equipment on Site and/or for the purpose of the event is permitted and complies with all applicable laws and Company contractual arrangements with third parties and does not require any additional permission, license or certification of any local authority, agency or third party.
- Limited Use Rights to Equipment. Company may use the Equipment or any part thereof only, provided (i) Skywalker failed in fulfilling its Service obligations under Sect. IV. below, and (ii) Skywalker has given its prior consent to the concrete act of use planned by Company. Any such consent may be given exclusively by Skywalker project manager identified in the Individual Agreement. Skywalker shall deliver any Equipment related documentation only, if and to the extent such documentation is necessary for Company’s limited use rights as specified herein.
IV. Provision of Services
- Services. Skywalker shall before, during and after the Lease Period provide the Services described in the Individual Agreement.
- Support by Company. Company shall at all times support Skywalker in providing the Services, e.g. by
- providing safe and secured storage areas for the Equipment on Site,
- giving at all times uninterrupted access to the Site and the Equipment stored on Site,
- giving access to all necessary power supply needed for the operation of the Equipment,
- ensuring that any security and safety related instructions issued by Skywalker as per Sect. III. 6. are fully complied with by all Company´s employees and all third parties getting access to the Site; and
- by providing the acts and items described in the Individual Agreement.
- Company´s Contact Person. Company shall nominate one contact person organizing the project with Skywalker and one contact person for the event. Each contact person shall at all times be available on Site and be able to take decision for and behalf of the Company. Instructions of Company as permitted under Sect. III. 6. below may be issued by Company´s Contact Persons only. Any such instruction shall be directed to Skywalker´s Project Manager only.
- Accommodation and Catering. Company shall organize accommodation and catering for the Service Team as described in the Individual Agreement.
- Service Team. Skywalker shall be permitted to exchange members of its Service Team at any time in Skywalker´s reasonable discretion. This shall not apply with regard to Skywalker´s Project Manager, provided that Company shall not unreasonably refuse its consent to exchange the Project Manager in case of illness, accident etc.
- Instructions. Company may issue instructions to Skywalker only to the extent they relate to the organizational or administrative topics of the Site and/or the event. Skywalker may issue instructions to Company with regard to the safe and secure operation of the Equipment.
V. Confidentiality Restrictions
- Restrictions. Without limiting and in addition to Company´s use restrictions under Sect. IV.6 above, Equipment and all Confidential Information shall
(a) be used by Company for the purpose of the respective Individual Agreement only; and
(b) be treated by Company with the same degree of care to avoid unauthorized disclosure to any third party as with respect to Company's own confidential information of like importance but with no less than reasonable degree of care; and
(c) not be distributed, disclosed, or disseminated in any way or form by Company to anyone except its own employees, who have a reasonable need to know such Confidential Information with respect to the purpose of the Individual Agreement and who are bound to confidentiality by written agreements not less stringent than under the obligations of this Section; and
(d) be stored in secure areas only that are protected against unauthorized access and are regularly monitored to assure their sufficient security,
- Exceptions. The obligations as per Sect. V. 1 (b) and (c) above shall not apply to any information which the Company can prove,
(a) is at the time of disclosure already in the public domain or becomes available to the public through no breach by the Company of this Agreement, except that Confidential Information shall not be deemed to be in the public domain merely because any part of the Confidential Information is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public;
(b) is received by the Company from a third party free to lawfully disclose such information to Company;
(c) was in the Company's lawful possession prior to receipt from Skywalker as evidenced by written documentation;
(d) is independently developed by the Company without the benefit of any of the Confidential Information as evidenced by written documentation;
(e) is approved for release by written agreement of Skywalker;
(f) is required to be disclosed to comply with legal mandatory regulations, a judicial or official order or decree, provided that written advance notice of such judicial action was timely given to Skywalker.
VI. Lease and Service Fees
- Lease and Service Fees. For the Equipment lease and the Services rendered by Skywalker Company shall pay the fixed fees in installments specified in the Individual Agreement. The first installment shall be payable upon conclusion of the Individual Agreement. In no event shall Company be permitted to retain or reduce any such installment payment or make any set off against any such installment payment.
- Change Request. Should Company issue instructions as per Sect. IV. 6., require new or additional features or performances or not comply with its support obligations as per Sect. IV. 2, Skywalker shall be entitled to issue a change request indicating the consequences of any such instruction, request or non-compliance, including but not limited to the consequences for the timing or a reasonable increase of the fixed fee.
- Invoicing. Skywalker shall issue written invoices for each installment payment defined in Sect. VI.1. at least 14 calendar days before the installment date specified in the Individual Agreement. In case Skywalker is late in invoicing, the due days may be postponed by Company accordingly. Any invoice for additional efforts of Skywalker as per Sect. VI. 2 shall be due within 14 calendar days from the date of invoice.
VII. Additional Rights and Obligations
- Promotion by Company. Company shall during any after termination of an Individual Agreement for the minimum period set forth in the Individual Agreement make promotion for Skywalker and the Equipment as described in the Individual Agreement.
- Reference to Company. Skywalker shall on a perpetual basis be permitted to name Company in its promotion material (incl. its website) as one of its customers and use Company´s names and logos for this purpose.
VIII. Limited Warranty and Liability
1. Limited Warranty of Skywalker. Skywalker warrants and represents only that the Equipment operates in material compliance with the properties and characteristics as described in the Individual Agreement. Skywalker does not warrant or represent that the Equipment does meet all purposes intended by Company. Should the Equipment be or – within the Lease Period - become defective, Skywalker shall at its sole discretion either take reasonable efforts to repair or replace the non-compliant Equipment. All statutory warranties and Remedies, IF ANY, whether express or implied, including, but not limited to, implied warranties of merchantability, non-infringement or fitness for a particular purpose shall be excluded.
2. Limited Liability of Skywalker. Skywalker shall be liable only for gross negligence, wilful misconduct and for Damages resulting from death or personal injuries. Apart from the above and regardless of the cause in law, Skywalker shall not be liable for any damages arising under or in connection with an individual Agreement.
3. Limited Liability of Company. Company shall not be liable for normal wear and tear of the Equipment and any damages caused to Equipment by Skywalker.
4. Risk Application. Company understands that the operation of the Equipment and the provisions of Service may result in certain risks for health and life of individuals coming close to or being in the range of the Equipment. Company accepts to strictly adhere to all safety related instructions issued by Skywalker and to take all measures required for safety reason at Company´s sole cost. In case Company does not comply with this obligation, Skywalker may promptly refuse providing the Service.
IX. General Terms
- Termination of Individual Agreement. Each Individual Agreement shall run for the Lease Period. Sections V., VII. and VIII. shall survive any termination, in case of Sect. V. the survival shall be limited to a period of three years from date of termination.
- In case of termination, Company shall, upon Skywalker’s request, immediately return Equipment and all copies of Confidential Information at Company’s cost and risk. Any right of Company to retain any such deliverable shall be excluded. Upon Skywalker request, Company shall further certify to have completely returned all Equipment, Confidential Information and all said copies. Company shall have no right to retain Equipment or Confidential Information.
In case Company fails to return the Equipment and all copies of Confidential Information within two (2) weeks from the termination of this Agreement, Company shall pay to Skywalker a penalty of Euro 20.000. This shall not limit any other rights and remedies of Skywalker under governing law.
- No Assignment. This Agreement may not be assigned by Company without the prior written consent of Skywalker.
- Written Form. The provisions of this Agreement may not be modified, amended, nor waived, except by a written instrument duly executed by the Parties hereto.
- Dispute Resolution. All disputes arising out of or in connection with these GTCs and any Individual Agreement, including any question regarding its existence, validity or termination, shall be settled finally by the competent court in Munich.
- Governing Law. Tese GTCs and each Individual Agreement shall be subject to the substantive law in force in Germany without reference to its conflicts of law provisions.