§ 1 When do these GTC apply?
(1) General:
We, the company smartEvents GmbH (hereinafter referred to as “we”) provide our services exclusively on the basis of these General Terms and Conditions.
(2) Validity also for future orders:
These GTC shall also apply to your future orders to us, unless we agree otherwise therein.
(3) Your General Terms and Conditions:
Your General Terms and Conditions shall only apply if we have expressly agreed to them in writing.
(4) Amendment of our GTC in the future:
We are entitled to amend these GTC even after conclusion of the contract for the current contractual relationship in accordance with this provision. We will notify you of the respective amendment in writing and inform you that the respective amendment will become the subject of the existing contract between us if you do not object to this amendment in writing or verbally within a period of six weeks from notification of the amendment. If you do not object within this six-week period, your silence shall be deemed to constitute your consent to the amendment.
This procedure does not apply if we repeatedly receive individual orders within a framework contract that is subject to these GTC and expressly refer to the changes to the GTC and their inclusion from this individual order onwards in a new individual order. If the contract relating to this new individual order is concluded with your consent, the amended GTC shall apply without an objection period beginning to run.
How and when is a contract concluded between you and us?
(1) Who makes the offer, who declares acceptance?
An “offer” from us shall only be considered a formally legally binding offer for the conclusion of a contract if we expressly designate it as a binding offer.
Otherwise, your declaration that you wish to accept our “offer”, our cost estimate or similar is formally the legally binding offer for the conclusion of the contract.
(2) By when must the offer be accepted?
You are bound to your offer for 4 weeks, i.e. we have 4 weeks to accept your offer. The contract between you and us is therefore binding if we accept this offer within this period.
(3) Binding nature of declarations made by our employees/service providers:
Our employees or freelancers are not authorized to make verbal collateral agreements or give written assurances that go beyond the actual contract, unless we have expressly designated this person as authorized beforehand.
§ 3 Subject matter of the contract
(1) General:
a. We are not an organizer unless expressly agreed otherwise.
b. The subject matter of the order is set out in the individual offer or service description.
c. The subject matter of the order is based on the state of legislation and the state of the art at the time the offer is prepared.
(2) Replacement of services:
We may replace the agreed services with other, equally suitable services if the replacement is reasonable for you and the purpose of the contract is not jeopardized or impaired as a result.
(3) Use of subcontractors and sub-subcontractors:
We are entitled to use subcontractors (or sub-subcontractors) to fulfill our performance obligations.
(4) Reservation of availability:
All services offered are provided by us subject to availability at the time the contract is concluded.
If a service offered is no longer available and/or no longer available at the price offered at the time it is required, we will inform you of this immediately and offer a new service on request. For the rest, see paragraph 5 below.
(5) Dependence on third parties and circumstances:
When planning an event, it is naturally unavoidable that many important key points cannot be agreed from the outset in an unalterable manner (e.g. number of participants, program, etc.): Often a “building block” is dependent on other “building blocks”, likewise the client must agree or the commissioning of service providers is dependent on the agreement or approval of the client.
It is therefore agreed that we are only responsible for the availability of third-party services at the time of the event if this is expressly guaranteed by us or if we do not refer to any deadlines for approval by you as part of our offer or in individual cases.
In this respect, we assume no responsibility for (consequential) damages resulting from a delayed or delayed release of individual services by you.
For the rest, see paragraph 4 above.
(6) Delays caused by you:
We shall not be responsible for delays resulting from your failure to cooperate in a timely manner or otherwise without undue delay.
We are also not responsible for poor performance caused by the aforementioned delays, so that your warranty claims are excluded in this respect if we have informed you of the legal consequences within a reasonable period of time. Should the deadline subsequently prove to be unreasonably short, it shall be replaced by a reasonable deadline.
(7) Duty to provide information:
You must provide us in good time with all information that is or may be important for the performance of the contract
§ 4 Prices and terms of payment
(1) Gross price:
All prices quoted are net prices, i.e. they are to be understood exclusive of statutory VAT.
(2) Currency and currency fluctuations:
a. All settlements shall be made in euros.
b. In the case of payment with foreign currencies or means of payment, exchange rate differences and bank charges shall be borne by you.
c. For events and trips outside the euro currency area, there is a likelihood of currency fluctuations. In this respect, the total amount of the project in euros may depend on the exchange rate applicable at the time of the payment order to a service provider or subcontractor outside the euro currency area and may change. The exchange rates published by the European Central Bank on a daily basis at the time of invoicing are used as a basis.
(3) Our costs and remuneration are estimates:
All remuneration and costs listed in an estimate or offer prepared by us are based on the planning status known at the time of preparation and are estimates, unless we have expressly designated them as lump-sum or fixed prices. We therefore reserve the right to make necessary changes for which we are not responsible. This also applies to the deployment times of employees and contributors as well as to the duration, quantity and type of equipment.
(4) Cost components not included = additional costs if applicable:
Unless otherwise agreed, the following items are not included in our remuneration and costs:
a. Travel costs to/from you and/or to/from the venue (2nd class train, 2nd class flight, rental car of average quality; in case of doubt, the distance given by Google Maps is decisive),
b. necessary overnight stays (in an average 4-star hotel with single room occupancy),
c. Catering/meals of average type and quality (one hot meal per day and night) if the service is provided outside our place of business,
d. if our employees have to make their way home after the close of public transport for contractual reasons, reimbursement of any additional costs incurred as a result (e.g. cab) against proof,
e. Costs for telecommunications to/from abroad,
f. Costs for electricity connections and electricity consumption,
g. Costs for water connections and water consumption,
h. Security,
i. Storage costs,
j. Costs for waste disposal,
k. Costs for local or site-specific building inspections and approvals (cf. § 14 B. paragraph 2),
l. Costs for driving, transit and parking permits.
m. Costs for collecting societies and licenses,
n. country-specific duties and taxes.
You must cover these costs yourself or pay them additionally, unless otherwise agreed.
(5) Handling fee for “brokerage”:
We are entitled to charge a handling fee of up to 15% of the net amount if we are commissioned to select, commission and/or support service providers/services and they conclude the contract directly with you.
(6) Handling of commissions, discounts & exclusion of the obligation to surrender:
We are entitled to retain commissions and discounts customary in the industry in the internal relationship with service providers or service providers commissioned by us (so-called kick-back commissions) without offsetting. However, this does not apply if the service provider or service provider has expressly designated the commission for you and has merely passed it on to us.
§ Section 667 BGB is excluded in all cases, i.e. Section 667 BGB does not apply even if you have concluded an agency agreement with us.
(7) Additional services:
An “additional” service is a service to be provided by us that is necessary for the order but has not previously been offered or is part of the contract.
a. Obligation to pay for additional services:
If we are not responsible for the subsequent necessity, the additional services, insofar as we can reasonably provide them, are to be remunerated by you.
We shall bear the burden of proof that the services should not already have been the subject of our offer or the contract.
b. Additional services by third parties (subcontractors or service providers):
If costs for third-party services are not already included in our remuneration but are incurred in addition, you are obliged, in the event that we have to make payments to third parties in order to fulfill their contractual obligations, to make these payments to us before they fall due or directly to the third party when they fall due. We shall not be liable for any damages resulting from a delay in payment if we have informed you in advance of the possible legal consequences.
We reserve the right to adjust the terms of payment to the respective terms of payment of the service provider, insofar as we were not already aware of these at the time of calculation.
(8) Subsequent price changes:
We may subsequently unilaterally increase the agreed remuneration and/or costs if material manufacturing costs, material costs, procurement costs, production costs, wage and ancillary wage costs, social security contributions and/or energy costs, costs due to environmental regulations, costs due to currency regulations, costs due to changes in customs duties, freight rates or public charges (factors) increase, and if these costs directly or indirectly affect our contractually agreed services and if there are more than 4 months between the conclusion of the contract and performance.
An increase is excluded if the cost increase for one or more factors is offset by a cost reduction for other factors.
If the costs of the factors are reduced without the cost reduction being offset by an increase in the costs of other factors, the cost reduction must be passed on to you through a corresponding price reduction.
If the new total price is 20% or more higher than the originally agreed price due to the price increase, you may withdraw from the parts of the service that include this price increase, or from the entire contract if the services are indivisible. However, withdrawal is only possible immediately after we have informed you of the price increase. In the case of price increases of more than 20%, we are entitled to make our price increase subject to the resolutory condition that you do not withdraw and, in the event of a declaration of withdrawal, to withdraw the price increase so that the contract can be continued under the original conditions.
(9) Advance payments:
For longer periods (longer than 1 month), the agreed price shall be paid monthly in advance. From an order value of € 2,500.00 plus applicable VAT, up to 100% of the order value may be demanded as advance payment. These advance payments are an integral part of the contract.
(10) Partial performance:
In the case of partial performance, we shall be entitled to demand corresponding partial payments.
(11) Invoicing:
We will issue the invoice for a project as soon as we have received all invoices from the contracted service providers or subcontractors.
Invoices are due 14 days after the invoice date. If the receipt or correctness of the invoice is disputed, we may demand immediate payment of the net amount resulting from our agreement (conclusion of contract), possibly with different dates for advance payments.
(12) Default, reminder:
Interest on arrears shall be charged at a rate of 5% per annum. We reserve the right to assert higher damages caused by default.
For each reminder, we may charge reminder costs of EUR 5.00 net, unless you can prove lower damages, optionally the actual damages incurred.
(13) Risks associated with the execution of the event or project:
You are also obliged to pay the agreed remuneration and costs if the event or the subject of the order is canceled or interrupted or shortened in time for reasons for which we are not responsible and which are not due to force majeure.
This shall also apply if this is due to the absence of a permit, bad weather, cancellation by an artist, lack of visitor interest or similar, provided that we are not responsible for these reasons.
It is rebuttably presumed that terrorist threats, the threat of terrorist attacks, bomb threats or the discovery of “dangerous objects” are assigned to your sphere of risk.
This also applies to security considerations that are not caused by a culpable deficient performance on our part.
This also applies to the destruction of the subject matter of the contract for which we are not responsible after the transfer of risk to you, if we owe the transfer of objects.
§ 5 Responsible persons, proof of qualifications, secure communication
(1) Appointment of persons:
a. You and we shall each appoint at least one person who is authorized to issue instructions for the execution of the contract and who is authorized to make and receive legally binding declarations.
b. You and we shall each appoint at least one person with authority to issue instructions, decision-making powers and comprehensive knowledge of the specific course of the event for the duration of set-up, dismantling and the event. This person must be present and available at all times during set-up, dismantling and the event. This does not apply to you if we are contracted to supervise set-up, dismantling and the event independently.
c. Language is referred to § 6.
(2) Proof of qualifications:
At the request of the other, you and we must provide evidence of necessary qualifications of the commissioned personnel and the commissioned service providers or the material used at any time.
A qualification is “necessary” if it is required by a regulation applicable to the event (e.g. Occupational Health and Safety Act, Assembly Venue Ordinance, accident prevention regulations, SQ standards, DIN standards, etc.).
(3) Secure communication:
Each party may require the other party to transmit correspondence containing sensitive data (e.g. information relating to the security of the event) and/or personal data only in encrypted form. If nothing has been agreed, communication using standard means of communication (including e-mail) is sufficient.
§ 6 Language, production language
(1) The agreed language for the planning, organization and follow-up work for the event shall be German. However, only the German language or statements in German (whether written or verbal) shall be legally binding. Other languages must be expressly agreed.
(2) German is agreed as the production language (i.e. the language used on site at the event venue, including set-up, dismantling, rehearsals and the event itself); other languages must be expressly agreed.
(3) Unless otherwise agreed, the personnel authorized to issue instructions and the personnel deployed in safety-critical situations must be proficient in the production language.
“Proficient” means that the personnel must be able to communicate safely with other service providers, the organizer, the police, fire department, etc., even in unforeseen critical situations.
§ 7 Our position as general contractor or representative
(1) If we are a general contractor:
Insofar as we act as a general contractor and conclude contracts with service providers in our own name and for our own account, we are not obliged to disclose these names, contractual relationships or accounts except in the case of good faith (e.g. if you absolutely need the information to enforce your rights or claims).
In the event of disclosure, you are prohibited from using the information to place any future orders directly with our subcontractor.
(2) If we are a representative or agent:
If we act as a representative or agent and the contracts between the service provider and you are concluded directly as a result, you will issue us with the relevant powers of attorney free of charge on request.
§ 8 Use of your materials, rights and your specifications
(1) Real estate and objects:
a. If you provide us with a venue, equipment, a service provider, instructions etc. or hand them over to us and we no longer have a free choice, we are not obliged to check these or their services for suitability, reliability or similar. This does not apply if the unsuitability/unreliability/illegality etc. is apparent to us and you are recognizably in need of clarification, or if the examination is expressly the subject of our order.
b. Insofar as materials are to be used or utilized by you within the scope of our service provision, you must ensure timely delivery to our registered office or to the event location at your own expense, depending on the agreement.
Materials delivered to us and not used or reusable by you must be collected again within the rental period of the event location, otherwise within one week after completion of our services. After expiry of this period, we are entitled to dispose of the materials properly at your expense or have them delivered to you.
If the helpers or equipment provided do not meet the contractual or legal requirements and we therefore have to provide suitable replacements, you are obliged to reimburse the resulting costs.
(2) Rights:
If you provide us with property rights (logo, photo, texts, etc.), we are entitled to use them in accordance with the contract and, if necessary, to pass them on to third parties. You shall ensure that we are authorized to do so or inform us in writing of any reservations or restrictions. Otherwise, paragraph 1a shall apply accordingly.
You are obliged to indemnify us against any costs and claims arising from a claim by third parties, even after the end of the contract, insofar as the claim is not based on our fault.
§ 9 Special agreements with regard to safety
(1) Comply with the instructions of the service provider:
You are obliged to follow the safety-related instructions posted at the venue (e.g. from the venue operator, operator of rides or facilities, etc.), as well as instructions and recommendations from the local performing service provider or other consultants who have the necessary local and contextual knowledge to assess any hazards.
(2) Responsibility for your employees and guests:
You are responsible for the actions and omissions of your employees, the service providers commissioned by you and your guests, unless we have unlawfully caused these persons to act or refrain from acting unlawfully. Otherwise, § 16 (“Liability”) applies.
If you invite third parties or have them participate, you are obliged to ensure that they also observe and comply with the provisions set out here.
(3) Suitability and ability of staff and guests:
a. We are not obliged to check that your employees and guests have sufficient skills, knowledge and licenses, unless it becomes apparent that skills, knowledge and licenses are not available or we are expressly instructed to check them.
b. Insofar as we are responsible for the implementation of the event, we may also exclude your employees from working with us and guests from the event who do not have sufficient physical or mental aptitude or who violate our warnings or those of our representatives or who disrupt the peaceful and safe running of the event or who impair or threaten to impair the safety of the participants, employees and contributors. Claims for you or third parties shall only arise against us if we have culpably caused the exclusion.
c. Otherwise, § 16 (“Liability”) applies.
§ 10 Ownership, protection of our documents, rights of use
(1) General:
a. Documents, graphics, lists, drawings, sketches and other items produced by us shall remain our property and shall be returned to us at the end of the contract, unless the transfer of ownership is the subject matter of the contract.
b. If no contract is concluded between you and us after participation in a presentation or after the creation of a concept, all services and rights shall remain exclusively with us.
(2) Protection of our documents and ideas:
For all event concepts, documents, graphics, lists, drawings and sketches (works) created by us, the applicability of copyright law shall be deemed agreed even if individual parts are not protected by law.
In addition, our event concepts, contract documents, planning documents, calculation documents, checklists, address lists, etc. shall be deemed to be secret within the meaning of the Business Secrets Act.
This shall also apply beyond the end of the contract.
However, this paragraph 2 shall not apply if the work is so obviously commonplace that protection under this paragraph 2 would disproportionately affect you. You are obliged to prove that the work is manifestly customary in whole or in part; we are then obliged to prove that this is exceptionally not the case.
(3) Your rights of use:
a. You acquire the rights of use required for the purpose of the contract upon full payment of the remuneration and costs due. You shall only acquire these rights of use without payment if a later due date has been agreed in relation to the purpose of the contract or the period of use. Any use beyond this shall require our express consent, subject to an additional obligation to pay remuneration.
b. Within the scope of your order, we shall only provide for the licensing of the rights of third parties necessary for the order (e.g. license for the performance of a commissioned musical performance). If you wish to use third-party works or rights beyond this, you are responsible for obtaining the necessary rights yourself (e.g. recording the performance on video and uploading the video to the Internet).
c. Repeated use by you without an equally repeated remunerated order to us shall trigger a corresponding obligation to pay remuneration, unless the repetition is already the subject of the first order and/or has already been adequately compensated with the previous remuneration.
d. This shall also apply beyond the end of the contract.
§ 11 Confidentiality / Protection of secrets
(1) General:
You and we mutually agree to maintain absolute confidentiality regarding trade and business secrets, even after the end of the contract.
Trade and business secrets are understood to be all facts, circumstances and processes relating to a company which are not in the public domain but are only accessible to a limited group of people and which the legal entity has a legitimate interest in not disclosing and which are designated as trade and business secrets.
You and we are entitled at any time, even after conclusion of the contract, to conclude an independent confidentiality agreement on individual pieces of information that adequately protects the rights of the party providing the information while safeguarding the rights and obligations agreed here.
(2) Passing on the obligations to third parties:
You and we are obliged to impose this confidentiality obligation on our employees, cooperation partners, co-partners and/or co-managing directors.
(3) Procedure after the end of the contract:
After the end of the contract, we will delete or destroy the information, documents and work results received from you or at least block access to them for persons who do not necessarily need to have access to them. This does not apply to information, documents and work results that we must retain due to legal obligations (e.g. due to retention obligations under tax law) or that we wish to retain to a reasonable extent due to contractual evidence requirements (e.g. in order to be able to provide evidence of services rendered). You can request information about the information, documents and work results stored. If the reason for storage no longer applies, we will delete or destroy the data immediately.
Conversely, these obligations also apply to you.
§ 12 Recording rights, naming of references
(1) Recording rights:
We are entitled to take photographs and/or video recordings ourselves at the event, taking into account the personal rights of the guests and the rights of third parties, and to use these for reference and our own advertising purposes, unless you expressly object to this in advance for good cause. In any case, we are entitled to make recordings for documentation and evidence purposes.
(2) References:
We are entitled to mention your name and your event as a reference to a reasonable extent for advertising purposes.
§ 13 Data protection
(1) Your employees: Use of data / disclosure of our data protection information:
You are obliged to also pass on the data protection information that we communicate to you as a contractual partner to the responsible persons and contact persons to be named by you, so that they are also informed about the data processing operations and data protection measures taking place at our company in connection with the contract.
(2) Other agreements relevant under data protection law:
Where necessary, you and we will conclude corresponding data protection agreements based on the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG) (e.g. a joint controllership agreement pursuant to Art. 26 GDPR or an order processing agreement pursuant to Art. 28 GDPR) even after conclusion of the contract.
§ 14 Special agreements for the temporary transfer of property
If we provide you with equipment or objects temporarily, whether for a fee or free of charge, the following regulations apply:
A. General information
(2) Calculation of the rental price, start and end of rental:
All fees agreed for the provision of equipment shall be calculated on the basis of calendar days.
Unless otherwise agreed, the start of the rental period shall be the first day of the necessary sorting of the equipment in our warehouse or in the warehouse of our subcontractor, otherwise the first day of the actual handover to you.
Unless otherwise agreed, the end of the rental period shall be the day on which the material provided is returned to us in the condition stipulated in the contract and the material is freely available to us again after a reasonable inspection period.
(3) Condition of the items, assembly:
The rented items will be handed over to you in proper condition. You are obliged to notify us immediately of any damage or defects and to give us a reasonable opportunity to repair, rectify or replace the equipment or to carry out repairs or have them carried out in accordance with your instructions.
Unless otherwise agreed, you are responsible for the proper installation of the equipment and are liable for all damage resulting from incorrect installation.
At your request, we will specify the necessary power requirements or other energy requirements for the equipment, which you will provide at your own expense at the start of construction and during the entire rental period.
You will ensure a stable and uninterrupted power or voltage supply.
(4) Use of the equipment:
You must always treat the Equipment with care and with the due care of a prudent businessman. You undertake to use the Equipment exclusively as intended.
(5) Guarding of property:
You are obliged to comply with all customary protective measures and necessary security precautions against theft and vandalism. You shall be fully liable for theft and damage outside the scope of wear and tear or use in accordance with the contract from the time the rented items are handed over, unless we are responsible for their care and guarding in accordance with the contract.
(6) Insurance:
You are obliged to insure the rental object adequately against damage, theft, vandalism, etc. and to keep it insured for the duration of the rental period. We have the right to demand proof of insurance at any time and to make the transfer to you dependent on the presentation of proof of insurance.
The following minimum limits apply, unless otherwise agreed:
a. 2 million euros for personal injury,
b. 5 million euros for property damage, whereby the insurance must expressly cover property damage to the rental object, and
c. 250,000 euros for financial losses.
(7) Compensation for damage:
In the event of damage, destruction or loss, you must compensate us – subject to further claims resulting from the destruction of damage to the Equipment – for the replacement value of the Equipment, i.e. the net purchase price that we would have to pay to replace the Equipment. However, you reserve the right to prove that we have not suffered any damage or that the damage is significantly lower; in this case, no damage or this lower damage shall be reimbursed.
(8) Collection:
If we collect the equipment provided to you and do not use it ourselves in accordance with the contract, you shall ensure that the equipment is kept safe and dry until then and that the conditions set out in the provisions on the place of delivery are otherwise met. If the conditions for collection are not met and deviations are not reasonable for our collection personnel, the rental period shall be extended accordingly by the waiting times. You shall reimburse us for all costs and damages incurred in connection with the delay.
(9)Delivery and return delivery:
Deliveries/return deliveries can only be made from Monday to Friday between 09:00-18:00, unless another date or period has been agreed in writing.
(10) Special case for rentals of more than 4 weeks:
If the rental period is longer than 4 weeks, you are responsible for maintenance and any repairs / servicing. You undertake to carry out all legally required inspections and maintenance work at your own obligation and expense. We will carry out this work against reimbursement of expenses.
(11) Special case of termination without notice by you:
Termination without notice for good cause (Section 543 (2) sentence 1 no. 1 BGB) due to failure to grant use in accordance with the contract is only permissible if we have had sufficient opportunity to remedy the defect and this has failed. Failure to remedy the defect shall only be assumed if this is impossible, if we have refused to do so or have delayed it in an unreasonable manner, if there are reasonable doubts regarding the prospects of success or if it is unreasonable for you for other reasons.
Otherwise, the provisions in § 20 (“Cancellation by you”) shall apply.
B. Delivery, place of delivery, transfer of risk, partial deliveries
(1) General:
Delivery, if owed by us or requested by you, shall be made to the postal address provided by you upon conclusion of the contract or upon our first request.
In particular, you must state the delivery address and possible restrictions on delivery or collection, assembly and dismantling etc. and be present to accept the delivery. You shall perform these acts of cooperation at your own expense, unless otherwise agreed.
(2) Approvals and acceptances:
a. Permits of any kind that are necessary for the contractual use, regardless of location, in order to be able to operate our equipment at all, will be obtained by us.
b. You shall obtain and pay for any permits of any kind that are necessary for the operation of our equipment at the planned event location (e.g. local noise protection, municipal statutes, state law).
c. You are responsible for arranging any necessary inspections. You shall also bear the costs of acceptance, unless expressly agreed otherwise.
(3) Surfaces: Your liability for floor loading capacity / escape routes:
a. Installation sites, access and exit routes, maneuvering areas and transport routes on the premises or in your premises must be suitable for installation, interim storage, transport and assembly and dismantling work, and must be level, clear, adequately paved, sufficiently structurally sound and adequately lit.
b. You must notify us immediately of any restrictions on the usable areas (e.g. underground parking under the maneuvering and loading areas, etc.).
c. In principle, we assume that we can deliver with vehicles with the following dimensions:
18.75 meters in length,
2.60 meters wide,
4.00 meters in height, and
44 tons total weight or 11.5 tons axle load.
d. For larger dimensions or higher weights or loads, we will inform you in advance.
e. You must ensure that the areas and paths used by us are not entered by unauthorized persons, in particular not by guests, and ensure this if necessary by means of suitable barriers or personnel.
f. You must ensure that escape routes and movement areas for emergency services are not impaired, not even temporarily, by the delivery, assembly, dismantling, collection and transportation on the premises or in your premises and provide suitable space/suitable areas for our maneuvering, loading and construction activities.
(4) Loss of the goods, delays:
The risk of accidental loss of the goods shall pass to you upon dispatch of the goods or handover to the delivery person, insofar as we do not owe any assembly or dismantling of our equipment or any on-site support/service.
If the delivery is delayed at your request or due to circumstances for which we are not responsible, the risk shall pass to you for the duration of the delay. The costs incurred by the delay for waiting time, provision, storage, etc. shall be borne by you or you must take appropriate measures upon request.
(5) Success of the delivery:
Delivery shall be deemed to have been made when we make the equipment available at the curbside assigned to the agreed delivery address, if no authorized person can be reached at the specified address at the agreed time and handover of the goods is not possible, or delivery to you is not reasonable even after making customary and reasonable efforts (e.g. delivery to areas where it is not safe to enter, such as dark stairs or unsecured sloping areas).
(6) Partial deliveries:
We may make partial deliveries insofar as the partial delivery:
a. is due to circumstances within your area of responsibility (e.g. orders placed consecutively), or
b. is unavoidable due to local conditions (e.g. narrow access roads), or
c. due to the scope of the order, partial delivery would only be possible for us at disproportionate expense, but the order is nevertheless completed on time, or
d. otherwise, insofar as the partial deliveries are reasonable for you.
You must accept or reject such partial deliveries.
Insofar as we are not responsible for the necessity of the partial deliveries, we may demand compensation for any additional expenses, costs and damages incurred.
(7) Duty to inspect:
You must inspect the goods immediately after delivery to ensure that they are free of defects and complete and report any defects discovered immediately in writing. If you fail to inspect the goods or report defects in good time, the delivered goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. Hidden defects discovered later must be reported within 14 days of discovery; otherwise the goods shall also be deemed to have been approved with regard to these defects. The notification of defects must describe the defect in detail so that a remedy is readily possible.
(8) The same applies to collection and return transportation after the end of dismantling.
C. Delivery dates, delivery difficulties, force majeure:
(1) Information or agreements on delivery or service times within a set-up, dismantling or event day are only to be understood as approximate dates and are not fixed dates, provided that the start of the event or other dates necessary for the proper running of the event (e.g. building acceptance) are not disturbed as a result. Binding delivery or service dates (fixed dates) must be expressly designated as binding or fixed.
(2) Obstacles that we could not foresee or plan for (construction sites, traffic jams on the way to you or to the event or to the agreed place of delivery) shall lead to a corresponding extension of any delivery periods at your risk.
(3) If a delivery is owed at all, we owe one delivery attempt or one attempt at delivery.
(4) We are entitled to withdraw from the contract if we are unable to deliver the ordered goods or provide the service through no fault of our own because a covering transaction has been concluded with a supplier for the delivery and the supplier does not fulfill its contractual obligations. In this case, we will inform you immediately of the inability to deliver. If payment has already been made, this will be refunded immediately.
(5) As long as we (a) wait for your cooperation or information or (b) are hindered in our performance by strikes or lockouts in third-party companies or in our company (in the latter case, however, only if the labor dispute is lawful), official intervention, legal prohibitions or other circumstances for which we are not responsible, delivery and performance periods shall be deemed extended by the duration of the hindrance and by a reasonable start-up time after the end of the hindrance (“downtime”). There shall be no breach of duty for the duration of the Downtime. We shall inform you of such hindrances and their expected duration without delay.
Otherwise, the provisions on force majeure in § 17 shall apply.
§ 15 Warranty
(1) Acceptance:
Insofar as acceptance is required, this shall be deemed to have taken place if you refuse this after our request and the setting of a deadline, but at the latest within 14 working days after the request, with specific descriptions of defects.
(2) Deadline for notification of defects:
You must make complaints in writing immediately after discovering a defect (notice of defects). Otherwise, § 377 HGB applies accordingly.
(3) Remedy of defects:
If there is a defect in the subject matter of the contract for which we are responsible, we shall be entitled, at our discretion, to remedy the defect or provide a replacement. In the event of rectification of the defect, we shall bear all expenses necessary for the purpose of rectifying the defect, e.g. transport, travel, labor and material costs, insofar as these are not increased by the fact that you have taken the contractual items to a place other than the place of performance. If the rectification of defects or replacement service fails twice or if we are not willing or able to do so, you may withdraw from the contract or reduce the remuneration.
(4) Your right to reduce the price:
You are expressly reserved the right to reduce the price if the subsequent performance fails or, if a construction service is the subject of the liability for defects, to withdraw from the contract at your discretion.
(5) When are your warranty rights excluded?
Your rights due to defects are excluded if you make changes or have changes made to the rented property without our consent. This does not apply if you can prove that the changes have no unreasonable impact on us in terms of the detection and rectification of defects. Your rights due to defects shall remain unaffected insofar as you are entitled to make changes, in particular within the scope of exercising the right to rectify defects yourself in accordance with Section 536a (2) BGB and these changes have been carried out professionally and documented in a comprehensible manner.
(6) Change to the limitation period:
The limitation period for all warranty claims is 1 year from acceptance, otherwise 1 year beginning at the end of the year in which the claim arose and you became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware of them without gross negligence.
This shortening of the limitation period does not apply:
a. In the case of intent or gross negligence,
b. in the case of personal injury,
c. in the case of a defect in a right in rem of a third party, on the basis of which the return of the purchased item can be demanded (§ 438 Paragraph 1 No. 1a BGB),
d. in the case of a building and a work whose success consists in the provision of planning or monitoring services for this (Section 634a (1) No. 2 BGB),
e. in the case of claims under the Product Liability Act.
(7) Miscellaneous:
The above provisions on “Warranty” shall not apply if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the work.
§ 16 Liability
(1) No-fault liability for letting:
Our strict liability pursuant to Section 536a (1), 1st alternative of the German Civil Code (BGB) for defects in the context of a letting which already exist at the time of conclusion of the contract is excluded. This limitation of liability shall also apply mutatis mutandis to our liability with regard to the reimbursement of futile expenses.
(2) Breaches of duty that lead to property damage or financial loss:
In the event of only slightly negligent breaches of duty, our liability shall be limited to the average damage foreseeable and typical for the type of contract.
We shall not be liable for only slightly negligent breaches of insignificant contractual obligations. “Insignificant” are those obligations whose fulfillment does not characterize the contract and on which you may not rely.
Indirect damage and consequential damage resulting from defects in the subject matter of the contract are only eligible for compensation if such damage is typically to be expected when the subject matter of the contract is used as intended.
The limitations of liability in this paragraph 2 shall not apply in the event of grossly negligent or intentional breach of duty.
(3) Breaches of duty resulting in injury to life, limb or health:
We shall be liable for any kind of negligence and willful misconduct in the event of injury to life, limb or health of you attributable to us.
(4) Mandatory statutory liability:
The limitations of liability in paragraphs 1 and 2 do not affect your claims arising from product liability and mandatory statutory liability.
(5) Extension of this clause to employees, executive bodies, vicarious agents, etc:
The exclusions and limitations of liability from paragraphs 1 and 2 shall apply to the same extent in favor of our executive bodies, our employees and other vicarious agents and our subcontractors.
(6) Subsidiary liability in the case of subcontractors as the party responsible:
If we commission a subcontractor or sub-subcontractor (hereinafter only: subcontractor) and the latter provides a defective service or causes damage, we shall have the option of invoking our subsidiary liability in the event of damage. This appeal must be made immediately after the damage report and can be withdrawn at any time thereafter. In the event of such an appeal, we are only liable on a subsidiary basis, the subcontractor is primarily liable.
This means in detail:
a. You must primarily assert claims arising from a breach of duty by the subcontractor directly against the subcontractor. In this case, we are obliged to name this subcontractor to you with a summonable address, to assign to you all rights or claims to which we are entitled against this subcontractor and to hand over to you all documents and information necessary to enforce the claim and, as far as possible, to name our own employees and persons as witnesses with a summonable address.
b. You must conduct at least one court case in the first instance against the subcontractor. If you lose there, we can demand that you immediately hand over all pleadings, court orders and judgments to us and also go through the further instances, whereby we will advance the costs of the further instance(s) to you. If you are also unsuccessful in these further instances, we will reimburse you the court costs and the necessary legal fees for these further instances.
c. In the event of a successful judgment, you must make at least 2 attempts to enforce the judgment against the subcontractor.
d. We are only liable on a subsidiary basis if and to the extent that this main claim fails.
e. Any indemnity agreement or similar agreed by us with the subcontractor shall have no effect on our right to invoke subsidiary liability.
Subsidiary liability shall not apply, or shall only apply at your request, if our subcontractor has its place of jurisdiction in another EU country.
§ 17 Force majeure
(1) Force majeure in the relationship between you and us:
In the event of force majeure which leads to a termination or interruption of the contract or individual contractual services, we may demand compensation or reimbursement from you for the costs incurred and services rendered up to that point and the payments to be made by us to our subcontractors.
Insofar as Section 313 of the German Civil Code (BGB) is or should be applied by mutual agreement or in court, it is agreed that we shall always be entitled to the costs incurred and services rendered up to that point and the payments to be made by us to our subcontractors.
Insofar as the contractually owed services have not become directly impossible, but only appear more difficult or impaired or almost impossible, i.e. in the event of recommendations by authorities to cancel or discontinue the event,
in the event of increased requirements imposed by the authorities or regulations and other such cases, Section 648 BGB shall apply to our remuneration, whether directly or by analogy, unless a lower flat-rate cancellation fee would be incurred as a result of a cancellation in accordance with the cancellation conditions agreed here; in this case, the lower flat-rate cancellation fee shall apply, unless we choose to calculate the actual damage and this should be higher than the flat rate.
(2) Relevant time of assessment:
If, when canceling/terminating our contract or canceling the event, you state as a reason the concern about or the likelihood of the occurrence of force majeure, the following shall apply:
The relevant time for the assessment of whether or not force majeure exists shall be the contractual time of the event. If it is a period of more than 1 day, the arithmetical middle of this period shall be deemed to be the relevant time.
This also applies if you cancel the event before the date of the event due to concerns about force majeure. You must prove that the cancellation was solely due to the possibility of force majeure.
If it then transpires at this point in time that force majeure exists, the agreement on force majeure shall apply. If, on the other hand, it turns out at this point in time that there is no force majeure, the agreement regarding the cancellation/termination shall apply.
In any case, however, we shall be entitled to payment under paragraph 1, in particular until any legal issues have been clarified. A corresponding payment by you shall not be deemed a waiver of any other claims against us. Acceptance of your payment by us shall not be deemed as recognition of force majeure and waiver of any further claims against you.
(3) Force majeure in the relationship between us and our subcontractor:
If one of our subcontractors can invoke force majeure and therefore does not perform the service owed in the subcontractor relationship, we shall also be released from our obligation to perform towards you; in all other respects, paragraphs 1 and 2 shall apply.
We shall endeavor to provide suitable substitute services, for the cost of which our remuneration shall be based on the agreed remuneration in case of doubt.
(4) “Corona clause”:
It is deemed to be agreed that your or our knowledge at the time of conclusion of the contract of pandemics/epidemics/epidemics looming over a certain period of time does not exclude force majeure, specifically the unforeseeability required for this within the meaning of these contractual provisions. This is intended to take into account the uncertainty that exists for all contractual partners regarding the legal situation, such as in the first quarter of 2020 in the context of the COVID-19 pandemic that was spreading at the time.
(5) Further legal consequences:
Due to the occurrence of force majeure, the following provisions shall continue to apply even if the contract is otherwise terminated or rescinded and insofar as this is appropriate in the context of performance, in particular:
– § 4, § 8, § 10, § 11, § 12, § 14, § 15, § 16, § 21§ XXXXXXXXXX.
Necessary activities that require the processing and completion of the order shall be remunerated and paid for separately by you; in case of doubt, the remuneration rates agreed for the actual order shall apply accordingly. This also includes the costs for legal or other professional advice which is/was not already the subject of the order and which is/was necessary for the professional handling and completion of the order.
If, despite the occurrence of force majeure, you use our services more extensively than remunerated or paid for in accordance with paragraph 1 (e.g. a work protected by copyright is completed when force majeure occurs and is exploited by you despite force majeure), we shall be entitled to remuneration and reimbursement of costs in excess of the actual costs incurred and services rendered and corresponding to the scope of the services actually used by you.
We are entitled to suspend the reversal for the period necessary for the overall calculation, including the compilation and clarification of all cost items. If less than 50% of these cost items still need to be clarified, we will reverse the remaining part. For the period of this suspension, the statute of limitations shall also be deemed to have been suspended.
You are entitled to information about our efforts with regard to the compilation and clarification, which we can also provide by means of a confirmation or a report from a lawyer or auditor.
§ 18 Non-performance by a service provider
(1) Exemption from performance in the event of non-performance by service providers:
Insofar as, outside of force majeure, a service provider for which we are responsible is unable or unwilling (“unable to”, e.g. overbooking of the hotel) to fulfill a service owed and we can prove that we,
a. that we have carefully selected this service provider,
b. we are not culpably responsible for the non-performance of the service provider, and
c. in the event of unwillingness, this unwillingness is or was objectively justifiable and necessary for the safety of the guests, participants and/or employees,
we shall be released from our obligation to perform towards you insofar as we owe you this obligation.
(2) Efforts to provide replacement services:
In the event of paragraph 1, we shall endeavor to provide suitable substitute services.
(3) Financial legal consequences:
Our claim for compensation and reimbursement of costs for this effort and your claim for damages against us shall be governed by the following two provisions:
a. If the non-performance relates to your area of risk (cf. § 4 paragraph 14, “Risk of carrying out the event or project”), we are entitled to compensation and reimbursement of costs.
b. If the non-performance relates to our area of risk, we are not entitled to compensation and reimbursement of costs. Insofar as we have acted neither negligently nor culpably, your claim for compensation shall be limited to the amount paid by the service provider, subcontractor or insurance carrier. Otherwise, § 16 (“Liability”) shall apply.
§ 19 Termination
(1) Termination by us for good cause:
We may terminate the contract if we cannot reasonably be expected to continue the contractual relationship with you until completion of the agreed service and/or until the agreed termination, taking into account all circumstances of the individual case and weighing the interests of both parties (termination for good cause). Such a reason exists, for example, if:
a. a payment due from you has not been received by us on time, provided that our termination does not lead to an exclusion or impairment of the insolvency administrator’s right of choice pursuant to § 103 InsO,
b. You are in default of payment after an application for the opening of insolvency proceedings and after the opening of insolvency proceedings,
c. there is a change of shareholders who hold more than 50% of the capital shares in your company, insofar as our economic and/or legal interests are more than insignificantly impaired as a result (change of control),
d. circumstances arise which were unknown to us when the contract was concluded and which jeopardize the safety of the event, the guests, participants or employees and we would not have concluded the contract or would not have concluded it on these terms if we had been aware of these circumstances or if the health or integrity of a third party can only be guaranteed by terminating the contract,
e. defects for which we are not responsible are discovered which could endanger the health or life of a third party, or defects are discovered for which we are responsible, insofar as the health or integrity of a third party can only be guaranteed by termination,
f. you fail to take measures prescribed by law or ordered by the authorities which serve the safety of the personnel deployed by us (delivery, assembly, service, etc.) on site,
g. you have deliberately concealed circumstances which are of significance for the assessment of the risk situation and/or the extent of the scope of services and/or the equipment of the production and/or our employees or assistants, in particular with regard to safety and legality,
h. an event is or is to be carried out which deviates in type, content or scope from that specified in the subject matter of the contract, this was not recognizable to us when exercising due care and diligence and as a result the safe and lawful execution of the event, also possibly supplemented by necessary and reasonable short-term measures, is not guaranteed, or participation in such an event is not reasonable for us and we would not have concluded the contract or not under these conditions if we had been aware of the deviation,
i. it can be assumed that the event at which our logos, equipment or personnel are present and in attendance relates directly to political events in Germany and/or abroad, and/or opinions are discussed and/or expressed or are to be expressed which are incompatible with basic democratic values and/or the Basic Law of the Federal Republic of Germany and/or which have a negative impact on the peaceful coexistence of people in Germany,
j. you operate technical or structural equipment which is not permitted and which could endanger us or our staff,
k. you do not create local conditions that have been agreed or are required for timely delivery or on-site support/service. This includes, for example, gravel access roads, load limits of the access routes, distances from the last permissible parking possibility of the delivery vehicle to the delivery location, as well as insufficient load-bearing capacity of the ground, lighting, fire protection, escape routes, and provision is also impossible at the curb or unreasonable with regard to our property,
l. the competent authorities and police forces consider themselves unable to maintain public safety and order on the basis of concrete evidence and we cannot reasonably be expected to maintain the contract for this reason,
m. a competent authority or a court prohibits the holding of the event.
(2) Termination by you for good cause:
You may terminate the contract without notice if you cannot reasonably be expected to continue the contractual relationship until completion of the work and/or until the agreed termination date, taking into account all circumstances of the individual case and weighing the interests of both parties.
Otherwise, termination is excluded.
(3) Necessity of a prior warning:
A prior warning or setting a deadline is not required if it is unlikely that the reason for termination will be remedied or will not occur, if it is unreasonable to expect the terminating party to continue to adhere to the contract and if the other party does not at least recognize that it will bear the additional costs (remuneration, costs) incurred by remedying the reasons for termination. If the reason for termination concerns the body, health or life of people, then the assurance of the cessation or non-occurrence must be beyond doubt.
(4) Entitlement to remuneration after termination:
a. If we terminate for good cause, we shall retain our claim to remuneration and costs with regard to services and work under the contract for work and services, insofar as these costs have actually been incurred, and with regard to the rent to the rental price, insofar as we have not saved any costs.
b. If you terminate the contract for good cause, we shall only be entitled to the remuneration attributable to the part of our performance rendered up to the time of termination.
(5) Joint determination of the performance status:
Following termination or other premature termination of the contract, either party may require the other party to cooperate in a joint determination of the performance status. If a contracting party refuses to cooperate or fails to attend an agreed date or a date set by the other contracting party within a reasonable period of time for the determination of the performance status, it shall bear the burden of proof for the performance status at the time of termination. This shall not apply if the contracting party is absent due to circumstances for which it is not responsible and of which it has informed the other contracting party without delay. We may demand compensation for our efforts in making this determination, unless we are responsible for the termination of the contract.
§ 20 Cancellation by you
(1) General:
If you wish to cancel the contract for a reason for which we are not responsible and which is not due to force majeure (cancellation), this is generally possible; however, you must expressly inform us of this in writing.
In this case, in view of the fact that experience has shown that we do not always have the opportunity to use our services elsewhere or to deploy employees elsewhere in the event of a cancellation, we may charge costs and fees etc. in accordance with the following provisions, unless we agree otherwise with you.
The relevant date for calculating the lump sums is the date on which we receive your cancellation.
Reference is made to the relevant paragraph in the force majeure clause (§ 17 (2)) for the determination of the relevant time for the assessment of the difference between cancellation and force majeure.
(2) Our right to choose in the event of cancellation:
We may choose to claim the specifically agreed prices less expenses saved or to settle our costs and our loss of profit with a lump sum. In this case, the following flat rates shall apply.
If we choose the lump sum, you have the option of proving that we have suffered no loss or a lesser loss. In this case, you will only have to reimburse this lower amount instead of the lump sum.
a. 25% of the agreed remuneration in the event of cancellation up to 30 days before the event/travel date or start of the rental period,
b. 50% of the agreed remuneration if the contract is canceled up to 13 days before the event/travel date or start of the rental period,
c. 75% of the agreed remuneration if the contract is canceled up to 7 days before the event/travel date or the start of the rental period.
If we choose the specific calculation of the remuneration, we shall retain our claim to the remuneration. However, we must take into account what we save in expenses as a result of the termination of the contract or what we acquire or maliciously fail to acquire by using our labor elsewhere. It is rebuttably presumed that we are entitled to 10% of the agreed remuneration attributable to the part of the agreed services not yet performed.
In all cases, you must reimburse the costs of third parties (e.g. lighting or sound equipment hired in anticipation of the event, external personnel requested, catering ordered, etc.) which are claimed by these third parties from us or directly from you, insofar as these services are not included in our agreed fee and in the flat rates, for which we are obliged to provide evidence.
We may exercise the right of choice until an agreement or legally binding court decision on the settlement has been reached. This also means that we can change the “lump sum” option to the “specific calculation” option as long as no agreement is reached on the lump sum or a legally binding court decision is issued, and vice versa.
(3) Withdrawal for us during the period of cost-free cancellation:
If we have agreed a free cancellation right in your favor for a certain period of time, we may also withdraw from the contract within this period if there are inquiries from potential third parties about the booked subject matter of the contract and you do not waive your right to cancel within a maximum of 10 days upon our request.
(4) No negotiation of cancellation conditions with third parties:
Unless expressly instructed to do so by you, we are not obliged to negotiate cancellation conditions with subcontractors or service providers or to delay the commissioning of third parties with a view to a possible cancellation, unless you expressly instruct us to do so; in this case, you assume all risks that may arise from a delay.
(5) Further legal consequences:
The following provisions shall continue to apply as a result of your cancellation, even if the contract is otherwise terminated and insofar as this is appropriate in the context of processing, in particular:
– § 4, § 8, § 10, § 11, § 12, § 14, § 15, § 16, § 21§ XXXXXXXXXX.
Necessary activities that require the processing and completion of the order shall be remunerated and paid for separately by you; in case of doubt, the remuneration rates agreed for the actual order shall apply accordingly. This also includes the costs for legal or other professional advice which is/was not already the subject of the order and which is/was necessary for the professional handling and completion of the order.
Insofar as you use our services more extensively after the cancellation than remunerated or paid for in accordance with this cancellation agreement (e.g. a copyrighted work is completed upon cancellation and is used by you despite force majeure), we shall be entitled to remuneration and reimbursement of costs in excess of the costs actually incurred and services provided and corresponding to the scope of the services actually used by you.
(6) Joint determination of the performance status:
Following a cancellation or other premature termination of the contract, either party may require the other to cooperate in a joint determination of the state of performance. If a contracting party refuses to cooperate or fails to attend an agreed date or a date set by the other contracting party within a reasonable period of time for the determination of the performance status, the burden of proof for the performance status at the time of termination shall lie with the other contracting party. This shall not apply if the contracting party is absent due to circumstances for which it is not responsible and of which it has informed the other contracting party without delay. We may demand compensation for our efforts in making this determination, unless we are responsible for the termination of the contract.
§ 21 Final provisions
(1) Retention:
You are not entitled to exercise a right of retention against us due to another claim not arising from this contractual relationship.
(2) Offsetting:
You are only entitled to a right of set-off against us insofar as it is based on the same contractual relationship. In order to protect the interests of all parties, you are obliged to pay the remuneration and costs due into an escrow account in the event of a set-off claim asserted by you. The trustee shall be obliged to pay out the administered payments to us in the amount of the amounts due if the offsetting situation is legally established or recognized as no longer applicable, and to repay them to you if the offsetting situation is legally established or recognized as no longer applicable. The party who has caused the fiduciary administration shall bear the costs of the fiduciary. The contractual partner entitled to receive the payment cannot demand additional interest from the other party as a result of the default. If no payment is made into escrow, it shall be assumed that there is also no admissible set-off situation as long as we have not recognized the claim on which the set-off is based or it has been legally established.
(3) Assignment:
You may only assign claims arising from the contractual relationship with us to third parties with our prior express consent.
(4) Place of fulfillment:
The place of performance is our place of business, unless otherwise stated in our offer or the order confirmation.
(5) Place of jurisdiction:
The place of jurisdiction for all claims arising from the relationship with you is our place of business. We are then also entitled to choose the place of jurisdiction at your place of business.
(6) Choice of law:
German law shall apply.
(8) Validity of the GTC or individual clauses:
You and we are obliged, if individual or several provisions are invalid/void/unenforceable for reasons other than the provisions relating to the law of general terms and conditions in accordance with Sections 305 to 310 BGB or if a loophole requiring filling arises, to replace them with a valid provision or to fill the loophole which corresponds in its legal and economic content to the invalid/void/unenforceable provision and the purpose of the contract.
§ Section 139 BGB (partial invalidity) is excluded.
If the invalidity of a provision is based on a measure of performance or time (date or deadline) specified therein, this provision shall be agreed with a legally permissible measure that comes closest to the original measure.
