General Terms and Conditions (AGB)

General Terms and Conditions

of the company A. Foeldessy Entertainment GmbH

§ 1 Scope of application

• General:

We, the company A. Foeldessy Entertainment GmbH (hereinafter referred to as “we”), provide our services exclusively on the basis of these General Terms and Conditions to clients acting commercially or independently (including associations, organizations, authorities, cities, etc., but not consumers).

• Your AGB:

Your General Terms and Conditions shall only apply if we have expressly agreed to them in writing.

“These General Terms and Conditions are available at
https://www.kuenstlervermittlung-berlin.com/agb/
can be accessed at any time. They become part of the contract as soon as the client accepts the offer or agrees to these GTC electronically (e.g. by checkbox, email or electronic signature).”

§ 2 How and when is a contract concluded between you and us?

We make an offer which you can accept in writing by signing the contract and returning it to us within 10 days. Acceptance can also be made in text form (e.g. by e-mail) or by electronic consent (e.g. checkbox or electronic signature)

§ 3 Subject matter of the contract, organizer role and obligations to cooperate

(1) The client is the organizer of the event, unless expressly agreed otherwise in writing.

(2) The subject matter of the contract results from the individual offer, the service description and any supplementary agreements.

(3) In the event of illness, absence or other prevention of an artist or service provider, we are entitled to provide the agreed service by an equivalent and reasonable substitute, provided that the purpose of the contract is not jeopardized by this.

(4) We are entitled to use subcontractors, subcontractors or other vicarious agents to fulfill the contract.

(5) The client is obliged to provide all information, approvals and cooperation required for the execution of the event in good time and in full. We shall not be responsible for delays or restrictions in performance that are attributable to a lack of or late cooperation on the part of the client.

(6) The client is solely responsible for obtaining all permits, authorizations and official approvals required for the implementation of the event, in particular for events on public roads, squares or publicly accessible areas. If necessary permits are not obtained or not obtained in time, the claim to the agreed remuneration shall remain unaffected, provided that we are not responsible for this circumstance.

(7) The client undertakes to provide a clean, lockable and heated checkroom for the artists and their collaborators. The room temperature must be at least 20 °C. The checkroom must be equipped with at least sufficient seating, mirrors and non-alcoholic soft drinks and snacks. If the client is not in a position to meet these requirements, he must inform us of this in writing immediately before the event in order to facilitate an amicable solution.

(8) The client shall provide sufficient free parking facilities in the immediate vicinity of the event venue for artists, crew and technical vehicles for the duration of the event, including set-up and dismantling times. If free parking facilities cannot be provided, the client shall bear the parking costs incurred in full. Alternatively, we are entitled to charge a flat rate for parking tickets.

(9) If the agreed start of the performance is delayed for reasons for which the client is responsible (e.g. organizational delays, late start of the programme, lack of approvals), the claim to the full agreed remuneration shall remain unaffected. The client is informed that artists regularly fulfill other contractual obligations. If it is no longer possible or reasonable for the artist to carry out the performance in whole or in part due to a delay for which the client is responsible, the entitlement to the full fee shall continue to exist without deduction. This shall also apply if the artist cancels the performance or is unable to perform due to subsequent obligations.”

§ 4 Prices, terms of payment

• Net price:

All prices quoted are net prices, i.e. they are subject to statutory VAT.

• Currency and currency fluctuations:

1. All invoices are in euros.

• In the case of payment with foreign currencies or means of payment, exchange rate differences and bank charges shall be borne by you.

• 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.

• Our costs and remuneration are estimates / point in time:

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 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.

Unless we expressly designate a price as a binding fixed price, the prices shall apply as at the respective booking date (e.g. if we book an artist for you).

• Cost components not included = additional costs if applicable:

Unless otherwise agreed, the following items are not included in our remuneration and costs:

1. Travel costs from/to you and/or from/to the venue (2nd class train, 2nd class flight, rental car of medium quality; in case of doubt, the distance given by Google Maps is decisive),
2. necessary overnight stays (in an average 4-star hotel with single room occupancy),
3. Catering/meals of medium type and quality (one hot meal per day and drinks and night) if the service is provided outside our place of business,
4. Costs for telecommunications to/from abroad,
5. Guarding,
6. Storage costs,
7. Costs for local or site-specific building inspections and approvals,
8. Costs for driving, transit and parking permits.
9. Costs for collecting societies and licenses,
10. country-specific levies and taxes.

You must cover these costs yourself or pay them additionally, unless otherwise agreed.

• Dealing with 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 any case, i.e. Section 667 BGB does not apply even if you have concluded an agency agreement with us.

• Additional services:

We may charge for our services in the event of necessary extensions to the order or subject matter of the contract for which we are not responsible or which you request after conclusion of the contract. You will receive a further offer from us for this. In any case, however, we may charge for such services in proportion to the work involved in relation to the originally agreed costs.

• Advance payments:

Unless otherwise agreed, 100% is to be paid up to 3 weeks before the date of the event; if a balance is to be charged, this is to be paid up to 10 days after invoicing after the event. If you are not based in Germany, 100% of the full amount booked must be paid up to 4 weeks before the event.

These advance payments are an integral part of the contract.

• Partial services:

In the case of partial performance, we shall be entitled to demand corresponding partial payments.

• 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 immediately. 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.

• Default, reminder:

Interest on arrears shall be charged in the amount of 9 percentage points above the applicable base interest rate pursuant to Section 288 (2) BGB shall be charged. We reserve the right to claim higher damages caused by delay.

For each justified reminder, we can charge reminder costs of EUR 5.00 net, unless you can prove lower damages.
Irrespective of this, in the event of default, the client owes the statutory lump sum for default in the amount of EUR 40.00 pursuant to Section 288 (5) BGB .

• Special tax law information in the case of foreign reference:

As some countries have taxes that cannot be deducted (so-called cost taxes) and these can also change during the execution of the contract, it is agreed that the calculated costs can also change in line with such tax changes and must be adjusted accordingly.

Against this background, we are also entitled to increase the costs/prices if a state increases its taxes after submitting the price calculation, which are not deductible; the same applies to a reduction in taxes.

In addition to the net amounts, we charge the respective statutory value added tax. If the services provided by us are subject to the reverse charge procedure or the reversal of the tax burden in accordance with § 13b UStG, we will invoice our services net with the note “Reverse charge / reversal of the tax burden”. As the recipient of the service, you are then obliged to pay the resulting sales tax yourself.

• Risks associated with the implementation 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 for reasons for which we are not responsible.

This also applies if this is due to the absence of a permit, bad weather, lack of visitor interest or similar, provided 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 risk sphere.

This also applies to safety considerations that are not caused by a culpable defective performance on our part.

This also applies to a loss 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 items.

There is no right to a reduction due to displeasure, provided that the service was provided in accordance with the contract; it is the provision of the service that is owed, not a specific artistic success with the audience

§ 5 Language

• German is agreed as the language for planning, organization and follow-up work for the event. However, only the German and English language or statements in German and English (whether written or verbal) shall be legally binding.

• German and English are 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).

• Unless otherwise agreed, personnel authorized to issue instructions and personnel deployed in safety-critical situations must be proficient in the production language.

“Control” means that staff must be able to communicate safely with other service providers, the event organizer, the police, fire department, etc., even in unforeseen critical situations.

§ 6 Special agreements with regard to safety and hygiene

• Compliance with the requirements of the service provider:

You are obliged to follow the safety-related instructions displayed at the event location (e.g. from the operator of the location, operator of rides or facilities, etc.), as well as the instructions and recommendations of the local service provider or other consultants who have the necessary local and substantive knowledge to be able to assess any hazards.

• 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 induced these persons to act or refrain from acting unlawfully. Otherwise, § 12 (“Liability”) applies. If you invite third parties or allow them to participate, you are obliged to ensure that they also observe and comply with the provisions set out here.

• Special regulations for hygiene, infection protection and civil protection:

1. The hygiene regulations and official requirements in force at the venue or event location at the time of the event shall apply, which you must guarantee to us, our employees and service providers.

• You are responsible for ensuring that your employees or assistants working on site are fully informed and instructed about the hygiene rules.

• These conditions apply accordingly to other protective measures that are necessary in the overriding interest of civil protection (e.g. defense against terrorism).

§ 7 Ownership, protection of our documents, rights of use

• General information:

1. 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.

• 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.

• 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 to have been 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. are considered secret within the meaning of the Business Secrets Act.

This also applies beyond the end of the contract.

However, this paragraph 2 shall not apply if the work is so obviously in the public domain that protection under this paragraph 2 would unreasonably prejudice 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.

• Your rights of use:

1. 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 further use shall require our express consent, subject to an additional obligation to pay remuneration.

• Within the scope of your order, we will only take care of licensing the third-party rights required 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).

• 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.

• This also applies beyond the end of the contract.

§ 8 Confidentiality / protection of secrets

You and we mutually agree to maintain absolute confidentiality regarding trade and business secrets, even beyond the end of the contract, including in particular the terms of our contractual relationship.

§ 9 Recording rights, naming of references

• 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.

• References:

We are entitled to mention your name and your event as a reference to a reasonable extent for advertising purposes.

§ 10 Data protection

• Your employees: Use of data / disclosure of our data protection information:

You are obliged to pass on the data protection information that we provide 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 procedures and data protection measures carried out by us in connection with the contract.

• Other agreements relevant to data protection law:

If 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.

§ 11 Warranty

• Acceptance:

If 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.

• Deadline for notification of defects:

You must make complaints in writing immediately after discovering a defect (notice of defects). Otherwise, § 377 HGB applies accordingly.

• Your right of reduction:

You expressly reserve 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.

As a general rule, failure to please does not constitute a right to a reduction as long as we have provided the service in accordance with the order. In this respect, we are also not responsible for the “success” vis-à-vis the audience or your visitors and guests.

• 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 do not have any unreasonable effects on us in terms of identifying and rectifying the 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.

• Change in the limitation period:

The limitation period for all warranty claims is 1 year from acceptance, otherwise 1 year from the end of the year in which the claim arose and you became aware of the circumstances giving rise to the claim and the identity of the debtor or should have become aware of them without gross negligence.

This shortening of the limitation period does not apply:

1. In the event of intent or gross negligence,
2. in the event of personal injury,
3. 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 (Section 438 (1) No. 1a BGB),
4. 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),
5. for claims under the Product Liability Act.

§ 12 Liability

• 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 are not liable for only slightly negligent breach 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 shall only be 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 1 shall not apply in the event of grossly negligent or willful breach of duty.

• breaches of duty that lead to injury to life, limb or health:

We are liable for any kind of negligence and intent in the event of injury to life, limb or health attributable to us.

• Mandatory legal liability:

The limitations of liability in paragraph 1 do not affect your claims arising from product liability and mandatory statutory liability.

• Extension of this clause to employees, executive bodies, vicarious agents, etc:

The limitations of liability in paragraph 1 shall apply to the same extent in favor of our executive bodies, our employees and other vicarious agents and our subcontractors.

§ 13 Force majeure

• Force majeure in the relationship between you and us:

In the event of force majeure that 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 reimbursed by us to our subcontractors. If the force majeure occurs within the last week before the start of the event, it shall be rebuttably presumed (i.e. you and we can prove that less or more was provided) that we have already provided 30% of the contractual services that are to be remunerated. If the force majeure occurs earlier, 15% shall be assumed. If the service provider or subcontractor commissioned by us (e.g. artist, tour operator, hotel, etc.) demands payment of the agreed remuneration from us and we cannot (also) invoke force majeure or refuse payment for other reasons, we can demand reimbursement from you of the payments to be made or already made to them.

Insofar as Section 313 of the German Civil Code (BGB) is or should be applied by mutual agreement or by court order, it is agreed that we shall always have a claim to the costs incurred and services rendered up to that point and the payments to be made or already made by us to our subcontractors, insofar as we do not receive reimbursement of these from them.

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 interrupt the event,

in the event of increased requirements imposed by the authorities or regulations and other such cases, our remuneration shall be governed by Section 648 BGB, whether directly or by analogy, unless a lower flat-rate cancellation fee would be incurred as a result of 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.

• Relevant date of valuation:

If, when canceling/terminating our contract or canceling the event, you give as a reason the concern about or the probability of the occurrence of force majeure, the following applies:

The relevant time for assessing whether or not force majeure applies 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 the relevant time.

This also applies if you cancel the event before the date of the event due to concerns about force majeure.

If it then transpires at this 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 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. Any 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 to be an acknowledgement of force majeure and a waiver of any further claims against you.

You shall bear the burden of proof that the cancellation of the future event is based exclusively on force majeure and not (also) on other reasons. If this proof cannot be provided, the relevant time within the meaning of this provision shall be brought forward to the time of the cancellation.

• Force majeure in the relationship between us and our subcontractor:

If one of our subcontractors can invoke force majeure and therefore fails to perform the service owed in the subcontractor relationship, we shall also be released from our obligation to perform towards you; paragraphs 1 and 2 shall otherwise apply.

We shall endeavor to provide suitable substitute services, for which our remuneration shall be based on the agreed remuneration in case of doubt.

• 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 necessary unforeseeability 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.

However, this provision only applies to pandemics/epidemics/epidemics that are comparable to the COVID-19 pandemic in 2020, i.e. are based on a novel, unknown pathogen or one that cannot be effectively cured with a vaccine or medication.

• Further legal consequences:

Necessary activities that require the processing and completion of the order are to 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 of 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 regarding the compilation and clarification, which we can also provide via a confirmation or a report from a lawyer or auditor.

§ 14 Termination

Termination without good cause is excluded on both sides.

§ 15 Cancellation

If the contract is canceled by the client, we are entitled to either claim the specifically agreed remuneration less saved expenses or to charge a lump sum for our costs and lost profit.

If we choose to charge a flat rate, the following cancellation rates apply:

– up to 4 months before the event date: 70% of the agreed remuneration including all costs and taxes
– from 4 months to 6 weeks before the event date: 80% of the agreed remuneration including all costs and taxes
– from 6 weeks before the event date: 100% of the agreed remuneration including all costs and taxes

The client reserves the right to prove that we have incurred no or significantly less damage.

Special regulation for peak and lockdown dates

The following special regulations apply to events on public holidays, bridge days, New Year’s Eve, New Year, Easter, Christmas, during trade fair periods and on dates with particularly high demand (especially Friday and Saturday events):

If a cancellation is made 8 weeks or more before the date of the event, the full agreed fee (100%) including all costs and taxes must be paid.

This is particularly true in view of the fact that the artists and performers scheduled for such dates cannot usually be reassigned at short notice.

If we succeed in subcontracting all or part of the originally booked services to another party, the revenue generated as a result shall be credited appropriately.

In all cases, the client shall reimburse the costs of third parties (e.g. technology hired in anticipation of the event, external personnel, catering, etc.), unless these services are already included in the agreed remuneration or the flat rates.

§ 16 Final provisions

• Retention:

You are not entitled to exercise a right of retention against us due to another claim not arising from this contractual relationship.

• 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 situation 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 set-off situation has been legally established or recognized as having ceased to exist, and to repay them to you if the set-off situation has been legally established or recognized as having ceased to exist. The party who has caused the fiduciary administration shall bear the costs of the fiduciary. The contractual partner entitled to receive 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.

• Assignment:

You may only assign claims arising from the contractual relationship with us to third parties with our prior express consent.

• Place of fulfillment:

The place of performance is our registered office, unless otherwise stated in our offer or the order confirmation.

• Place of jurisdiction:

The place of jurisdiction for all claims is our registered office. We are also entitled to choose the place of jurisdiction at your place of business.

• Choice of law:

German law applies.

• Language selection:

If these General Terms and Conditions are translated into a language other than German, the German language version shall take precedence in case of doubt.

• Maintenance of 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 the General Terms and Conditions in accordance with Sections 305 to 310 of the German Civil Code (BGB) or if a loophole requiring filling arises, to replace it 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.

“Consent to these GTC may also be given in electronic form. A handwritten signature is equivalent to electronic consent.”