Section 1 Scope of Application
General:
We, A. Foeldessy Entertainment GmbH (“we”), provide our services exclusively on the basis of these General Terms and Conditions (“GTC”) to clients acting in the course of a commercial or self-employed/professional activity (including associations, organizations, public authorities, municipalities/cities etc., but not consumers).
Client’s GTC:
The client’s own general terms and conditions shall apply only if and to the extent that we have expressly agreed to them in writing.
“These GTC are accessible at any time at
https://www.kuenstlervermittlung-berlin.com/agb/
They become part of the contract as soon as the client accepts the offer or agrees to these GTC electronically (e.g., via checkbox, e-mail or electronic signature).”
Section 2 How and when is a contract concluded between you and us?
We submit an offer which you may accept in writing by returning the signed contract to us within 10 days. Acceptance may also be made in text form (e.g., by e-mail) or by electronic consent (e.g., checkbox or electronic signature).
Section 3 Subject matter of the contract, role as organizer, and duties 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 description of services and, where applicable, supplementary agreements.
(3) In the event of illness, failure or other unavailability of an artist or service provider, we are entitled to provide the agreed service by means of an equivalent and reasonable substitute, provided that the purpose of the contract is not jeopardized thereby.
(4) We are entitled to engage subcontractors, sub-suppliers or other vicarious agents for the fulfilment of the contract.
(5) The client shall provide all information, approvals and cooperation required for the performance of the event in full and in due time. We are not responsible for delays or restrictions in performance that are attributable to missing or late cooperation by the client.
(6) The client is solely responsible for obtaining all permits, licenses and official approvals required for the performance of the event, in particular for events on public streets, squares or publicly accessible areas. If required permits are not obtained, or not obtained in time, our right to the agreed remuneration remains unaffected, provided that we are not responsible for such circumstance.
(7) The client undertakes to provide the artists and their personnel with a clean, lockable and heated dressing room. The room temperature must be at least 20°C. The dressing room must provide at least sufficient seating, mirrors, as well as non-alcoholic soft drinks and snacks. If the client is unable to meet these requirements, the client must inform us thereof in writing without undue delay prior to the event in order to enable an amicable solution.
(8) For the duration of the event, including set-up and dismantling times, the client shall provide sufficient free-of-charge parking spaces in the immediate vicinity of the venue for artists, crew and technical vehicles. If free-of-charge parking cannot be provided, the client shall bear the parking costs in full. Alternatively, we are entitled to charge a flat fee for parking tickets.
(9) If the agreed start of the performance is delayed for reasons attributable to the client (e.g., organizational delays, delayed program start, missing approvals), our right to the full agreed remuneration remains unaffected. The client is aware that artists regularly have further contractual obligations. If, due to a delay attributable to the client, the performance becomes wholly or partly impossible or unreasonable for the artist, the full fee remains payable without deduction. This also applies if the artist must terminate the performance or cannot perform due to subsequent obligations.
Section 4 Prices, payment terms
Net prices:
All stated prices are net prices, i.e., plus any statutory value added tax (VAT) owed.
Currency and currency fluctuations:
All invoicing is in euros (EUR).
If payment is made in foreign currency or by foreign payment instruments, exchange differences and bank charges shall be borne by the client.
For events and travel outside the euro area there is a likelihood of currency fluctuations. Accordingly, the total project sum in euros may depend on and change with the exchange rate applicable at the time we instruct payment to a service provider or subcontractor outside the euro area. The exchange rates published daily by the European Central Bank at the relevant billing date shall be used as the basis.
Our costs and remuneration are estimates / timing:
All fees and costs stated in any estimate or offer prepared by us are based on the planning status known at the time of preparation and are estimates unless we expressly designate them as fixed prices. Necessary changes that are not attributable to us remain reserved. This also applies to the working time of employees and contributors and to the duration, quantity and type of equipment.
Unless we expressly designate a price as a binding fixed price, the prices apply as of the respective booking date (e.g., when we book an artist for you).
Excluded cost components = possible additional costs:
Unless agreed otherwise, the following items are not included in our remuneration and costs:
– travel costs to/from the client and/or to/from the venue (2nd class rail, 2nd class flight, mid-range rental car; in case of doubt the distance stated by Google Maps is decisive),
– necessary overnight stays (average 4-star hotel, single occupancy),
– catering/food of average quality (one warm meal per day and beverages day and night) if performance takes place outside our registered office,
– telecommunication costs to/from abroad,
– guarding/security,
– storage costs,
– costs for local or location-dependent structural inspections and permits,
– costs for driving, access and parking permits,
– costs for collecting societies and licenses,
– country-specific duties, charges and taxes.
The client must bear these costs or pay them additionally unless agreed otherwise.
Handling of commissions, rebates & exclusion of duty to surrender:
We are entitled to retain customary industry commissions and rebates within the internal relationship with service providers or service carriers engaged by us (so-called kick-back commissions) without offsetting them. This does not apply if the service provider or service carrier expressly designates the commission for you and has merely entrusted it to us for forwarding.
Section 667 of the German Civil Code (BGB) is excluded in any case, i.e., Section 667 BGB shall not apply even if we have concluded a business management contract (Geschäftsbesorgungsvertrag) with you.
Additional services:
If, after contract conclusion, extensions of the order/contractual scope become necessary without fault on our part, or are requested by you, we may charge such services. For this you will receive an additional offer. In any case, we may also charge such services proportionally according to the effort in relation to the originally agreed costs.
Advance payments:
Unless agreed otherwise, 100% is due 3 weeks prior to the event date; if a remaining balance is to be charged, it is due within 10 days after invoicing following the event. If your registered office is not in Germany, the full booked amount (100%) is due 4 weeks prior to the event.
These advance payments are an essential part of the contract.
Partial services:
For partial services, we are entitled to request corresponding partial payments.
Invoicing:
We issue the invoice for a project as soon as all invoices from the commissioned service providers/subcontractors are available to us.
Invoices are due immediately. If receipt or formal correctness of the invoice is disputed, we may request immediate payment of the net amount resulting from our agreement (contract conclusion), including, where applicable, different dates for advance payments.
Default, reminders:
Default interest is charged at a rate of 9 percentage points above the applicable base rate pursuant to Section 288 (2) BGB. We reserve the right to claim higher default damages.
For each justified reminder we may charge reminder fees of EUR 5.00 net, unless you prove lower damages.
Irrespective thereof, in the event of default the client owes the statutory default lump sum of EUR 40.00 pursuant to Section 288 (5) BGB.
Special tax notes for international matters:
As in some states there are taxes that cannot be deducted (so-called cost taxes) and these may change during contract performance, it is agreed that such tax changes may also change the calculated costs and must be adjusted accordingly.
Accordingly, we are entitled to increase costs/prices even if a state increases its non-deductible taxes after submission of the price calculation; the same applies mutatis mutandis to reductions of such taxes.
In addition to the net amounts we charge the VAT owed by law. Where the services provided by us are subject to the reverse charge mechanism pursuant to Section 13b of the German VAT Act (UStG), we invoice net and include the note “Reverse charge / VAT liability shift”. In such case, you as recipient are obliged to account for the VAT yourself.
Risks of performing the event/project:
You are obliged to pay the agreed remuneration and costs even if the event or the contractual subject matter is cancelled, terminated, interrupted or shortened for reasons for which we are not responsible.
This also applies if this is due to missing permits, bad weather, lack of visitor interest or similar, provided we are not responsible for such reasons.
It is rebuttably presumed that terrorist threat situations, threats of terrorist attacks, bomb threats or the discovery of “dangerous objects” fall within your sphere of risk.
This also applies to security considerations not caused by culpable defective performance by us.
This also applies to loss of the contractual subject matter after transfer of risk to you, if we owe the provision/handing over of items and such loss is not attributable to us.
There is no right to reduction due to subjective dislike if the service has been provided in accordance with the contract; what is owed is performance, not a specific artistic success with the audience.
Section 5 Language
German is agreed as the language for planning, organization and post-event follow-up. However, legal binding effect shall only be given to German and English language statements (whether written or oral).
German and English are agreed as the production languages (i.e., the language on site at the event area, including set-up, dismantling, rehearsals and the event itself).
Unless agreed otherwise, personnel with authority to issue instructions and personnel employed in safety-critical situations must be proficient in the production language(s).
“Proficient” means that the personnel must be able to communicate reliably with other service providers, the organizer, police, fire department etc., including in unforeseen critical situations.
Section 6 Special agreements regarding safety and hygiene
Compliance with requirements of service providers:
You are obliged to comply with safety-relevant notices displayed at the venue (e.g., by the venue operator, operators of rides or equipment etc.) and to follow requirements and recommendations of local executing service providers or other advisors who have the necessary local and technical knowledge to assess potential hazards.
Responsibility for your employees and guests:
You are responsible for acts and omissions of your employees, service providers commissioned by you and your guests, unless we have unlawfully induced such persons to act or omit unlawfully. Otherwise, Section 12 (“Liability”) applies. If you invite or allow third parties to participate, you must ensure that such persons also observe and comply with these requirements.
Special rules for hygiene, infection control, civil protection:
The hygiene rules and official requirements applicable at the place of the event/venue at the time of the event apply and must be ensured by you towards us, our employees and service providers.
You warrant that your employees or agents working on site are comprehensively informed and instructed regarding the hygiene rules.
These conditions apply accordingly to other protective measures necessary in the overriding interest of civil protection (e.g., counter-terrorism).
Section 7 Ownership, protection of our documents, rights of use
General:
Documents, graphics, lists, drawings, sketches and other items created by us remain our property and must be returned to us after the end of the contract, unless transfer of ownership is part of the contract.
If no contract is concluded between you and us after participation in a presentation or after creation of a concept, all services and rights remain exclusively with us.
Protection of our documents and ideas:
For all event concepts, documents, graphics, lists, drawings and sketches created by us (“works”), applicability of the German Copyright Act (Urheberrechtsgesetz) is agreed even if individual parts are not protected by law.
Furthermore, our event concepts, contract documents, planning documents, calculation documents, checklists, address lists etc. shall be deemed trade secrets within the meaning of the German Trade Secrets Act (GeschGehG).
This also applies beyond the end of the contract.
However, this paragraph shall not apply to the extent the work is so obviously common and standard that protection under this paragraph would unreasonably impair you. You bear the burden of presentation that the work is wholly or partly obviously common and standard; we then bear the burden of proof that this is exceptionally not the case.
Your rights of use:
Upon full payment of the due remuneration and costs, you acquire the rights of use required for the contractual purpose. You acquire such rights of use without payment only to the extent that, in relation to the contractual purpose/usage period, a later due date has been agreed. Any use beyond this requires our express consent and may be subject to additional remuneration.
Within the scope of our assignment, we only arrange licensing of third-party rights necessary for the order (e.g., license for a commissioned music performance). If you wish to use third-party works/rights beyond this, you yourself are responsible for obtaining the necessary rights (e.g., recording the performance on video and uploading the video on the internet).
Repeated use by you without repeated remunerated engagement of us triggers a corresponding remuneration obligation to the extent the repetition was not already subject of the first order and/or adequately compensated by the prior remuneration.
This also applies beyond the end of the contract.
Section 8 Confidentiality / protection of secrets
You and we mutually agree to maintain absolute confidentiality regarding business and trade secrets beyond the end of the contract, including in particular the commercial terms of our contractual relationship.
Section 9 Recording rights, reference naming
Recording rights:
We are entitled to take photo and/or video recordings during the event, observing the personal rights of guests and third-party rights, and to use them for reference and our own promotional purposes, unless you expressly object in advance for good cause. In any case, we are entitled to make recordings for documentation and evidentiary purposes.
References:
We are entitled to name your name and your event as a reference to a reasonable extent for promotional purposes.
Section 10 Data protection
Your employees: use of data / forwarding our data protection information:
You are obliged to forward the data protection information communicated by us as your contractual partner also to the responsible persons and contact persons to be designated by you, so that they are informed about the data processing operations and data protection measures carried out by us in connection with the contract.
Further data protection agreements:
Where necessary, you and we will also enter into corresponding data protection agreements after conclusion of the contract 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 a data processing agreement pursuant to Art. 28 GDPR).
Section 11 Warranty
Acceptance:
If acceptance is required, acceptance shall be deemed granted if, after our request and setting of a deadline, but in any case within 14 working days after the request, you do not refuse acceptance with specific descriptions of defects.
Deadline for defect notice:
You must assert complaints immediately after discovering a defect in writing (defect notice). Section 377 of the German Commercial Code (HGB) applies accordingly.
Your right to reduction:
You expressly retain the right to reduce the remuneration after unsuccessful cure, or, if construction work is subject of warranty, to withdraw from the contract at your option.
In general, subjective dislike does not justify 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” with the audience or your visitors/guests.
When are your warranty rights excluded?
Your rights due to defects are excluded insofar as you make or have made changes to the rented item without our consent. This does not apply insofar as you prove that the changes do not have unreasonable effects on the identification and remedy of defects. Your rights due to defects remain unaffected if you are entitled to make changes, in particular within the exercise of the self-remedy right pursuant to Section 536a (2) BGB, and such changes were executed professionally and documented in a comprehensible manner.
Change of limitation period:
The limitation period for all warranty claims is 1 year from acceptance; otherwise 1 year beginning with the end of the year in which the claim arose and you obtained knowledge of the circumstances giving rise to the claim and the person of the debtor, or would have obtained such knowledge without gross negligence.
This shortening of the limitation period does not apply:
– in cases of intent or gross negligence,
– in cases of personal injury,
– in the case of a defect in a third party’s right in rem on the basis of which surrender of the purchased item can be demanded (Section 438 (1) no. 1a BGB),
– in the case of a building and a work whose success consists in providing planning or supervision services for it (Section 634a (1) no. 2 BGB),
– for claims under the Product Liability Act (Produkthaftungsgesetz).
Section 12 Liability
Breaches of duty leading to property damage or financial loss:
In the case of slightly negligent breaches of duty, our liability is limited to the foreseeable, contract-typical average damage according to the nature of the contract.
We are not liable for slightly negligent breach of non-essential contractual obligations. “Non-essential” obligations are those whose performance does not characterize the contract and on which you must not rely.
Indirect damages and consequential damages resulting from defects of the contractual subject matter are only compensable insofar as such damages are typically to be expected in the intended use of the contractual subject matter.
The limitations of liability in this paragraph (1) do not apply in cases of gross negligence or intentional breach of duty.
Breaches of duty leading to injury to life, body or health:
We are liable for any degree of negligence and intent in the event of injury to life, body or health attributable to us.
Mandatory statutory liability:
The limitations of liability in paragraph (1) do not affect claims under product liability and mandatory statutory liability provisions.
Extension to employees, corporate bodies, agents etc.:
The limitations of liability in paragraph (1) apply to the same extent in favor of our corporate bodies, our employees, other vicarious agents and our subcontractors.
Section 13 Force majeure
Force majeure in the relationship between you and us:
In the event of force majeure leading to cancellation or interruption of the contract or individual contractual services, we may request reimbursement/payment from you for the costs incurred and services rendered up to that point and for payments owed by us to our subcontractors. If force majeure occurs within the last week before the start of the event, it is rebuttably presumed that we have already rendered 30% of the contractual services to be remunerated. If force majeure occurs earlier, 15% applies. If a service provider or subcontractor engaged by us (e.g., artist, travel provider, hotel etc.) demands payment from us and we cannot invoke force majeure vis-à-vis such party (also) or refuse payment for other reasons, we may claim reimbursement from you of the payments owed or already made to such party.
If it is established by mutual agreement or by court that Section 313 BGB applies or should apply, it is agreed that we always have a claim to the costs incurred and services rendered up to that point and to payments owed by us to our subcontractors, insofar as we do not receive reimbursement from them.
If the contractually owed services have not become directly impossible, but are merely impeded, impaired or appear almost impossible, i.e., in case of authority recommendations to cancel or terminate the event, in case of increased requirements by authorities or regulations and similar cases, Section 648 BGB applies to our remuneration, whether directly or analogously, insofar as a cancellation under the cancellation terms agreed herein would not lead to a lower lump-sum cancellation fee; in that case the lower lump sum applies, unless we choose to calculate actual damages and such damages exceed the lump sum.
Relevant date for assessment:
If, when cancelling/terminating our contract or the event, you state as a reason your concern about or probability of the occurrence of force majeure, the following applies:
The contractual date of the event is agreed as the relevant date for assessing whether force majeure exists. If the event spans more than one day, the arithmetic midpoint of that period shall be the relevant date.
This also applies if you cancel the event prior to the event date due to concern about force majeure.
If force majeure exists at that relevant date, the force majeure provisions apply. If no force majeure exists at that relevant date, the cancellation/termination provisions apply.
In any event, and in particular until clarification of any legal issues, we have a claim to payment under paragraph (1). Any payment by you pursuant thereto does not constitute a waiver of any other claims against us. Acceptance of your payment by us does not constitute acknowledgment of force majeure nor waiver of any further claims against you.
You bear the burden of proof that the cancellation of the future event is exclusively due to force majeure and not (also) other reasons. If you fail to prove this, the relevant assessment date within the meaning of this provision is brought forward to the date of the cancellation.
Force majeure in the relationship between us and our subcontractor:
If one of our subcontractors may invoke force majeure and therefore does not perform the service owed in the subcontractor relationship, we are also released from our obligation to perform towards you; paragraphs (1) and (2) apply accordingly.
We will endeavor to procure suitable substitute services; our remuneration for such effort shall, in case of doubt, be based on the agreed remuneration.
Corona clause:
It is agreed that your or our knowledge at the time of contract conclusion of pandemics/epidemics/diseases emerging over a certain period does not exclude force majeure, specifically the unforeseeability required under these contractual provisions. This is intended to reflect the legal uncertainty for all parties as in the first quarter of 2020 during the COVID-19 pandemic.
However, this provision applies only to pandemics/epidemics/diseases comparable to the COVID-19 pandemic in 2020, i.e., based on a novel, unknown pathogen or one that cannot be effectively cured by vaccination or medication.
Further legal consequences:
Necessary activities required for winding up and terminating the order must be remunerated and paid separately by you; in case of doubt, the remuneration rates agreed for the main order apply accordingly. This includes costs for legal or other professional advice that was not already subject of the order and is necessary to wind up and terminate the order properly.
If, despite occurrence of force majeure, you use our services more extensively than compensated/paid pursuant to paragraph (1) (e.g., a copyrighted work is completed and you exploit it despite force majeure), we have a claim to remuneration and cost reimbursement exceeding the actually incurred costs and rendered services, corresponding to the extent of your actual use.
We are entitled to postpone the unwind/settlement for the period necessary to calculate and compile and clarify all cost positions. If less than 50% of such cost positions remain to be clarified, we will carry out settlement regarding the other part. For the period of such postponement, limitation periods are suspended.
You have a right to information about our efforts regarding compilation and clarification, which we may also provide by confirmation/report of a lawyer or auditor.
Section 14 Termination
Termination without important cause is excluded for both parties.
Section 15 Cancellation
If the client cancels the contract, we are entitled, at our option, to claim the specifically agreed remuneration minus saved expenses, or to settle our costs and lost profit by a lump sum.
If we choose settlement by lump sum, 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 up 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 retains the right to prove that no damage or significantly lower damage has occurred.
Special rule for peak and blocked dates
For events on public holidays, bridge days, New Year’s Eve, New Year’s Day, Easter, Christmas, during trade fair periods as well as on particularly high-demand dates (in particular Friday and Saturday events), the following special rule applies:
If cancellation occurs within 8 weeks before the event date, the full agreed remuneration (100%) including all costs and taxes is payable.
This applies in particular because for such dates it is regularly not possible to reallocate the scheduled artists and service providers at short notice.
If we succeed in rebooking the originally booked services wholly or partly, any proceeds achieved will be credited appropriately.
In all cases, the client must reimburse third-party costs (e.g., hired technology, external personnel, catering etc.) insofar as such services are not already included in the agreed remuneration or the lump sums.
Section 16 Final provisions
Retention:
You are not entitled to exercise a right of retention against us due to a claim not arising from this contractual relationship.
Set-off:
You may set off against us only if it is based on the same contractual relationship. In order to safeguard the interests of both parties, if you allege a set-off situation you are obliged to pay the due remuneration and costs into a trustee/escrow account. The trustee must be obliged to pay out the managed payments in the amount of the due amounts to us if the set-off situation is eliminated by final judgment or acknowledged, and to pay back to you if the set-off situation is established by final judgment or acknowledged. The party causing the escrow bears the costs of the escrow. Neither party may claim additional interest due to default during the escrow period from the other. If no escrow deposit is made, it is presumed that no permissible set-off situation exists as long as we have not acknowledged the claim underlying the set-off or it has been finally adjudicated.
Assignment:
You may assign claims arising from the contractual relationship with us to third parties only with our prior express consent.
Place of performance:
Place of performance is our registered office, unless otherwise stated in our offer/order confirmation.
Jurisdiction:
Jurisdiction for all claims is our registered office. We are also entitled to choose jurisdiction at your registered office.
Choice of law:
German law applies.
Language:
If these GTC are translated into a language other than German, the German version prevails in case of doubt.
Validity-preserving clause / severability:
If one or more provisions are invalid/void/unenforceable for reasons other than the provisions on the law of general terms and conditions pursuant to Sections 305 to 310 BGB, or if a contractual gap arises, you and we are obliged to replace such provision or fill the gap by an effective provision that, in its legal and economic content, corresponds 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, that provision shall be agreed with the closest legally permissible measure to the original measure.
“Consent to these GTC may also be given in electronic form. Electronic consent is equivalent to a handwritten signature.”
