1. General / Validity of the GTC
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all legal transactions of bplusd events GmbH and bplusd personal services GmbH (hereinafter referred to as “Agency”) with their contractual partners (hereinafter referred to as “Client”) – insofar as these are businesses within the meaning of Section 14 of the German Civil Code (BGB) – regarding the provision of work and services in the areas of events, trade fairs, temporary installations and operating sales areas as well as staffed promotional events / staff-assisted sales promotions.
1.2 For any follow-up work and services, an extra referral to the Agency’s GTC will not be required.
1.3 Only the Agency’s GTC will apply. The Client’s general terms and conditions and/or conditions of purchase apply only when the Agency expressly agrees to them in writing.
1.4 Any additions or amendments to these GTC and to the agreements made between the Client and the Agency, including this clause itself, must be made in writing.
2. Quotation and contract conclusion
2.1 The basis for concluding a contract is the relevant written quotation from the Agency in which the services and fees are set out. The Agency’s quotations are subject to change and non-binding and constitute an invitation to the Client to commission the Agency to perform work/services.
2.2 By commissioning the performance of the selected service/work, the Client makes a binding offer to conclude a contract. The contract between the Client and the Agency is concluded by written acceptance from the Agency.
2.3 The Agency performing an act associated with the order will serve as confirmation of the order. By using the service/work of the Agency, the Client declares acceptance of the quotation and waives receipt of acceptance.
3. Agency services
3.1 The Agency specifically provides services/works in the areas of marketing, sales, events, trade fairs, temporary installations and operating sales areas as well as staffed promotional events / staff-assisted sales promotions (hereinafter also referred to as “Project”).This involves, in particular, the design, organisation, planning and implementation of such a Project, together with the support of Clients and the provision of services by third parties to carry out the Project.
3.2 The specific scope of the Agency’s services is determined by the Agency’s quotation, the Client’s order, the Agency’s order confirmation and the Client’s briefing. If a written briefing is not provided or if it deviates from the Agency’s service description, the Agency’s contact report will be deemed to form part of the contract and will be provided to the Client in writing promptly after it has been prepared. This contact report becomes a binding part of the contract when the Client does not object to the contact report within 5 working days.
3.3 The Agency is entitled to engage third parties (e.g. subcontractors) to fulfil its obligations under the contractual relationship without the Client’s prior consent. If the Agency commissions third parties named by the Client at the Client’s request, the Agency will not be liable.
3.4 If the Agency concludes contracts with third parties for carrying out a project, such contracts are concluded in the name of and with the power of attorney of the Client. This especially concerns the renting of venues, rooms, the conclusion of contracts in the catering and service sector, as well as the conclusion of contracts with performers/artists.
3.5 The Agency is entitled to render partial services.
3.6 Changes and/or additions to the scope of services must be made in writing. Any additional costs incurred as a result must be met by the Client.
4. Deadlines / Time of providing services
4.1 Delivery dates are valid only with the Agency’s written confirmation. If the Agency is late in providing its services, it will first be granted a reasonable period of grace. The Client can only withdraw from the contract if this period of grace has also expired without provision of the services.
4.2 For fixed delivery dates and deadlines, the Agency will not be responsible for delays in delivery and performance if these are due to force majeure. If the Client delays the provision of its own or third-party services (of either a material or non-material nature), the deadlines promised by the Agency will also be delayed accordingly.
5. Obligation of the Client / Event organiser to cooperate
5.1 Unless expressly agreed otherwise in writing, the Agency will not act as the responsible event organiser (Veranstalter). As the event organiser, the Client assumes responsibility for all liability matters in relation to everyone involved.
5.2 The Client will provide the Agency with all the documents and information required for the proper provision of the Agency’s scope of services and the staging of the event commissioned by the Client.
5.3 If the Client provides space and premises for carrying out a Project, the Client will be responsible for ensuring that such areas and premises are suitable for the purpose of the Project and are officially approved. The Client is obliged to obtain any necessary official permits in good time before the Agency begins to provide its services, to secure routes and areas against general hazards and to exclude potential sources of danger. The Client is responsible for ensuring the safety of the areas and premises made available by the Client. The Client indemnifies the Agency against any liability that could arise from the absence of an official permit, from a breach of the duty to ensure safety or from the nature or location of the areas and/or premises provided.
5.4 The Agency may require the Client to take out and provide evidence of suitable and sufficient insurance policies covering liability and damage risks.
5.5 If the Agency rents or lends items of any kind to the Client, the Client is liable for the loss of or damage to the rented or lent items. Any claims for compensation by the Agency will be according to the replacement value of the items.
6. Payment and terms of payment
6.1 The amount of payment agreed applies. This includes only those items that are the subject of an express written agreement in accordance with 3.2. Additional expenses, in particular for the acquisition of third party rights, for the engagement of subcontractors, for costs incurred for artists/performers and other third parties, for contributions to the artists’ social insurance, foreigners’ tax (Ausländersteuer or limited income tax (beschränkte Einkommenssteuer)) as well as fees for the use of copyright services, will be charged additionally. Any customs, shipping and packaging costs incurred will also be charged additionally. Unless otherwise agreed in writing, the Agency will be reimbursed in addition to the agreed payment for travel costs and expenses incurred in connection with carrying out the order.
6.2 If the agreed services are performed over a longer period of time or if high external costs are incurred upfront, the Agency can invoice the Client for partial payment of any partial service already performed. These partial services need not be available in a form that can be used by the Client and can also be available as merely a basis for work by the Agency. The percentage payment is determined per Client and per Project.
6.3 Unless otherwise contractually agreed, payments are due within 14 days of invoicing without any deductions. If the payment deadlines are exceeded, the Agency will be entitled to interest on arrears at a rate of nine percentage points above the base interest rate in accordance with Section 288 (2) of the German Civil Code (BGB) without requiring any reminder or warning. The right to claim additional compensation for damages remains unaffected by this provision.
6.4 Any invoice from the Agency will be considered accepted if the Client does not object to the Agency in writing within 14 days. The deadline is determined by the date of receipt of the invoice.
6.5 All services offered by the Agency are subject to statutory value added tax.
6.6 For printed matter, ±10% more/less work is possible and will be charged accordingly.
6.7 The Agency will receive an agency payment for all third-party receipts, the amount of which is set out in the quotation.
6.8 Until all invoices relating to the order have been paid in full, the Agency retains ownership of all services and rights, in particular copyright rights of use, as well as ownership of files, documents and objects provided (retention of title).
7.1 If the Agency’s services require acceptance in accordance with the provisions of the contract for work and services or if it has been agreed that acceptance will take place, the Agency will notify the Client when the services have been completed and agree with the Client on a prompt date for their acceptance. If the Agency’s overall service provisions includes partial services that can be accepted, the Agency may also demand acceptance for such partial services.
7.2 If a service comprises planning and/or staging of performances or events, acceptance will take place on a regular basis on the occasion of dress rehearsals and/or general rehearsals.
7.3 The Client is obliged to attend the acceptance appointment or to be represented by a duly authorised representative. It is expressly acknowledged that in special cases, an acceptance appointment one hour before the start of an event will not be unreasonable.
7.4 The parties will record in writing any defects discovered at the acceptance appointment or the absence of defects and, if applicable, also record the reasonable period of time within which a defect is to be remedied. The Client’s other rights remain unaffected by this, but withdrawal from the contract is excluded.
7.5 Any outstanding partial services or reported defects will be performed or remedied as soon as possible. Provided that these do not significantly impair the function of the object of the contract, they will not entitle the Client to refuse acceptance.
7.6 If the Client has used the service or part of the service without prior formal acceptance, acceptance will be deemed to have taken place at the time of use, unless defects are notified in advance that prevent acceptance.
8.1 Transport risk of all goods shipped within the scope of performing the contract will be borne by the Client, unless otherwise agreed. In the absence of specific instructions, the Agency will decide at its discretion about any dispatch without undertaking responsibility for special packaging or the cheapest and quickest route.
8.2. The Agency is entitled, but not obliged, to take out transport insurance, the costs of which will be borne by the Client.
8.3. Any damage caused in transit must be immediately reported to the Agency. Any claims against the transport company will be transferred to the Client upon request.
8.4. Objects belonging to the Client which are necessary for the Agency to provide its services must be delivered free to the Client’s premises or to the location specified by the Agency on the agreed date. The return of such items will be made carriage forward from the place of use at the risk of the Client.
8.5. Any loss during transport for which the agency is not responsible or the loss of the delivered materials at the place of use will be borne by the Client.
9.1 Storage of promotional material and all other items for carrying out the order can be agreed on a case-by-case basis. The Agency will receive separate payment for storage.
9.2 The Agency is entitled to store the items with a third party. This can also be done in the name and on behalf of the Client. In all cases, the Client will bear the costs of storage plus a handling fee, the amount of which is set out in the quotation.
9.3 The provision of Section 475 of the German Commercial Code (HGB) on the provisions of liability for loss or damage is waived.
10.1 The Client will immediately inspect the work and services provided by the Agency upon receipt, and in all cases prior to use, and will give notice of any defects immediately upon identification. If immediate inspection or reporting of defects is not carried out, the Client will have no warranty claims with regard to obvious defects, known defects or consequential defects.
10.2 If there is a defect for which the Agency is responsible, it may, at its own discretion, remedy the defect (repair) or provide a replacement. If the defect is remedied, the Agency will have the right to remedy the defect twice, in each case within a reasonable period of time. In the case of a defect and a remedy is precluded or impossible due to the passage of time (e.g. end of the event), the Client will only be entitled to rights on reducing price (Minderungsrechte). In all other respects, the statutory provisions of the law on contracts for work and services in the German Civil Code (BGB) will apply.
10.3 The Agency’s warranty obligation expires after one year has elapsed following receipt of the Agency’s delivery/service by the Client.
11.1 The risk concerning the legality of the measures developed and implemented by the Agency will be borne by the Client. This particularly applies in cases where the actions and measures violate provisions of competition law, copyright law and special advertising laws. The Agency is, however, obliged to point out legal risks if it becomes aware of them in the course of its activities. The Client releases the Agency from claims by third parties if the Agency has acted at the Client’s express request despite having communicated concerns to the Client with regard to the permissibility of the measures. The Agency must notify the Client of such concerns immediately as they become known; notification must be at least in text form (fax, e-mail). If the Agency considers a measure to be carried out requires an examination under competition law by a particularly competent person or institution, the costs for such examination will be borne by the Client after consultation with the Agency.
11.2 The Agency will not be liable under any circumstances for factual statements about the Client’s products and services contained in the advertising measures. The Agency will also not be liable for the patent, copyright and trademark protection or registrability of the ideas, suggestions, proposals, concepts and drafts supplied within the scope of the order.
11.3 In the event of negligent conduct on the part of the Agency, its legal representatives or its vicarious agents, claims for damages, irrespective of the reason, will be limited to the typical damage foreseeable at the time of conclusion of the contract. For minor negligence, claims are excluded, unless they relate to the breach of such an essential obligation that the achievement of the purpose of the contract is jeopardised (Kardinalspflicht). This limitation of liability and the above exclusion of liability will not apply for intentional acts of the Agency, for claims arising from a guarantee, for injury to life, limb and health and for claims arising from the German Product Liability Act (Produkthaftungsgesetz).
11.4 If the Agency commissions external services at the request of the Client, in the Client’s name and on behalf of the Client, the Agency will not be liable for the services and work resulting from the commissioned service providers. In such cases, the Agency acts only as an intermediary. The relevant contractors are not vicarious agents of the Agency. The Agency is responsible only for the selection. Moreover, it will be liable only for its own culpability and for intent and gross negligence.
11.5 Claims for damages against the Agency expire one year after the statutory commencement of the limitation period without prejudice to the provision of Section 202 of the German Civil Code (BGB).
12. Copyright and rights of use
12.1 Upon full payment of the agreed fee, the Client will acquire the rights of use to all work produced by the Agency within the scope of the order for the contractually agreed duration and to the contractually agreed extent. Such transfer of rights of use will apply, insofar as a transfer is possible under German law, to the agreed use in the territory of the Federal Republic of Germany. Uses that go beyond this territory require written agreement within the scope of the order or a separate written ancillary agreement. Rights of use to works that have not yet been paid for at the end of the contract remain with the agency, subject to any other agreements made.
12.2 Services developed within the scope of the order are protected as personal intellectual creations by the German Copyright Act (Urheberrechtsgesetz). This provision applies as agreed even if the level of creation required under the Copyright Act has not been reached.
12.3 The Agency’s work must not be altered by the Client or by third parties commissioned by the Client, neither in its original form nor in its reproduction. Any reproduction, including parts of the work, is not permitted. In the event of non-compliance, the Agency will be entitled to an additional fee from the Client of at least 2.5 times the amount of the originally agreed fee.
12.4 The transfer of granted rights of use to third parties and/or multiple uses are subject to a fee and require the consent of the agency unless otherwise regulated in the original order.
12.5 The Agency is entitled to information about the scope of use.
12.6 If the Agency uses third parties to fulfil the contract, it will acquire the rights of use to their services to the extent of provision 12.1 above and transfer these to the Client accordingly. If these rights are not available to this extent in specific cases or if their acquisition is only possible at disproportionately high cost, the Agency will inform the Client of this and proceed in accordance with the Client’s instructions. Any additional costs incurred as a result will be borne by the Client.
12.7 Even when exclusive rights of use are transferred to the Client, the Agency is entitled to use the work results and the Client’s name free of charge as part of its own advertising, even after the end of the contract, in all media including the internet and as part of competitions and presentations. This specifically includes the right to record an event and to use the recording in conjunction with background information about the project for the purposes of documentation and marketing the Agency.
12.8 If the Agency creates any programs or parts of programs within the scope of its contractual services, the respective source code and the corresponding documentation will not be subject to the granting of rights and/or release to the Client.
12.9 If the Client provides the Agency with content for the performance of its services, the Client will ensure and assure on concluding the contract that it holds the rights of use and ownership of the content provided by it for the performance of the services by the Agency. This content includes specifically, but is not limited to, address data, image data, video and audio data, texts, logos, etc.
13. Copyright associations
13.1 The Client undertakes to pay any fees due to collecting associations such as Gema. If these fees are paid by the Agency, the Client undertakes to reimburse them to the Agency on the submission of documentary evidence. This can also take place after the end of the contractual relationship.
13.2 The Client is informed that in the event of a contract being awarded in the artistic, conceptual and advertising consultancy field to a non-legal person, an artists’ social security contribution must be paid to the artists’ social security fund (Künstlersozialkasse). The Client may not deduct this levy from the Agency’s invoice. Unless otherwise agreed, the Client is responsible and liable for compliance with the obligation to register and make contributions, insofar as the commissioning has been carried out in the name and on behalf of the Client.
14. Confidentiality agreement
The Agency and the Client mutually undertake to keep confidential all information and documents accessible to them or transmitted to them in connection with the conclusion of the contract that are marked as confidential or otherwise recognisable as business or trade secrets of the respective contractual partner and, unless required to achieve the purpose of the contract, not to record, store or forward them to others, nor to exploit them or make them accessible to unauthorised persons. This applies also to ideas, concepts, drafts in text and/or images presented by the Agency within the framework of a presentation, as long as and insofar as the Client has not commissioned and paid for such services.
15. Data privacy
15.1 The contracting parties guarantee that, within their areas of responsibility, they will comply with all relevant data protection laws. In accordance with Section 53 of the German Federal Data Protection Act (BDSG), the contracting parties will ensure that the employees working for them are bound in writing to data confidentiality and instructed accordingly.
15.2 If the contractual services of the Agency require access to the personal data of customers, suppliers and other contractual partners of the Client, the parties will enter into a separate written agreement on contract data processing (Auftragsdatenverarbeitung).
16. Special provisions for the use of Agency staff
16.1 The Agency is solely responsible for selecting the personnel deployed within the scope of the order. Staff are selected and deployed in accordance with the requirements profile agreed in individual contracts.
16.2 During the assignment, Agency personnel are subject exclusively to instructions from the Agency. The Client does not have any rights to issue such instructions.
16.3 The Agency can replace the deployed personnel for good cause. If the Client provides a written request to have deployed personnel replaced, and such a request is not due to the insufficient professional competence of the personnel or to deviations from the agreed requirements profile, the Client will bear the additional costs resulting from such replacement.
16.4 Within a period of 12 months after termination of the contractual relationship with the Agency, the Client undertakes not to employ any persons deployed by the Agency for the performance of the contract, irrespective of whether they are deployed as employees or as self-employed (freelance) staff or as their vicarious agents, without the consent of the Agency, irrespective of the manner and function in which they are employed. In the event of non-compliance with this provision, the Agency will be entitled to demand a contractual penalty of EUR 10,000.00 for each individual case.
16.5 When handling any provided personal data, the Client and any participating third parties are required to comply with all relevant data protection laws, in particular the GDPR and the German Federal Data Protection Act (BDSG). Disclosure of data to non-participating third parties is prohibited.
16.6 In the area of staffed promotional events, the Agency is entitled, in consultation with the Client, to arrange substitute dates for cancelled or shortened campaign or deployment days within the framework of a tour plan, when such cancellations are due to a personnel shortage for which the Agency is not responsible and the event does not concern a fixed transaction or date.
17.1 If a project is cancelled by the Client, the following provisions will apply exclusively, unless the parties have agreed otherwise in a separate contract. Sections 627, 649 of the German Civil Code (BGB) do not apply.
17.2 If a project is cancelled (in whole or in part), the Client will reimburse the Agency for all costs incurred as a result and indemnify the Agency against any liabilities incurred vis-à-vis third parties.
17.3 The cancellation fees listed below also apply and must be paid by the Client in the event of cancellation:
– For cancellation from the 31st day prior to the first day of the promotional event: 100% of the agreed Agency costs, or
– For cancellation from the 59th day prior to the first day of the promotional event: 75% of the agreed Agency costs, or
– For cancellation up to 60 days prior to the first day of the promotional event: all services actually provided by the agency up to the time of cancellation, and at least 50% of the agreed Agency costs.
17.4 The above-mentioned amounts will be reduced if the Client proves in individual cases that the Agency needs to offset a higher amount of saved costs or other earnings actually gained or potentially available.
17.5 Cancellation must be made in writing.
17.6 In the event of a project being postponed, and the Client is responsible for such postponement, 17.2 and 17.3 will apply accordingly.
18. Force majeure
18.1 The parties will be released from their respective obligations to perform if and to the extent that performance is not possible due to circumstances beyond the control of the party concerned (“force majeure”), as defined below.
18.2 Force majeure includes in particular the events listed below which, even if they were foreseeable, are beyond the control of the parties and whose effects on the performance of the contract cannot be prevented by reasonable efforts by the parties. This includes war, warlike conditions, riots, revolutions, rebellions, military or civil coups, declarations of states of emergency, insurrections, mass demonstrations, strikes and lawful lockouts, terrorism, terrorist threats, embargoes, government orders, epidemics, pandemics, fires, hurricanes or other severe weather on a catastrophic scale, earthquakes, landslides, and business disruptions or governmental orders for which the Agency is not responsible. Disruptions to performance on the part of third parties commissioned by the Agency will only be considered force majeure if the third party, for its part, is prevented from providing the service incumbent upon it by an incident in this sense.
18.3 The parties will inform each other without undue delay of the occurrence of an incident of force majeure in accordance with 18.2 above, its effect on existing contractual relationships and its expected duration. The contracting parties must agree on further proceedings and determine whether and in what manner the agreed services are still to be provided or completed by the Agency after the force majeure has ceased to exist.
18.4 If the fulfilment of the contract becomes impossible due to the aforementioned disruptions, both parties are entitled to withdraw from the contract. In such a case, the Agency is entitled to compensation for the expenses incurred up to that point, which also includes claims by third parties whom the Agency has commissioned in the belief that the contract would be performed.
19. Written form
If these GTC or the order/individual contract or other contractual documents refer to “in writing” or “written form”, text in accordance with Section 126 b of the German Civil Code (BGB), e.g., e-mail, fax, will also suffice.
20. Final provisions
20.1 The Client is not entitled to transfer claims arising from the contract.
20.2 Offsetting or asserting a right of retention by the Client is only permissible with recognised or legally established counterclaims.
20.3 Should any provision of these General Terms and Conditions be wholly or partially invalid or lose their legal validity at a later date, the validity of the remaining provisions will not be affected. In place of the invalid provision, another appropriate provision will apply by way of amending the contract in a way which comes closest in economic terms to what the contracting parties would have wanted if they had been aware of the invalidity of the provision.
20.4 The place of performance and jurisdiction for all disputes in connection with the contractual relationship is Cologne. German law applies exclusively. The application of international sales law is excluded.