General terms and conditions of business
1. Basis
1. BE:TWO GmbH in Bremen (hereinafter referred to as “Agency”) operates business in event marketing and communication services in particular. Exclusively these General Terms and Conditions apply to all services performed by the Agency (customer consulting, organisation, planning and implementation of events as well as communication, etc.)
2. Deviating terms and conditions of the contractual partner (hereinafter referred to as “Customer”) shall only be effective if they have been expressly accepted in writing by the Agency.
3. Any waiver of the Agency to exercise or enforce a right or a clause of these General Terms and Conditions does not represent a general waiver of this right or the relevant clause. Any delay in the exercise of a right or a clause shall likewise not be deemed a waiver of the relevant right or relevant clause. A one-off waiver shall not be deemed a waiver of this right or this clause on another occasion.
4. The Agency’s General Terms and Conditions shall also apply to all future contracts with the Customer within the scope of the established business relationship.
2. Conclusion of the contract
1. All offers of the Agency are subject to change and they can be revoked by the Agency at any time before the Customer gives its written acceptance.
2. The basis of the business relationships between the Agency and the Customer is the respective offer in which the Agency describes the services to be agreed upon and the fees to be received.
3. The scope of contractual services results from the written order confirmation.
4. The Agency can withdraw from the contract if it does not receive correct or timely delivery from its suppliers. This shall only apply if the Agency is not at fault for the non-delivery, especially in case a matching cover transaction is concluded with the supplier. The Agency shall inform the Customer without delay of any non-availability of the products and immediately refund any already received consideration.
3. Service description and contracts with third parties
1. The Agency shall have free discretion in the organisation of its contractual services in accordance with an agreed concept.
2. The Agency shall inform the Customer without delay of any changes to or deviations of individual services from the agreed contents of the contract that become necessary after conclusion of the contract. If the agreed content of the contract is not affected by these changes or only to insignificant extent, the Customer shall not be entitled to a right of cancellation due to these deviations, unless the deviation was caused at the Agency’s fault.
3. If the Agency concludes contracts for the execution of its services with third parties, such a contract shall be concluded in the name and on behalf of the Customer.
4. Terms of payment
1. Cost estimates of the Agency are non-binding. For the rest, payments shall be made free of cost and expenses to the bank accounts specified by the Agency on the invoice.
2. The Agency is entitled to demand payments during the execution of the individual contract to cover its expenses. 30% of the contract total can be invoiced upon conclusion of the contract, 40% two weeks before the start of the event, and 30% upon the end of the event.
3. Unless the Agency agrees otherwise with the Customer, the Customer shall be obligated to pay invoiced amounts within 14 days following the invoice date, without deduction and free of expenses by way of bank transfer to one of the Agency’s bank accounts. The date on which the amount is credited to our account shall be the date decisive. After expiration of the 14-day period, the Customer will be in default of payment.
4. Any fees for GEMA [Society for Musical Performing and Mechanical Reproduction Rights] and taxes, levies, fees, costs for energy, water and waste disposal that are incurred due to the event shall be borne by the Customer. The Customer shall also assume the maintenance expenses for any potentially engaged third parties, especially artists and personnel relevant for the event.
5. Cheques will be accepted on account of payment only. All costs incurred from collecting the cheques shall be at the Customer’s expense.
6. The Customer can only offset or assert a right of withholding or right to refuse performance if its counterclaim has been found valid by final and absolute judgment or if it is uncontested. In deviation from clause 1, set-off or asserting a right of withholding or right to refuse performance based on a counterclaim for compensation of defect correction or based on additional expense for completion arising from the same legal relationship shall always be permissible.
5. Right of ownership and copyright
1. If the Agency has participated in a presentation, whereas the planned performance does not take place – for whatever reasons – of if the Agency has not received the purchase order, all of the Agency’s service performances shall remain the property of the Agency. The Customer shall not be permitted to continue to use this information. The Agency is entitled to charge an appropriate fee for the services performed.
2. All of the Agency’s services for the rest shall remain its intellectual property. By payment of the fee, the Customer shall merely attain the non-transferrable and non-sublicensable right of non-exclusive use for the agreed purpose. The Agency’s services may only be used by the Customer itself and only for the term of the contractual cooperation, unless an agreement stating otherwise is concluded in the individual case.
6. Impossibility
1. If the execution of the services becomes fully or partly impossible for reasons within the Customer’s responsibility, the Agency will retain its claim for the payment of the agreed fee including payment of claims that have arisen for the Agency from the contracting of third parties. The Agency will be obligated to accept deductions for what it has saved in consequence of the release from the (further) service performance or for what it gains through the use of its labour otherwise.
2. In the event of impossibility to perform the contractual service by the Agency or one of its contractors in consequence of illness, accident or force majeure, all claims under this contract will become void. The Agency shall be obligated to provide substitution and inform the Customer without delay of the reasons at cause.
3. If conducting the event becomes impossible for reasons outside of the responsibility of either of the Parties, the claims of the Agency for any already incurred and due expenses, and for performed services shall be preserved.
7. Cancellation
1. The Customer is entitled to terminate the contract with the Agency at any time toward the end of the next calendar day. In the case of an early cancellation of the contract, the Customer shall be required to pay the agreed fees under the following limitation: If notice of cancellation is given three months before conducting an event, 25% of the agreed fee will be owed, on cancellation up until one month before the event 50% and thereafter 100% of the agreed fee will be owed.
2. Both Parties’ right of cancellation without notice for good cause remains unaffected.
3. Cancellations require the written form in all cases.
8. Warranty
1. The Agency undertakes to prepare and execute its services with the warranted care.
2. The Customer shall be entitled to claims of defects only if the applicable law provides for warranty for defects. Thus, if the Agency executes services for the Customers, for example, there is no warranty for defects.
3. If the defect is based on the Agency’s fault, the customer can only claim damage compensation according to the additional requirements of Section VIII.
9. Liability for damages
1. The Agency’s liability for damage compensation, regardless of the legal reason, in particular also resulting from impossibility, delay in delivery, breach of duties in contract negotiations or tortious act, shall be determined pursuant to the legal regulations, unless greed otherwise in this Section.
2. The Agency shall not be liable for the capacity and willingness to perform of third parties nor for defects in the performance of third parties and their contractors, nor for timeliness of the performances by these persons or other impairments in services that can arise within the scope of contractual relationships with third parties, unless the third party acts as vicarious agent of the Agency.
3. The Agency shall be liable without limitation to the relevant extent for damages arising from injury to life, body or health, in cases of intent or insofar as the Agency has given a guarantee. In the case of gross negligence, the Agency shall be liable only with limitation to the damage that is typical for the damage and predictable on the conclusion of the contract.
4. For any merely simple negligent breach of essential rights or duties following from the content and purpose of the contract, the Agency shall likewise be liable only with limitation to the damage that is typical for the contract and predictable on the conclusion of the contract, whereas at most for the amount of the fee agreed with the Customer.
5. The liability limitation defined in Section IX.4 to the agreed fee shall not apply if the Customer has notified the Agency in text form of its request for a higher liability sum prior to the conclusion of the contract with the Agency. In the notification, the Customer must inform the Agency of a quantified liability sum. The Agency’s liability sum shall then be determined according to this request by the Customer. The Agency shall insure the liability sum requested by the Customer and charge the costs to the Customer as a surcharge on the fee. If the Agency has concluded such an insurance policy, it shall be released from liability for every damage event covered and compensated by this insurance.
6. If and insofar as the Agency’s liability is excluded, this shall also apply to any personal liability of the employees, representative and vicarious agents of the Agency.
10. Statute of limitation
1. Any claims of the Customer for subsequent fulfilment due to defects shall lapse by limitation within one year.
2. Other claims of the Customer for breaches of duty by the Agency, in particular damage compensation claims or claims arising from guarantee shall lapse after one year. The Customer’s right to withdraw from the contract for reason of a breach of duty committed by the Agency, which is not constituted in a defect, shall remain unaffected. In deviation from clause 1, the statutory limitation periods shall apply to the following claims of the Customer:
2.1 for damage arising from injury to life, body, health or essential rights and duties under the contract;
2.2 for damage due to an intentional or gross negligent breach of duty by the Agency or its vicarious agents;
2.3 for fraudulent concealment of a defect;
2.4 for compensation of expenses pursuant to Sec. 478 (2) BGB [German Civil Code].
3. The legal regulations defining the start of the limitation period, suspension of expiration, suspension and restart of periods shall remain unaffected.
4. The Agency’s claims against the Customer shall lapse by limitation according to the legal regulations.
11. Place of fulfilment, place of jurisdiction
1. The place of fulfilment for all claims under the contract concluded between the Customer and the Agency is Bremen.
2. If the Customer is an entrepreneur, legal entity of public law or a public-law investment fund, the exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship is Bremen. The same applies if the Customer does not have a general place of jurisdiction in Germany or if it relocates its place of residence or habitual abode to a foreign country, or if the place of residence or habitual abode is unknown on the date when the lawsuit is filed. The Agency reserves the right, however, to sue the Customer at its general place of jurisdiction.
12. Final provisions
1. Exclusively German law governs the legal relationships between the Customer and the Agency.
2. Should individual provisions of the contact between the Agency and the Customer be or become invalid or void, the validity of the contract in the remaining part shall not be affected thereby.
The invalid or void provision shall be deemed replaced by such a provision that comes closest in a legally valid way to the economic meaning and purpose of the invalid or void provision. The foregoing provision shall apply analogously in the case of omissions in provisions. Should the invalid or void provision be a general business condition in the definition of Sec. 305 BGB, Sec. 306 (1) and (2) BGB shall apply in deviation from the foregoing.
