General Conditions of Business CEC Creative-Event-Consulting
1.Area of application and generalities
1.1. The following General Conditions of Business (hereinafter referred to as the ‘GCBs’) are valid as from 05 July 2013 and apply to all contractual services and legal relationships between third parties and Creative-Event-Consulting Helberg Bergmann GbR (enterprise incorporated under the German Federal Civil Law Code) (hereinafter referred to as ‘CEC’).
1.2. The offerings of CEC are non-binding, subject to alteration and subject to being unsold. Unless otherwise expressly agreed in writing, an order for services, services’ provision and/or works’ services, or the conclusion of a contract of purchase and sale, can only be created after receipt of a written order and the issue of a subsequent written order confirmation. The written confirmation of order then becomes an integral part of the contract in reference to the relative production and/or project.
1.3. The customer then accepts the prices designated in the offering of CEC, the terms and conditions of payment and these present GCBs. Upon signature to the terms and conditions of contract, the customer also declares and agrees having inspected the current price list of CEC Creative-Event-Consulting Helberg Bergmann GbR and is agreeable to this.
1.4. In addition, the renter, or otherwise the customer, hereby also accepts these GCBs upon placing the order, at the latest however, upon receipt of the goods and/or equipment.
1.5. Any divergent conditions of purchase or individual agreements of any principals, customers or renters are not applicable to any business conducted, unless expressly approved by CEC. All arrangements are to be given in writing for their validity, unless the customer is an ultimate consumer.
1.6. The claims of CEC for any defects in the subject matter purchased by CEC, become statute barred 36 months after delivery date. The foregoing will not apply when the prerequisites of recourse on deliveries exist between CEC and the supplier.
1.7. CEC is to be represented only by its stockholders.
1.8. Unless otherwise agreed, all prices are in Euros, FOB the business premises of CEC at D-30880 Laatzen, Germany without any deduction of discount. The stipulations of 6.7. to 6.10. and 6.14. hereof also apply similarly.
1.9. Compliance with the time periods of delivery and services rendered presupposes, that the customer has provided all documentation requisite for the completion an order, to include all permits and approvals, and that the terms and conditions of payment have been observed. When such prerequisites are not observed in good time, then the time periods can be reasonably extended, unless CEC is responsible for any delay. The time periods can also be appropriately extended when a delay is caused by ‘force majeure’ (Act of God).
1.10. The customer is only entitled to offset any claims against the financial claims of CEC for the subject matter or services supplied, when his-, her-, its counter claim is judicially recognized or is undisputed. The exercise of retention rights to address counter claims under other contracts of business is excluded.
2. Partial nullity
Should any one stipulation of these present GCBs or any other agreement be-, or become ineffective, then the effectiveness of the remaining stipulations is not to be affected thereby. The contractual parties hereby declare and agree, to replace any ineffective stipulation with an effective stipulation, coming closest to the original intended purpose of the ineffective stipulation.
3. Place of fulfilment, place of jurisdiction and selection of applicable law
3.1. The place of fulfilment for deliveries and payments is the business premises of CEC at D-30880 Laatzen, Germany.
3.2. The Hanover District Court is the sole place of jurisdiction for all types of litigation for-and against full officially registered traders, public law corporations and establishments. Hanover, Germany is the place of jurisdiction for customers having their corporate domiciles abroad, or when a customer removes abroad after a conclusion of contract.
3.3. The body of law of the Federal Republic of Germany is solely applicable for all business, to the exclusion of the United Nations’ Convention on Contracts for the International Sale of Goods.
4.1. Unless otherwise stipulated in these present GCBs, to include the following stipulations, CEC is only liable for infringements of contractual and extra-contractual duties, in accordance with statutory requirements.
4.2. In cases of indemnities for loss or damage, CEC is only liable – on whatsoever grounds – in regard to culpable liabilities for premeditation and gross negligence. In cases of simple negligence subject to a less serious liability criterion, CEC is only liable according to statutory requirements (e.g. for taking all due care in its own affairs), and then only for:
- a) death or bodily injury to persons and loss or damage to their health;
- b) for loss or damage from considerable infringement of a contractual duty (being a contractual duty, whose fulfilment would render the regular execution of a contract at all possible, and compliance with which, a contractual party may regularly place its trust and confidence); in such a case, the liability of CEC is only limited to the indemnification of a foreseeable and typical form of loss or damage.
4.3. The limitations of liability under the foregoing Paragraph b), are also to apply for contractual duties by- and/or for the benefit of –persons, whose culpability CEC is liable under statutory requirements. However, the limitations of liability do not apply when CEC fraudulently conceals a deficiency or adopts a warranty for the characteristics of goods, and is liable under the product liability legislation for the claims of the customer.
4.4. As for the infringement of a contractual duty, which does not involve a deficiency, the other contractual party can only withdraw from contract or give notice to terminate the contract, should CEC be responsible for perpetrating such contractual duty. Any free entitlement of a contractual party to give notice to terminate (in particular under Arts. 651 and 649 of the German Federal ‘BGB – Buergerliches Gesetzbuch’ (Civil Law Code)), is excluded. Otherwise, statutory requirements and legal consequences apply.
5. Special stipulations for rentals
5.1. The pledging, mortgaging, or any other form of charging of the subject matter of a rental is impermissible and ineffective in relation to CEC. In cases of doubt and/or infringement, CEC is to be informed with immediate effect.
5.2. The customer is obliged, when taking over an item of equipment, to satisfy him-, her-, it -self for completeness and freedom from deficiencies. Any obvious deficiency in equipment is to be contested with immediate effect. The reception of equipment by the customer or by an authorized person without complaint is a confirmation of receipt of complete and deficiency-free equipment. In cases of not obvious and undiscovered deficiencies, the customer is entitled to produce evidence that it received defective equipment upon the date of acceptance.
5.3. All rental time periods are to be calculated in full days. The date of collection of the rental equipment is to be counted as a full rental day. Customers may only receive the rental equipment on the first day of the rental by 12:00h at the latest. The return of the rental equipment is to be completed on the last day of the rental by 12:00h. Any delays are to be reported with immediate effect.
5.4. Should the planned transportation time to the site of the intended event be more than 24 hours, then the rental price will be reduced by 50% of the list price for each full transportation day. The return of the equipment on Sundays and public holidays is only to be possible by express agreement.
5.5. When the renter requires transportation by a third party, then the rental time period is to commence on the date of handover of the rental equipment to the freight forwarder, and to terminate upon the date of the return of the rental equipment by the freight forwarder.
5.6. The customer is liable to pay the full rental price, independent of whether the equipment has been used or not. The relative prices are shown in the offering or in the confirmation of order.
5.7. Should the customer indicate up to 48 hours before the date of the agreed handover of the rental equipment in writing, that he-, she-, or it does not wish to take over the rental equipment, then the rental price can be reduced to 50% of the list price. The customer is however entitled to evidence an occurrence of a less extent of loss or damage at the CEC premises.
5.8. When the rental equipment is deficient in whole or in part, then the rental price is to be reduced in proportion, from the date of the complaint to the date of rectification by CEC. Should, however, the deficiency be obviously non-rectifiable, then the reason for the complaint becomes null and void. All claims to diminution and remedy also become null and void when the customer or a third party culpably cause the deficiency during the time period of the rental.
5.9. In all cases of deficiency, shortcoming, or loss, the customer is to give notice to CEC with immediate effect, preferably by telephone in advance or by fax- or email -message.
5.10. Unless otherwise contractually agreed, the place of rectification is to be the postal address of the corporate domicile of CEC in D-30880 Laatzen, Germany. Should at the request of the customer, rectification be carried out at the site of the intended event, then the customer is to bear the cost of transportation and of the journey to and for the necessary personnel.
5.11. The customer is, at the latest by the date of the return of the equipment, obliged to draw the attention of CEC without demand to any loss or damage to the rental equipment. The foregoing is also to apply when the customer only deems loss or damage a possibility (e.g. possible contact with water, shock, or extraordinary or hazardous use). Should the customer fail to give such notice, then a discovered deficiency is to be deemed to have occurred on the culpability of the customer, notwithstanding any contrary evidence.
5.12. All obvious deficiencies, loss or damage will become the subject of a complaint on the part of CEC, upon the return of the rental equipment. In addition, all deficiencies, which are not registered in the return handover report, will be presumed to have been caused during the rental time period. For this reason, a visual inspection and a functional examination will be conducted upon return handover. The customer is, however, to be entitled to evidence, that any obvious deficiencies occurred between the date of handover and control and/or already before the date of handover.
5.13. The customer is to remain liable for all loss or damage to the assets of CEC, which are occasioned by a late return of the rental equipment. The culpability of the customer will be assessed according to statutory requirements. The same shall apply for damaged or defective rental equipment. In particular, the occurrence of consequential loss is to be assessed in addition to the repair cost. Such can include, for example: the impossibility of renting the equipment to others, the payment of justifiable indemnities for loss or damage to subsequent renters, and the cost of replacement-renting or replacement-acquisition. When insurance exists to cover such loss or damage, then the customer is only liable for the loss or damage not indemnified by the insurers, or not insured by the insurers. The cost of any separate insurance on materials to be agreed will be charged to the renter.
5.14. All rental equipment (rental subject matter) is to be insured by the renter against associated risks (e.g. loss or damage, theft, third-party liability). The insurance policy or certificate is to be evidenced to CEC upon demand. At the request of the renter, CEC will contract such an insurance for- and on behalf of –the customer for his-, her-, its -account.
5.15. The statute barred time period stipulated under Art. 548 of the German Federal ‘BGB – Buergerliches Gesetzbuch’ (Civil Law Code) is to be extended to one year in all cases.
5.16. The customer is to pay the rental indicated in the offering of CEC or shown in the confirmation of order, independent of the actual taking over of the rental equipment into use or receipt, for the agreed time period of the rental of the equipment.
5.17. In case of any late return of the rental equipment by the customer, the customer is to be liable to pay the actual list price as an indemnity for use, even when a reduced rental price is originally agreed for the whole rental time period. Should the customer return the rental equipment in a condition of loss or damage incurred during the rental time period, for which the customer is liable under these present GCBs, then the customer is to be liable for the list price rental, apart from an indemnity for loss or damage, up to the date of the completion of final rectification repairs and/or of the acquisition of replacement rental equipment.
5.18. The customer, as the organizer of the intended event involved, binds him-, her-, it -self not to enable unauthorized persons to operate the rental equipment during the time period of the rental. Should notwithstanding, loss, damage, or theft occur, then the customer will be charged for the loss, damage and costs incurred. For the failure of the intended event because of technical or other reasons, the customer is unable to assert claims on CEC, unless premeditation or gross negligence can be evidenced.
5.19. Any culpability-dependent claim pursuant to Art. 536 of the German Federal ‘BGB – Buergerliches Gesetzbuch’ (Civil Law Code) is excluded hereunder.
6. Long-term rental arrangements
6.1. When the rental time period for the rental subject matter (rental equipment) is agreed for more than two months, then the following supplementary stipulations are to apply. This is also applicable when a subsequent extension of the original rental time period is agreed, causing the total rental time period to extend beyond two months.
6.2. The renter is consequently under a contractual duty to maintain the subject matter of the rental (rental equipment) and to reinstate it, as required.
6.3. The renter binds him-, her-, it –self hereunder, to have the statutorily required technical inspections carried out as well as the maintenance and servicing of the rental subject matter (rental equipment) on his-, her-, its -own initiative, at his-, her-, its –own expense. Upon the first demand of CEC, the renter is to advise to CEC the due date deadlines for inspections, maintenance, and servicing on the rental equipment.
6.4. Should the return of the rental subject matter (rental equipment) be in contravention of Paras. 6.2. and 6.3. of this present Article, then CEC Creative-Event-Consulting Helberg Bergmann GbR is to be entitled hereunder, without issuing any reminder or the setting of a time period for compliance, to conduct the requisite work and/or to retain third parties for such work, for the account of the renter.
7. Particular stipulations for purchase of the equipment
7.1. The offerings of CEC are always non-binding, subject to alteration and subject to being unsold.
7.2. CEC will make every effort to comply with the delivery dates indicated. Delivery dates are however considered as target dates. An agreement for fixed delivery dates will thus require expressed confirmation on the part of CEC.
7.3. Should CEC be in delay of delivery, then a reasonable time period for subsequent compliance is to be granted by the customer. CEC is unable to recognize fixed delivery dates, without expressed coordination and reference.
7.4. Consignment charges will not be paid without express coordination and reference.
7.4.1 CEC will deliver the goods – at the express wish of the customer – against invoice or against cash-on-delivery. CEC is however to be entitled to complete an order only on terms of cash-on-delivery, partial advance payment or total advance payment. Appropriate advance information in this respect is to be communicated to the customer, as required.
7.5. All invoices become mature for payment within 10 working days from date of invoice, without any deductions.
7.6. When the customer is not an ultimate consumer and is in delay of payment, then CEC is to be entitled to charge the statutory rate of interest of 9.0% over the current valid bank rate. CEC, however, hereby reserves the entitlement hereunder of evidencing and asserting greater loss or damage caused by the delay. The customer, on the other hand, is entitled to show that CEC suffered no loss or damage or a lower degree of loss of damage because of the delay. In any case, CEC may require the payment of the statutory rate of interest. When the customer is an ultimate consumer, then he-, she- it can be charged the statutory rate of interest of 5.0% over the bank rate, in accordance with the stipulations of the foregoing Stipulation No.: 2. CEC is however entitled to evidence a greater degree of loss or damage and the customer is entitled to evidence a lesser degree of loss or damage.
7.9. The customer hereby waives the assertion of any rights of retention emanating from earlier or other items of business under the ongoing business relationship. Statutorily required retention rights however remain unaffected. The customer may only offset claims against the financial claims of CEC when these are recognized and accepted by CEC and are due for payment or judicially determined by the courts.
7.10. All payments of the customer only effect freedom from further liability when paid directly to CEC, and not to a representative without relative authorization.
7.11. The goods supplied and delivered remain subject to the reservation of the ownerships rights of CEC up to the date of the entire payment of the purchase price. The reservation of ownership rights is not to be nullified by the cancellation of any individual amounts in an account receivable or the balancing out of an account receivable, and their subsequent recognition by CEC. The presentation of bills of exchange in connection with the payment of a purchase price does not have the effect of the cancellation of the reservation of ownership rights. These are only then cancelled when a bill of exchange is met by the drawing customer, and after the clearance of all existing financial claims on the customer.
7.12. In cases of arrears of payment on the part of the customer, CEC is entitled to demand the return of the goods under reservation of ownership rights, after the issuing of a reminder, and the customer will be obliged to relinquish the goods.
7.13. When the goods supplied under reservation of ownership rights are onward processed by the customer and thus become new goods, these are then to be deemed as produced for- and on behalf of -CEC and these also pass into the ownership of CEC. Any amalgamation, mixing or commingling of the goods supplied by CEC subject to the reservation of ownership rights, with third-party goods, will involve co-ownership rights between the third party and CEC under the relative statutory requirements. The customer, in the forementioned situations, is to safe keep the goods under reservation of ownership rights, or under co-ownership with the third party, at its own expense.
7.14. When CEC is in arrears of delivery dates, then the liability of CEC is limited to five percent of the purchasing price, for simple negligence. Any further claims of the customer are to remain unaffected by the foregoing.
7.15. All warranty rights become expressly excluded within the scope of statutory requirements, unless an assurance is given. The foregoing is valid when the sale of consumer goods is not involved and no new goods are being sold. The time period for the statute barring of any deficiency claims of the customer when acquiring second-hand subject matter is limited to one year, calculated from the date of the passing of the perils.
7.16. Deficiencies in business with registered traders can only be taken into consideration pursuant to Art. 377 of the German Federal ‘HGB – Handelsgesetzbuch’ (Commercial Law Code), when written notice of these is given within a week at the latest of the date of receipt of the goods supplied.
7.17. The recipient of the goods is to control the goods for completeness (comp. Art. 377 of the forementioned ‘HGB’-Commercial Law Code). All exterior damage to the outer packaging and/or opened outer packaging, should be confirmed upon receipt by the carrier.
7.18. When a complaint is justified, CEC will rectify the deficiency at its selection, by- replacement of the goods, -replacement delivery or -credit note. The customer can always avail him-, her- or it –self of the relative evidencing of unacceptability. The entitlement of the customer to select a purchase of consumer goods remains unaffected by the foregoing.
7.19. Should the customer set CEC a reasonable time period for subsequent fulfilment, without success, then the entitlement of the customer after the expiry of the time period is limited to withdrawal from contract or right of diminution, in cases of a gross infringement of contractual duties.
8. Particular stipulations for services- / works’- and services’ provisions
8.1. The customer retains CEC for- advisories on- and/or -the execution of -events and/or for the mediation– or rental –of materials. CEC is to make an offering on the basis of the indications of the customer, and assures the customer, that it has offered such to the best of its knowledge and belief.
8.2. The extent of the services to be rendered by CEC are to be stated in its own confirmation of order, which then becomes an integral part of the subsequent contract. Should additional services be retained by the customer, outside of the agreed extent of the services to be rendered, then such are to be remunerated according to the expenditure incurred, unless a particular agreement on the fee receivable is made.
8.3. The materials made available to the customer by CEC for the execution of an order, should be in a safe and usable condition. In addition, the generally recognized regulations of technology (among others, the requirements of the German Industrial ‘DIN’ Standards and the Electrical Engineering Regulations issued by the German ‘VDE’ – Association of Electrical Technicians), the generally recognized regulations on labor safety, accident prevention, labor medicine and the requirements of the employers’ liability insurance trade associations, are all to be observed. The foregoing regulations are to be met, in particular in the making available of personnel, whether rented out or against remuneration.
8.4. The customer is under a contractual duty to inform CEC of the time schedule and the planned operational time period of the intended event.
8.5. The customer is to provide CEC with all requisite documentation to enable a regular execution of the works within the agreed time scale. These can be the following, among others:
– official permits (approvals under the public law)
– technical- plans and -drawings
– ground plans
– seating plans
– escape exits and ways for the emergency services
– technical drawings of the details involved
– stage plans, etc…
The foregoing are to include in addition all sundry documentation, which are requisite for the execution of the project or production. Should the documentation be insufficient, a mutually agreeable solution is to be found to produce these. The costs and expenditure involved are to be borne by the customer.
8.6. The coordination of the works is to be the responsibility of the customer.
8.7. Unless otherwise indicated, all prices in the price list of CEC are based upon one-day productions, and maximum overnight stopover times of ten hours. All additional services, such as night surcharges, Sunday work, overnight stopover expenses, board and lodging, etc., but also including any possible rebates for individual and long-term productions, are not taken into account, and are to be negotiated in every single case. Any additional impinging charges, for example for transportation, the rendering of services, such as under Para. 8.2. of this present Article, as well as, if required insurances on materials, will be invoiced to the customer extra. Costs for possible official registrations undertaken by CEC will also be specially invoiced.
8.8. CEC is to be liable for each and every form of loss or damage (to include loss of assets and consequential loss of profits caused by errors in the planning- and advisory -activities). Any limitations are to include the claims of third parties, in so far as such are recognizable and includable under the protection stipulations of the contract. The same is also to apply for any breakdowns and failures in technical aspects during the course of the execution of the order.
8.9. The customer is obliged to inform CEC of any discernible risks and hazards at the planned site of an intended event, in good time before the commencement of the works.
8.10. When CEC receives instructions from the customer or from third-party personnel for the planning or execution of any particular intended event, CEC is not obliged, without any special agreement to the contrary, to observe the statutory requirements of the labor legislation, the regulations governing juvenile labor protection or the stipulations of the labor protection legislation or any other sundry labor-law regulations.
8.11. CEC is not obliged, without any special retainer, to observe whether the personnel made available by the customer or third parties, are employees, freelance associates or persons under practical training. In particular, CEC is to bear no social-security insurance contribution obligations. When particular protection requirements are to be observed for any individual associates, the customer is to be obliged to nominate such associates and explain the relative labor protection regulations.
8.12. Should however CEC be contractually required to undertake the supervision of the observation of the foregoing- or of any other particular –statutory requirements, under a special agreement in this regard, then special remuneration will have to be agreed extra, in this regard.
8.13. Absolute silence is hereby declared and agreed between the customer and CEC concerning all confidential data.
‘9. GEMA – Gesellschaft fuer musikalische Auffuehrungs- und mechanische Vervielfaeltigungsrechte‘ (The German Organization for the protection of rights in musical performances and mechanical reproduction mediums), and third-party copyrights
9.1. Any ‘GEMA’ fees impinging during the course of the execution of the contract, as is usual for such intended events, are to be paid by the customer. The same shall apply for the employment of any recordings and digitalized sound storage mediums. The permit application for- and the official registration of –the intended event, is to be undertaken by the customer, as required. The customer hereby assures, that he-, she- or it will not infringe any copyrights during the entire time period of the intended event. Furthermore, the customer will not employ any data and/or make such data available, which are obtained by means of any copyright infringements.
9.2. The customer is solely liable for any perpetrated infringements of copyright. Should however any indemnities for loss or damage be asserted against CEC by third parties for copyright infringements, then the customer is to keep CEC harmless on an inter-contractual basis.
10. The own copyright rights of CEC
10.1. CEC hereby reserves ownership- and copyright –rights in drafts, technical drawings, cost estimates, light designs, event planning, and other documentation. These may only be made available to third parties by mutual agreement.
10.2. When the own services of CEC are based upon technical drawings, models, samples, or any other form of documentation which has been provided by an ordering party or by the customer, then the customer is to warrant that no copyright rights of third parties have been infringed. Should any third parties assert protection rights, no liability can be adopted by CEC, in this regard. In addition, CEC is to be entitled under such circumstances, to withdraw from contract and can then assert indemnities for loss or damage, and claims for the compensation of any expenditure incurred.
(Stand: 07.08.2017 / DH)