§ 1 Application of these Terms and Conditions of Business
- The following Terms and Conditions of Business (GTCB) apply for all contracts, including future contracts with and orders of Ellis EVENTS GmbH, Frischlinstrasse 25, 72336 Balingen, Germany (hereinafter called the Client) and their commercial Contractors.
- The most recent version of the GTCB in existence at the time of the submission of the final binding statement leading to the conclusion of the contract is always applicable.
- These GTCB apply also when the Client concludes a frame contract with the Contractor and awards individual orders within the framework of their cooperation. In this event, the GTCB apply also for the individual orders, unless provided otherwise in the order.
- Divergent GTCB of the Contractor are hereby rejected; such conditions do not form part of the contract even in circumstances when the Client does not explicitly reject them.
§ 2 Contract Conclusion, Contract Terms
- Unless otherwise agreed, the contract is concluded when the Client accepts the offer of the Contractor. Unless otherwise explicitly offered, the period for acceptance is 4 weeks.
- In so far as the Client makes an “offer”, this is understood to be a non-binding offer. If in agreement with this “offer”, the Contractor then makes a contractually binding offer which the Client then for his part may accept (after any appropriate consultation with his Customer, see Paragraph 4). Sentence 1 does not apply unless the Client has explicitly designated his “offer” as contractually binding.
- Drawings, illustrations, measurements or other technical data of the Client are binding only in so far as this is explicitly agreed in writing.
- The Contractor is aware that that the Client operates as a main contractor for one or more Customers (businesses which are organisers and which engage the Client for the planning and execution of their events, hereinafter referred to only as the “Customer”) and who, in this respect, “purchases” the services of the Contractor in his own name and for his own account, but ultimately for his Customer, with the result that the services of the Contractor ultimately benefit this Customer and also will benefit himself. No legal obligation towards the Customer in question is created by this reference to the constellation beyond that which exists already contractually or in law. In so far as it is not explicitly agreed, the Client is accordingly also not the organiser of the event which underlies the contract with the Contractor.
- In order to fulfil his contractual obligations, the Contractor may employ other subcontractors or helpers; however, he must communicate their names to the Client in advance. The Client has the right to refuse the subcontracting for good cause. A good cause exists in particular when, in the contractual relationship between the Client and his Customer, this Customer must be informed of the award of the subcontract and this Customer does not consent to the subcontracting, without the Customer or the Contractor being obliged to provide a reason for this refusal, in so far as the refusal is not made in bad faith.
§ 3 Remuneration/Costs
The remuneration/costs of the Contractor are due for payment 30 days after receipt of a valid invoice following the performance of the agreed service, in so far as no other due date of payment has been agreed.
§ 4 Particular Obligations of the Contractor
- The Contractor will draw the attention of the Client to risks and dangers involved in the implementation and execution of the order. (a) The contractual partners will immediately inform each other of any case of damage. (b) In the event that, arising from a case of damage, new information is revealed which is relevant for the continuing cooperation of the contractual partners (e.g. also including within the frame work of a continuing obligation) and resulting from which changes are required in any previous planning and execution of current or pending projects, the contractual partners will cooperate closely. (c) In the event of an accident or damage event which attracts the attention of the press, the contractual partners will reach an agreement and cooperate before making a statement to the press. I
- In so far as there is no agreement to the contrary, papers, sketches and documents of the Client or his Customer are deemed to be non-binding and are to be examined by the Contractor to determine their usability, feasibility and legality,.
- In so far as there is no agreement to the contrary, the Contractor will independently and on his own responsibility review the legal admissibility of promotional activities and in general of the subject matter of the contract or of the contract item, including when he has received guidelines from the Client or his Customer.
- Immediately following contract conclusion, the Contractor will appoint a contact person for the Client; this contact person will be is available for queries and coordination matters and is authorised to make and receive binding statements.
- In so far as there is no agreement to the contrary, the contracting parties can make use of any available and usual means of communication. In the event of divergent agreements, as a minimum a fax number must be provided to which the statements can be sent.
- The Contractor is obliged to provide information concerning the current state of his contractual activities, safety measures taken, the extent of his level of insurance, the names of employees and of subcontractors. In so far as the Customer for his part requests information from the Client pertinent to the contractual obligations of the Contractor, the Client may transmit this information request to the Contractor, and the latter is then obliged to provide information to the Client.
- The Contractor is obliged to conclude and maintain sufficient insurance coverage proportionate to the extent of his services and appropriate for the accompanying damage potential; he is also obliged to show proof of the existence of such insurance coverage to the Client if so requested.
- In all other respects § 5 to § 8 also apply as a primary contractual obligation.
§ 5 Confidentiality, Secrecy, Data Protection
- All Documents, illustrations, compilations, drawings and sketches (hereinafter all called “Documents”) drawn up by the Customer of the Client are to be considered as models within the meaning of § 18 of the German Law Against Unfair Competition (Unlauterer Wettbewerbs-Gesetz). This also applies if the Client compiles the Documents.
- §§ 17 and 18 of the German Law against Unfair Competition apply as appropriate for confidential information of the Customer. This applies also for confidential information of the Client.
- The Contractor is obliged to use all Documents received and information only in accordance with his contractual obligations. This also applies to the results of the work produced during the course of the order.
- The Contractor will also maintain absolute confidentiality towards third parties in respect of work results and treat these also as absolutely confidential beyond the end of the contract. This does not apply to such parts of the work results as are already in the public domain, which are or have been disclosed by the Client or his Customer or are public knowledge. The burden of proof that the obligation of confidentiality and secrecy does not apply lies with the Contractor. The Contractor must also maintain absolute confidentiality in respect of third parties concerning Documents and information and will treat these also as absolutely confidential including beyond the end of the contract. This does not apply to such parts of the Documents in so far as they are known to the Contractor before delivery to him, are already in the public domain, were or have been disclosed by the Client or are public knowledge. The burden of proof in respect of the non-application of the obligation of confidentiality and secrecy lies with the Contractor.
- The Contractor is obliged to return original Documents sent to him and to delete any copy or digital files in so far as they are no longer required for the contractually agreed activity. The Contractor is entitled to retain such Documents in quantities as are required for internal documentation or for reasons of tax law and for other purposes in law. The Client has a right to information concerning such retained Documents and the legal basis for their retention. He may require proof of their deletion or destruction after the conclusion of the statutory periods on which the Contractor bases his retention of the documents.
- The Contractor is obliged to take appropriate measures to ensure the protection of Documents, information and files from access by unauthorised persons. On request the Contractor is accountable for the measures taken in this respect.
- The Contractor is obliged to grant access to the Documents, information and files relating to the cooperation with the Client and his Customer only to those persons required for the contractual service. On request the Contractor is accountable for the measures taken in this respect.
- The Contractor is obliged to place his employees, assistants, subcontractors etc. whom he employs under an obligation of compliance with these provisions and is responsible for such compliance also on the part of his employees, assistants, subcontractors etc. On request, the Contractor is accountable for the measures taken in this respect.
- In all other respects a confidentiality agreement between the Client and his Customer applies correspondingly also to the relationship between the Client and the Contractor in so far as the Client made this known on conclusion of the contract
- The Client may impose a confidentiality agreement reached with his Customer or confidentiality requirements imposed on him also retroactively on the Contractor also after the conclusion of the contract, if the contents are customary in the business sector or if the retroactivity was caused (or contributed to) by the Contractor, or if the Contractor is not significantly disadvantaged by the retroactive application. In this latter case an indicator of the absence of significance exists if the contractual partners had knowingly in- cluded these contents before conclusion of the contract.
- The Contractor undertakes to inform the Client immediately and comprehensively of any unauthorised disclosure of work results and Documents and information and to keep him informed concerning the progress of the enquiry or investigation.
- If the Contractor should wish to name the Customer of the Client as a reference (by name and / or with the logo), he must previously request the consent of the Client. The Client may refuse this consent for any reason. He may also refuse consent if the Customer is for any reason not in agreement. This applies also in so far as the Contractor should wish to name the Client as a reference.
- The Contractor is obliged to comply with the relevant data-protection requirements and also to oblige any employees or subcontractors working on the project to observe and remain in compliance with the same requirements; this applies in particular to the implementation of and compliance with the EU General Data Protection Regulation (GDPR). On request the Contractor is accountable for the measures taken in this respect.
- The Contractor is obliged, including also after conclusion of the or a contract which includes these GTCB, to conclude all measures, agreements or contracts arising from data protection law applicable for Germany and / or data protection law applicable to the Customer on request by the Client at any time, in any event in so far as such measures, agreements or contracts are requested by the Customer or are usual and appropriate in that particular business sector.
§ 6 Competition Protection
- In so far as the Client discloses information concerning the Customer to the Contractor and hereby makes a cooperation under the contract possible, and in so far as the Contractor discloses information concerning employees/subcontractors, and thereby makes a cooperation under the contract possible, both contractual partners undertake not to use the disclosed information to approach the Customer or the employee/subcontractor either directly or through third parties in order thereby to obtain or place future orders directly.
- During the contractual relationship the Contractor may not, without the prior explicit consent of the Client, approach the Customer directly in order to recruit an order in so far as this order falls or would fall within the business portfolio/range of services of the Client.
§ 7 Copyrights and other Protective Rights
- All rights granted by law, in particular copyrights and other protective rights, are granted by the Contractor to the Client in accordance with the provisions of the Contract to the extent that the Client needs them in order, as main contractor, to fulfil his order towards his Customer.
- In so far as is possible and reasonable (the legitimate interest of the Customer in freedom from rights is decisive) the Contractor will perform his services for the Client free from third-party rights so that the Client can provide these services for his Customer in a comprehensive manner and grant him the necessary rights.
- In so far as the Contractor is unable to perform his services free from third-party rights, or if the rights are subject to limitations, the Contractor will draw this to the attention of the Client.
- In cases of doubt the Contractor must previously enquire of the Client which rights are necessary or which rights must be granted to the Customer.
§ 8 Protective Rights and C.I. of the Customer
- In so far as the Client‘s Customer obliges the Client that the Client’s Contractors are to attend the Customer’s training courses on the proper way to deal with the Client’s C.I., the Contractor must also attend these.
- In all cases the Contractor is obliged to comply strictly with the specifications for the placement, colour selection and the handling and use of the C.I. of each of the Client’s Customers and also to oblige his own employees and service providers to do the same.
- Before using the logo or C.I. components of a Customer of the Client the Contractor is obliged to familiarise himself with the guidelines and in case of doubt to obtain them from the Client.
- In so far as the Client is held liable resulting from erroneous action or failure to act on the part of the Contractor in connection with the C.I., the Contractor will hold him harmless and reimburse the Client for all costs (e.g. contractual penalties). The Client is not obliged to reject claims made by the Customer in favour of the Contractor and, for example, to refuse payments, in so far as the claims are not obviously unfounded.
- The Contractor undertakes not to challenge protective rights of the Customer or to cause them to be challenged.
§ 9 Recording of the Event
- The Client has the right to make video and/or audio recordings of the event and the services of the Contractor contained therein and to use the recording comprehensively for his own purposes. This applies particularly for archival purposes and for such purposes as those by means of which the Client presents his references.
- The Client is authorised to grant these rights also to his Customer.
- The Contractor will conclude corresponding agreements with other rights holders who are involved and in his sphere of influence, particularly his employees and subcontractors; these corresponding agreements will demonstrate the permission granted to the Client to record the performances and services pursuant to Paragraph 1.
- The Contractor may record the event only with the prior express agreement of the Client.
§ 10 Liability of the Client
- For ordinarily negligent breaches of contractual obligations the liability of the Client is limited to foreseeable damages typical under the contract type. This applies also in the case of ordinarily negligent breaches of contractual obligations on the part of the legal representatives or the vicarious agents of the Client.
- The Client is not liable in the event of ordinarily negligent breaches of non-material contractual obligations.
- The aforementioned limitations of liability do not affect claims of the Contractor arising from product liability. In addition, the limitations of liability do not apply to loss of life, bodily injury, or impairment of health attributable to the Contractor or his legal representatives or vicarious agents.
§ 11 Indemnity Obligation of the Contractor
The Contractor undertakes to indemnify the Client from all claims and costs asserted by third parties which arise from a claim by third parties in so far as the claim is based on a breach by the Contractor of one of the provisions agreed in this Agreement, agreements arising from an individual order, a later agreement, or a breach of a statutory or other provision or to otherwise unlawful conduct.
§ 12 Contractual Penalty
- The Contractor undertakes to make payment of an appropriate contractual penalty if he culpably breaches a contractual obligation. In this event the Client may determine the amount of the contractual penalty at his sole discretion; in the event of disagreement, the appropriateness of the penalty may be reviewed by the Hechingen Regional Court. A possible claim for additional damages is not affected by the contractual penalty.
- The agreement on the contractual penalty explicitly applies also after the end of the contract and also after the end of any individual contract if the breach of contractual obligation is discovered only after the end of the contract/ the individual contract or in so far as it arises only after the end of the contract/the individual contract.
§ 13 Connection to the Customer’s Event, Possibilities of Termination
- If the Customer’s event is cancelled, suspended, interrupted for whatever reason or if it cannot take place in whole or in part because of force majeure, the Client may terminate the contract with the Contractor.
- In a situation of increased risk and/or unforeseen risk the Client may terminate the contract. This applies also and particularly if: (a) it may be assumed that activities, presentations and measures in the course of the event without any action on the part of the Client refer directly to political processes in Germany and/or another country and/or during which opinions are discussed or expressed or are to be expressed which are inconsistent with fundamental democratic values and/or the constitution (Grundgesetz) of the Federal Republic of Germany or of the country of origin of the Customer or of the country in which the event is taking place and/or have a prejudicial impact on the peaceful coexistence of people in Germany or in the country of origin of the organiser or in the country in which the event is taking place, (b) the local relevant authorities and police have specific reasons to believe they are not able to maintain public order and safety and/or for this reason it is not reasonable for the Client and/or the Customer to continue the contract, or (c) a relevant authority or a court prohibits the realisation of the event
- In addition to the above, the Client has a right of termination for good cause, in particular if: (a) the Contractor omits necessary or agreed measures which serve or would serve the safety of the visitors or other parties involved, (b) deficiencies should be observed for which the Contractor is responsible, and which could endanger the health or life of a third party, (c) the Contractor has failed to disclose circumstances which are important for an assessment by the Client and/or his Customer of the risk and/or of the production facilities and/or of the employees or the assistants, (d) the required official permits and authorisations which the Contractor was responsible to obtain are not available, or (e) the Contractor fails to fulfil official requirements, (f) the Contractor breaches his obligations arising from § 5 to § 8. --- A prior caution or the definition of a grace period etc. is required only if a rectification or non-occurrence of the reason for termination is certain and continued adherence to the contract is reasonable for the Client, and the Contractor provides adequate assurance that all the measures required in the prior caution or grace period, and also other additional costs arising therefrom are paid in advance or appropriately covered by means of unconditional securities.
- Both contractual partners retain the right of termination for good cause.
- In so far as it is not otherwise agreed, the Client may, in the event of a termination arising from no fault of his own, and in so far as no different effective termination agreement has been reached, present an invoice for only his work provided up to that point if he is unable to use this work elsewhere or does not maliciously refrain from its use elsewhere. If, resulting from the termination, the Client receives from his Customer higher remuneration entitlements accruing from the concrete service of the Contractor than those which the Contractor could invoice pursuant to this Paragraph, the latter’s entitlement is increased correspondingly to the amount of the payments from the Customer to the Client. In the event of a culpable termination by the Contractor, the entitlement for payment is limited to the portion of the services free from defects in so far as this can be determined by the Client; the defective portion may be reduced accordingly. In all other respects the Client has an interest-free right of retention up to the point of final and absolute settlement of possible claims for damages (including those of the Customer).
- In every case of a termination the Contractor is obliged, on request, to collaborate on a joint determination of the state of service. If he refuses this cooperation or fails to attend an agreed appointment or an appointment set by the Client within a reasonable period of time for the purposes of determining the state of service, he assumes the burden of proof with respect to the state of service at the time of the termination. This does not apply if he is absent as a result of circumstances for which he is not responsible and which he has promptly communicated to the other contractual partner.
§ 14 Assignment, Retention
- The Contractor may assign claims from the contractual relationship with the Client to third parties only after the prior agreement of the Client.
- The Contractor is only authorised to exercise a right of retention only in so far as his counterclaim rests on the same contractual relationship and is undisputed or has been judged to be final and absolute.
§ 15 Miscellaneous
- It is agreed that the place of jurisdiction for disputes arising from the contractual relationship is Hechingen (Germany). However, the Client may at his discretion also bring an action at the place of jurisdiction of the Contractor or a legally exclusive place of jurisdiction.
- The law of the Federal Republic of Germany is exclusively applicable with the exclusion of the provisions on the conflict of laws.
- In so far as there are versions in more than one language (e.g. German and English) for a contract, an individual order or other documents and these are contemporaneously contained within one and the same contract, in cases of doubt arising from contradictory interpretations arising from the wording, only the German version is ever authoritative.
- If a clause of these General Terms and Conditions of Business should be or become invalid, the other clauses are not affected thereby.
Version of the GTCB: February 2018.