GTC

General Terms and Conditions for Burmester Event- & Medientechnik GmbH (as of 10/2018)

These general terms and conditions govern the contractual relationship between Burmester Event & Media Technology, hereinafter referred to as „BEM“) and the customer (hereinafter referred to as „customer“).
I. General regulations
§ 1 General, scope
(1) These terms and conditions apply to all current and future business relationships with entrepreneurs within the meaning of § 310 Abs. 1 BGB of the German Civil Code (BGB), legal persons under public law and special funds under public law.
(2) These terms and conditions also apply to all future transactions with the customer, as far as related legal transactions are concerned.
(3) These terms and conditions apply exclusively. Divergent, conflicting or supplementary General Terms and Conditions of the customer shall only become part of the contract if and to the extent that BEM has expressly agreed to their validity. This approval requirement applies in any case, for example, even if BEM, knowing the terms and conditions of the customer, carries out the delivery to him unconditionally.
(4) Legally relevant declarations and advertisements which are to be submitted by the customer to BEM after the conclusion of the contract (eg deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing in order to be valid.
§ 2 Offer and conclusion of contract
(1) The presentation of the products in the catalog, on the website and in brochures of BEM, do not constitute a legally binding offer, but an invitation to order. Errors excepted.
(2) Illustrations, sketches, dimensions or other performance data do not constitute an assurance of properties and will not become part of the contract, unless otherwise expressly agreed.
(3) BEM offers are non-binding and merely issue an invitation to the customer to submit a binding offer. When placing an order, the customer makes a legally binding offer.
(4) Unless otherwise stated in the order, BEM shall be entitled to accept this contract offer within 14 days of receipt by the BEM.
(5) The contract is only concluded with the sending of an order confirmation by the BEM to the customer or with dispatch of the goods to the customer or the beginning of the service provision. [MO1]
(6) The object of the contract is the preparation of the service picture described in the offer by BEM. Separate services outside this offer, or results and components not related to the agreed services, are not part of the order and require a separate agreement.
§ 3 Prices and payment
(1) Unless otherwise agreed in individual cases, the prices valid at the time of the conclusion of the contract shall be governed by BEM. All article prices are net plus statutory sales tax and shipping costs and other costs and customs duties incurred by the transport. Unless otherwise agreed, payment must be made in advance [MO2].
(2) Payment of the price by invoice must be made exclusively to the account stated in the invoice. Unless otherwise agreed, the purchase price must be paid within 10 days after receipt of the invoice.
(3) If the user is in default of payment, he shall pay BEM default interest in the amount of 9 percentage points above the base rate. The customer‘s obligation to pay default interest does not exclude the assertion of further damages caused by BEM.
§ 4 Delivery time
(1) The beginning of the delivery period specified by BEM presupposes the timely and proper fulfillment of the customer‘s obligations. The exception of the unfulfilled contract remains reserved.
(2) If the customer is in default of acceptance or culpably violates other obligations to cooperate, BEM shall be entitled to demand compensation for any damage incurred by BEM, including any additional expenses. Further claims are reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time when the latter is in default of acceptance or payment.
§ 5 Transfer of risk upon dispatch
If the goods are shipped to the customer at the customer‘s request, the risk of accidental loss or accidental deterioration of the goods passes to the customer upon dispatch to the customer, at the latest when leaving the factory / warehouse. This applies regardless of whether the shipment of goods from the place of performance or who bears the freight costs.
§ 6 Delivery
(1) Delivery is at warehouse, where also the execution should take place. At the request and expense of the customer, the goods will be shipped to another destination (consignment purchase).
(2) The delivery (delivery to the shipping company) takes place with advance payment, no later than two weeks after receipt of money. For invoice payments, the delivery period is two weeks from the receipt of invoice.
(4) The delivery time is, unless otherwise stated, 14 days from receipt of the order.
(5) Should not all ordered products be in stock, BEM is entitled to partial delivery at its own expense, as far as this is reasonable for the customer. If an ordered product is not available because BEM will not be supplied with this product by the supplier without its own fault, BEM is entitled to withdraw from the contract. In this case, the customer will be informed immediately and, if necessary, the delivery of a comparable product will be proposed. If no comparable product is available or if no delivery of a comparable product is desired, any consideration already paid will be reimbursed immediately.
(6) Should the delivery of the goods fail due to the fault of the customer despite three attempts to deliver, BEM is entitled to withdraw from the contract. Possibly, payments made will be refunded immediately.
§ 7 Force Majeure
(1) All obligations under this contract, and in particular the duty to deliver the goods subject to the contract, are subject to the reservation of no-fault delays for reasons beyond the control of the respective contracting party (hereinafter „Force Majeure“). This applies in particular to embargoes and other transport difficulties, flight delays, delayed delivery or non-delivery of BEM, delays caused by the customer, strikes and other industrial disputes, official measures as well as other cases of force majeure. The Party relying on force majeure shall inform without delay the other Party of the reason for and the alleged duration of the Force Majeure.
(2) In the event of force majeure which prevents BEM from delivering to the customer, the customer will also accept short deliveries. BEM is not obligated to purchase the goods, software and visualizations for delivery to the customer from third parties.
§ 8 Rights of retention
The customer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 9 Liability
(1) BEM is liable without limitation
– in case of intent or gross negligence,
– for injury to life, limb or health,
– in accordance with the provisions of the Product Liability Act as well as
– to the extent of a guarantee assumed by BEM.
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(2) In case of slightly negligent breach of an obligation which is essential for the achievement of the purpose of the contract (so-called cardinal obligation), the liability of BEM shall be limited in amount to the damage which is foreseeable and typical according to the nature of the business in question. Significant contractual obligations are those whose fulfillment makes proper implementation possible in the first place and on whose observance the customer can rely. The contractor is not liable for the competition and trademark legal admissibility of contents.
(3) A further liability of BEM does not exist.
(4) The above limitation of liability also applies to the personal liability of the employees, representatives and organs of BEM.
§ 10 Guarantee of the right holder, release of the licensee
(1) If the customer makes content available to BEM, the customer guarantees that the customer owns the copyrights. The customer also guarantees that the delivered contents are free of third party rights, which could be contrary to the contractual use. The customer guarantees that the use of the work under this contract will not infringe any personal rights of third parties.
(2) The customer indemnifies BEM against all claims of third parties, in particular claims for copyright and personal rights violations as well as trademark, trademark and design rights, which should be levied against BEM in connection with the execution of the contract, upon first request. BEM has to notify the customer immediately of any impairment of the contractual rights. BEM is entitled to take appropriate measures to defend third-party claims or to prosecute the rights of BEM. Own measures of the customer has to be coordinated with BEM in advance. The indemnity also includes the reimbursement of the costs incurred or incurred by BEM through legal action / defense.
§ 11 Health risks, exemption claim
(1) The customer is aware of the risks and dangers to health arising from the use of the devices provided by BEM and software and visualizations created by BEM, in particular virtual, augmented and mixed reality.
(2) The customer is obliged to do everything possible and reasonable to prevent injury to third parties. In particular, the customer must inform third parties about the risks and dangers to health arising from the provided devices and the created software and visualizations and to permit the use of only those third parties that are mentally and physically healthy and suitable for the use of the devices.
(3) The customer exempts BEM from all claims asserted by third parties against BEM for the use of the software and visualizations created by BEM according to the wishes and specifications of the customer on its behalf. The indemnity also includes the reimbursement of the costs incurred or incurred by BEM through legal action / defense.
§ 12 Self-promotion, copyright designation
(1) BEM is permitted to use individual work results or excerpts thereof for the purpose of self-promotion, free of charge, even after the end of the contract period, in particular to present projects for documentation, publication on the website, social media channels, as well as for publication in print and online media.
(2) BEM retains the copyright designation; BEM is entitled to use the name or logo or other customary business name discreetly and after consultation with the customer.
II. Sales Provisions
§ 1 Retention of title
(1) BEM retains ownership of the purchased goods until full payment of all claims from the delivery contract. This also applies to all future deliveries.
(2) The customer is obliged, as long as the property has not been transferred to him, to handle the purchased goods with care. If maintenance and inspection work has to be carried out, the customer has to carry it out on time at his own expense. As long as the ownership has not yet been transferred, the customer must immediately notify BEM in writing if the delivered object is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse BEM for the legal and extrajudicial costs of a claim in accordance with § 771 ZPO, the customer is liable for the loss incurred by BEM.
(3) The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns the claims of the customer from the resale of the reserved goods to BEM in the amount of the final invoice amount agreed with BEM (including value added tax). This assignment applies regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect the claim even after the assignment. The right of BEM to collect the claim itself remains unaffected. However, BEM will not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for opening of insolvency proceedings or suspension of payments exists.
(4) The processing and conversion, or conversion of the purchased item by the customer, is always named and on behalf of BEM. In this case, the entitlement of the customer to the purchased item continues with the remodeled item. If the purchased item is processed with other items not belonging to BEM, BEM acquires co-ownership of the new item in proportion of the objective value of the purchased item to the other processed items at the time of processing. The same applies to the case of mixing. If the mixing takes place in such a way that the customer‘s item is to be regarded as the main item, it shall be deemed agreed that the customer assigns proportionate co-ownership to BEM and keeps the resulting sole ownership or co-ownership for BEM. To secure our claims against the customer, the customer also assigns such claims to BEM which accrue to BEM through the connection of the reserved goods with a property against a third party; BEM already accepts this assignment.
(5) BEM shall release the securities to which it is entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§ 2 Warranty
(1) In the event of a defect, the customer shall be entitled to the statutory warranty rights in accordance with the following provisions.
(2) If the purchase is a commercial transaction for both parties, then the commercial complaint obligations according to §§ 377 ff. HGB shall additionally apply.
(3) Without prejudice to § 479 BGB, the warranty period for new items is one year and for used items 3 months from delivery.
III. Tenancy regulations
§ 1 Rental period
(1) The rent begins with the agreed day of collection or delivery and ends with the expiry of the agreed rental period. The rental period is full days. Partial or broken days are counted as full days. The agreed roll time is part of the rental period. If the customer continues the use of the leased property after expiry of the agreed rental period, the lease is not considered extended. § 545 BGB does not apply.
(2) If the customer does not return the complete leased property to BEM at the expiry of the agreed rental period, BEM shall be entitled to charge a fee of at least the previously agreed rent for the duration of the withholding; the assertion of further damage is not excluded.
§ 2 Termination
(1) The parties are entitled to terminate the lease in accordance with the statutory provisions. BEM can terminate the lease without notice for good cause. As an important reason in particular:
• significant deterioration of the client‘s financial circumstances
• unredeemed bank collections / checks,
• foreclosure measures directed against the customer,
• lack of care of the goods,
• improper, illegal or unlawful use,
• Disregard of the instructions of the BEM staff.
§ 3 Obligations of the customer
(1) The customer is obligated to conclude a self-insurance at his own expense about the leased property, which also includes the settlement of financial disadvantages of third parties as a result of claims for damages, and to prove the conclusion upon request by BEM. The customer can fulfill this obligation by instructing BEM to conclude a corresponding obligation at its own expense.
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(2) The customer is obliged to check the completeness and functionality of the leased property at the beginning of the rental period. The takeover is considered confirmation of the perfect condition and the completeness of the equipment.
(3) The leased property is to be treated with care and may only be set up, operated and dismantled by knowledgeable persons. The customer must ensure a trouble-free power supply for the use of the rental equipment.
(4) The customer assures BEM to return the devices in a clean, perfect condition and in an orderly manner. In case of damage or loss, the customer is obliged to inform BEM immediately in writing. For damage or loss of the goods, the customer is generally liable in accordance with the statutory provisions up to the amount of the new value of the equipment. For used, defective or lost parts, including hardware accessories, the customer has to reimburse the usual market price.
(5) The agreed rental period must be strictly adhered to; If this is not possible, BEM must be notified immediately.
§ 4 Warranty claims of the customer
The warranty claims of the customer presuppose that the customer has checked the completeness and serviceability of the leased property upon acceptance and the defect of the leased property was notified immediately after discovery. If there is a defect, BEM is entitled to change or repair at its own discretion. If BEM is unable to replace or repair it in time, the customer is entitled, at its discretion, to withdraw from the contract or demand a reasonable reduction in the rental price. The warranty claims of the customer are otherwise excluded.
IV. Additional legal conditions for personnel deployment, programming and other services
§ 1 Duties of the customer
(1) The customer undertakes to provide BEM with all information required for the performance of the service without the rights of third parties by the agreed date. BEM is under no obligation to review the content provided by the customer, in particular with regard to whether it is suitable for the purpose of fulfilling the contract.
(2) After completion, the customer is obliged to accept the services provided, provided that the service has no significant defects.
(3) The customer must notify BEM of any defects and delays in writing without delay.
(4) At the request of BEM, the customer must accept individual components of the service rendered. The partial acceptance can not be refused because of insignificant defects.
(5) If the customer does not accept the service within 10 days of delivery or after a grace period has been set, the risk of accidental loss of service shall pass to the customer. BEM is entitled to claim damages.
(6) If the customer withdraws from a placed order, BEM can – irrespective of the possibility to assert an actually higher damage – demand for the processing of the offer 10% of the agreed price for incurred costs and lost profit. The customer is free to prove minor damage.
(7) The customer undertakes to receive the generated service electronically from BEM.
§ 2 Additional payment terms
(1) Travel expenses, meals and expenses will be charged according to expenditure. Flights within Europe take place in economy class, intercontinental flights in premium economy or business class. Train travel takes place in 2nd class. Trips by car are charged at 0.35 EC / km.
(3) GEMA fees and other costs incurred by the event will be borne by the customer.
(4) All expenses and expenses incurred by BEM which are not to be borne by BEM in accordance with the terms of reference of BEM shall be charged at cost.
(6) Agreed daily rates of employees apply for a maximum of 10 hours per day. Each additional hour is charged at 15% of the daily rate.
(5) All services that are not included in the service description shall be remunerated by the customer even if BEM does not rely on third-party services but has the respective service performed by employees or agents. BEM shall be entitled to carry out work that BEM can assign to third parties on behalf of and for the account of the customer, and then settle it separately with the customer.
§ 3 Rights of use
(1) BEM transfers to the customer a simple right of use valid for the agreed event, limited to the duration of the event, unless otherwise agreed.
(2) The rights of use shall only be transferred to the customer after full payment of the remuneration.
(3) The customer is not entitled to redesign and further processing of the work results without the consent of BEM.
(4) A transfer of the rights of use to third parties requires the written consent of BEM.
(5) BEM reserves the right to exercise its right to designate copyright.
V. Final provisions
(1) Contract language is German.
(2) Contracts between BEM and the customer shall be governed by the law of the Federal Republic of Germany, excluding the laws on the international sale of goods (CISG).
(3) Place of performance is Berlin.
(4) Place of jurisdiction is Berlin, as far as the customer is a merchant or a person of the public right or public law special fund.