Status November 2022
(1) These General Terms and Conditions of Purchase ("GTCP") govern the relationship between insglück Gesellschaft für Markeninszenierung mbH (hereinafter "client") as recipient of services/works and its contractor as service/works provider (hereinafter "contractor").
(2) The following terms and conditions apply to all services rendered by the contractor - subject to deviating individual contractual agreements, which require at least text form (§ 126b BGB) in order to be valid. Agreements on confidentiality and rights of use made prior to the conclusion of the contract remain valid and shall be supplemented by these provisions.
(3) The reference to the contractor's General Terms and Conditions of Purchase by way of form is objected to. Terms and conditions of the contractor or third parties shall not apply, even if the client does not separately object to their validity in individual cases. Even if the client refers to a letter that contains or refers to the Contractor's or a third party's terms and conditions, this does not constitute an agreement to the validity of those terms and conditions.
(1) The contractor be responsible for all services mentioned in the individual contract/order, in the specifications of amounts or in the performance specification together with all annexes (hereinafter "Project Contract"). Deviations from this, in particular with regard to the agreed quantities and properties, are only permissible with the consent of the client in text form.
(2) The contractor must perform the services assigned to it under the contract personally or with its own salaried employees. Without the prior consent of the client in text form, the contractor is not entitled to transfer the services or parts of the services to third parties. In any case, the contractor must ensure that third parties commissioned by him comply with the provisions of this contract and must ensure this by means of suitable contractual agreements. This applies in particular with regard to the provisions on confidentiality, rights of use and customer protection agreed in sections XII, XIII and XIV.
(3) The contractor undertakes to comply with all safety, occupational health and safety guidelines to be observed in connection with the provision of its services. It must instruct its deployed personnel in accordance with the requirements and document this for its records. If and to the extent that services are to be rendered abroad, the contractor must ensure compliance with the corresponding provisions of foreign law.
(4) The contractor is responsible for planning and ensuring the necessary travel to and from the site, catering and accommodation for the personnel deployed in connection with the provision of the services.
(5) All performance results and other materials (e.g. equipment of the contractor; rented items) brought in must be insured by the contractor to a sufficient amount until they are handed over to the client and need to be provided in a flawless condition. Rental objects shall always be handed over in as-new condition, buildings in broom-clean condition. All performance results, as well as the individual materials used or otherwise brought in for this purpose, comply with exhibition standard requirements for safety and fire protection. The contractor is responsible for dismantling, transporting and/or disposing of the performance results and other materials brought in.
(6) Changes and/or extensions to the scope of the order require separate commissioning by the client in text form (§ 126b BGB). Offers by the contractor for changes and/or extensions to the scope of the order require confirmation by the client in text form.
(1) The contractor is obligated to pay its employees the legally stipulated minimum wage or to comply with the collectively agreed minimum conditions in accordance with the Posted Workers Act and the Temporary Employment Act, as well as to pay corresponding social insurance and accident insurance contributions. This shall apply accordingly to comparable provisions of foreign law if and to the extent that services are rendered abroad.
(2) The contractor shall provide evidence of the payment of the minimum wage as well as the documentation pursuant to Section 17 Para. 1 MiLoG to the Client on a regular monthly basis, if requested by the Client. For this purpose, the contractor shall provide an anonymised overview showing the employees deployed and other personnel (freelancers, trainees, interns, etc.), the hours worked by them, and the wage paid in each case. The Client undertakes to treat these documents confidentially and to comply with the applicable data protection laws.
(3) The contractor will oblige the subcontractors and vicarious agents commissioned by him in writing in accordance with paragraphs 1 and 2. He shall provide the Client - upon request - with copies of the contracts concluded for this purpose.
(4) The contractor shall be responsible for all claims asserted by third parties due to non-compliance with its obligations pursuant to paragraphs 1 to 3 and shall indemnify the client against any third party claims resulting therefrom.
(1) The parties are obliged to cooperate closely during the execution of the contract and they will settle possible differences of opinion as amicably as possible.
(2) The contractor undertakes to cooperate with all third parties involved in the project in any way as often and as far as this is necessary and reasonably requested by the client.
(3) The parties agree that joint meetings and other meetings, also with third parties, are necessary for the fulfilment of the contract. The contractor is therefore obliged to participate unless this is unreasonable in the individual case.
(4) The cooperation obligations are compensated with the agreed remuneration.
(1) The contractor is obliged to perform the services within the periods or on the dates specified in the contract and taking into account specified budgets (hereinafter "contract deadlines").
(2) The contractor is obliged to inform the client in writing without delay if circumstances arise or become apparent according to which the stipulated deadlines/dates cannot be met.
(3) The contractor is not entitled to partial performance without the prior written consent of the client.
(4) If the day on which the performance must take place at the latest can be determined on the basis of the contractual agreement, the contractor is in delay with the expiry of this day without the need for a reminder from the client.
(5) In the event of culpable exceeding of the contractual deadlines, the contractor pays the client a contractual penalty of 5% of the net order amount for each day of delay from the first banking day. The contractual penalties are set off against the damage caused by delay to be compensated by the contractor. Further claims for damages of the client remain unaffected. In deviation from Section 11 Para. 4 VOB/B, the contractual penalty does not need to be reserved at the time of acceptance.
(1) If requested by the client, the contractor shall prepare interim reports on the status of its performance, in particular with regard to compliance with the set deadlines and budgets. These reports shall be submitted to the client upon request within 3 working days at the latest.
(2) The contractor keeps all documents related to the provision of the commissioned services and return them to the client upon request within 5 working days, namely after termination of the contract. Copies made by the contractor need to be destroyed in this case; the only exceptions to this are storage within the scope of statutory storage obligations and the storage of data for backup purposes within the scope of normal data backup.
(1) If the contractor's services are such that require acceptance in accordance with the provisions of the contract for work and services or if acceptance has been agreed, the contractor notifies the client of the completion of the service and agree a prompt date for its acceptance with the client.
(2) Acceptance of the contractor's performance is to be made formal. A tacit acceptance is excluded - irrespective of the provision in § 640 BGB. The work is accepted unified. There is no entitlement to partial acceptance of individual partial performances. Acceptance shall not be replaced either by earlier use, commissioning, or administrative acceptance or by the contractor's notification of completion of the contractual performance. The declaration of acceptance is made in text form.
(3) If the performance consists of the planning and/or execution of performances or events, the acceptance takes place regularly on the occasion of dress rehearsals or rehearsal runs.
(4) The parties will prepare a written record of any defects, or the absence of defects discovered at the acceptance meeting and, if applicable, agree in this record the reasonable period of time within which a defect is to be remedied. Any outstanding partial services or defects notified shall be made good or remedied as soon as possible. The client's other rights remain unaffected by this.
(5) Unless otherwise agreed, the remuneration is only due after acceptance and handover of the entire performance results and proper invoicing.
(1) Unless otherwise agreed between the contracting parties, the contractor invoices within 14 days after acceptance or performance of the services.
(2) Invoices can only be processed and settled if the insglück order and job number are stated. The invoice is to be sent exclusively to invoice@insglueck.de. The client is entitled to reject invoices that are not properly marked.
(3) The agreed remuneration shall also cover the transfer of the rights of use in accordance with these terms and conditions.
(4) The remuneration of other ancillary or travel expenses always require an additional express agreement. Should remuneration of travel expenses be agreed, the client's travel expenses policy applies.
(5) When concluding a contract for which the net contract sum exceeds 50,000.00 euros, the client may demand that the contractor provides security in an appropriate manner to secure its claims in the event of non-performance or poor performance. A contribution in the amount of 10 % of the gross contract sum shall be deemed reasonable. The security may be provided by way of guarantee. If this is arranged, an unlimited, directly enforceable guarantee from a German bank must be presented. If the contractor does not provide this security within two weeks after written request by the client, the client may withdraw from the contract.
(6) The security shall be released no later than one year after the performance contract has been fully performed, provided that no claims have been asserted against the client in connection with this agreement by that time. The client may also refuse to release the security beyond this period if, at the latest by the expiry of the release period, it provides actual evidence that it is threatened with a claim due to a breach by the contractor of its obligations under clause III of these General Terms and Conditions of Purchase.
(1) All expenses incurred in connection with travel by employees of the contractor or by third parties permissibly engaged by the contractor are reimbursed in accordance with the following provisions.
(2) Reimbursable costs are only those incurred in connection with travel previously approved by the client towards the contractor.
(3) Travel expenses will be reimbursed as follows:
- The contractor chooses the means of transport which causes the lowest cost reimbursement expenditure at a justifiable expenditure of time. If several employees of the contractor travel to the same place, one means of transport or group fares shall be used if possible.
- Travel costs are not reimbursed if the place of departure and destination of a journey are less than 60 kilometres apart.
- If a company car belonging to the contractor or the employee is used, 0.30 euros per kilometre travelled shall be reimbursed. The shortest route is chosen.
- If the use of a rental car is necessary, the costs for a small car including insurance, maximum up to the category type VW Golf, are reimbursed.
- Reimbursement will be made for 2nd class rail travel costs plus surcharges.
- The flight costs for economy class is reimbursed. The contractor is obliged to achieve the lowest possible ticket prices, in particular by booking early with so-called low-cost airlines.
- Taxi costs will only be reimbursed for inner-city taxi journeys.
(4) Reimbursement of accommodation costs at the contractually agreed place(s) of activity are not made if the reason for the trip is a regular face-to-face meeting, and a journey to or from the meeting is reasonable for the contractor before or after the meeting. For other destinations of a trip and other occasions, in particular in the context of events, overnight stays are reimbursed. In this context, the contractor assures the client that overnight accommodation will only be provided for a necessary reason.
(5) Overnight stays in hotels, guesthouses, flat hotels, etc. in the medium price segment are reimbursed.
(6) The contractor endeavours to select the most favourable accommodation in the class by comparing prices. In doing so, the contractor takes into account any company conditions for specific facilities communicated to him by the client.
(7) For overnight accommodation including breakfast, up to € 100.00 plus VAT shall be reimbursed for a single room. Higher reimbursement amounts are to be agreed by the contractor with the client in advance.
(8) The time spent on the preparation and execution of trips as well as per diems during a trip are not reimbursed, unless expressly stipulated otherwise in the individual contract or in the performance certificate. These expenses are covered by the agreed remuneration.
(9) The contractor must submit the statement of reimbursable costs within 14 days of the end of the respective trip, enclosing copies of all original receipts in an orderly manner, citing the project/project number. Reimbursement of accounts submitted later will not be made.
(1) The contractor is only entitled to offset or assert a right of retention against the client if its counterclaim has been legally established, is not disputed or recognised by the client or is in a close exchange relationship with the client's claim.
(2) The rights of the contractor arising from this contractual relationship are only transferable with the prior consent of the client. This does not apply insofar as monetary claims are concerned.
(1) The client is liable without limitation if damage has been caused by intent or gross negligence.
(2) The client shall only be liable for slight negligence if a breach of essential obligations is involved and the achievement of the purpose of the contract is thereby jeopardised or if the client breaches obligations the fulfilment of which is a prerequisite for the proper performance of the contract and if the contractor regularly relies on compliance with these obligations (cardinal duties). If a material contractual obligation is breached due to slight negligence, the client's liability is limited to the foreseeable damage typical for the contract.
(3) The above limitations of liability do not apply in the event of injury to life, limb or health.
(4) Unless otherwise agreed, the client is not liable for items brought in by the contractor.
(5) Insofar as the liability of the client is excluded or limited, this also applies to the personal liability of employees, representatives, and vicarious agents of the client.
(6) It is the contractor's responsibility to insure its equipment against damage in transit and other damages.
(7) Deviations in quality and quantity are in any case notified in good time if the client notifies the contractor of them within 2 working days of handover or receipt of the goods. Hidden material defects shall be notified in due time if the notification is made to the contractor within 2 working days after discovery.
(8) By accepting or approving samples or specimens submitted, the client does not waive any warranty claims.
(9) Upon receipt of the written notice of defect by the contractor, the limitation period for warranty claims is suspended until the contractor rejects the client's claims or declares the defect eliminated or otherwise refuses to continue negotiations on the clients claims. In the event of replacement delivery and rectification of defects, the warranty period for replaced and rectified parts shall begin anew unless the client had to assume from the contractor's conduct that the contractor did not consider itself obliged to undertake the measure but only undertook the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.
(10) The contractor is responsible for all claims asserted by third parties for personal injury or property damage attributable to a service provided by it and is obliged to indemnify the client against any liability resulting therefrom.
(11) The contractor is obliged to maintain, at its own expense, product and/or public liability insurance with an insured sum of at least EUR 3,000,000.00 covering personal injury and property damage. The contractor sends the client a copy of the liability policy at any time upon request.
(1) The contractor undertakes to maintain secrecy about all information or processes that have become known due to the business relationship between the parties and the provision of the services as well as with regard to all documents received. This also applies to all other internal matters of the contracting parties or other third parties involved.
(2) The contractor is only entitled to refer to its services for the client within the scope of its own public relations work with the express consent of the client in text form.
(3) Any disclosure of documents or data, in whatever form, is only permitted with the consent of the client in text form.
(4) For each case of culpable breach of this confidentiality agreement, the contractor promises a contractual penalty, the amount of which is at the client's reasonable discretion and, in the event of a dispute, is reviewed by the competent court for its appropriateness. This shall not affect the right to claim further damages. Any breach of the confidentiality obligation justifies termination of the contractual relationship without notice by the client and the assertion of claims for damages.
(1) The contractor hereby grants the client rights of use, unlimited in terms of content, time and place, to any performance results created by the contractor exclusively for the client within the scope of this contract, whether or not they are protectable under the law, for exploitation in all forms and media, as well as the right to transfer them to third parties, in particular to the client's customers. The client shall be entitled to process the performance results or to change them in any other form or to have them processed and to use the performance results thus changed.
(2) The contractor grants the client simple rights of use, limited in terms of content, time and place to the contractual exploitation of the results of the performance, to other results of the performance not created exclusively for the client or to other results of the performance possibly created by the contractor within the scope of the provision of the contractual performance, whether protectable or not, as well as to pre-existing know-how.
(3) The contractor guarantees that the contractual use of the content, information and performance results provided by it in accordance with paras. 1. and 2. does not unlawfully infringe the rights of third parties, in particular does not infringe any industrial property rights (such as trademarks, patents, licences, utility models and designs) or copyrights/service protection rights or other rights of third parties or any statutory provisions.
(3) The contractor hereby indemnifies the client, its employees or agents, against all justified claims arising from a breach of this guarantee and also reimburses the client for the reasonable costs of legal defence.
(4) Offers, plans, drafts, drawings, production and assembly documents, concept descriptions, descriptions of exhibition and event concepts, print templates and film material remains the property of the client, even if they have been handed over to the contractor. They are business secrets within the meaning of § 2 GeschGehG. The contractor undertakes to refrain from any form of exploitation outside the scope of this contract, in particular from copying and distributing, making changes, passing on to third parties or directly or indirectly reproducing.
(1) The contractor undertakes towards the client to protect the client and to refrain from any direct or indirect competition with regard to the client's customer designated as the end customer in the project contract, for the duration of the contractual relationship and until 2 years after termination of the contractual relationship.
(2) For each case of culpable infringement of this client protection requirement, the contractor promises a contractual penalty, the amount of which is at the client's reasonable discretion and, in the event of a dispute, is reviewed by the competent court as to its appropriateness. The assertion of further damages remains unaffected by this.
(1) The client may terminate the contract in whole or in part at any time without cause and, if there is good cause, also for good cause. The contractor may only terminate the contract for good cause. He has no right of partial termination. The termination must be made in writing.
(2) If the contract is terminated by the client without cause or by the contractor for a reason for which the client is responsible, the consequences of termination is governed by § 648 BGB.
If the contract is terminated due to force majeure, the consequences is governed by § 645 BGB.
If the client terminates the contract in whole or in part for good cause, the contractor is entitled to the - pro rata - contractually agreed remuneration for the rendered and usable, self-contained services. Insofar as the contractor is responsible for the important reason for termination, he is also obliged to reimburse the client for the additional costs incurred as a result of the termination. The client's claims for damages shall remain unaffected in this respect.
(3) In the case that an event is cancelled or changed for reasons for which the client is not responsible, the client may adjust the scope of the services to be provided accordingly. Insofar as the contract is adjusted, the contractor may - subject to the provisions in section XVI below - only demand payment for the adjusted services already provided and those still to be provided. The contractor is obliged to provide additional services within a reasonable scope; the parties shall agree separately on the remuneration for such additional services.
(4) If the performance of the contract becomes impossible for reasons for which neither of the contracting parties is responsible, the contract is deemed terminated.
(5) In the case of termination of the contract, irrespective of the legal grounds, the contractor is obliged to immediately return to the client all documents and data received or created by it in relation to its services.
(6) Unless otherwise regulated or agreed, the rights of use granted to the client as well as the provisions on confidentiality shall not be affected by a termination of the contract.
(1) The Parties are released from their respective obligations to perform if and to the extent that performance is not possible due to force majeure.
Force majeure is any external event caused by elementary forces of nature or by the actions of third parties that is unforeseeable according to human insight and experience, cannot be prevented or rendered harmless by economically acceptable means even by the utmost care that can reasonably be expected in the circumstances, and cannot be accepted by the operating company because of its frequency. Force majeure shall be deemed to include in particular the events listed below which - even if they were foreseeable - are beyond the control of the parties and the effects of which on the performance of the contract cannot be prevented by reasonable efforts of the parties. These include war, warlike conditions, riot, revolution, rebellion, military or civil coup, declaration of a state of emergency, riots, mass demonstrations, strikes and lawful lockouts, terrorism, terrorist threat, embargo, sanctions, epidemics and pandemics (but not the COVID-19 pandemic, which has been ongoing since 2019), fire, hurricane or other severe weather on the scale of a catastrophe, earthquake, landslide as well as operational disruptions or official orders not caused by the client. Disruptions to performance on the part of third parties commissioned by the client are only deemed to be force majeure if the third party is in turn prevented from providing the service(s) incumbent upon it by an event of "force majeure.
(2) The parties will inform each other without delay of the occurrence of an event of force majeure in accordance with paragraph 1 above and its effect on the ability to fulfil their own contractual obligations. The contractual parties will agree on the further course of action and jointly determine whether, when and in what manner the agreed services are still to be provided or completed by the client.
(3) If the fulfilment of the contract becomes impossible for one party as a whole due to force majeure, this party is entitled to terminate the contract.
(1) There are no verbal subsidiary agreements. Earlier agreements and stipulations on cooperation lose their validity when this contract comes into effect, unless otherwise expressly agreed.
(2) Amendments and/or supplements to the contract must be made in text form (§ 126b BGB). This also applies to the cancellation of this text form clause.
(3) The place of performance and jurisdiction for all disputes arising from the contractual relationship shall be the registered office of the client, insofar as the contractor is a fully qualified merchant, a legal entity under public law or a special fund under public law or the contractor has its registered office abroad.
(4) The contract is governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and private international law.
(5) If provisions of these GTC are or become invalid in whole or in part, this is not affect the validity of the remaining provisions and the contract. In the event that a provision of these GTC is invalid, the valid clause that comes closest to the desired regulatory content shall be deemed to have been agreed.