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General Terms and Conditions - Powerwerk agency for events

Acceptance of order:
01/01/2010

§ 1 Area of application /Applicable law
These general terms and conditions apply to all services rendered by the Powerwerk agency for events. The general terms and conditions always apply in their current form. The BGB (German Civil Code) is to be used in addition to these general terms and conditions. Beyond this German law applies exclusively.

§ 2 Scope of service
The scope of the agreed service is determined according to the authoritative service specifications / calculation of costs for each order, which is an element of the contract.

§ 3 Alterations to service
1) Alterations, deviations and additions to individual services which are contrary to the contractual agreements or service specifications are required to be recorded in writing. Provided that they are not revised in writing within three working days after receipt, they are considered to be confirmed.
2) They are permissible if they become necessary after the conclusion of the contract, do not cause the Powerwerk agency for events to act contrary to good faith and in addition do not compromise the overall arrangement of the service ordered.

§ 4 Minutes of meetings
If the principal receives minutes from discussions, meetings or phone logs (memos) from the Powerwerk agency for events, these serve the Powerwerk agency for events as binding procedure documentation and apply as binding confirmation for all orders made orally, provided that they are not revised in writing within three working days after receipt by the principal.

§ 5 Options
Provided that an option is agreed for one or more services, this expires without substitution if no request for an extension of the option is made up to the agreed date of expiry and this is confirmed in writing or this option is changed in a confirmed order.

§ 6 Rescission of contract
A rescission of the contract is possible as a basic principle.
If the principal rescinds from the agreed contract the following applies:
1) The rescission must be made in writing.
1.1) Notifications of rescission or alterations become effective on the day they are received by the Powerwerk agency for events. The postal stamp is decisive of the date.
2) If the principal rescinds up to 30 days before the planned date of performance, it is obliged to pay 50 % of the total agency services performed by the Powerwerk agency for events to the agency in accordance with the cost calculation plus all external costs from third parties in connection with this order up to this date, within 14 days from the day of the rescission.
3) If the principal rescinds up to 14 days before the planned date of performance, it is obliged pay 80 % of the total agency services performed by the Powerwerk agency for events to the agency in accordance with the cost calculation plus all external costs from third parties in connection with this order up to this date, within 14 days from the day of the rescission.
4) If the principal rescinds at a later date, it is obliged pay 100 % of the total agency services performed by the Powerwerk agency for events to the agency in accordance with the cost calculation plus all external costs from third parties in connection with this order up to this date, within 14 days from the day of the rescission.
5) Insofar as the principal has a claim for reimbursement from a third party for advanced payment, the principal alone is obliged to pursue the reimbursement judicially or extra judicially. If necessary the Powerwerk agency for events will separately transfer the claim against the third party to the principal to make it enforceable.

§ 7 Payment arrangements
1) At the date when the binding order placement is made, 50% of the total price is payable immediately and is to be paid by bank transfer to the Powerwerk agency for events.
2) 4 weeks before the start of an event requested in the order, a further 30% of the total price is payable immediately and to be paid by bank transfer to the Powerwerk agency for events. Provided that the payments listed
under 1) and 2) are not paid in full by bank transfer at the latest seven days before the start of when the event takes place, the Powerwerk agency for events reserves the right to cancel the order without notice. Possible claims for damages arising from cancellations without notice for lack of payment are excluded.
3) The remaining sum amounting to 20% of the total order price is to be paid in full by bank transfer within seven days of the final invoice date.
4) The final invoice will be drawn up within 10 days following the end of the event.
5) If costs and/or interest on late payments have already been accrued, the Powerwerk agency for events is entitled to offset receipt of payments first against the costs, then against the interest and lastly for the open main performance.
6) The cost for the first reminder is 5 Euros; an additional fee of 10 Euros will be charged for the second dunning level.
7) The statutory regulations on interest in the BGB apply in addition.

§ 8 Amounts invoiced
The amounts invoiced are net prices in Euro, plus the statutory VAT. A rise in VAT is at the expense of the principal.

§ 9 Liability
The Powerwerk agency for events is only responsible for the principal regarding positive violations of contractual duties, defaults on the conclusion of contracts and tortuous acts if these are intentional and grossly negligent, provided that no contractual duties have been breached. Claims arising because performance is not possible, because of delay and also because of a breach of contractual duties, are restricted to compensation for foreseeable damages in the case of slight negligence. These restrictions on liability also apply for legal representatives, vicarious agents or assistants of the agency.

§ 10 Copyrights
1) Insofar as it deals with the copyright protected services performed by the Powerwerk agency for events, all existing exclusively copyrighted rights of use, ancillary copyrights and other trade mark rights to its services unrestricted by time or place remain with the Powerwerk agency for events.
2) The possible assignment of these rights to the principal, in particular the right to copy, publish, circulate, perform, broadcast, reproduce through a picture or sound recording medium using all known media and reproduce through radio broadcasts, circulate over the internet as well as the right to adapt and reconfigure, requires the express agreement of the Powerwerk agency for events.
3) The principal is obliged to pay a contract penalty amounting to 50,000.00 Euros for every breach of copyright protected services of the Powerwerk agency for events. Insofar as it is legally permissible, the agreed penalty is not to be charged as possible compensation for damages.

§ 11 Final provisions
1) Berlin is the exclusive jurisdiction.
2) Additions and amendments to the general terms and conditions as well as the contractual agreements require to be in writing, which includes fax and e-mail. This also applies if the requirement for writing is waivered.

§ 12 Severability Clause
The invalidity of one or more of the above provisions does not affect the validity of the remaining provisions. The invalid provision is to be replaced using the same layout by a valid provision, which achieves the economic aims as best as possible.

General terms and conditions - Powerwerk agency for events

Award of contract
(01.01.2010)

§ 13 Applicable law
1) The following contract conditions apply for all orders from the principal for work or services of any kind. Deviations from these provisions require to be agreed in writing. Differing general contract provisions of the agent are not binding insofar as the principal does not recognise these in writing or they benefit the principal regarding its own terms and conditions.
2) The contract conditions always apply in their current form. The BGB (German Civil Code) is to be used in addition to these general terms and conditions. Beyond this German law applies exclusively.

§ 14 Offer and order
Offers from the agent are irrevocable for the duration of two weeks after they are received by the principal. Offers from the principal may be revoked at any time, provided that they have not already been accepted by the agent in writing. Oral orders and offers by the principal are to be confirmed in writing. In cases of doubt, only the written offer or written order is authoritative.

§ 15 Premature termination of contract
The principal is entitled to terminate the contract prematurely at any time without observing a period of notice if its own principal ends the contractual relationship with it for reasons which it is not responsible for. The agent in this case only has a claim for reimbursement for services rendered up to that point.

§ 16 Delivery and transport
The agent is to bring objects, documents or staff necessary for the carrying out of the order to the place of performance at its own cost and risk. Insofar as nothing different is contractually agreed, the place of performance is the principal’s domicile.

§ 17 Performance of the services
1) The agent is to check plans, designs, drawings and other documents sent to it for carrying out the work and is to check the technical feasibility with experts and is to notify the principal in writing about testing for potentially identifiable inconsistencies. The agent is to ascertain in detail the circumstances on site.
2) The agent adopts full responsibility for the implementation of its services, provided that it has not submitted written objections to the designs, material and means provided by the principal or third parties, or to the mode of implementation or planning in time.
3) The agent’s services are to comply with the generally recognised codes of practice and the recognised customs of the trade. Insofar as particular qualities of material or service are stipulated in structural engineering or technical practice in written or unwritten rules, these apply as contractually warranted. Provided that building materials, component parts, technical appliances etc which are subject to quality control are available in the respective market, only such things may be used. On request from the principal the agent is to prove that the building materials, component parts, technical appliances etc possess the qualities required by the quality control.
3.1) The agent guarantees compliance with the statutory protection provisions regarding permissible music volumes or the specifications on glare.
4) The agent can not in any case request not to be or not to be sufficiently supervised. Its liability will not be excluded or restricted if the documents provided by the principal or third parties for performing the services are checked or approved.
5) Documents relating to an order, such as illustrations, weight and dimension specifications, are and will remain the property of the principal. They are to be returned to the principal immediately after order is carried out or upon request from the principal. These documents may not be made accessible to third parties without the express authorisation of the principal.

§ 18 Time limits and deadlines
The time limits and deadlines stated in the order are binding. The agent is not entitled to suspend work, except for reasons caused by Act of God or official orders. Should the work be suspended – regardless of the reason – the agent is to inform the principal about this immediately and in writing.

§ 19 Contract penalties
1) If the time limits set for carrying out the work are exceeded, the agent is to pay the principal a contract penalty which is to be established in detail in the order. The contract penalty amounts to a 10% deduction of the total order cost for every 15 minutes of delay, provided that nothing else is agreed independently. The principal is free to claim damages actually incurred alongside the contract penalty. Provided that it is legal, the agreed contract penalty is not to be offset from the compensation for damages.
2) The agent must therefore pay a penalty to the principal unless it was not responsible for exceeding the set deadline due to Acts of God or official orders. The principal can therefore also claim contract penalties in accordance with this provision if no proviso in the acceptance is met.

§ 20 Acceptance
1) Acceptance of the contractual services to be carried out by the agent formally occurs in each case on production of an acceptance protocol in the presence of a representative from both the principal and the agent. If the agent or a person authorised by them does not turn up at the agreed date, the offer can still be accepted. A non-conformance report completed at the same time is also binding without the agent’s involvement.
2) The formal acceptance cannot be replaced by previous partial acceptances, acceptance tests, final payments or receipt or use of the agent’s services. There can be no fictional acceptance.

§ 21 Warranty
1) The warranty periods for all services performed by the agent are set out in the BGB.
2) The agent is obliged to remedy defects while providing its services immediately after they are brought to its attention or at the latest upon request from the principal. Defects which exist when the services are accepted or cannot be known at the point of acceptance are to be remedied immediately upon request from the principal.

§ 22 Reimbursement and payment
1) The agent is not entitled to claim payments on account, provided that this has not been expressly agreed in writing. Invoices from the agent are payable from after acceptance of its services to 30 days after the invoice date.
2) The principal is entitled to pay in instalments and by check.
3) The agent can only claim for reimbursement which has been agreed in writing.

§ 23 Charges
The charges are net prices in Euro, plus the statutory VAT. A rise in VAT is at the expense of the principal.

§ 24 Assignment of claims, offsetting and retention
1) The agent is not entitled to assign claims arising from this contract to third parties without the agreement of the principal. This does not include assignment to the agent’s house bank.
2) The agent can only offset claims against the principal if the agent’s claim is recognised by the principal or declared judicially. Rights of retention can only be claimed by the agent provided that they follow from the same contractual relationship.

§ 25 Security deposit
1) The contracting parties can agree on the amount retained on an interest-free security deposit from the principal amounting to 5% of the agreed net reimbursement for the duration of the warranty period.
2) The security deposit will however be paid out on presentation of an unlimited, unconditional, irrevocable and directly enforceable guarantee from a major German bank to the agent. The guarantee must include the waiver for the benefit of discussion, for voidability and for the right to deposit. The costs of the guarantee will be carried by the agent.

§ 26 Copyrights
1) Provided that it deals with the performance of the agent’s copyright protected services, the agent assigns all existing exclusive copyrighted rights of use, ancillary copyrights and other trade mark rights to its services unrestricted by time or place to the principal. The assignment includes in particular the rights to copy, publish, circulate, perform, broadcast, reproduce through a picture or sound recording medium using all known media and reproduce through radio broadcasts, circulate over the internet as well as the right to adapt and reconfigure.
2) The agent ensures that its services are free from the rights of third parties. It fully exempts the agent from making the first demand in claims from third parties and refunds the principal for all costs which arise defending against the rights of third parties.

§ 27 Liability
The principal is only liable for the agent regarding positive violations of contractual duties, defaults on the conclusion of contracts and tortuous acts if these are intentional and grossly negligent, provided that no contractual duties have been breached. Claims arising because performance is not possible, because of delay and also because of a breach of contractual duties, are restricted to compensation for foreseeable damages in the case of slight negligence. These restrictions on liability also apply for legal representatives, vicarious agents or assistants of the principal.

§ 28 Final provisions
1) Berlin is the exclusive jurisdiction.
2) Additions and amendments to the general terms and conditions as well as the contractual agreements require to be in writing, which includes fax and e-mail. This also applies if the requirement for writing is waivered.

§ 29 Severability Clause
The invalidity of one or more of the above provisions does not affect the validity of the remaining provisions. The invalid provision is to be replaced using the same layout by a valid provision, which achieves the economic aims as best as possible. The same applies for possible loop holes.