GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES OF BLACKBIRD EVENT GROUP
Hereinafter to be referred to as: user (Blackbird Event Group)
Article 1 Definitions
1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
User: the user of the general terms and conditions.
Client: user's opposite party.
Agreement: the agreement concerning the provision of services.
Article 2 General
1. The present terms and conditions shall apply to each and every offer, tender and agreement between user and client, to which user has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
2. The present terms and conditions shall also apply to all agreements with user, the execution of which calls for the services of third parties.
3. Possible deviations from the present general terms and conditions shall only be valid provided they have been explicitly agreed upon in writing.
4. The applicability of client's possible purchase or other conditions is explicitly rejected.
5. If one or more stipulations in the present general terms and conditions should be null and void or declared null and void, then the other stipulations of the present general terms and conditions shall remain fully applicable. The case ensuing, user and client shall enter into negotiations to agree upon new stipulations replacing the null and void conditions, or, as the case may be, the conditions declared null and void, whereby the purpose and the meaning of the original conditions shall be heeded as far as possible.
Article 3 Offers and Tenders
1. All offers shall be free of obligation unless the offer contains an acceptance term.
2. The offers made by user shall be free of obligation; they shall be valid for a period of 30 days, unless indicated otherwise. User shall only be bound by the offers if the acceptance thereof is confirmed in writing by the opposite party within 30 days, unless indicated otherwise.
3. The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of the other expenses to be possibly made within the scope of the agreement, including shipment and administration costs, unless user indicates otherwise.
4. If the acceptance deviates (on secondary items) from the offer given, user shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless user indicates otherwise.
5. A compound quotation shall not oblige user to execute part of the assignment against a corresponding part of the given quotation.
6. Offers and tenders shall not apply automatically to future assignments.
7. The user reserves the right to use ll the photos and videos, before, during and after the execution of the task for its own promotional purposes.
8. In case of obvious errors and / or clerical in an offer, user is not to be charged and is not obliged to supply.
9. Prices always in euros, payments in any other currencies are based on the daily exchange rate in EURO. Clearing and settlement shall always be carried out in Euro (EUR) on the day of the corresponding invoice for services purchased. When there are fluctuations on the exchange rate, we reserve the right to make adjustments
Article 4 Execution of the Agreement
1. User shall execute the agreement to the best of his knowledge and ability.
2. If and in so far required for the proper execution of the agreement, user shall have the right to have certain work done by third parties.
3. The client shall see to it that user shall be provided in due time with all data which user has said to be necessary or which the client must in all reasonableness understand to be necessary to the execution of the agreement. If user has not been provided in due time with the data necessary to the execution of the agreement, user shall have the right to suspend the execution of the agreement and / or to charge the client for the additional costs resulting from the delay at the generally accepted rates.
4. User shall not be liable for damage of whatever nature caused by the fact that user worked on the basis of incorrect and / or incomplete data provided by the client, unless user should have been aware of said incorrectness or incompleteness.
5. If parties have agreed that the agreement will be executed in stages, user can suspend the execution of the parts belonging to a following stage until the client has approved in writing the results of the stage prior to it.
6. If user or third parties engaged by user within the scope of the assignment do work at client's site or at a site designated by client, client shall provide the employees having to work there free of charge with all facilities desired in all reasonableness by said employees.
7. Client shall safeguard user against possible claims filed by third parties who may sustain damage attributable to client in connection with the execution of the agreement.
8. If the user is booked for a job, the client is still responsible for obtaining and maintaining all necessary permits unless the parties have expressly requested in writing otherwise.
9. The client indemnifies the user for any claims by third parties in connection with the execution of the agreement.
10. If work must be done on location of the client, the client is responsible for safe working conditions. Damage or injury caused to user, its employees or employees engaged by third parties as a result of conditions at the site is the sole responsibility of the client.
Article 5 Changes to the agreement
1. If it is shown during the execution of the agreement that the work to be done needs to be changed and supplemented in order to ensure its proper execution, parties shall adapt the agreement accordingly in due time and in mutual consultations.
2. If parties agree that the agreement needs to be changed or supplemented, this decision may influence the time of completion of the execution. User shall inform the client thereof as soon as possible.
3. Should the change or supplement to the agreement have any financial and / or qualitative consequences, user shall inform client thereof in advance.
4. If a fixed fee has been agreed upon then user shall indicate the degree to which the change or supplement to the agreement will result in an increase of said fee.
5. Contrary to the conditions of paragraph 3, user shall not be able to charge additional costs if the change or supplement is the result of circumstances attributable to user.
Article 6 Duration of the Contract; Term of Execution
1. The agreement between user and a client shall be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if parties have explicitly agreed otherwise in writing.
2. If a term has been agreed to complete certain work within the term of the agreement, then this term shall never be a term to be observed on penalty of forfeiture of rights. If the term of execution is exceeded, the client must consequently declare user in default in writing.
Article 7 Fee
1. Parties can agree upon a fixed fee the moment the agreement is concluded.
2. If no fixed fee has been agreed upon, the fee shall be determined on the basis of the number of hours actually spent on the work. The fee shall be calculated in accordance with user's usual hourly rates, valid for the period in which the work is being done, unless a deviating hourly rate has been agreed upon.
3. The fee and any cost estimations are exclusive of VAT, travel and accommodation expenses, (foreign) telephone calls and other incidental expenses by the user or its subcontractors made n respect of the implementation of the agreed services. Where it is not explicitly mentioned in the tender, these expenses will be charged separately.
4. Our service fees and the calculation of agency fees are based on our rates according to the offer in question and its accompanying supplements. These fees are net excluding VAT. Bids and offers are subject to fee changes. All fees and expenses of third service providers (hotels, restaurants, transport firms, event organisers, artists etc.) shall continue to be charged fully to the client, as also all additional costs invoiced by the third service provider which deviate from the offer in question. Any additional expenses and special requests must be paid for in full by the client. The total expenses and gross invoice amount of all service providers shall be the determining factors when calculating commissions.
5. With respect to assignments with duration of more than three months, the costs owed shall be charged periodically.
6. User shall be allowed to charge on price increases, if changes in price have occurred between the time of offer and the time of delivery with respect to, e.g., salaries and wages as well as if the power to increase the price is the result of a power given to the user by law or if the user is obligated to increase the price by (virtue of) law.
7. User shall furthermore be able to increase the fee when it is shown during the execution of the work that the volume of work initially agreed upon or expected when the contract was concluded, was underestimated to such a degree, and this through no fault of the user, that user cannot be expected in reasonableness to do the work agreed upon for the fee initially agreed upon. In that case user shall notify the client of its intention to increase the fee or the hourly rate, whereby user shall communicate the volume of said increase and the date on which it shall take effect.
8. User will notify the client about the intention to increase the fee or rate in writing. User shall communicate the volume of and the date of the increase in and upon witch it will take effect.
9. In case of price increase, the client is entitled to terminate the agreement , subject to the provisions of Article 12 , prematurely if the fee or rate is increased within three months after entering into this agreement . After expiry of this period, the client is entitled to the agreement , subject to the provisions of Article 12 , prematurely if the increase is more than 10%. The Client is not entitled to interim termination or dissolution if the authority to increase the fee or rate resulting from an authority under the law.
10. If the client wishes to terminate the cooperation due to developments as explained under the provisions of Article 7.6 and 7.7, the client must notify the user within seven working days after the article in 7.8, by the date on which the price or rate change would act to terminate into force.
Article 8 Payment
1. Payment is made n the currency in which the price is agreed, unless otherwise agreed in writing, in which case the exchange differences relating to taking back into euros shall be borne by client. Contestation of the amount of the statements of expenses shall not suspend the fulfillment of the payment obligation.
2. Within 7 days after the client has signed the order confirmation for approval, 50% of the price to be paid the user.
3. No later than 1 month before the date on which the contract begins, should 100% of the price to be paid the user.
4. If client fails to fulfill his payment obligation within the term of 1 month, then client shall be in default by operation of law. In that event, client shall owe an interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest on the amount due and payable shall be calculated as from the day the client is in default until the moment he has paid the amount in full.
5. User's claims against client shall become due on demand in the event that client's company is wound up, attached, declared bankrupt, or if a suspension of payment is granted. Invoices with a value less than 75 euro may be increased by the costs incurred by the user for administration and / or treatment.
6. User shall be entitled to have the payments made by the client to first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest. User shall have the right, without this leading user to be in default, to refuse an offer for payment, if the client designates a different sequence of attribution. User shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs.
7. User has the possibility to charge a credit limitation surcharge of 2%. This surcharge will not be charged if payment is made within 7 days from the date of invoice.
8. If the client is in default or in absence (in time) to fulfill its obligations, then all reasonable costs incurred in obtaining payment out of court are on behalf of the client. In any case, the client is responsible for the collection cost. The collection costs are calculated in accordance with the Report For work-II, with a minimum of 500 euros.
9. Any reasonable judicial and execution costs are also borne by the customer.
Article 9 Retention of Title
1. All goods delivered by user, possibly also including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain user's property until client has fulfilled all of his obligations under all agreements concluded with user.
2. Client shall not be authorized to pledge or encumber in any way the goods falling under the retention of title.
3. If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, client shall be held to inform user thereof as soon as can reasonably expected.
4. The client shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.
5. Goods delivered by user falling under the retention of title by virtue of the stipulations under 1. of the present article, may only be sold, pond or rented out on within the framework of normal business activities and must never be used as instrument of payment.
6. In the event that user wishes to exercise his ownership rights mentioned in the present article, client shall give user or third parties to be appointed by user, now for then, unconditional and irrevocable permission to access all sites and locations where user's property might be found and to take these goods back.
Article 10 Collection Charges
1. If the client fails to fulfill his obligations (in due time) or defaults on them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the client. If the client remains in default of payment within the set time frame, he forfeits a immediately payable fine of 15% on the amount due at that moment, with a minimum of € 50.
2. If user demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.
3. The reasonable judicial and execution costs possibly incurred shall equally be borne by client.
4. The client shall owe interest over the collection charges.
Article 11 Inspection & Complaints
1. The client must notify user in writing of complaints about the work done within 8 days following their detection, but no later than within 14 days following completion of the work concerned. The notice of default must give as detailed a description as possible of the shortcoming, so that user is in a position to respond adequately.
2. If a complaint proves to be well-founded, user shall yet do the work as agreed upon, unless such has become demonstrably useless in the meantime to the client. The client must notify user in writing if the latter is the case.
3. If it is no longer possible or useful to still do the work with respect to the provision of services agreed upon, user shall only be liable within the limits of article 15.
Article 12 Cancellation
1. Both parties shall be entitled to cancel the agreement at all times.
2. If the agreement is terminated prematurely by client, user shall be entitled to compensation of the loss of capacity utilization to be demonstrated caused by said premature termination, unless the termination is based on facts and circumstances which can be attributed to user. Client shall furthermore be held in that event to pay the statement of expenses for the work done up till that moment. The preliminary results of the work done up till that moment shall therefore be put at client's disposal subject to approval.
The cancellation costs relating to procurement of services, including, but not limited to, promotion and production, by the user, are as follows:
· Cancellation more than four months before implementation: 25% of the price.
· Cancellation from 4 months to 2 months performance: 50% of the price.
· Cancellation from 2 months to 1 month before performance: 75% of the price.
· Cancellation from 1 month before the performance: 100% of the price.
3. If the agreement is terminated prematurely by user, user shall see to it in conjunction with client that the work still to be done be transferred to third parties, unless the termination is based on facts and circumstances which can be attributed to client.
4. If the transfer of the work still to be done entails extra costs for user, said costs shall be charged to client.
5. If the user terminates the agreement, the user will ensure transfer of additional work to third parties, unless facts and circumstances of the termination are based on that is attributable to the client.
6. If the transfer of the work the user entails additional costs, these will be charged to the client account.
7. If the client (full or partial) cancels the contract, he is obligated to the user cancellation fee equal to 12% of the difference between the budgeted price minus the 10% free margin, without prejudice to Articles 2. and 3.
Article 13 Suspension and Dissolution
1. User shall be authorized to suspend the fulfillment of the obligations under the agreement or to dissolve the agreement, in the event that:
- client does not fulfill or does not fully fulfill his obligations resulting from the agreement
- client has exceeded the payment date for invoices, payments or deposits by 14 days
- after the agreement has been concluded, user learns of circumstances giving good ground to fear that the client will not fulfill his obligations.
- If good ground exists to fear that the client will only partially or improperly fulfill his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
- client was asked to furnish security to guarantee the fulfillment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.
- in case of force majeure on the side of the user.
- if the client dies or is placed under guardianship.
- client is placed in receivership, requests suspension, in a state of bankruptcy or liquidation or quiet location of his company decides to proceed.
2. User shall furthermore be authorized to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfillment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
3. If the agreement is dissolved, the user's claims against the client shall be forthwith due and payable. If user suspends fulfillment of his obligations, he shall retain his rights under the law and the agreement.
4. User shall always retain the right to claim damages.
Article 14 Return of Goods Put at Client's Disposal
1. If user has put goods at client's disposal during and in connection with the execution of the agreement, client shall be held to return the delivered goods within 14 days in their original state, free of defects and in their entirety. If client fails to fulfill this obligation, all resulting costs shall be at client 's expense.
2. If, for any reason whatsoever, client still remains in default to fulfill the obligation mentioned under 1. after being warned to do so, user shall be entitled to recover the resulting damage and costs, including replacement costs, from client.
Article 15 Liability
1. Should user be liable, then said liability shall be limited to the stipulations of the present condition.
2. The user is not liable for interruptions, changes in the program of the event, for any reason and of any nature whatsoever. The client as the organizer is liable for the payment to Association of Buma regarding the publication of musical works.
3. The user is not liable for damages from any cause and of any nature whatsoever, caused by the client to (property of) third parties.
4. The user is not liable for shortcomings of third parties engaged by it.
5. If the client does not fulfill the instructions given by the user, or engaged by it in the performance of the contract parties, and the performance of the contract therefore can not be, according to plan the user before the resulting damage, of any kind is not liable.
6. Client vouches that the material supplied by him is within the norm of the applicable Spanish and European guidelines. Acceptance of an order by the user does not relieve the client from liability referred to above.
7. If the user fails to comply with the agreement , and this is exclusively or predominantly caused by a failure of third parties the user engages in the performance of the Agreement, the user is never liable for an amount higher than 15% of the price.
8. User is never liable for indirect damage, including consequential, lost profits, lost savings and damage due to business stagnation.
9. Any liability of the user, of any kind and for any reason whatsoever, shall lapse if the client has not held the user liable in writing within 10 days after the end of the arrangement.
10. All claims of client against the user are barred at least over one year after completion of the assignment by the user.
11. The limitations of liability for damage contained in these conditions do not apply if the damage is due to intent or gross negligence of the user or its management.
12 . Any liability of the user for damages in any way related to or caused by non - or late or improper performance of the contract, is expressly limited to the amount the user for injurious fact paid gets from its insurer, plus with her any excess. If the user professional liability insurance has concluded or his insurer for the incident does not cover a (full) payment, the liability of the user is expressly limited to the total of the client by the implementation of the contract to the user fee due , and, if the contract has continued for more than half a year , about six months prior paid to the injurious incident by the client to user and fees owed [ but up to a sum of € 200 . - ] .
13. User is not responsible for any of the services to be provided and reach / or business results, however much the assignment to that end is given.
14. If user is liable for direct damage, then said liability shall be limited to a maximum of twice the amount of the statement of expenses, at any rate that part of the assignment to which the liability relates, at any rate to a maximum of 15 % of the amount on the tender. User's liability shall at all times be limited to a maximum equaling the amount of the payment to be made by user's insurer in the occurring event.
15. In the event of an assignment with duration of more than 6 months, the liability shall, contrary to the stipulations under 11. of the present article, furthermore be limited to the part of the fee still due for the last six months.
16. Direct damage shall be understood to be exclusively:
- the reasonable costs incurred to establish the cause and the volume of the damage, in so far said establishment relates to damage in the sense of the present terms and conditions
- the reasonable costs possibly incurred to have user's faulty performance meet the conditions of the agreement, unless such faulty performance cannot be attributed to user;
- the reasonable costs incurred to prevent or limit the damage, in so far client demonstrates that said costs have led to the limitation of direct damage as meant in the present general terms and conditions.
17. User shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
18. The limitations of liability for direct damage contained in the present terms and conditions shall not apply if the damage is due to intentional act or omission or gross negligence on the part of user or his subordinates.
19. The customer or client alone is responsible for dealing with visas, customs, exports and state law. User assumes no liability, should the program have to be cancelled due to a limited number of participants, due to hindrances or due to bankruptcy of the third service provider. We also take no responsibility for vehicles, luggage, valuables etc. In case of damage or program failures, liability is fully transferred to the responsible service provider carrying out the activity. In such cases, our cancellation fees apply (see Section 12.) In any case, damage shall be limited to the agreed contract sum.
Article 16 Insurance
Insurance is in the responsibility of the client in question, as also their guests and participants. The participant or client is not insured by user. The client or their guests or participants must have independently arranged for sufficient health and accident insurance (including insurance for sporting accidents.) Cancellation insurance and travel insurance are recommended. The participant or client is responsible for repatriation, medical care and cases of accident, death or illness, and shall assume the related costs (see under liability, Section 15) In hotels, valuables are to be kept in a safe. Any instructions given by user or their officers, employees, subcontractors or third service providers must be observed at all times.
Article 17 Safeguarding
1. The client shall safeguard user against claims filed by third parties concerning intellectual property rights on material or data provided by the client, which shall be used for and during the execution of the agreement.
2. If the client provides user with information carriers, electronic files or software etc., the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.
Article 18 Transfer of Risk
1. The risk of loss of, or damage to the goods being the subject of the agreement, shall be transferred to client the moment said goods are judicially and/or actually delivered to client and therefore fall into the power of client or of third parties to be appointed by client.
Article 19 Force Majeure
1. Parties shall not be held to fulfill any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
2. Force majeure is in addition to what is included in these general terms denver standing in the law and jurisprudence, all external causes, foreseen or unforeseen, which the user can not exercise any influence but which prevents the user is unable to fulfill his obligations. Below are (partly) : strikes in companies other than the user, cancellations of one or more artists just before the date of the event , failure to perform by the artist (s ) , government measures , closure / unavailability / inaccessibility of the place of the event, extreme ( on) weather conditions , riot , traffic barriers , ( general ) transport problems and technical failures of any kind.
3. User shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfillment of the obligation(s) impossible, commences after the point in time on which user should have fulfilled his obligation.
4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfillment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
5. Insofar user has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfill them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user shall be entitled to submit a separate statement of expenses of the part already fulfilled or still to be fulfilled respectively. The client shall be held to pay this statement of expenses as if it were a separate agreement.
Article 20 Secrecy
1. Both parties shall be bound to secrecy of all confidential information they have received within the scope of their agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information.
2. If a statutory provision or a judicial decision compels user to convey confidential information to third parties designated by law or by the court and user cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, user shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.
Article 21 Intellectual Property and Copyrights
1. Without prejudice to the other stipulations of the present general terms and conditions, user shall reserve the rights and authorities to which user is entitled under the Copyright Act.
2. All documents, such as reports, advice, agreements, designs, sketches, drawings, software, etc., provided by user, shall be destined to be used by client exclusively and must not be reproduced, made public or brought to the notice of third parties by client without prior consent from user, unless the nature of the documents provided dictates otherwise.
3. User shall reserve the right to use the knowledge gained due to the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.
4. Although event concepts, ideas, program contents and offers will continue to be given to the client, they shall remain the property of user, and the rights of use shall not extend beyond the contract. The client only receives services – they do not purchase either the idea or the use of copyright. The program, concept or offer remains the property of user until the signing of the collaboration agreement, and may only be carried out in its own way by user.
Article 23 Non-employment of the opposite party's personnel
1. Throughout the duration of the agreement and for one year following termination thereof, client shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of user or of enterprises whom user has engaged to execute the present agreement and who are (were) involved in the execution of the agreement, without prior proper businesslike consultation on this matter, all this in accordance with the requirements of reasonableness and fairness.
Article 24 Disputes
1. The Court in user's place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. User shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
2. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.
Article 25 Applicable Law
1. Spanish law shall apply to each and every agreement between user and the client.
Article 26 Changes to the Terms and Conditions, interpretation and their Location
1. The present terms and conditions have been filed at the office of the Chamber of Commerce in Ibiza, Spain.
2. The Spanish version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
3. The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.