General Terms and Conditions of
MINDACT Gesellschaft für Kommunikation mbH & Co.KG
Waterloostraße 8, 42119 Wuppertal
hereinafter referred to as “MINDACT”.
1. Validity and basis
1.1 All contracts, deliveries, and other services provided by MINDACT shall be governed exclusively by the following General Terms and Conditions (hereinafter referred to as “GTCs”) in B2B transactions in the version applicable at the time of conclusion of the contract. The GTCs may only be amended with the express written consent of MINDACT.
1.2 MINDACT objects to any deviating terms and conditions of its Customer. These shall be legally ineffective in this respect. The Customer’s general terms and conditions shall not apply even if they have not been expressly objected to in individual cases.
Acceptance of the services of the Agency shall always be deemed to be an acknowledgement of these General Terms and Conditions.
1.3 The contractual basis shall be, in the following order of precedence, the contract concluded with the Customer, the relevant orders or confirmed offers incl. the relevant applicable annexes, and these General Terms and Conditions.
2. Offer and conclusion of a contract
2.1 All offers made by MINDACT are invariably non-binding. Obvious errors, spelling and printing mistakes, and miscalculations (calculation errors) are non-binding for MINDACT. Delivery dates not expressly stated as binding by MINDACT in offers, orders and order confirmations are non-binding for MINDACT. Furthermore, deadlines are only binding if they are expressly confirmed by MINDACT in text form as fixed deadlines.
2.2 By placing an order, the Customer is offering to enter into a binding contract with MINDACT on the basis of the offer made by MINDACT. The order may be placed in writing or in text form, i.e. by fax or by e-mail.
2.3 The contract will come into effect with the subsequent signing of the contract document or the order confirmation from MINDACT in writing/text form (letter/fax/e-mail) within two weeks.
2.4 Side agreements and amendments to existing contracts must be confirmed in writing by both sides.
2.5 When staging events and activities, MINDACT does not become the organiser. The Customer remains the event organiser at all times. MINDACT will only become the organiser in the event of a contractual provision to the contrary.
3. Pricing, invoicing and payment
3.1 All prices are quoted in euros, exclusive of statutory VAT and exclusive of other applicable taxes and duties, insurance, shipping costs or packaging. Additional costs will be shown by MINDACT in the offer and in the invoice.
3.2 All quotations and quotations for all other deliveries and services, including services of third parties, are prepared on the basis of the tariff documentation and price information of the service providers and, in the case of foreign service providers, on the basis of the exchange rate on the date of the offer in some circumstances. If a minimum number of participants is of relevance for the offer to be made and the price calculation, the price calculation shall be based on the minimum number of participants stated in the offer. No guarantee is provided with regard to the accuracy of this information.
3.3 Any deviations from the minimum number of participants will necessitate a new estimate and entitle MINDACT to adapt its budget to the actual number of participants. MINDACT must inform the Customer without undue delay and without prompting of any substantial budget deviations arising from an excess or shortfall in the number of participants or other circumstances if the period between the discovery of this difference in participant numbers and the start of the event allows the budget to be revised using reasonable discretion.
This revision can alternatively take place as part of the final billing if the planned number of participants differs at short notice from the number of participants established at the start of the event.
3.4 If the Customer has paid an agreed deposit to cover obligations to be met by MINDACT in a foreign currency, the exchange rate applicable on the day after the deposit was received will be taken as the basis during final billing.
If the Customer has not paid a deposit, the exchange rate applicable on the date on which MINDACT met its foreign obligations will be taken as the basis during final billing. Any costs incurred in hedging the exchange rate risk will be borne by the Customer.
3.5 Deposits payable to third parties to secure services (airlines, hotels, local agents, etc.) will be invoiced separately by MINDACT.
3.6 After the Customer has placed the order, MINDACT will prepare a project-related payment plan, which will automatically come into effect unless the Customer objects in writing within five (5) working days. If no payment plan is prepared, the following payment terms apply:
• Payment periods for projects over an extended period:
o 5 % upon approval of the budget
o 20 % twenty (20) weeks before the start of the event
o 35 % twelve (12) weeks before the start of the event
o 30 % four (4) weeks before the start of the event
o With the final invoice, no later than eight (8) weeks after the end of the event.
• Payment periods for projects over a shorter period:
o 50 % upon placement of order
o 40 % upon organisation and set-up of the event
o 10 % with the final invoice
3.7 In order to hedge exchange risks, MINDACT may, with the written consent of the Customer, demand the equivalent value of the foreign currency share of the order value when the order is placed. The exchange risk will then pass to MINDACT on the first working day after the money is received.
3.8 MINDACT’s services shall be invoiced in accordance with the rates set out in the quotation.
3.9 Staff costs for special services or additional orders during the event will be calculated after the event using MINDACT’s applicable rates plus any VAT applicable. Third-party costs will be recharged in full plus any VAT applicable.
3.10 If the Customer is a merchant as defined by the German Commercial Code (HGB), the Customer is only entitled to set off, withhold, or reduce the purchase price if notices of defects have been issued or counterclaims asserted, and these have become res judicata or are uncontested.
3.11 The Customer agrees that its receivables may be offset against its amounts payable.
3.12 All GEMA fees will be borne by the Customer. MINDACT can assert claims for any additional charges in the form of receivables, even if the project has already been billed.
3.13 MINDACT is not required to keep records of third-party costs for the final invoice provided that the costs (budget items) are identical to or lower than those in the order budget. The Customer may inspect or request original documents at any time. The statutory obligation to preserve records for ten (10) years applies.
3.14 MINDACT calculates an agency handling fee of twelve per cent (12 %) plus any statutory VAT on all local cash outlays or other costs covered (room extras/cash invoices, etc.).
4. Rescission of the contract
4.1 If, after placing the order, the Customer rescinds the contract without grounds attributable to MINDACT providing justification for this, MINDACT shall be entitled to the following percentages of the agreed agency fee, plus VAT, as compensation for loss of profit, such percentages being dependent on the timing of the rescission:
• After placing the order: 30 %
• More than 120 days before the start of the event: 50 %
• Up to 90 days before the start of the event: 70 %
• Up to 60 days before the start of the event: 80 %
• Up to 30 days before the start of the event: 90 %
• Less than 30 days before the start of the event: 100 %
4.2 The Customer is entitled to prove that the actual loss of profits was a lower amount. MINDACT is entitled to assert claims for a greater verified loss.
4.3 All expenses and agreed compensation for amounts disbursed by the Agency up to the point of the contract's cancellation as well as all third-party costs, cancellation and rescission expenses must always be paid in full within ten (10) days of receipt of the invoice by the Customer. After this payment period, the claims asserted will be increased by the bank interest rates valid at that time until payment is received by MINDACT.
4.4 Advance payments to service providers made by MINDACT using deposits paid by the Customer will be reimbursed to the Customer insofar as they are repaid to MINDACT by the service providers in question. MINDACT is not obliged to take legal proceedings against service providers over the repayment of advance payments. MINDACT hereby assigns claims in this regard to the Customer, and the Customer accepts this assignment.
4.5 Should the Customer postpone the date of the event up to sixty (60) days before the event, a rebooking fee amounting to ten percent (10 %) of the agreed contract value/agency fee will the payable, plus any costs incurred by the Agency or by third parties in connection with the rebooking, if the event takes place within the next twelve (12) months. If there is an interval of more than twelve (12) months between the original date of the event and the revised date, MINDACT is entitled to make a claim for costs in the amount of the percentages specified in Point 4.1.
5. Delivery and performance
5.1 A precondition for the adherence to agreed dates and deadlines is that the Customer meets all its contractual obligations, including but not limited to providing the requisite documents, approvals, and participant names and paying the agreed deposits and other payments on schedule and as stated in the contract.
5.2 Changes to and deviations from individual elements of the contractually agreed performance are only permissible if they become necessary after conclusion of the contract, do not breach good faith, are caused by MINDACT, and for the rest, do not impair the overall character of the event.
5.3 If, after conclusion of the contract, the Customer introduces changes or additions that make it difficult or impossible for MINDACT to perform its services on time, MINDACT will inform the Customer of this in due time. In this case, delivery dates that have already been agreed shall lose their binding force and the Parties shall agree on a new date. The same applies to impediments for which MINDACT is not responsible, in particular to the failure of the Customer to provide documents and materials in due time.
5.4 MINDACT is not liable for delays in or failures to provide services on the part of service providers engaged by MINDACT. MINDACT nevertheless undertakes to assign any compensation claims against service providers to the Customer.
5.5 In the case of custom-made products and printed materials, excess or short deliveries of up to ten per cent (10 %) are permissible, as are slight colour variations and changes.
5.6 In the case of trips and/or events, complaints must be made to MINDACT or the project leader responsible at the location promptly after the occurrence of the matter giving rise to the complaint, so that this can be remedied as soon as possible. If this is not possible or comes to nothing, the complaint must be re-submitted to MINDACT in writing no later than three (3) working days after the end of the trip or event.
5.7 MINDACT determines shipping at its discretion, without having to choose the cheapest and fastest route. Any packaging requested or deemed necessary by MINDACT will be invoiced and shown separately. For shipments arranged by the Customer, the goods to be shipped will only be insured on the Customer’s express instruction and at the Customer’s expense. Unless otherwise agreed, all risk passes to the Customer when the goods leave the premises of MINDACT or its agents and suppliers, or otherwise when they are made available to the Customer. This also applies in cases where carriage paid delivery has been agreed.
5.8 Items of the Customer that are to be used in the performance of the services must be delivered free to the place of use on the agreed date. MINDACT is not obliged to return such items. If the Customer instructs MINDACT to return the items, they shall be returned carriage forward from the place of use at the Customer’s risk.
5.9 If the ready-to-ship goods cannot be delivered or made available to the Customer for reasons for which the Customer is responsible, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer on the day on which the goods are ready for shipment. MINDACT’s services shall be deemed to have been rendered upon delivery of the notice of readiness for shipment to the Customer.
5.10 If goods to be shipped or exhibits of the Customer are to be transported or included in the shipment, the above provisions shall apply accordingly.
5.11 MINDACT is not responsible for delays in delivery and/or performance that are due to force majeure or to events (e.g. labour disputes, pandemic situations, riots, official measures, other serious events originating from outside and which cannot be averted in a reasonable manner), that significantly hamper its delivery and/or performance or render this impossible, even if binding dates and deadlines have been agreed. Events of this type include subsequently occurring difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of staff, lack of transportation, official decrees, etc. – even if they are suffered by MINDACT’s suppliers or service providers, or their upstream suppliers or service providers – and entitle MINDACT to postpone the delivery or performance for the duration of the impediment plus a reasonable start-up time. MINDACT and the Customer shall, if possible, adapt the contractual relationship to the changed circumstances, taking into account the principles of good faith. If it is not possible to adjust the contract in whole or in part in a way that is reasonable for both Parties, either Party may rescind the contract in whole or in part; cf. section 6 of the GTCs in this regard. The Customer can rescind the contract with regard to the element not yet performed, if it cannot reasonably be expected to wait for a longer period of time.
5.12 Agreements regarding fixed costs or fixed deadlines must be made in writing.
6. Rescission due to force majeure
6.1 By way of further specification of section 5.11, the following shall apply to rescission: Grave complications, hazards or impairments as a result of unpredictable and extraordinary circumstances such as war, civil unrest, epidemics, monetary, trade, or other sovereign measures (withdrawal of land rights, border closures, etc.), natural disasters, sea damage, destruction of accommodation, strikes, lockouts, operational disruptions, and other events of equal significance, regardless of whether such incidents are suffered by MINDACT or its service providers, shall entitle either Party to rescind the contract if the agreed service cannot be provided (impossibility) or cannot reasonably be provided (significant impediment).
6.2 In the event of rescission, MINDACT will receive the agreed remuneration for the services that it has already performed. With regard to any services not yet performed, it is agreed that forty per cent (40 %) of the fee agreed for these services will be deemed to be saved expenditure.
6.3 In the event of rescission, MINDACT shall be obliged to arrange return transportation if the contract included transportation; the Customer will bear the additional costs of the return transportation. In any event however, MINDACT must take the necessary measures to implement the cancellation of the contract.
6.4 The contract must be rescinded in writing and without undue delay after the occurrence of the grounds for rescission. Claims for compensation due to a delay in or failure to render the delivery or service are excluded unless this is due to wilful intent or gross negligence on the part of MINDACT itself or its senior managers.
7. Complaints regarding delivered goods, defects and acceptance
7.1 The Customer must examine the goods received for completeness and flawlessness promptly after their arrival, and must make any complaints in writing within one week.
7.2 In the case of justified complaints, MINDACT can provide a free replacement or rectify the goods, at its discretion. However, the provision of a replacement relates only to the parts that are defective. Any warranty rights require that the Customer has duly complied with its statutory obligations to examine the goods and to give notice of defects. The manner of appropriate subsequent rectification shall be at MINDACT’s discretion. If MINDACT’s performance must be rectified due to a defect, the rectification shall be deemed to have failed only after the third attempt at rectification. If MINDACT does not make use of the right of rectification or does not do so within a reasonable period of time, or if rectification fails, the Customer may demand a reduction of the remuneration (abatement) or cancellation of the contract (rescission).
The Customer shall not be entitled to rescind the contract in the event of insignificant defects or breaches of duty.
7.3 The Customer must allow MINDACT sufficient time and opportunity, as appears reasonable, to rectify defects, and must in particular make the subject of the complaint or a sample thereof available to MINDACT; otherwise, the warranty will cease to apply.
7.4 In the absence of a property that has been guaranteed, liability is restricted to warranty and rectification.
7.5 Where contractual services are subject to acceptance, MINDACT must notify the Customer of the completion of its contractual services, and transfer them or make them available for acceptance.
The Parties shall then agree on an acceptance date, which may also follow very shortly thereafter.
7.6 The acceptance of individual, self-contained parts of the contractual services (partial acceptance) within a contract may be agreed in writing. Such acceptance will then be deemed acceptance in the legal sense with regard to the partial performance. The Parties may agree that after completion of all agreed partial acceptances, a determination shall be made that the contractual performance has been accepted as a whole.
7.7 Unless partial acceptance has been agreed in accordance with section 7.6, a joint determination of the condition of parts of the contractual performance by MINDACT and the Customer during the progress of the performance/project (performance determination) shall constitute acceptance in the legal sense.
7.8 If the Customer has used the services or a part thereof without prior formal acceptance, acceptance shall be deemed to have taken place with the act of use, unless defects preventing acceptance are notified beforehand.
7.9 If the service consists of the planning and/or implementation of events, the acceptance shall be carried out regularly on the occasion of final rehearsals or practice runs. This does not apply to planning services which shall be deemed completed and ready for acceptance upon receipt by the Customer.
7.10 Partial services rendered in accordance with the contract and eligible for remuneration shall be remunerated irrespective of any deficiencies in other services.
7.11 Payments by the Customer shall mean that the contractual services have been accepted by way of partial or total final acceptance or that this has been waived.
8.1 In the event of slight negligence, MINDACT shall only be liable for breach of material contractual obligations (cardinal obligations), such as those which the contract specifically intends to impose on MINDACT according to its content and purpose, or the fulfilment of which is a prerequisite for the proper performance of the contract and on whose compliance the Customer regularly relies and may rely. This liability is limited to the typical loss or damage foreseeable at the time of conclusion of the contract. If MINDACT is liable pursuant to the above, the obligation to provide compensation must not exceed the amount of loss incurred or profits lost that MINDACT should have foreseen when concluding the contract, in due consideration of the circumstances known to it at that time.
8.2 MINDACT’s liability in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk and under the German Product Liability Act (ProdHaftG) remains un-affected. Limitations of liability shall not apply in the event of loss of life, bodily injury, or damage to health.
8.3 The personal liability of MINDACT’s legal representatives, agents and employees for loss or damage caused by them through slight negligence is also limited to the extent described in the preceding section.
9. Reservation of title
9.1 MINDACT shall retain ownership of all delivered goods and services until all claims against the Customer from the business relationship, including future claims under contracts concluded simultaneously or at a later date, have been settled in full. This shall apply even if one or all of MINDACT’s claims are included in a running account and the balance has been drawn and recognised. The goods may only be sold in the ordinary course of business but may not be pledged or assigned as security. Attachments by other creditors must be disclosed to MINDACT without undue delay.
9.2 MINDACT undertakes to release the securities to which it is entitled to the extent that their value exceeds the claims to be secured by more than twenty per cent (20%), if these have not yet been settled.
10. Safekeeping and customer property
10.1 Promotional resources and other documents are held in safekeeping only by prior arrangement and depending on the individual case, upon payment of a separate fee.
10.2 The Customer must arrange for sufficient insurance with regard to these promotional resources and documents itself.
MINDACT shall be entitled to use copies of the goods or other services supplied by it for the purposes of self-promotion and also to make recordings for this purpose during events and functions. MINDACT can indicate its company name in suitable form on contract products without the Customer's consent. The Customer may only refuse consent in writing and based on sound reasons to the contrary.
12. Copyrights, rights of use and exploitation
12.1 Copyright and the right of reproduction as well as rights of use and exploitation of works and services, sketches, ideas, drafts, samples, drawings, data sets and source codes, photographs and videographies, originals, models, texts, conceptions, travel and event programmes and other documents (physical or digital) created by MINDACT, in any process and for any purpose, shall remain with MINDACT, subject to express written consent. By paying the remuneration in full, the Customer shall acquire the right to simple use within the contractually agreed content.
12.2 Unless otherwise agreed, quotations, plans, drafts, drawings, production and assembly documents, concept descriptions, descriptions of exhibition and event concepts, artwork, photographs and film materials and other documents, whether physical or digital, shall remain the property of MINDACT, even if they have been handed over to the Customer. In this respect, these are business secrets of MINDACT within the meaning of Section 2 (1) No. 1 of the German Act on the Protection of Business Secrets (GeschGehG). The Customer must obtain MINDACT’s express written consent before passing them on to third parties.
Unless otherwise agreed in writing, changes to plans, drafts, concepts, etc. may only be made by MINDACT.
12.3 If products are produced in accordance with drawings, templates, samples or similar stipulated by the Customer, the Customer alone shall be responsible for ensuring that no third-party property rights have been infringed as a result. The Customer undertakes to indemnify MINDACT against all potential compensation claims that are asserted due to the infringement of third-party property rights. This shall not apply if the conflicting property rights were not known to the Customer and the Customer could not have been aware of them even if it had exercised the due diligence of a prudent businessman. Further legal claims and rights remain unaffected.
13. Non-disclosure and data protection
13.1 As a supplement to section 12.2, the Parties are obliged to treat all Confidential Information within the meaning of this section of the other Party as confidential, to protect it from access and knowledge by third parties, in particular by means of appropriate technical and organisational measures, to refrain from transmitting or making it accessible to third parties, either directly or indirectly, in whole or in part, to use it exclusively in accordance with and for the performance of the contract, and to make it accessible only to those employees requiring the Confidential Information for the purpose of the performance of the contract and who are themselves subject to a confidentiality obligation. Companies affiliated with MINDACT shall not be considered third parties in the above sense.
13.2 “Confidential Information” means any written, oral, electronic, visual, or any other communication, document, disclosure, material or other information, whether tangible or intangible, of the disclosing Party, specifically data, know-how, source codes, technical and non-technical information, materials, prototypes, samples, specifications, prices and other operational information, and including any reproductions thereof, transmitted or otherwise made available to the other Party in connection with the contract, regardless of whether such information is expressly marked ‘confidential’ or ‘proprietary’ or whether the disclosing Party’s intent to keep such information confidential is apparent from the nature of the information or otherwise.
13.3 Information shall not be considered Confidential Information if the receiving Party can demonstrate that such information:
• was known, generally known, or freely available to the public at the time it was transmitted or made available to the receiving Party;
• became generally known or freely available to the public after being transmitted or made available without direct or indirect breach of a confidentiality obligation to the disclosing Party;
• was transmitted or made available by an authorised third party outside the scope of a duty of confidentiality to the disclosing Party after being transmitted or made available to the receiving Party;
• was created or developed by the receiving Party without the use of, or reference to, the Confidential Information of the disclosing Party;
• has been expressly marked or described in text form as non-confidential by the disclosing Party; or
• the receiving Party is obliged to disclose due to a legally binding court or official decision.
13.4 The obligations under this section shall apply for the duration of the contract or its performance and for a period of five years thereafter. Subcontractors and sub-service providers used in the context of the project shall not be third parties within the meaning of this provision, provided that they are subject to a confidentiality obligation that complies with the provisions of this section, with any disclosure of Confidential Information being limited to such Confidential Information as they require in order to perform their services for the receiving Party.
13.5 If the Customer obtains access to personal data in the course of the provision of the contractual services, the Customer shall comply with the applicable data protection regulations, and in particular shall process personal data exclusively for the purpose of the provision of the contractual services (purpose limitation), shall ensure that its employees only obtain access to the data to the extent absolutely necessary, and shall oblige its employees in writing to maintain data secrecy, instruct them on the data protection regulations to be complied with, and provide proof of this to MINDACT upon request. In the event that the Customer processes personal data on behalf of MINDACT and before the Customer obtains access to personal data of MINDACT, the relevant data protection agreement required and provided by MINDACT for that purpose (specifically, a commissioned processing agreement) shall be concluded. The Customer gives an assurance that the processing of personal data attributable to MINDACT or its customers will only take place within the territory of the Federal Republic of Germany, a member state of the European Union, or a contracting state of the Agreement on the European Economic Area. Deviations from this must be expressly agreed in writing between MINDACT and the Customer.
13.6 The contractual services must be provided in accordance with the requirements for data protection through technology design and through data protection-friendly default settings (Article 25 GDPR), to the extent that these requirements are applicable to the contractual services. In this case, the Customer shall provide MINDACT with documentation of the implementation of these requirements upon request and shall guarantee that the principles for the processing of personal data (Article 5 GDPR) can be fulfilled during the intended use of the contractual services.
13.7 The Customer acknowledges that all data generated by MINDACT, the Customer, or any other third party from or in connection with the use of the subject matter of the contract shall be attributed to MINDACT unless the end customer or any other third party is entitled to it under applicable law. The Customer shall not claim ownership or any other rights to such data and in particular shall not use the data for ‘big data purposes’, such as collecting data, creating databases, and carrying out data analyses. The right of the Customer to use data for the performance of this contract, where necessary for this purpose, shall remain unaffected.
13.8 MINDACT also undertakes, for the purposes of the above sections, to comply with data protection and the applicable data protection regulations at German and European level.
13.9 MINDACT’s privacy statement can be accessed at https://mindact.de/datenschutz.
14. Assignment of rights, applicable law, and partial invalidity
14.1 The Customer is not permitted to assign its contractual rights to third parties without MINDACT’s consent.
14.2 The law of the Federal Republic of Germany shall apply exclusively to all offers, orders, conclusion of contracts and legal disputes, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
14.3 Should any provision of these General Terms and Conditions and the further agreements made be or become invalid, this shall not affect the validity of the remainder of the contract. The Parties to the contract shall be obliged to negotiate in good faith on a provision replacing the invalid provision. This applies mutatis mutandis in the event of an omission. 14.4 If one of the Parties ceases to make payments or if insolvency proceedings are instituted against its assets or out-of-court composition proceedings are applied for, the other Party shall be entitled to rescind the unfulfilled part of the contract. The same shall apply if the economic situation of one of the Parties deteriorates in a way that seriously jeopardises the performance of the contract.
15. Place of performance and place of jurisdiction
15.1 The place of performance and exclusive place of jurisdiction for deliveries, services, and payments, and for any disputes that might arise between the Parties (including in relation to receivables for cheques and bills of exchange) shall be the place of business of MINDACT, provided that the Customer is a merchant, a legal entity under public law or a special fund under public law.
15.2 The same place of jurisdiction shall apply if the Customer does not have a general place of jurisdiction in Germany, relocates its place of residence or habitual abode from Germany to another country after conclusion of the contract, or its place of residence or habitual abode is unknown at the time the action is brought.
15.3 These General Terms and Conditions have been prepared in German and English. In the event of contradictions or discrepancies between the German and English versions, the German version shall prevail.