General terms and conditions
These general terms and conditions (herein after referred to as “GTC”) apply to all contracts concluded with System Provider Theater und Tournee GmbH (hereinafter referred to as “System Provider”). The terms and conditions of the contractual partner of System Provider (hereinafter referred to as “contractual partner” or “client“) will only take effect if approved in written form by System Provider. These GTC are an integral part of any (even prospective) contractual relationship with System Provider. The GTC are also applicable to additional or modified orders communicated after the conclusion of the contract, even without making reference to the GTC.
Agreements complementing, or derogating from, these GTC must be in writing.
Should individual terms of these GTC be ineffective, the legal effectiveness of the other provisions and of the contracts concluded on their basis is not affected. The invalid provision shall be replaced by a provision which comes as close as possible to what the parties would have wanted considering this point. The modification of individual terms doesn’t affect the effectiveness of the other provisions.
Stipulations and oral agreements as well as orders via phone are only binding for System Provider with a written confirmation. When the parties have placed their signatures on the purchase order or the client has started works, the GTC are deemed approved.
Subcontractors of System Provider are not authorized to make written or oral agreements or modify existent provisions with binding effect for System Provider.
The current GTC are available in the offices of System Provider or online at www.system-provider.com.
II. Offers and cost estimates
The base of a contract is the relative offer of System Provider specifying the agreed-upon services and the remuneration. Illustrations, dimensions, indications of weight, and plans transmitted by System Provider are of approximate value. This information is supplied without liability.
Cost estimates or quotations of System Provider are nonbinding.
For establishing a cost estimate or presenting a concept, remuneration is due to System Provider when placing the order.
If it becomes foreseeable that the actual cost will exceed the offer of System Provider by more than 20 %, System Provider will inform the contractual partner about this cost overrun. System Provider’s right to claim the additional cost is not affected. The cost overrun well be deemed approved by the contractual partner unless contradicted in writing within three days after System Provider’s communication.
In the event of modified legal bases for fee calculation after the conclusion and before the fulfillment of the contract, system provider has the right to adapt the agreed-upon remuneration.
Orders placed by the client are deemed accepted when confirmed in writing by System Provider unless System Provider signifies the acceptance of the order. If the acceptance of the order is not declared explicitly but tacitly (by service provision), the contract will be deemed concluded at the time of the start of service provision.
Cost estimates, quotations, and offers transmitted by System Provider are subject to non-disclosure and must not be presented or forwarded to third parties without the explicit consent of System Provider. In case of infringement, the contractual partner will be liable for damages or loss of profit incurred by System Provider.
III. Performance and remuneration:
Parts of the offer can be modified by System Provider, deviating from the specification, provided that these modifications are reasonable for the contractual partner and factually justifiable. System Provider will inform the client in good time about modifications or variations of individual items of the agreed-upon services.
System Provider has the right to subcontract parts of the order or the entire order. System Provider assumes the liability for the proper fulfillment of the contract pursuant to the provisions of the GTC.
While providing the aforementioned services, System Provider is not authorized to legally represent the contractual partner unless the contractual partner has authorized System Provider for a particular case or agreed by contract.
Unless otherwise agreed, the remuneration of System Provider will be due without any deduction after service provision. All prices are subject to VAT.
System provider is entitled to demand deposits. Unless otherwise agreed, these deposits have to amount to 50% of the total remuneration agreed at the time of the assignment and 30% at the time of the start of the service provision. The remaining 20 % are payable promptly after invoicing.
In the absence of a remuneration agreement for the services, System Provider is entitled to demand remuneration in a reasonable amount. This applies especially for all additional services of System Provider. Any expenses made by System Provider must be refunded by the contractual partner.
For all services already provided by System Provider, yet not exploited or used by the client for a reason beyond the sphere of influence of System Provider, remuneration is due to System Provider. With the payment of this remuneration, the contractual partner doesn’t acquire any right regarding these services. Non-realized concepts, drafts, etc. must be restituted to System Provider.
Objections against the invoiced items must be stated in written within 7 days following receipt of the invoice – otherwise, the claim will be deemed acknowledged.
Payment has to be made according to a method defined by System Provider and accepted by the contractual partner. Amounts paid by check and transfer order are considered settled on value date in the account of System Provider.
Should (in case of non-cash payment) the bank or credit card company of the client refuse the payment or should the financial position of the client worsen insomuch that System Provider’s remuneration would be at risk, System Provider will be entitled to provide services matching payment with delivery or against guaranteed remuneration or suspend the services partly or entirely or refuse the fulfillment of the contract or rescind the contract partly or entirely without setting a final deadline.
The contractual partner can offset exclusively uncontested or legally established claims.
In case of delay in paying an invoice, down payments, or advances, default interests amounting to 8 pps per year over the basic interest rate are deemed agreed. The client consents to bear any costs of a collection agency or legal fees incurred by System Provider.
In case of delayed payment of an invoice, down payments, or advances, System Provider is entitled to claim immediate payment of all amounts due in relation with this or other contracts with the client. System provider has furthermore the right to suspend further activities until receipt of all open items. The client will be liable for any damages occurring in such a case (cessation of work). Even partial default leads to the omission of any agreed-upon discount for all open accounts.
IV. Proprietary rights and copyright:
All objects and services delivered as well as ideas, drafts, quotations, etc. transmitted by System provider (including parts thereof) remain the property of System Provider. Without the consent of System Provider, they cannot be reproduced or disclosed to third parties and can anytime be recalled by System Provider.
With the payment of the remuneration, the client acquires just the right to use the services for the intended purpose. Unless otherwise agreed with System Provider, only the client can use the services exclusively in Austria, just for the contract duration and within the scope as agreed upon. For the use of services, concepts, and ideas for which System Provider has elaborated drafts, the consent of System Provider will be required after the end of the contractual relations. For the further use, remuneration will be due to System Provider.
In relation with service provision, System provider is entitled to mention the name of the client for advertizing purposes.
All specifications of System Provider must immediately be verified by the client and authorized within three days. In absence of an objection of the client within three days, this documentation will be deemed approved.
The contractual partner will in particular verify the legal admissibility of the planned services. System Provider doesn’t conduct any examination with respect to existent copyrights, patent rights, and registered designs. This belongs to the responsibility of the client. The client will authorize the solution proposed by System Provider after assuring himself of its legal admissibility or when he is willing to bear himself the risks related to the event.
For deliveries and other services on the basis of plans and technical specifications of the contractual partner, System Provider cannot assume responsibility for the correctness of the information made available and doesn’t conduct any examination as regards existent rights. This belongs to the responsibility of the contractual partner.
If official permits are required for the event, the client will obtain them at his own expense.
System Provider doesn’t assume liability for damages caused by the lack of required official or private permits or the non-consent of third parties.
System Provider strives to meet agreed-upon deadlines. Non-compliance will entitle the contractual partner to exercise his rights only after according to System Provider an extension of at least 14 days, except forward operations pursuant to an explicit agreement. Delivery dates and deadlines must be indicated in writing. In case of contract modifications a posteriori, a new delivery date and a new deadline must simultaneously be defined. The extension period starts with the receipt of the reminder sent to System provider. An obligation to pay indemnities under the legal title of delay is subject to premeditation or gross negligence of System Provider. An agreement on a rental period will be subject to availability in due time. Unforeseeable circumstances out of the control of System Provider entitle System Provider to rescind the lease contract under exclusion of claims of the contractual partner or postpone the rental period correspondingly.
The delivery and fulfillment delays and deadlines apply only under the premise that all details of the contract are fully clarified and all required documents or official certificates and permits have arrived.
The legal warranty provisions apply with the following derogations:
Any warranty of System Provider will be void if the contractual partner or a third party processes, modifies, or improperly handles the objects delivered by System Provider as well as if defects are due to weather effects in consequence of improper storage. Excluded from the warranty are furthermore defects in case of mounting not made by System Provider (not applicable if the self-assembly was agreed by the parties and professionally made). The warranty will also be void in case of damages resulting from insufficient equipment, non-compliance with the installation requirements and conditions, overstrain beyond the specifications of System Provider, improper handling and/or use of inappropriate materials, etc. System Provider doesn’t assume responsibility for defects resulting from effects of devices connected by the client and not originating from System Provider.
Warranty claims cannot be deduced from information in catalogues, folders, advertizing material or other written or oral statements which have not been declared in writing as parts of the contract.
Defects under guarantee will be repaired, at System Provider’s discretion, either through rework, replacement, or price reduction. Redhibition is mutually excluded.
Even a timely notice of defects doesn’t entitle the contractual partner to retain amounts invoiced.
All warranty claims of the contractual partner expire after 6 months from the date of fulfillment. The contractual partner must register and substantiate any complaint within three working days after identifying the defect; otherwise, complaints will be disregarded.
The contractual partner is liable towards System Provider pursuant to the legal regulations, unless otherwise specified hereinafter.
System Provider is obliged to act according to the principles of due diligence with due regard to the interests of the client.
All warranty claims are excluded unless they result from an intentional or grossly negligent infringement committed by System Provider or its legal representative. The presence of gross negligence and/or premeditation must be proved by the contractual partner. Liability for a certain success, consecutive damages of all kinds, loss of profit, and claims of third p¬arties against the client is absolutely excluded.
Indemnities by System Provider will become unconditionally inapplicable if the contractual partner or a third party processes, modifies or improperly handles the objects delivered by System Provider as well as if defects result from weather effects or inappropriate storage. Indemnities are furthermore inapplicable for damages in case of mounting not made by System Provider (not applicable if the self-assembly was agreed by the parties and professionally made), insufficient equipment, non-compliance with the installation requirements and conditions, overstrain beyond the specifications of System Provider, improper handling and/or use of inappropriate materials, etc. System Provider doesn’t assume responsibility for defects resulting from effects of devices connected by the client and not originating from System Provider.
Any claims against System Provider (on whatever legal ground) will be limited to the agreed-upon remuneration or the sum insured by the third-party insurance of System Provider.
The acknowledgment of the legitimacy of the liability of System Provider resides exclusively with the third-party insurance of System Provider. Oral acknowledgments of employees or subcontractors of System Provider are irrelevant without the express consent of the third-party insurance of System Provider. Damages not reported until the moment where System Provider leaves the place of the event, the contract, or the fulfillment or damages which cannot/could not be examined by System Provider, its insurance, or a person authorized and mandated by System Provider or damages not brought to System Provider’s knowledge immediately after the contract fulfillment are excluded from System Provider’s liability. System Provider thus insists on a final inspection and examination of possible damages. The third party mandated by, or acting on behalf of, System Provider will, as appropriate, record all damage events (damage listing) and submit the records to the client. If the client foregoes a final inspection, examination, or immediate statement of possible damages, he discharges System Provider from any liability.
Any claim settlement or fixation of an amount is exclusively in the competence of the third-party insurance of System Provider.
IX. Force majeure
- System Provider is exempted from the duty to perform in cases of force majeure. Force majeure events include any unforeseeable conditions and other circumstances whose effects on the contract fulfillment are beyond the sphere of influence of both parties. These conditions include absence of means of transportation or electricity failure, mobilization, state of defense, natural disasters, terroristic acts, and riots. In such cases of force majeure, the delays and deadlines will be prolonged with the allowance of a reasonable starting period. In case of impossibility, System Provider cannot be held responsible.
The contractual partner is entitled to terminate the contractual relationship with System Provider at any time. If the client rescinds the contract, 30% of the agreed-upon remuneration will be charged as cancellation fee. If the cancellation is made less than four weeks before the agreed-upon start of work, the fee will be 50%, if less than two weeks, 75%, and if less than one week or after start of work, 100% of the agreed-upon remuneration (see also the special terms for leases). In case of premature dissolution of the contractual relationship, the client is obliged to fully pay for services already provided. The court’s right to reduce the indemnities is excluded. If the damage exceeds the lump rates stipulated above, System Provider can also claim the exceeding damages.
System Provider is entitled to terminate with immediate effect this contract in the presence of an important reason. Such conditions include in particular:
- Because of the behavior of the client or persons attributable to the latter, the continuation of the contractual relationship seems unacceptable. - The contractual partner is in arrears with due payments, be it only partly. - Insolvency proceedings related to the assets of the client are applied for or commenced. - Insolvency proceedings are dismissed due to insufficient assets to cover the cost. - Other concerns related to the solvency of the client have emerged. - Before signing the contract, the contractual partner made false statements or concealed circumstances whose knowledge would have restrained System Provider from concluding the contract. -The client is in violation of essential provisions of the contract or the GTC.
In the event of termination of the contract for an important reason, System Provider is entitled to demand from the client indemnities amounting to the agreed-upon remuneration less already made payments and less any saved expenses.
System provider is authorized to place a reasonable amount of promo material on equipment made available and at the venue – without any remuneration for the client.
System Provider is entitled to point out their proprietary rights on objects made available to the client using appropriate labeling. The contractual partner is not allowed to arbitrarily remove or blur these labels.
XII. Special terms for leases:
If System Provider acts (even only partly or within a general contract) as a hirer, the provisions in this section will be applicable too:
Independently of a potential advance for the duration of the lease, System Provider can demand a caution amounting up to the time value of the rental properties. This caution will be refunded by System Provider to the contractual partner after expiration of the lease contract and receipt of the properties in proper condition.
If System Provider is not in the position to procure an item, System Provider can fulfill the contract by providing an equivalent item.
The contractual partner is obliged to take out and cover all usual insurances for the rental property. Also the cost of transport insurance will be at the client’s charge.
The contractual partner is obliged to examine the proper condition of the equipment before acceptance; by accepting it, he declares that the rental property is free of defects.
In the event of a delayed delivery of the rental property due to gross negligence of System Provider, the contractual partner can claim indemnities for replacement only but not for loss of profit.
The place of delivery is the principal office of System Provider. In case of shipment, shipment from the office will be at the client’s risk.
The contractual partner has to ensure the aptitude of the installation location for the rental property to be installed. Additional expenditures incurred by System Provider due to an inappropriate location will be at the client’s charge.
Claims under warranty against System Provider are excluded unless a defect has been brought, in writing, to System Provider’s knowledge within three days after its detection, if the contractual partner doesn’t fulfill his contractual duties, the rental property has been modified by third parties or through the integration of non-original parts, the contractual partner doesn’t observe the instructions concerning the handling of the property, the damage is due to negligent or improper handling, the contractual partner of System Provider doesn’t accord sufficient time for executing any required improvement and replacement.
Delivered items remain the property of System Provider.
The contractual partner is liable to pay compensation to System Provider for all damages resulting from improper, non-conform or inappropriate use of the rental property. In the event of a total loss, the contractual partner has to pay the replacement value. In case of damage, the contractual partner will have to compensate for the replacement value if repair would be impossible or uneconomic, otherwise the contractual partner will have to bear the costs of repair.
The contractual partner is obliged to immediately inform System Provider about problems regarding the rental property or any modifications in relation with the rental property. In case of infringement, System Provider is entitled to claim damages against the contractual partner. This applies in particular in case of sequestration, seizures, or similar acts of third parties, in case of modified ownership structures that could compromise or jeopardize the rental property, in case of bankruptcy filings, applications for court protection from creditors or other applications, initiation of insolvency proceedings related to the assets of the contractual partner as well as in case of liquidation of the business operations of the contractual partner.
During the entire term of lease, the contractual partner is obliged to protect the rental property against damage and loss, in particular against weather effects and theft. The custody of the items made available will be organized by the contractual partner at his own expenses.
The contractual partner is not entitled to make modifications of the rental property, especially additions and integrations, without the prior consent of System Provider.
The contractual partner is obliged to protect the rented item from overstrain in all respects, ensure maintenance of the rental item as required, and mandate repairs at his own cost, including procurement of spare parts for maintaining the operational conditions of the rental item in a timely and appropriate manner using original or – with System Provider’s consent – equivalent parts. Repair costs due to wear are at System Provider’s charge.
The client is obliged to provide written information about the installation location of the rental item. System provider is at any time entitled to inspect the rental item or mandate its inspection by a representative. System Provider will bear the cost of inspection.
If the contracting parties, on the occasion of an open-air event, stipulate that System Provider controls the rental property, System Provider will have in particular the following rights:
System Provider can put the installation out of operation or dismantle it, where applicable, if weather conditions constitute a risk for the rental property or for the physical integrity of persons on site.
System Provider can switch off or dismantle the installation if turmoil or riots endanger the installation.
If the installation is put out of operation or dismantled, the contractual partner will not be entitled to deduce any damage claims against System Provider. System Provider’s right of remuneration will remain in force. System Provider has the right to give instructions to avoid risks. The contractual partner undertakes to immediately observe these and inform third parties about possible risks.
In the event of premature termination of the lease owing to conditions attributable to the contractual partner, System Provider is entitled to charge the rental fee for the term of lease initially agreed upon.
After expiration of the lease, the client undertakes to restitute the rental item in proper condition to System Provider. In case of delayed restitution of the rental property to System Provider, the contractual partner of System Provider must make good any damage. If the rental item is not restituted free of defects, the contractual partner will have to pay the full lease price without prejudice to other damage claims of System Provider for the time required for repair.
When using video and audio systems, the client can make image and sound reproductions exclusively according to the conditions of the respective license holder. When using IT systems, software can be used exclusively for the particular dedicated device. In case of non-conform use of image and sound materials as well as software, the contractual partner exempts System Provider from all damage claims of the license holders.
When renting wireless sound booms and internal radio devices, the contractual partner must make sure that they are used according to the applicable regulations of the competent authorities.
XIII. Specific stipulation for hiring of artists:
If System Provider provides services on behalf of third parties, submits offers, or concludes contracts as representative or substitute of a third party, these GTC apply correspondingly.
Artists hired via System Provider are completely free with respect to their artistic performance and not subject to directives of the client or its partners.
Directions and suggestions of the client or his representative are strictly limited to technical or local details.
The client has no right of complaint concerning an inappropriate scenography.
If the client commissions an artistic performance via System Provider, the client must be continuously present himself or provide a contact person familiar with the site from the arrival of the artist(s) until the end of the event.
The stage must be free to allow an unobstructed setup.
The detailed schedule of the respective performance will be defined separately.
All taxes, fees, and tributes incurred are at the local promoter’s charge.
If the client cancels an already scheduled event, this will not discharge the client from the obligation to pay the stipulated amounts.
If the customer has hired, via System Provider, one or more artists and this/these artist/-s receives/-e, after conclusion of the contract with the client, an invitation to appear within the framework of a radio or television show or a tour, System Provider reserves a special right of termination of the contract concluded with the client.
The Agency must inform the client in writing about this special right of termination within 5 working days after the conclusion of the contract with the radio or TV station.
The client’s documented expenses until the cancellation date will be refunded or a date rearranged.
If the client engages, or intends to engage, other artists for an event, the client must inform System Provider in writing before concluding the contract.
Should the client omit this information, System Provider will have a special right of termin¬ation if the appearance of the other artist(s) doesn’t compromise the interests of System Provider or those of the artist.
The special termination must be declared by System Provider in written within 14 days after it became known.
If System Provider exercises this right of termination, the client will be obliged to pay indemnities amounting to 70% of the agreed-upon fee. The remaining 30% will be deducted as lump sum for saved expenditures. Both parties remain free to prove a lower or bigger damage, as applicable.
While concluding the contract, at the latest, System Provider will submit stage directions to the client; the observance of these directions is an integral part of the contract. Should the client not state within 14 days after receipt of these directions that they cannot be observed in all respects, he will be liable for damages arising from the non-compliance with even individual points of these instructions. Should System Provider not receive any related information, System Provider will assume that everything can be observed. All persons involved in the event on a technical level must receive a copy of the stage directions.
On demand of System Provider, the client will provide at his own expense, in immediate vicinity of the venue, a sufficient number of hotel rooms (category: at least 4 stars), breakfast included. Otherwise, this will be invoiced by cost.
From the start of the setup until the end of the dismantling work, the client will ensure, at his expense, the catering for all persons hired by, or acting for, System Provider, i.e. a premium hot meal (vegetarian and non-vegetarian) as well as sufficient dishes (fruits, snacks, sweets) and drinks (still water, soft drinks, hot drinks, etc.).
Specific requirements of the artist will be specified separately.
All sound and/or image recordings or film exposures are subject to the prior written consent of System Provider.
The same applies for reproducing or broadcasting such recordings.
All proceeds of exploitation or consecutive rights are exclusively due to System Provider.
System Provider is granted the right to offer for sale all merchandising products of the involved artist.
The client will make available, on demand of the agency, sufficient floor space including tables – at no charge for the agency.
The client assumes, from the start of the setup until the end of dismantling works, the liability for all personal injuries and property damages. This liability concerns in particular installations and instruments brought in. He undertakes to take out the required and prescribed insurances.
Damages caused by System Provider or by persons acting on behalf of System Provider must be stated in writing within 5 working days. After this deadline, damages – except non-accidental injuries and health hazards or grossly negligent infringement – will not be acknowledged or replaced.
XIV. Special provisions for contracted services/setup:
If System Provider (even partly or within the scope of an agreement) acts as contractor, the clauses in this section will apply in addition:
The contractual partner undertakes to provide accommodation (single room with shower, 4-star category) and meals (breakfast, lunch, and dinner, at the personnel’s option: vegetarian or non-vegetarian) for the personnel System Provider needs to fulfill its contractual obligations or, failing this, compensate for the actual hotel bills per person plus per diems amounting to € 35,-- in Austria, € 50,-- in other countries, in addition to the agreed-upon remuneration.
Dais of travel will be invoiced with the rate of a half per diem allowance of the respective personnel. Travel expenses will be invoiced by cost. The official mileage is applicable.
In case of deliveries or services to provide onsite, the client must take appropriate measures to ensure that System Provider’s vehicles can access and leave the venue in accordance with the regulations and provide sufficient parking facilities for the vehicles of System Provider. The client will obtain any required parking and passage permit before the deliveries or the start of the activities of System Provider.
The contractual partner must, at his own expense, ensure by all means that work can start in a timely manner and be executed without interruption. Before the start of work, he will give System Provider and its subcontractors the required information about the position of hidden power and gas lines, water conducts, etc. The client will inform System Provider about the accident prevention regulations to be observed. Corresponding preparatory work must be done by the client in a timely manner.
XV. Place of fulfillment:
Place of fulfillment is the main office of System Provider.
The GTC can be amended by System Provider and will also take effect for existent contractual relationships. Notice is displayed on a board in the premises of System Provider and published on the web site www.system-provider.com.
The client will be informed about amendments of the GTC in written form (i.e. via e-mail). These modifications will be considered accepted unless the client terminates the contract in writing within 14 days after having been informed of its coming into force. The termination will be void if System Provider declares within 14 days after receipt of the termination its willingness to refrain from amending the GTC.
XVII. Final provisions:
All legal transactions between System Provider and its contractual partner are exclusively governed by Austrian law.
The place of jurisdiction for all eventual litigations is the commercial court in Vienna.