General Terms and Conditions of Business – Austria

1. General

   1.1. The following conditions apply to all offers, contracts and all other services provided by KFP Austria GmbH – trading under the ENCORE brand (hereinafter referred to as “ENCORE”)
   1.2. The Client’s terms and conditions of business only become a component of the contract if they are acknowledged by ENCORE in writing.
   1.3. With the acceptance of services from ENCORE, the Client accepts the exclusive validity of these General Terms and Conditions of business unless otherwise agreed in writing.

2. Conclusion / Content of the Contract

   2.1. Offers made by ENCORE are subject to confirmation.
   2.2. As a rule, the contract becomes effective with the written confirmation of the order from ENCORE.
   2.3. The content of the contract is based on the content of the confirmation of order. Supplementary agreements require the written form.

3. Prices / Terms of Payment
   
   3.1. The prices are those specified in the confirmation of order, which provides the basis for the contract.
   3.2. Services that are not specified in the confirmation of order, but which are nevertheless provided at the Client’s request, will be invoiced to the Client in accordance with the respective valid ENCORE price list. This also applies to costs incurred by ENCORE as the result of the receipt of inaccurate details from the Client or transport delays for which ENCORE is not responsible.
   3.3. ENCORE is entitled to advance payment of up to the total amount of the invoice.
   3.4. Unless otherwise agreed in writing, invoices are due for payment 14 days after the invoice date.
   3.5. The Client is entitled to offset only undisputed or legally determined claims against a claim placed by ENCORE.
   3.5. In the case of longer rental periods, ENCORE is entitled to invoice its services to the Client on a weekly basis.
   3.6. In the event of payment arrears, ENCORE is entitled to charge interest at the rate of eight percentage points above the respective basic interest rate.
4. Full-Service

This paragraph relates to events where ENCORE offers technical equipment and related services and/or support in the field of A / V media technology.

4.1. The rental period is calculated in days. Each started day is calculated as a full day.
4.2. ENCORE reserves the right to commission subcontractors for the fulfilment of the order.
4.3. The Client assures ENCORE to be the owner of the music, film and image rights used in any performed presentations or to have acquired corresponding licenses (e.g. GEMA, GEZ, software licenses, which are required for presentation). The Client is responsible for the content of presentations of any kind. The Client must indemnify ENCORE and compensate for expenses incurred in connection with claims regarding the content presented, infringement of property rights or the prosecution of such violations. The same applies to such protected music, film and image products handed over to ENCORE for the performance of the order.
4.4. The Client must permit employees of ENCORE to check the rental object at any time during the usual hours of business.
4.5. The Client is not permitted to remove the rental object from the location of use specified in the contract without prior written approval from ENCORE.
4.6. The trademark, the ENCORE or manufacturer’s identification number, and other forms of identification are to remain unaltered on the rental object. The Client is forbidden to add its own identifying mark to the rental object. This applies in particular to labels, stickers and paintwork.
4.7. The Client is obligated to inform ENCORE without delay of the end of the event.
4.8. ENCORE and its personnel supervisors are solely authorized to issue instructions to the personnel employed by ENCORE for the duration of the event. The Client will not issue any instructions to the personnel of ENCORE. The supervisor must always be available, as far as personnel is employed at the Client’s site
4.9. ENCORE undertakes to comply with its statutory obligations as an employer towards all employees employed under between Client and ENCORE disclosed contracts. In particular, ENCORE undertakes to comply with the health and safety laws and to discharge the statutory contributions to social security for its employees.
4.10. The use of the electrical and other technical equipment of ENCORE under the use of power and other power networks of the Client requires the prior consent of the Client. ENCORE is liable for any disruption or damage to the power grids and other technical equipment of the Client arising from the use of its equipment in accordance with these General Terms and Conditions.
4.11. Decoration material brought by ENCORE must comply with the fire police requirements. The Client is entitled to demand official proof for this. Due to possible damage, the installation or attachment of decoration or similar material must be coordinated in advance with the Client.
4.12. The use of pyrotechnics and fog machines is generally to be agreed with the Client and only allowed with the written consent of the Client.

5. Rental Business

This paragraph concerns rental contracts (“dry hire”) under which ENCORE will provide the Client with technical equipment on a rental basis for an agreed period of time.

5.1. The rental period begins with the handover of the equipment, however, at the latest on the starting date specified in the rental contract.
5.2. The rental period is calculated in days. Each started day is calculated as a full day.
5.3. At the latest by the beginning of the rental period, the Client must provide ENCORE with the name of a contact person who must be accessible to ENCORE during the rental period.
5.4. The Client is obligated to check the rental object upon receipt for defects, completeness and operational readiness. With complaint-free receipt, the Client recognizes the rental object as defect-free and ready for operation as well as suitable for the agreed purpose of use.
5.5. The Client must permit employees of ENCORE to check the rental object at any time during the usual hours of business.
5.6. The rental period ends with the orderly return of the defect-free equipment, including all objects that accompanied the equipment at handover (accessories, operating manuals etc.), to ENCORE, but earliest at the end of the contractual rental period as stated in the agreed upon offer.
5.7. Unless a special agreement has been concluded to the contrary, ENCORE is not obliged to send or deliver the rented equipment to the Client’s desired place of use. The Client bears responsibility for the transport or shipping.
5.8. Should the Client wish ENCORE to forward the equipment, it will be transported at the cost and the risk of the Client. The risk is transferred to the Client as soon as the rental object leaves the ENCORE storage area, if the delivery is not made by the company ENCORE.
5.9. The Client carries responsibility for assuring that only trained personnel use the rental object and in accordance with the manufacturer’s operating instructions and/or instructions provided by ENCORE. The Client is obligated to maintain the rental object in good condition and to use it exclusively for its designed purpose. Packaging, operating manuals and accessories remain the property of ENCORE. All parts are to be handled with care and must be returned in complete and undamaged condition.
5.10. Errors, disruptions or damages that occur during the rental period on the rental object have to be announced immediately by Client to ENCORE. Client must wait for instructions from ENCORE. Un-authorized remedy of deficiencies are prohibited to the Client.
5.11. The Client is forbidden from passing on the rented object or further renting it to a third party without prior written approval from ENCORE.
5.12. The Client is not permitted to remove the rental object from the location of use specified in the rental contract without prior written approval from ENCORE.
5.13. The trademark, the ENCORE or manufacturer’s identification number, and other forms of identification are to remain unaltered on the rental object. The Client is forbidden from adding its own identifying mark to the rental object. This applies in particular to labels, stickers and paintwork.
5.14. The place of return for the rented objects is the place of business / warehouse of ENCORE. If damage is detected already on the return, these are recorded in a return protocol which must be signed by both contracting Parties. Insofar as in the individual case there is no consensus on the existence of damage or its origin, the different views of the contracting Parties must be included in the protocol. ENCORE reserves the right to make an in-depth check / functional check after return.
5.15. If the rented property is not rentable or useable due to circumstances for which the Client is responsible, in particular due to damage, prematurely necessitated maintenance work or due to the lack of return of accessories, the Client must owe compensation for use in the amount of the missed daily rent for each single day on which these rental objects are not available. The assertion of further compensation claims by ENCORE remains reserved. ENCORE undertakes in return to a dutiful minimization of damage.
5.16. The usage compensation stated in the previous section also applies if the rental object is not returned at the agreed time. The assertion of further compensation claims by ENCORE remains reserved. ENCORE undertakes in return to a dutiful minimization of damage.
5.17. Should the return of the rental object involve shipping, this is only permissible with the prior consent of ENCORE. The Client carries the risk of the return shipment until delivery of the equipment to ENCORE. The returned equipment must be delivered to ENCORE free of charge and in original, shockproof transport packaging.
5.18. ENCORE is entitled to make the handover of the rented object conditional upon the payment of an appropriate security deposit, which serves as security against any future claim that may arise out of the contractual relationship.

6. Creative Services
   

   Content production / customized media (e.g. graphics / artwork, videos, 3D visualizations etc.)

   6.1. Minor adjustments (e.g. colours, spelling mistakes etc.) are included in the costs listed in the offer. Larger adjustments / corrections, which mean an increased effort beyond the project cost calculation, shall be agreed between the parties and, if necessary, shall be charged subsequently on the basis of the applicable daily and/or hourly rates via a written supplementary order, unless otherwise agreed in writing.
   6.2. Costs for e.g. stock material/licenses, shooting(s), production/printing, courier/transport, travel costs (“ third-party costs/expenses”) are only included in the offer if they are shown in the offer items. Depending on the concept/implementation, etc., additional costs may be incurred for the aforementioned expenses, if they are not already listed in the offer. In any case, external costs will be agreed upon with the Client in advance.
   6.3. If ENCORE is requested and commissioned by the Client to use copyrighted property, which requires the obtaining of rights of use, the obtaining of rights of third parties of any kind, including the registration with the GEMA, is carried out on the Client’s own responsibility in the name and for the account of the Client. ENCORE will be held harmless in any case of infringement of third-party rights.
   6.4. The transfer of open work files by ENCORE is not included and requires a separate agreement or remuneration if necessary.
   6.5. Offers and contracts contain project-specific concepts with limited rights of use. Unlimited rights of use for this are subject to a charge and shall be listed and invoiced separately in the offer. In principle, the transfer of rights of use relates exclusively to the finished product (the content/output) that was created for the client for use within the scope of the order.
   6.6. ENCORE is entitled to re-use project-specific concepts in its own interest, unless otherwise agreed in writing or no exclusive rights of use are agreed in writing.

    

7. Cancellation of the Contract

   7.1. The Client can cancel the contract in writing prior to the beginning of the rental-period / prior to the setup of the event (hereinafter summarized as “beginning”).
   7.2. Should the Client make use of this contractual right of cancellation, the Client is obligated to pay a cancellation fee to ENCORE. The cancellation fee is calculated as follows: If cancellation takes place 30 to 6 working days prior to the beginning, the due cancellation fee amounts to 50% of the total contract value. If the cancellation takes place between the fifth day and the day of the beginning, a cancellation fee of 100% of the total contract value is due. For the purpose of delineating the applicable cancellation terms, Saturdays and Sundays are not considered working days.
   7.3. In any case, pre-production costs incurred at the time of cancellation and / or production costs already incurred shall be reimbursed at 100%.
   7.4. As far as the Client can provide evidence that ENCORE has incurred fewer costs, it is required to reimburse only the lesser amount.
   7.5. ENCORE has the right to cancel the contract at any time if the Client commits a substantial breach of its obligations under these General Terms and Conditions of business or falls into payment arrears. Further, ENCORE is entitled to cancel the contract in the event that the Client’s financial circumstances significantly deteriorate.

    

8. Warranty

   8.1. Where the Client is not responsible for occurring faults, it is entitled to either rectification of the defect or supplementary service, whereby the Client and ENCORE should jointly agree on the most expedient solution in order not to disrupt the course of the event.. Further claims for compensation are excluded as far as the fault is not the result of intentional damage or gross negligence on behalf of ENCORE.
   8.2. If ENCORE culpably fails to meet its obligations according to 8.1 and if the planned event cannot be conducted exclusively for this reason, the Client is entitled to provide the service itself or to engage a third party as a substitute. Necessary and reasonable costs associated with these measures will be carried by ENCORE within the scope of the maximum liability limits specified in paragraph 9.
   8.3. A warranty claim against ENCORE is excluded to the extent that ENCORE was unable to provide its services in the foreseen manner because the Client failed to meet his obligation to cooperate and provide input. In such cases, the Client is obligated to reimburse any resulting costs and damages, especially any loss of profit incurred by ENCORE.
   8.4. ENCORE guarantees to provide services on schedule and to the agreed quality only when the Client has fulfilled its contractual obligations, in particular those related to timely payment.

9. Liability

The liability of ENCORE is excluded regardless of the legal grounds, unless explicit provisions are made to the contrary in the following.

9.1. ENCORE is liable for any damage caused through intent or gross negligence by its legally authorised representatives or vicarious agents. ENCORE carries unlimited liability for culpable physical damage to life or health.
9.2. ENCORE is also liable in cases of negligence involving the substantial violation of a contractual obligation that jeopardises the purpose of the contract in whose fulfilment the Client may have specifically trusted. This liability is limited to compensation for damages that were typically foreseeable at the time of concluding the contract.
9.3. Except for the case of intent or gross negligence through leading employees and legally authorised representatives of ENCORE, or cases of physical harm or injury to life or health, liability for secondary damages, e.g. loss of profit, unrealised savings and immaterial damages are excluded as far as liability is not given in accordance with 9.1 or 9.2.
9.4. The preceding limitations of liability also apply to the legally authorised representatives and employees of ENCORE and in cases of tortious or pre-contractual liability.
9.5. In the case of any form of data loss (including in particular, but not limited to, audio and video data), the liability of ENCORE is limited to the compensation for costs that would normally be incurred to restore the data from an electronic backup assuming that regular and properly conducted backups of data have been implemented. The Client’s responsibility to carry out regular data back-ups in accordance with current technological standards remains unaltered.
9.6. Liability of ENCORE for damages under the Product Liability Act remains unaffected.
9.7. With the exception of claims arising from injury to life or health, all liability claims of the client against ENCORE shall become statute-barred within one year after the claim has arisen and the client has become aware of the circumstances giving rise to the claim against ENCORE or should have become aware without gross negligence. This does not apply to claims specified in clauses 9.1 and 9.6.
9.8. The Client is liable for all material and personal damages including any subsequent damage for which the Client, its employees or any other by Client commissioned third party is culpably responsible. It is also liable for any loss of equipment, which is used for the realization and for the duration of the contract. The duration of the event / the rental period is specified in the signed offer under paragraph 4 / paragraph 5 of these Terms and Conditions of business
9.9. In case Client books the Loss Damage Waiver package, this covers damage and/or loss of ENCORE equipment as listed in 9.8.
9.10. Should the customer at any time hand over media of any kind (such as pictures, music, films, etc.) to ENCORE for processing of any kind (e.g. posting at events, inclusion in presentations, etc.), the customer alone shall be liable if these media are afflicted with third-party rights and the customer does not have permission to use them. ENCORE shall be held harmless in any case.

10. Copyright / Right of use

    10.1. Should ENCORE provide the Client with various graphic reproductions and contents such as renderings or seating plans (collectively called “content’), this content is in principle subject to the Copyright Act (UrhG) and the copyright on this content necessarily remains with ENCORE.
    10.2. ENCORE transfers the right of use for this content to the Client limited to the term of the contract. After expiration of the contract, no matter for what reason, the right of use expires and the further use of the content is prohibited on all media.
    10.3. Any obligation to prove that the content that has been used is the property of the Client is the responsibility of the Client.

11. Assignment, Transfer

ENCORE is not permitted to completely assign or transfer the rights and obligations arising from the contract to a third party without prior written agreement from the Client. An exception here is the assignment or transfer to an associated company in the meaning of Section 15 German Company Act (AktG).

12. Distraint / Pledging

    12.1. The Client may not pledge any rented object of ENCORE or assign it as security to a third party.
    12.2. Should a third party take possession of the rented object, on whatever grounds, the Client is obligated to inform ENCORE per telephone or fax without delay. In the case of distraint, the Bailiff’s protocol must be forwarded to ENCORE immediately. Contravention of this provision is grounds for ENCORE to claim compensation for damages.

13. Force Majeure

     

    Neither party shall be liable for events of force majeure that significantly impede ENCORE’s performance of the service, temporarily hinder the proper execution of the contract or make it impossible. Force majeure shall be deemed to be all circumstances independent of the will and influence of the parties to the contract, such as natural disasters, war and other military conflicts, mobilisation, terrorist attacks, seizure, embargo, pandemics and therefore officially imposed restrictions or other circumstances which are unforeseeable, serious and not caused by the parties and which occur after the conclusion of this contract. The client shall pay for the partial services demonstrably rendered up to the occurrence of the force majeure event.

As soon as it is established that the force majeure event will last longer than six months, either party shall be entitled to terminate the contract in writing.

15. Insurance

    14.1. ENCORE is obligated to take out insurance against damages that may occur to the Client’s property or customers through the fault of its employees in the course of fulfilling its contractual obligations. The insurance policy to be concluded by ENCORE must have a fixed liability coverage of Euro 5,000,000. — for personal and property damage.
    14.2. The Client is obligated to provide insurance within the scope of his own liability insurance for any damage caused by the Client or third parties contracted by Client that occurs to ENCORE’s property in connection with fulfilling the contract.

     

16. Final Provisions

     

    15.1. There are no verbal supplementary agreements to this contract. Alterations and supplementary provisions to the contract must be made in writing.
    15.2. The place of fulfilment and jurisdiction is the place of ENCORE’s registered office.
    15.3. Should one of the above provisions be or become invalid, this does not imply that the entire Terms and Conditions of business are invalid. The invalid provision should be replaced by one that is valid and equivalent to the intention of the Parties at the time of concluding the contract.
    15.4. The contract is governed by the laws of the Federal Republic of Austria. The applicability of the United Nations Convention on Contracts for the International Sale of Goods, as well as all possible conflict of law provisions is excluded.

Last updated: 16.03.2023