what when why
Terms and Conditions
§ 1 Scope / general
(1) These General Terms and Conditions (“T&Cs”) contain the terms and conditions that apply exclusively between you (“you” or the “customer”) and us, what when why GmbH & Co. KG, Königsallee 43, 71638 Ludwigsburg, Germany, to all offers, deliveries and services. These T&Cs are an integral part of all contracts that we conclude with you for the deliveries or services offered by us. These T&Cs apply only if you are an entrepreneur (§ 14 German Civil Code or BGB), a legal entity under public law or a special fund under public law.
(2) Deviating, conflicting or supplementary terms and conditions of the customer shall not be binding unless we have expressly agreed to them. This shall also apply if we do not expressly object to their validity or perform the service to the customer without reservation.
(3) Unless otherwise agreed, these T&Cs shall apply in the version valid at the time of your order or in any case in the version last notified to you in text form as a framework agreement also for similar future contracts without our having to refer to them again in each individual case.
(4) Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing or text form to be effective.
(5) Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these T&Cs. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these T&Cs.
§ 2 Offer / conclusion of contract
(1) The presentation of our services on our website www.whatwhenwhy.de, in our catalogs or our other advertising media, offers or cost estimates does not constitute a binding offer on our part. You submit a binding offer with your order to us.
(2) A contract between you and us is only concluded when we issue a separate declaration of acceptance.
(3) We reserve the ownership and/or all (copyright) rights of use to all offers and cost estimates submitted by us as well as illustrations, calculations, brochures, catalogs, models and other documents and aids made available to the customer. The customer may not make these documents available to third parties, either as such or in terms of content, disclose them, use them or have them used by third parties, allow them to be used or reproduce them without our express consent.
§ 3 Project management
(1) Unless otherwise agreed in the contract, project management and responsibility shall be with us.
(2) The contracting parties shall designate contact persons and their deputies to each other, who shall responsibly and expertly manage the fulfillment of the contractual obligations for the contracting party designating them.
(3) The parties shall notify each other without delay of any changes in the designated persons. Until receipt of such notification, the previously designated contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their previous power of representation.
(4) If we take over the project management, our contact person is the head of the project and accordingly responsible for all questions arising during the project as well as for requesting and receiving all information and other cooperation actions owed by the customer.
(5) The contact persons shall communicate with each other at regular intervals on progress and obstacles in the implementation of the contract in order to be able to intervene in the implementation of the contract if necessary.
(6) Agreed changes to the services shall be documented by the project manager and confirmed by the customer in writing or in text form. The changes shall be recorded in writing or in text form in a change protocol, which shall become part of the contract.
§ 4 Obligations of the customer to cooperate / provisions
(1) The customer shall perform all actions required for the provision of services by us without delay, in particular provide all necessary documents and information. The customer is obliged to inform us of any significant change in planning of the event or any obstacles.
(2) If the customer recognizes that information and requirements, whether its own or ours, are incorrect, incomplete, ambiguous or impracticable, the customer shall inform us of this and the consequences recognizable to them without delay.
(3) At the latest after the conclusion of the contract, the customer shall provide us with all content required for the implementation of the concept in documents available only to them in the following form:
(a) Texts in the formats .doc or .rtf.
(b) Images, graphics (incl. logos, buttons if applicable): in the formats .jpg, .ai, .psd, .tiff, .eps, whereby logos must be supplied as vector graphics.
(c) Videos: in the format .mp4.
The customer is solely responsible for obtaining and acquiring the rights to this content,
unless we have expressly assumed acquisition on behalf of the customer in the order.
(4) If the customer provides us with videos, pieces of music, texts, images, logos, drawings, data, templates, documents, etc. (“Provisions”) for use in the performance of our services, the customer assures that these Provisions are free of defects and do not violate any third-party rights. (“provided materials”) for use in the performance of our services, the customer warrants that such provided materials are free from defects and do not infringe any third-party rights, applicable law or the provisions of these T&Cs.
(5) Insofar as the customer has undertaken to cooperate in picture, sound or video recordings, the respective persons must be at the agreed location at the agreed time. Any costs otherwise incurred as a result or in addition shall be borne by the customer.
(6) If we acquire services for the customer in our own name and these services cannot be used later due to a circumstance within the customer’s sphere of influence, the customer shall be obliged to compensate us for the resulting costs.
(7) Unless expressly agreed otherwise, the customer itself shall be responsible for compliance with the obligations with regards to the collecting societies (such as, for example, GEMA or VG-Wort), in particular any notification obligations, the obtaining of corresponding consents as well as the payment of fees with regard to its provisions.
(8) The intellectual property rights to the customer’s provided materials shall remain with the customer or its licensors. The customer hereby grants to us (or procures for us through the respective owners of the intellectual property rights) a non-transferable, non-exclusive, worldwide, royalty-free right to use the customer’s provided materials for the term of this agreement for the purpose of fulfilling our obligations under this agreement.
(9) Insofar as the customer provides areas and premises for the performance, it shall be responsible for ensuring that these are suitable for the intended purpose and have been approved by the authorities, in particular by the building and fire authorities. The customer is obligated to obtain any necessary official permits without delay at its own expense. The customer shall inform us immediately of any official requirements and conditions. The customer shall bear the obligation to ensure safety with regard to the areas and premises made available by it. The customer shall indemnify us against any liability arising from the absence of an official permit, results from a breach of the duty to maintain safety or from the unsuitability of the areas and/or premises.
(10) The customer will make the areas and premises accessible to our employees and agents on the days of set-up, dismantling and the event. Dismantling begins immediately after the end of the event. All event and room costs, in particular rent, operating costs, supervisory staff, hall technology, cleaning, fire department, emergency medical care, etc. shall be paid directly by the customer. Artist dressing rooms must be provided to a sufficient extent.
(11) The customer is obligated to take out all customary and necessary insurances with an appropriate level of coverage for the event, in particular an event organizer’s liability insurance, and to provide evidence of the conclusion of such insurance upon our request.
(12) In the case of online and hybrid events, the customer is responsible for obtaining any rights required for this purpose and for observing data protection.
(13) The acts of cooperation to be performed by the customer shall constitute contractual obligations and not merely duties. We shall be entitled to charge separately for any additional expenses incurred as a result of duties to cooperate that are not performed properly or in a timely manner at the agreed rates or, in the absence of an agreement, at our current hourly rates.
§ 5 Exemption
The customer warrants that the contents and information provided by them do not infringe the rights of third parties in an unlawful manner. The customer hereby indemnifies us against any claims in this connection, including the reasonable costs of legal defense.
§ 6 Performance / termination / delivery time / impediments to performance
(1) Performance dates are determined by the order. The non-observance of a deadline is harmless for us if and insofar as the delay is based on the violation of duties or obligations by the customer. We reserve the right to plead non-performance of the contract.
(2) In the event of significant breaches of duty by one party, the other party may terminate the contract at any time, in particular if we refuse further performance, the customer persistently fails to meet its obligations to cooperate in accordance with § 4 of this contract, or the customer fails to make an agreed and due installment payment. Termination of the contract shall require a prior reminder or warning and setting of a grace period, unless further performance of the contract is impossible or has been seriously and finally refused by the other party.
(3) The customer may also terminate the contract at any time without good cause. However, this shall not affect our claim to remuneration, less saved expenses and income from other use of the previous work result or the capacities provided for the customer or the malicious failure to generate such income.
(4) If a shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the carrier, freight forwarder or any other third party commissioned with the transport, in the case of digital services on call to the time of provision by us.
(5) Events of force majeure as well as other circumstances for which we are not responsible, and which make it impossible to execute accepted orders on schedule, shall release us from compliance with an agreed performance period for the duration of their occurrence. In particular, the following circumstances shall be regarded as force majeure in this sense: fire/explosion/flooding for which we are not responsible, war, mutiny, blockade, embargo, pandemic, labor dispute. Furthermore, this shall also apply in particular to procurement, manufacturing and other delivery disruptions on the part of our suppliers within the scope of a covering transaction for which we are not responsible, and further in the event of a lack of energy, machine failure, material damage or other impediments for which we are not responsible.
(7) The right of the customer to withdraw from the contract and/or to claim damages for non-performance in accordance with section 12 shall remain unaffected.
Our statutory rights shall also remain unaffected, in particular those in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance).
§ 7 Transport
(1) The customer shall bear the transport risk and costs of all items to be shipped as part of the performance of the service, unless otherwise agreed.
(2) Without specific instruction, the method of shipment and packaging is at our reasonable discretion.
(3) We are entitled, but not obliged, to take out transport insurance at the customer’s expense. Any transport damage must be reported to us immediately. Any claims against the transport company shall be assigned to the customer upon request.
(4) Items belonging to the customer which are required for the performance of the service must be delivered free to the customer’s premises or to the location specified by us on the agreed date. The return delivery of these items shall be carriage forward from the place of use and at the risk of the customer.
§ 8 Changes in the scope of services
(1) If the customer wishes to make changes to contractually agreed services after conclusion of the contract, the further procedure shall be governed by the following provisions.
(2) We will check, at our expense, what effects the requested change will have, in particular with regard to remuneration and agreed deadlines. If we recognize that agreed services cannot be performed or can only be performed with a delay as a result of the review, we shall inform the customer of this and point out to the customer that the change request can only be reviewed if the affected services are initially postponed for an indefinite period. If the customer declares its consent to this postponement, we shall carry out the examination of the change request.
(3) After reviewing the change request, we will explain to the customer the effects of the change request on the agreements made. The explanation shall either contain a proposal for the implementation of the change request including the costs incurred or inform the customer why the change request cannot be implemented.
(4) The contracting parties shall immediately agree on the content of a proposal for the implementation of the change request and shall add the result of a successful agreement to the text of the agreement to which the change relates as a supplementary agreement in writing or in text form. Otherwise, the agreement reached shall remain in force.
(5) The dates affected by the change procedure shall be postponed taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period (if necessary).
(6) The customer shall bear any additional expenses incurred as a result of the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. The expenditure shall be calculated according to our usual remuneration, unless an hourly rate has been agreed.
§ 9 Prices and payment
(1) The prices apply to the scope of services and deliveries specified in the contract. The prices are quoted in EURO ex our registered office, plus packaging if applicable, statutory value added tax, customs duties for export deliveries as well as fees and other public charges, provided that we assume these for you. In the case of engagement of artists through us, the customer shall also bear the additionally accruing artists’ social security contribution, even if this should not be shown separately in the individual case.
(2) The total amount is – unless otherwise expressly agreed – payable without deductions:
– 30 % of the order amount upon conclusion of the contract
– 30 % of the order amount at the beginning of the project implementation
– 30 % 6 weeks before event
– 10 % of the order amount after completion of the project
Compensation for the actual additional or reduced costs incurred is made with the Final account.
(3) Travel costs, overnight stays and expenses are charged according to expenditure. Flights within Europe are in economy class, intercontinental flights in business class. Rail travel is in first class. Trips by car are charged at 0.50 €/km, by van at 0.70 €/km and by truck from 7.5 t at 1.40 €/km.
(4) Invoice amounts are to be paid within the agreed payment period. Applicable for the date of payment is the date of receipt by us.
(5) In the event of default in payment, you shall pay default interest in the amount of 9 (nine) percentage points above the respective base interest rate p.a.. Furthermore, we may charge a lump sum in the amount of 40 euros. We reserve the right to claim higher interest and/or further damages. The lump sum according to sentence 2 shall be credited against any damages owed, insofar as the damage is due to costs of legal prosecution. With respect to merchants, our claim to the commercial due date interest (§ 353 German Commercial Code, HGB) shall remain unaffected.
(6) We shall be entitled to perform or provide outstanding services only against advance payment or provision of security if, after conclusion of the contract, a significant deterioration in the financial circumstances of the customer occurs or becomes apparent which is likely to jeopardize the fulfillment of the customer’s obligations towards us. If, after setting a reasonable deadline, neither payment is made concurrently nor security is provided, we may withdraw from the contract after unsuccessful expiry of the deadline and demand advance payment for future services.
§ 10 Acceptance
(1) The customer is obligated to (partial) acceptance with regard to drafts, concepts and planning services after receipt of the same. If the service consists of the execution of events, acceptance shall take place after the dress rehearsal or a trial run.
(2) In all other respects, the provisions of § 640 of the German Civil Code (BGB) shall apply.
§ 11 Warranty
(1) In the event of defects in our performance, we shall first provide a warranty by means of subsequent performance. For this purpose, we shall, at our discretion, provide the customer with a new, defect-free service or remedy the defect. Elimination of the defect shall also be deemed to have taken place if we show the customer reasonable possibilities to avoid the effects of the defect.
(2) We shall not be liable for defects insofar as these are attributable to the customer, unless the customer proves that the defect is not due to this.
(3) In the event of defects of title, we shall first provide warranty by means of subsequent performance. For this purpose, we shall, at our discretion, provide the customer with a legally flawless opportunity to use the delivered services or replaced or modified services of equal value.
(4) If third parties assert claims that prevent the customer from exercising the rights of use granted to it under the contract, the customer shall inform us immediately and comprehensively in writing or text form. He hereby authorizes us to take legal action against third parties in and out of court on our own. If the customer is sued, they shall coordinate with us and shall take legal action, in particular acknowledgements and settlements, only with our consent.
(5) The customer may only derive rights from other breaches of duty by us if it has notified us of these at least in text form and has granted us a period of grace for remedial action. This shall not apply if a remedy cannot be considered due to the nature of the breach of duty.
(6) The statutory provisions shall apply to your rights in the event of material defects and defects of title of the performance, unless otherwise stipulated in the following. In all cases, the special statutory provisions remain unaffected in the case of final delivery of the goods to a consumer.
(7) The basis of our liability for defects is above all our agreement on the quality of the performance. Insofar as the quality has not been agreed, it shall be assessed according to the statutory regulation whether a defect exists or not.
(8) Insofar as a commercial transaction exists on both sides, your claims for defects presuppose that you have fulfilled your statutory obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). If a defect becomes apparent during the inspection of the performance or later, we must be notified thereof in writing without undue delay, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, you shall notify us in writing without delay of any obvious defects, whereby timely dispatch of the notice shall also suffice to meet the deadline. If you fail to properly inspect the goods and/or give notice of defects, we shall not be liable for the defect not reported.
(9) If a service is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by remanufacturing the work.
(10) We are entitled to make the subsequent performance owed dependent on you having paid the purchase price due. However, you shall be entitled to retain a part of the price that is reasonable in relation to the defect.
(11) You shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, you shall return the defective item to us in accordance with the statutory provisions.
(12) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect is actually present. However, if your request to remedy the defect turns out to be unjustified due to fault, we may demand reimbursement from you for the costs incurred as a result.
(13) Your claims for damages or reimbursement of futile expenses exist only in accordance with § 12 and are otherwise excluded.
§ 12 Liability
We shall be liable – irrespective of the legal grounds – for damages or for compensation for futile expenses. expenses after application of the following provisions in paragraphs 1 to 6.
(1) Insofar as nothing to the contrary arises from these T&Cs, including the provisions of this paragraph, we shall be liable in the event of a breach of contractual and super-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages in the event of intent or gross negligence. In the event of simple negligence, we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first instance and on the compliance with which you may regularly rely on and trust); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the performance and in the event of liability under the Product Liability Act.
(4) Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our legal representatives and vicarious agents.
(5) For all services that contain digital components (app, stream, online interaction, etc.), we assume liability only for the correct output signal or the function of the application.
Correct receipt is the responsibility of the customer.
(6) The risk for the proper execution of the event, as well as the safety of the representatives and our equipment is borne by the customer. We assume no liability for damage of any kind caused by visitors. Shrinkage, glass breakage and possible costs caused by damage to the premises, the rooms or underground lines by the installation of exhibition stands, stages, tents, etc., shall be borne by the customer insofar as we are not responsible for them.
§ 13 Limitation
(1) The limitation period for claims arising from material defects and/or defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The statutory limitation period shall apply to claims under the Product Liability Act, in the event of intent or fraudulent intent, gross negligence, injury to life, limb or health.
(3) Otherwise, the statutory limitation periods shall apply exclusively to the customer’s claims for damages pursuant to § 12.
14 Rights of use to services / references
(1) We grant the customer a simple right of use to our final services, limited spatially to the territory of the Federal Republic of Germany and temporally to one year. In particular, our services may not be processed and passed on to third parties without our consent.
(2) The granting of the rights of use is subject to the full payment of the agreed remuneration. Until then, we shall revocably tolerate use by the customer. If the customer defaults on payment, our toleration of use shall end without any further declaration by us being required.
(3) Our designs and final results may not be changed or imitated in whole or in part without our express consent. We are not obliged to hand over raw material to data or print templates to the customer. Even if we hand over raw material, the rights of use to it remain with us. The transfer of the raw material to third parties, as well as any modification or further processing of the raw material requires our separate express written consent.
(4) Our addresses and contact persons (in particular contact persons, email addresses, addresses, telephone numbers) provided to the customer or which come to the customer’s knowledge within the scope of the cooperation may only be used by the customer with our express consent, during the time of the cooperation and only to the extent necessary for this. They may not be made accessible to third parties or brought to their attention in any other way.
(5) We have the right to be named as the author on reproductions and on the Internet.
(6) We may name the customer as a reference customer on our website or in other media and issue a press release about the order with the customer. We will coordinate a press release with the client prior to publication. We are entitled to use our work results for self-promotion.
§ 15 Final provisions
(1) We are entitled to use third parties as subcontractors in the performance of our services.
(2) The place of performance is our registered office in Ludwigsburg.
(3) If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for any disputes arising from the business relationship between us and the customer shall be our registered office in Ludwigsburg. We are also entitled to bring an action at the customer’s registered office as well as at any other admissible place of jurisdiction.
(4) The relations between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
Valid as of May 2021