Terms of delivery and payment and terms and conditions of Elements Entertainment GmbH
1. Basis of contract
These terms and conditions shall be applicable to any contract, delivery and
service of Elements Entertainment GmbH with companies according to § 14 of the
Civil Code provided that they will not be varied or excluded with the express
consent of Elements Entertainment GmbH.
Terms and conditions of business of the customer shall also not become
obligatory if Elements Entertainment GmbH does not once again oppose them
2. Offers, formation of contracts
The offers of Elements Entertainment GmbH shall always be subject to
confirmation; any conclusion of contracts, other agreements and oral collateral
agreements or warranties shall become binding only after their written
confirmation. Any contract with Elements Entertainment GmbH shall come into
existence once it has been confirmed by the customer’s order in writing or
respectively, at the latest, upon commencement of the service/delivery.
3. Time limits, default, passing of risk
a) Any dates or periods of delivery shall only be binding if they have been
expressively guaranteed to be binding by Elements Entertainment GmbH. Partial
deliveries shall only be admissible to a reasonable extent. Terms of delivery shall
renew reasonably in case of events of force majeure and any unexpected
hindrance occurring after the conclusion of the contract for which Elements
Entertainment GmbH is not liable (e.g. riot, strike, operational breakdown,
changes in the legal provisions, official measures or regulations). The same shall
apply if these circumstances arise at its suppliers or sub-suppliers sites. Terms
of delivery shall be renewed by the period that the customer is in default with
regards to its contractual obligations within the current business relations also
from other contracts. Elements Entertainment GmbH shall not be liable for any
default of and failure in delivery as long as it is not its fault but that of one of its
vicarious agents or pre-suppliers.
b) Route and means of dispatch shall be, unless otherwise provided for, left to
the option of Elements Entertainment GmbH. The goods will be insured on the
request and at the expense of the customer.
c) The risk will be passed to the customer upon delivery of the goods to the
forwarder or carrier. If delivery is delayed on the request of or through the fault of
the customer, the goods will be stored at the risk and expense of the customer. In
such a case, notice of readiness for shipment shall be equivalent to dispatch.
The risk shall be passed to the customer upon receipt of notice.
4. Prices and payment
a) Our prices are stated in Euro and are plus value-added tax at the applicable
legal amount and plus any costs for dispatch and packaging, unless otherwise
b) Our deliveries shall be performed against prepayment, unless otherwise
provided for. Invoices shall become due immediately. The customer will be in
default without any further statement of Elements Entertainment GmbH 14 days
after maturity if no payment is effected.
c) The claims of Elements Entertainment GmbH resulting from any business
transaction shall also become immediately due in case of possibly arranged
credit periods if the payment terms are not kept by negligence, or if facts are
ascertained making the customer’s creditworthiness doubtful.
d) In case of any delay in payment, default interest at the legally applicable
amount shall be paid, notwithstanding the assertion of any further damages due
to any delay in performance, amounting currently to 8% above the respective
basic interest rate according to § 288 of the Civil Code. Any offsetting or assertion
of a right of retention on the part of the customer shall be excluded, unless
Elements Entertainment GmbH ascertains the claim to offset or retain without
controversy or with final and binding effect. Elements Entertainment GmbH shall
be entitled to avoid the exercise of the right of retention by provision of security,
also by surety.
5. Reservation of title
The delivered goods shall – unless otherwise agreed upon – remain property of
Elements Entertainment GmbH until complete payment of all claims of Elements
Entertainment GmbH to which it is or will be entitled resulting from the business
relations with the customer. In case of any resale performed by the customer –
irrespective of the condition – the customer of Elements Entertainment GmbH
assigns as a precaution, upon conclusion of the contract until redemption of all
claims of Elements Entertainment GmbH against the customer, any claim against
its customers that arose or will still arise from the resale and it undertakes to
inform Elements Entertainment GmbH, upon request, of the name of the third party
debtor and the amount of the claim against this one. As long as the customer
meets its financial obligations and if there is no detrimental change in its
financial conditions, Elements Entertainment GmbH will not recover the assigned
claims. If the reservation of title is not effective in the aforementioned form
according to the applicable law of the country of destination, then the customer
shall be obliged to participate in constituting a right of protection from risks for
Elements Entertainment GmbH according to the provisions applicable to its
country. The aforementioned provisions shall be applicable in case of using and
burning pyrotechnic igniters of Elements Entertainment GmbH within the
framework of fireworks displayed by the customer.
a) Any warranty claims of the customer shall become statute-barred after 12
months from passing the risks. The customer shall be obliged to check the goods
for the contractually agreed condition immediately after receipt. Elements
Entertainment GmbH must be notified of any possible defects in writing within one
week. If the customer fails to notify, the goods shall be considered to be
accepted, unless the defect could not be detected during the inspection. In other
respects, §§ 377 ff of the Commercial Code shall be applicable.
b) The claims shall be, at the option of Elements Entertainment GmbH, restricted
to the elimination of the defect, or to the delivery of an item free of defects
c) In case of failure or refusal of subsequent performance the customer shall be
entitled, at its option, to lower the price, or to withdraw from the contract.
d) Any claim based on defects shall be excluded for defects resulting from faulty
or non-intended treatment after passing the risks, e.g. by improper
storage/handling. Any claim based on defects shall be excluded for any
modification or maintenance or service measures improperly performed by the
d) Any further claim of the customer, in particular because of consequential
damages, shall be basically excluded. This shall not apply if done intentionally,
in case of gross negligence or any violation of essential contractual obligations
of Elements Entertainment GmbH, as well as in case of injury to life, body or
health. The customer’s right to withdraw from the contract shall remain
7. Limitation on liability
a) Elements Entertainment GmbH shall be fully liable for any damages caused by
grossly negligent or intentional conduct of Elements Entertainment GmbH, for
cases of injury to life, body or health and for damages according to the Product
Liability Act. The same shall apply to breaches of duty made by a vicarious agent
of Elements Entertainment GmbH.
b) Elements Entertainment GmbH shall only be liable for damages due to slight
negligence if those ones have been caused by violating cardinal obligations.
Cardinal obligations are such obligations the fulfilment of which really enables
the proper execution of the contract and the observation of which the customer
may regularly trust on. In such a case, liability is limited to the damage that is
typically predictable upon conclusion of the contract.
c) In case of slightly negligent damages caused by default Elements
Entertainment GmbH shall also only be liable for a typical, predictable damage,
however, to a maximum of 5% of the contractually agreed price. The same shall
apply to the limitation of the claim of the customer for compensation of useless
expenditures according to § 284 of the Civil Code.
d) The aforementioned limitations on liability (7a-c) shall be applicable to legal
representatives and vicarious agents of Elements Entertainment GmbH
8. Fireworks and special effects
a) Elements Entertainment GmbH shall obtain, on behalf of the customer, any
necessary permit for erection and displaying from the competent authorities. Any
costs and fees accruing in this respect, as well as the costs for meeting the
official obligations and the necessary safety measures shall be borne by the
customer. Any charge for copyrights and service rights (e.g. GEMA fees) accruing
in connection with any media use shall be borne by the customer.
b) The customer shall be obliged to submit any required documents, as well as
the necessary consent of the affected residents 18 days before the planned
event at the latest.
c) Elements Entertainment GmbH shall reserve the right to perform any necessary
modification due to technical or legally required reasons.
d) If any official permit for the display of fireworks should not be granted due to
any reason beyond the control of Elements Entertainment GmbH, then its
obligation to fulfil the contract will not apply any longer.
e) If the customer is responsible for the refusal of the permit (e.g. documentations
or approvals were not submitted, only incomplete or too late), then Elements
Entertainment GmbH shall be entitled to demand 50% of the order total as lumpsum
compensation. Any assertion of higher damages shall be reserved.
f) If any fireworks display is not performed due to reasons for which the customer
is responsible, then it will be obliged to pay Elements Entertainment GmbH the
agreed price minus its saved expenditures. The same shall apply if the display of
the fireworks is not possible due to unfavourable weather conditions. The
decision whether the weather conditions (e.g. rain, storm, etc.) or other any
circumstances (e.g. people being inside the safety zones) allow displaying the
fireworks shall be left to the discretion of the pyrotechnician. If fireworks are
displayed in the rain, a trouble-free process will not be guaranteed.
g) The customer shall be entitled to grant the responsible pyrotechnician/our
team access to the site for displaying the fireworks at the date fixed. The
decision who is allowed to stay within the safety zone shall be taken by Elements
Entertainment GmbH or its vicarious agents.
h) There will be strict smoking ban on the site for displaying the fireworks, the
site(s) for any preparatory work to be performed, in indoor facilities on the stage
floor from the very beginning of installing the equipment. It shall be the
customer’s task to observe or having observed this ban.
i) The site for displaying the fireworks and the included items (e.g. decorative
elements) may only be changed or included with the consent of the
pyrotechnician of Elements Entertainment GmbH. It shall be the customer’s task
to clean the site where the fireworks were displayed and the respective
9. Data protection
Customer-related data will be collected and stored by Elements Entertainment
GmbH within the framework of executing the contract in considering the legal
10. Final provisions
a) Bielefeld shall be the place of performance and exclusive place of jurisdiction
and payments (including any actions on cheques and bills), as well as any
disputes arising between the parties.
b) The contract shall remain binding in its entirety also if individual clauses
become legally invalid.
c) The law of the Federal Republic of Germany shall be applicable with the
exception of the UN Sales Convention as regards the contractual relation.