General Terms & Conditions

Courtesy translation. The legally binding version is the German original.

§ 1 Scope

(1) All deliveries, services and offers by Benny Hermann are made exclusively on the basis of these General Terms and Conditions. They form part of all contracts that Benny Hermann concludes with his contractual partners (hereinafter also referred to as the “Client”) regarding the deliveries or services offered by him. They also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.

(2) Terms and conditions of the Client or of third parties do not apply, even if Benny Hermann does not separately object to their validity in an individual case. Even if Benny Hermann refers to a letter that contains or refers to terms and conditions of the Client or a third party, this does not constitute agreement to the validity of those terms and conditions.

§ 2 Services provided by Benny Hermann / Cooperation of the Client

(1) Benny Hermann provides individual and standardised coaching services for music producers and recording studio operators, with a focus on audio mixing, or carries out music-production-technical activities himself. Unless expressly agreed otherwise in writing, Benny Hermann does not owe the Client the delivery of a work / a specific result.

(2) The Client must always render the acts of cooperation incumbent upon him fully and in due time upon first request. If the Client fails to perform an act of cooperation and thereby prevents Benny Hermann from rendering his services, Benny Hermann’s claim to remuneration remains unaffected.

(3) With regard to the services to be provided by Benny Hermann to the Client, Benny Hermann has a right to determine performance in accordance with § 315 of the German Civil Code (BGB) concerning the manner of execution.

§ 3 Conclusion of contracts

(1) The conclusion of a contract between Benny Hermann and the Client may take place by telephone or in written and text form. Contracts concluded by telephone are recorded by Benny Hermann after the Client has given his consent.

(2) In the case of a contract concluded by telephone, the Client receives, at Benny Hermann’s discretion, an order confirmation, which is however not constitutive for the conclusion of the contract.

§ 4 Payments, prices, conditions

(1) The prices stated and communicated by Benny Hermann are binding. The communicated prices are net prices plus statutory value added tax, insofar as it is levied.

(2) Payment for the services of Benny Hermann is due immediately upon issuance of the invoice. The remuneration for Benny Hermann’s services is generally due upon conclusion of the contract, unless Benny Hermann’s offer states otherwise.

(3) If a SEPA direct debit is agreed for contracts concluded by telephone or online with Benny Hermann, the Client must, in addition to the consent given verbally, issue a written SEPA direct debit mandate to Benny Hermann after conclusion of the contract. The template contained in the annex to these Terms and Conditions is to be used for this purpose.

(4) Benny Hermann issues the Client a proper invoice showing value added tax (if applicable), where necessary through vicarious agents.

(5) In the event that agreed direct debits cannot be collected from the Client’s account and a chargeback occurs, the Client is obliged to transfer the amount owed to Benny Hermann within three working days of the chargeback and to bear the costs caused by the chargeback.

(6) Set-off against counterclaims is mutually permissible only if the respective other contractual partner has acknowledged the set-off or it has been established with legal force. The same applies to the exercise of a right of retention by a contracting party.

§ 5 Termination, term

(1) The term of the contract is determined individually by the parties in the main contract.

(2) Any ordinary termination rights of the Client are excluded.

(3) To be effective, terminations must be in written form.

(4) The right to extraordinary termination remains unaffected at all times.

§ 6 Default / extraordinary termination

(1) Deadlines for the provision of services by Benny Hermann do not begin before the invoice amount has been received by Benny Hermann and, as agreed, the data necessary for the services is fully available to Benny Hermann, or the necessary acts of cooperation have been completely rendered.

(2) If the Client is in default with due payments, Benny Hermann reserves the right not to perform further services until the outstanding amount has been settled.

(3) If, in the case of instalment payment, the Client is in default with at least two due payments towards Benny Hermann, Benny Hermann is entitled to terminate the contract extraordinarily and to discontinue the services. Benny Hermann will claim the entire remuneration that becomes due up to the next ordinary termination date as damages.

§ 7 Performance

(1) Benny Hermann will carry out the agreed services in accordance with the offer and with the necessary care. Benny Hermann is entitled to make unrestricted use of the assistance of third parties for this purpose.

(2) The Client is aware that, unless otherwise and explicitly agreed in writing, Benny Hermann owes the provision of services and not the creation of a work. Upon request by the Client, Benny Hermann will provide information about the services rendered under the contract within a reasonable period.

(3) If Benny Hermann is prevented from providing the agreed services and the reasons for the impediment originate from the Client’s sphere, Benny Hermann’s claim to remuneration remains unaffected.

§ 8 Conduct and consideration

(1) Benny Hermann and the Client give ratings (stars, comments) about each other within social media (e.g. Google My Business) by mutual agreement. Upon first request, the parties permanently remove ratings and comments given about each other. This also applies after the end of the contract between Benny Hermann and the Client.

(2) If the Client participates in communities and groups of Benny Hermann (e.g. on Facebook), he is obliged to safeguard the interests of Benny Hermann there. Benny Hermann is entitled to exclude the Client temporarily or permanently from participation in communities and groups should the Client (for example through statements damaging to business) violate or impair the interests of Benny Hermann.

§ 9 Third-party protective rights

The Client warrants that working materials provided to Benny Hermann (e.g. photos) are free from third-party rights or that the approvals required for the purposes of the main contract are in place. In this respect, the Client indemnifies Benny Hermann against any claims by third parties.

§ 10 Rights of use

(1) The Client receives a simple (non-exclusive) right of use with respect to the work and performance results created and provided by Benny Hermann. Performance and work results within the meaning of the underlying contract are all work or service results or parts thereof created by Benny Hermann for the Client (e.g. all information, documents, evaluations, videos, photos, know-how acquired in the course of fulfilling the order, advertisements, drawings, materials, specifications, program drafts, (electronic) files, data collections, individual software including associated documentation, manuals and IT systems in the form of source code or in any other form). As long as work results are not completed, the corresponding partial results are deemed to be work results within the meaning of this contract.

(2) Paragraph 1 applies exclusively subject to the condition that the Client has paid in full the remuneration owed to Benny Hermann under the main contract.

(3) If instalment payment is agreed, the right of use named in paragraph 1 passes to the Client — subject to any individual agreement to the contrary — only upon full payment of the last instalment to Benny Hermann.

(4) Passing on the work and performance results by the Client to third parties (including affiliated companies) is excluded. The same applies to any editing/adaptation pursuant to § 23 of the German Copyright Act (UrhG).

§ 11 Liability

(1) Benny Hermann is liable for damages — irrespective of the legal grounds — only for intent and gross negligence. In the case of simple negligence, Benny Hermann is liable only

a) for damages arising from injury to life, body or health,

b) for damages arising from the breach of an essential contractual obligation (an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the contractual partner regularly relies and may rely); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.

(2) Within the limits of paragraph 1, Benny Hermann is not liable for the loss of data and programs. Liability for data loss is limited in amount to the typical recovery effort that would have occurred with regular and risk-appropriate creation of backup copies. Liability under the German Product Liability Act (Produkthaftungsgesetz) as well as liability for the assumption of a guarantee remain unaffected at all times.

§ 12 Data protection and data security

(1) The Client assures that, when transferring personal data to Benny Hermann, he complies with the provisions of the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG).

(2) Insofar as Benny Hermann is to process data on behalf of the Client (commissioned processing), a separately remunerated agreement will be concluded between the parties on this.

§ 13 Final provisions

(1) Deviations from these Terms and Conditions are only effective if agreed in writing. Individual agreements made with the Client in a specific case (including side agreements, supplements and amendments) take precedence over these Terms and Conditions in any case. Benny Hermann’s confirmation is decisive for the content of such agreements.

(2) The law of the Federal Republic of Germany applies exclusively. The place of performance is the registered office of Benny Hermann. The exclusive place of jurisdiction for commercial contractual disputes between the Client and Benny Hermann is Sigmaringendorf.