General Terms and Conditions for the use of and participation in the KulturPass for cultural providers – Provider Terms

Version 5, valid from 1 January 2024

The publisher of the app and provider of the web service for the KulturPass is the Federal Republic of Germany, represented by the German Federal Government in the person of the Federal Government Commissioner for Culture and the Media (BKM), Köthener Str. 2, 10963 Berlin.

The contractual partner of the cultural provider is the Federal Republic of Germany, represented by the German Federal Government in the person of the Federal Government Commissioner for Culture and the Media (hereinafter: “BKM”).

The BKM also becomes the contractual partner of the KulturPass Users (the “Users”) as far as the use of the app on the basis of the Terms of Use under  Profil --> App Informationen --> Nutzungsbedingungen is concerned. The BKM does not become a contractual partner of the Users in relation to the Users’ making use of the cultural offerings.

The BKM provides the structure and content of the app with the exception of the cultural offerings created by the cultural providers. The Stiftung Digitale Chancen [Digital Opportunities Foundation] supports the BKM in carrying out the operational processes related to the KulturPass app, such as editing the communication channels, onboarding the cultural providers and carrying out the settlement of accounts.

These Provider Terms govern the use of the KulturPass including the KulturPass online platform at www.kulturpass.de for cultural providers (“Online Platform for Cultural Providers”) including the use of future versions (patches, updates and upgrades) that are currently or in the future made available by the BKM in connection with the KulturPass. In the event these Provider Terms are amended from time to time, the original versions will continue to be retrievable on the website at: https://www.kulturpass.de/agbs/versionen

The separate Privacy Policy for Cultural Providers can be found here:  Privacy Policy for Providers

1.  General Provisions

1.1.

The BKM offers cultural providers, as defined in Section 3.2., the possibility of using the KulturPass applications. The KulturPass enables cultural providers to offer their services online to be reserved by 18- and 19-year-olds and, where eligible Users make use of these cultural services, to be reimbursed the budget by the BKM. For this purpose, the BKM provides a website and an app as well as an online platform for cultural providers (the aforementioned KulturPass applications referred to in the following as “KulturPass”).

The Stiftung Digitale Chancen supports the BKM in carrying out the operational processes related to the KulturPass, including onboarding the cultural providers and performing the account settlement vis-à-vis the cultural providers.

1.2.

These Provider Terms contain all terms and conditions applicable between the BKM and the cultural provider for the services offered by the BKM under these Terms. Any provisions, arrangements or agreements which are inconsistent with these Provider Terms shall not apply unless confirmed in writing by the BKM. By agreeing to these Provider Terms within the acceptance process, the cultural provider is making an offer to enter into the contractual agreement on the basis of these Provider Terms. The BKM accepts this offer by accepting the cultural provider in accordance with Section 3. or Section 9.2., as applicable.

1.3.

The BKM reserves the right to carry out the implementation of the KulturPass on its own and in its own name and/or to dismiss the institutions previously engaged in supporting it and/or to entrust other institutions with the implementation of the service, in whole or in part. In such a case, the cultural providers will be informed by the BKM without undue delay.

 

2. Responsibilities of the BKM as operator of the KulturPass

2.1.

The KulturPass is a platform for cultural providers and Users for the creation and reservation of cultural offerings as well as for the settlement of accounts between the BKM and the cultural providers once cultural services have been rendered to the Users. The KulturPass has functions for managing and monitoring all current reservations and account settlements.

2.2.

The BKM is responsible for:

  • making the KulturPass available for use after acceptance of the cultural provider as per Sections 3. or 9.2.;
  • enabling reservations to be made on the KulturPass for cultural offerings initiated by cultural providers on the online platform for cultural providers as per Section 4.;
  • managing the settlement of accounts between the BKM and the cultural providers for the cultural services rendered to Users.
2.3

In the second phase of the KulturPass, the means are in principle only available until 31 December 2024. Offerings that are reserved in 2024 and that may be reimbursed in principle by the Stiftung Digitale Chancen to the cultural provider in 2024 can also be taken up in 2025. To the extent that a rollover for 2025 can be established for the second phase at the end of the year, reimbursement payments can still be made in 2025, provided that the reservation made in 2024 was taken up in 2025. In the event that the KulturPass cannot continue to operate due to lack of funding, the BKM is entitled to discontinue the KulturPass and the related services vis-à-vis the cultural providers by giving one week’s notice, effective as of the end of a given month.

2.4

The KulturPass, in particular the online platform for cultural providers, is made available as issued by the BKM. The agreement between the BKM and the cultural providers does not imply any guarantee on the part of the BKM as to a specific level of quality. Cultural providers do not have any right to any particular function or other condition or quality level of the KulturPass. The BKM may change the KulturPass at any time and remove functions in whole or in part or add additional functions to the application. The BKM will update the KulturPass application at appropriate intervals.

The BKM makes no guarantees as to the availability or performance of the KulturPass. The KulturPass may be unavailable, due to maintenance work or malfunctions, temporarily or possibly also for longer periods. In these cases, the availability of the application and the services will be limited either completely or in part. As far as possible, the BKM will give due consideration to the legitimate interests of providers in all changes, disruptions or maintenance work, e.g. by giving advance notice in each case.

In all other respects, the BKM will apply all appropriate care in operating the KulturPass as well as in providing the related services. The BKM makes no assurances with regard to the KulturPass and in particular does not guarantee that:  

  • the use of the KulturPass will be possible at all times, with no interruptions or on a completely error-free basis;
  • the KulturPass will be free of impairments, attacks, viruses, hacking or other security-related detrimental impacts caused by third parties. 

The cultural provider is responsible for backing up data on their end device and, if applicable, any connected systems, including backing up the data of all other applications stored on such end device.

2.5.

The KulturPass is free to use for cultural providers. This does not affect, however, any subscription costs charged by any mobile operator or the end device, for the connection and access to the internet and any additional costs charged by internet provider or mobile operator for uploading data.

2.6

The BKM provides a test environment available to cultural providers. This environment is not productive and only offers the opportunity for cultural providers to try out functions of the KulturPass. Some functions of the KulturPass might be deactivated or unavailable in the test environment. Notwithstanding the notice period set out in Section 14.3., the test environment may be partially or completely discontinued by the BKM at any time upon reasonable notice.

 

3. Acceptance to the KulturPass

3.1.

For a cultural provider to be able to use the KulturPass it must first submit an application and be accepted by the BKM or a third party entrusted by the BKM. The KulturPass is only open to cultural providers as defined in Section 3.2., Intermediary Providers as defined in Section 9.2., and cultural providers as defined in Section 3.2. who have been referred by Intermediary Providers.

3.2

Cultural providers are business persons, companies under private law, legal persons under private law or public cultural institutions that provide cultural offerings in the areas of cultural enjoyment listed in Section 3.5. and that, dependent on the type of cultural offering, do not violate Section 5.1. of these Provider Terms. A further prerequisite is that the area of cultural enjoyment listed in Section 3.5. regularly accounts for more than 50% of the turnover of the cultural provider’s business operations. In the case of providers that hold events, the requirement for more than 50% of the turnover relates to the respective event. The cultural provider must have their registered office in Germany or have a local office, provided the cultural provider pays taxes in Germany.

3.3.

If the requirements for acceptance set out in this Section 3. are met, the cultural provider will be accepted to the KulturPass.

3.4.

The cultural provider must apply for acceptance on the online platform for cultural providers. The application may only be submitted by a person duly authorised by the cultural provider or a statutory representative who is also entitled to send the relevant company data. The cultural provider must provide the following information as part of its application: Area of cultural enjoyment as per Section 3.5., to which the cultural provider’s cultural services belong; the preferred name to be displayed to Users; email address of the person making the registration; password; German or SEPA bank account details; tax ID. Moreover, information must be supplied that allow a classification to be made for the purposes of compliance with state aid law.

In the course of the registration process, a verification will be performed using Elster data. This requires an Elster company certificate (not a personal certificate) that must be uploaded via the Elster website or via the Elster app (ElsterSecure). An Elster password must also be entered. As part of the verification process, the following data will be sent to the BKM: first name and surname of the person submitting the application, name and address of the company, type of company register, register court and register number, pseudonym.

3.5.

Acceptance is only available – in addition to the requirements in Sections 3.1.– 3.4.– to cultural providers that offer cultural services in the following areas, comparable to the list in Article 53 No. 2 and Article 54 of the GBER:

  • performing arts:
    • Theatre (musical theatre, drama), musicals, dance (including folk dance), puppet, character and object theatre, vaudeville, circus, small stage performances (comedy, cabaret, acrobatics);
  • concerts/live music events:
    • a live music event is an event in which live music of all genres (serious/classical and light/popular music) is performed to the public in a concert and is the main focus. That means that the concert itself is advertised and the audience attends primarily to take in the musical performance. The term “live music event” covers the intended performance of musicians and bands as well as “DJ performers”.
  • film and media screenings, including cinemas and open air screenings;
  • exhibitions and museums conveying artistic, historical or other cultural content, including
    • exhibitions of visual arts as well as photography and light art;
    • natural and cultural history exhibitions;
    • remembrance culture exhibitions;
  • guided tours conveying artistic, historical or other cultural content;
  • readings and other literary events;
  • festivals of all artistic disciplines and interdisciplinary cultural events in the above-mentioned categories;
  • sale of the following physical products:
    • books, including in audio form;
    • phonograms;
    • sheet music;
    • musical instruments
    • works of art;
  • parks and gardens.

 

Acceptance is generally independent of the venue, to the extent the cultural services are provided locally. Typical venues for the above events are theatres, concert halls, opera houses, cinemas, museums, libraries, art and cultural centres or cultural sites, other live performance facilities, as well as film heritage preservation and protection facilities and similar infrastructures and institutions in the field of arts and culture, as well as places of tangible cultural heritage including archaeological sites, monuments, historical sites, parks and buildings.  

The following organisers cannot be cultural providers:

  • organisers of cultural events held at funfairs, folk festivals, medieval festivals;
  • organisers of cultural events held at city or community festivals;
  • organisers of the supporting cultural programme for weddings, family celebrations;
  • organisers of the supporting cultural programme for a gastronomy offering, where the gastronomic aspect is the focus (e.g. in beer gardens, discotheques, nightclubs);
    • the gastronomic aspect is generally considered to be the focus if it accounts for over 50% of the revenue earned; or
    • the gastronomic aspect is central to the event from the objective perspective of the customer, even if the revenue earned cannot be allocated to the gastronomic and cultural parts.
    • the BKM or a third party entrusted by the BKM may, in individual cases, also accept organisers where the gastronomic share is greater than 50%, if the basic principle, that the cultural character of an event or series of events is at the forefront, is upheld. This is the case if the events are covered by the positive list above;
  • organisers of cultural performances held at events that are confessional, scientific and educational in nature;
  • operators of parks which are adventure parks, sports parks, theme parks, amusement parks or zoos.

 

Irrespective of their offering, the following providers are excluded from acceptance for cultural policy reasons:

  • online mail order companies;
  • supermarkets;
  • filling stations.

 

Irrespective of the specific offering, the following products/services are excluded from acceptance for cultural policy or practical implementation reasons:

  • school books;
  • digital sheet music
  • recording technology;
  • computer games
  • courses (e.g. music, painting, dance);
  • DVDs and Blu-rays;
  • streaming, unless it is live events that are streamed;
  • subscriptions and memberships.

 

3.6

During the acceptance process, the cultural provider must also complete the questionnaire on state aid law requirements truthfully and in full.

3.7

If a cultural provider is accepted, they will be notified of this acceptance by way of a confirmation email. Such acceptance establishes a contract for an indefinite period of time between the BKM and the respective cultural provider in accordance with these Provider Conditions.

3.8.

In the login area for cultural providers, cultural providers are able to grant users within the company their own user authorisation. Such users will set an own password.

3.9.

The cultural provider warrants that the information provided to the BKM, in particular in the context of its application for acceptance pursuant to Section 3.4., is true and complete. The cultural provider undertakes to inform the BKM without delay of any changes to the information provided. The same applies to all information provided by the cultural provider when setting up additional logins in accordance with Section 3.8..

3.10.

All logins are individualised and may only be used by the respective authorised cultural provider. The cultural provider must keep the login and password secret and protect them from unauthorised access by third parties. The cultural provider is also responsible for any additional logins being kept secret and will instruct its staff accordingly. In the event of suspected misuse by a third party, the cultural provider will duly inform the BKM without delay. As soon as the BKM becomes aware of the unauthorised use, the BKM will block the access of the unauthorised user. The BKM reserves the right to change the login and password of a cultural provider; in such a case, the BKM will inform the cultural provider without delay.

 

4. Creation, reservation, confirmation and cancellation of cultural offerings on the KulturPass, no conclusion of a contract on KulturPass

4.1.

Cultural providers have the opportunity to create, on the online platform for cultural providers at www.kulturpass.de, within the technical framework and the requirements as to content specified in these Provider Terms, according to individual criteria, cultural offerings which are offered for non-binding reservation by Users. The cultural offerings do not represent a binding offer within the meaning of Section 145 BGB [German Civil Code]. They also do not constitute an invitation to make an offer (“invitatio ad offerendum”). They merely enable the reservation of cultural offerings by Users. No contract is concluded between cultural providers and Users within the KulturPass.

Cultural providers can create their cultural offerings via electronic interfaces or manually on the platform.

4.2.

Cultural offerings must relate to cultural services from the areas listed in Section 3.5..

4.3.

Users have the possibility of reserving cultural offerings according to their individual preferences. The cultural offerings also do not constitute binding offers by cultural providers. Cultural providers are free to refuse reservations from Users, resulting in the cancellation of such reservations.

Even after confirmation of the reservation, the cultural offering can still be cancelled by the cultural provider and/or the User. The cultural provider can cancel the reservation in full or in part.

The cultural provider must cancel the reservation if the User contacts them personally for this purpose via the contact details given in the cultural offering.

4.4.

The cultural provider is free to decide whether to actually conclude the contract with the User after the reservation has been made. A contractual agreement between the User and the cultural provider only comes into being outside of the application, once the reserved cultural offering is availed of (which may also occur via Intermediary Providers). The detail of these contracts may be governed by the cultural provider’s terms and conditions.

All offerings are subject to these Provider Terms and the specific terms and conditions that may be included by the cultural providers at the time of the subsequent conclusion of the contract. In the event of any conflict between these Provider Terms and the terms and conditions of the cultural providers, these Provider Terms shall prevail (except where these Provider Terms expressly provide for a possibility for the providers to deviate from these Provider Terms in certain specific respects).

4.5.

Each reservation by a User that is confirmed by the cultural provider will cause a code to be issued to the User in the application. This code serves as validation of the reservation by the cultural provider.

There are various types of codes that are labelled differently in the application:

  • Pick-up code: Code for the reservation of a specific cultural service which is provided by the cultural provider locally..
  • Value code: Code for cases where the cultural offering does not initially pertain to a specific cultural service.
    • Redemption code: Value code from cultural providers that can be used locally, for a specific cultural service.
    • Provider code: Value code from Intermediary Providers that can be used locally or online for specific cultural services of a cultural provider.
4.6.

A reservation is automatically cancelled after 5 days have elapsed if the cultural provider does not confirm it or rejects it. It is then deemed to have been rejected.

4.7.

If the User has not redeemed the code within 10 days of the code being made available by the cultural provider and thus availed themselves of the reservation, the cultural provider must cancel such reservation (i.e. clear it in the system by means of a refund) without undue delay. If the User has not redeemed the code for an event that is reserved more than 10 days in advance, the cultural provider must effect the refund at the latest after the event. The cultural provider may also cancel the reservation sooner than the dates set out in the first and second sentences above. For Intermediary Providers, the special provision in Section 9.6. shall apply in lieu of this Section 4.7.

4.8.

Actions using the respective login of a cultural provider are always attributable to the cultural provider. Cultural providers are responsible for all actions they take or declarations they make on the KulturPass.

4.9.

The relevant time applicable for all actions taken on the platform shall be solely the respective system time on the KulturPass platform. This includes, in particular, reservations, the timing of cultural services rendered and account settlement dates. Cultural offerings can only be reserved within the term specified by the cultural provider in the cultural offering.

 

5. Further obligations of the cultural provider

5.1.

Cultural offerings may not be created if

  • the information is incomplete to an extent which makes it impossible to determine the object and the price of the offering;
  • the cultural offering does not relate to a cultural service from one of the areas in Section 3.5. or the element within the cultural service that characterises the contract is not provided in Germany;
  • the subsequent cultural service is not also provided locally (example: performances in the theatre, opera etc. that are also streamed are covered; however, exclusively streamed events are not covered);
  • the cultural offering or the subsequent delivery of the cultural service offered would violate legal provisions, orders from public authorities or good morals according to the laws applicable to the intended contract; in particular, no items may be offered, the offer or sale of which violates the rights of third parties; the same applies to pornographic items or items harmful to minors, weapons, drugs, propaganda materials of anti-constitutional organisations and parties, live animals;
  • the cultural provider charges a higher price to KulturPass holders than non-KulturPass holders;
  • a combination offer consisting of a cultural offering in conjunction with non-cultural offerings is made, for example combining access to a cultural event with integrated food and drink; the only permissible exception to this is a combination with a public transport offer, provided that this is included in a combination offer without the possibility of choice and without separate costs for the KulturPass holder – where it is offered as an option, it must be made clear that the public transport offer is not covered by the KulturPass;
  • a financial or other consideration is offered or paid to the User outside of the cultural offering in return for the reservation or availment of the cultural offering;
  • the cultural offering does not specify a contact option for Users who have reserved the cultural offering.

The BKM and its organisational partner are entitled to immediately remove from the KulturPass any cultural offerings that violate these Terms.

5.2.

The obligations set out in Section 5.1. shall apply accordingly if the cultural offering does not pertain to a specific cultural service but to a value code, including redemption codes and provider codes (see Section 4.5.). This is subject to the proviso that within the offer for a value code, which includes redemption codes and provider codes, the specific cultural service does not yet have to be specified in the cultural offering and that the cultural service subsequently availed of by the User must be a service as set out in Section 3.5..

5.3.

The cultural provider is itself responsible for the processing of personal data it undertakes itself and for compliance with all obligations under data protection law. In this respect, the cultural provider shall indemnify the BKM against any claims, including claims under public law, if the cultural provider acts culpably. In particular, the cultural provider must inform the persons acting on its behalf on the platform (in particular employees) about the relevant data processing to be carried out by the BKM and, if necessary, obtain the necessary consent of these acting persons before their personal data is entered into the platform in the context of setting up employee logins or in any other way.

5.4.

When the User avails themselves of a cultural offering, the cultural provider verifies whether the User is entitled to a corresponding code for the reserved offering (as a QR code and, in the case of provider codes, as an alphanumeric code). The verification takes place at the venue by scanning the QR code and checking whether the corresponding reservation has been made in the application. Furthermore, the cultural provider checks whether the User belongs to the eligible age group – e.g. in 2024, whether the User is 18 or 19 years old – when the User avails themselves of the cultural offering at the venue based on suitable proof.

5.5.

If an exchange takes place upon the exercise of warranty rights in the contractual relationship between the User and the cultural provider, the replacement product must also fall within the list of cultural offerings according to Section 3.5..

5.6.

The BKM or third parties entrusted by the BKM are entitled to conduct, where necessary, computer-based or only random manual checks to determine whether the cultural providers are in compliance with the requirements for cultural providers, cultural services and cultural offerings set out in Sections 3.2., 3.5., 4.2. and 5.1..

5.7.

The cultural provider undertakes

  • to refrain from using software, devices or technologies that could interfere with the proper functioning of the KulturPass including the online platform for cultural providers, and from taking actions that would impose a disproportionate burden on the BKM’s infrastructure; this includes technical or other actions that have the objective of illegitimately having a higher amount reimbursed than the amount to which the cultural provider is entitled;
  • not to set up any systems that could wholly or partially impair the integrity of the KulturPass, including the online platform for cultural providers, or that could violate these Provider Terms; in particular, when using the APIs, the respectively specified rate limits (frequency of API calls in a given time period) must be complied with;
  • to cooperate in the investigation of attacks by third parties on the KulturPass, where such cooperation by the cultural provider is required;
5.8.

The cultural provider undertakes to compensate the BKM for any loss or damage arising from its failure to comply with the obligations set out in Section 5.7. and, in addition, to indemnify the BKM against all claims by third parties, including for lawyers’ fees and court costs, which such third parties may assert against the BKM based on the cultural provider’s failure to comply with such obligations.

5.9.

The cultural provider is obliged to react to User reservations within five days. In the event that there are five automatic cancellations of consecutive reservations by the same or different Users, according to the procedure described in Section 4.6., the cultural provider will be automatically blocked. The cultural provider may request for such blocking to be lifted again.

5.10.

If the User avails themselves of a cultural service for which the price is lower than the amount indicated in the reservation and uses his/her code for this, the cultural provider shall, with the aid of the provided software, ensure the difference is released again in the User’s account as freely available, unreserved budget. The technical process for this will be initiated by a partial refund from the cultural provider.

5.11.

The cultural provider shall grant to the BKM, for the duration of the contract, all rights of use necessary for the presentation of the cultural offerings.

 

6. Fulfilment of contracts concluded after a reservation is made on the KulturPass

6.1.

The fulfilment of contracts concluded after a reservation is made on the KulturPass is the sole responsibility of the respective cultural provider. The BKM does not provide any guarantee that the reservations made will be availed of by the Users nor that a contract will subsequently be concluded with the cultural provider. Moreover, the BKM does not assume any liability for material or legal defects of the goods and services traded. The BKM has no obligation to ensure that the reservations made by Users with the cultural providers will be availed of. The KulturPass is merely the application which enables the cultural provider to promote their offerings.

6.2

No contractual relationship is established in relation to the cultural services other than between the cultural provider and the User. The BKM and the Stiftung Digitale Chancen do not become contractual partners with regard to the contract relating to the cultural service, and the User cannot derive or assert any claims or other rights based on the contract between the BKM and the cultural provider.

6.3.

The BKM cannot provide any guarantee as to the true identity and power of disposal of the Users and cultural providers. It verifies their identities using the online ID function (Users) and an Elster check (cultural providers). In the event of doubt, both prospective contractual partners (cultural provider and User) are required to take steps to assure themselves, in an appropriate manner, as to the true identity as well as the power of disposal of the other contractual partner.

 

7. Settling of accounts between the BKM and the cultural provider for the cultural services rendered

7.1.

The respective cultural provider must report the provision of the cultural service, or in the case of Intermediary Providers the arrangement of a cultural service for a User, to the BKM in the technical system provided by the BKM. All information in the report must be truthful and accurate. In each case, the amount of the reimbursement from the budget will be the amount at which the respective User reserved the cultural offering, the amount for which the User received a code for redemption with the cultural provider and the amount for which the User redeemed the code with the cultural provider.

7.2.

The BKM shall conduct a settlement of accounts with the cultural providers on a fortnightly basis and shall duly reimburse to the cultural providers, within two weeks of receipt of the respective statement of accounts, the prices of the cultural services provided in accordance with these Provider Terms or, in the case of Intermediary Providers, the prices of the cultural services arranged in accordance with Section 7.1.. The BKM is entitled to have the settlement of accounts managed by a third party entrusted by them, in particular by the Stiftung Digitale Chancen.

7.3.

The BKM will pay the amounts due to the cultural providers in gross amounts.

7.4.

The BKM and the Stiftung Digitale Chancen have a right of audit with regard to the settlement of accounts of the cultural providers. The BKM and the Stiftung Digitale Chancen have the right to check the accuracy of the facts and the accounting.

7.5.

If there is any doubt as to the accuracy of a statement of account, the BKM or the Stiftung Digitale Chancen shall be entitled, at its own expense, to inspect all documents relating to the offering and the provision of cultural services at the respective cultural provider’s premises during normal daytime office hours with one week’s advance notice or to arrange for them to be inspected by a person bound to professional secrecy. Until any such doubts as to the accuracy of the statement of account have been clarified, the BKM or the Stiftung Digitale Chancen are entitled to temporarily suspend payments for a period of up to 2 months.

7.6.

If the User avails themselves, with the help of a provided code, of a cultural offering, the price of which exceeds the amount of the budget used in the reservation, the difference must be paid by the User. Such difference will not be reimbursed by the BKM to the cultural provider.

8. Provisions for cultural providers in relation to state aid law

8.1.

Cultural providers that rely on the de minimis Regulation are responsible for ensuring that they do not receive any other “de minimis” aid from other aid providers.

8.2.

Cultural providers that rely on the de minimis Regulation undertake to notify the Stiftung Digitale Chancen or the respective organisational partner of the BKM if the amount of EUR 200,000.00 over three tax years is exceeded. The cultural providers are also obliged to notify the Stiftung Digitale Chancen or the respective organisational partner of the BKM if the amount of EUR 200,000.00 over three tax years is likely to be exceeded. This is deemed to be the case if 80 per cent of the state aid threshold has already been exceeded.

8.3.

Cultural providers who have not complied with a recovery order based on a previous Commission decision declaring an aid payment unlawful and incompatible with the internal market are excluded.

 

9. Special provisions for Intermediary Providers

9.1.

Cultural offerings from Intermediary Providers are governed first and foremost by the special provisions in this Section 9. In the event of a conflict with the general provisions, these special provisions shall prevail.

9.2.

“Intermediary Providers” are providers who do not offer their own cultural services but whose services enable, in a manner permissible under relevant regulatory law, the reservation of provider codes which can be used for cultural services of the cultural provider specified in the offering of the Intermediary Provider. Acceptance as an Intermediary Provider is granted upon individual contact with the BKM or third parties entrusted by the BKM.

9.3.

 Intermediary Providers may carry out the registration for third party cultural providers. In the case of cultural providers who participate in the KulturPass via the Intermediary Provider and do not register themselves, the Intermediary Provider undertakes to ensure that the requirements for acceptance of the cultural provider, set out in Section 3., are met.

9.4.

Intermediary Providers are not cultural providers within the meaning of Article 53 (1) and (2) GBER. The costs incurred by the Intermediary Provider for registering the cultural provider shall be borne by the Intermediary Provider themselves.

9.5.

The settlement of accounts set out in Section 7. takes place with the Intermediary Provider. The BKM is not responsible for the settlement of accounts between the Intermediary Providers and the cultural providers who actually provide the cultural service.

9.6.

The maximum validity of a provider code shall be 48 hours from their provision initiated by the Intermediary Provider. Intermediary Providers must cancel the reservations of Users (i.e. release them again in the system by means of a refund) if the Users have not availed themselves of the reservation by redeeming the provider code within 48 hours of the provision of the provider code initiated by the Intermediary Provider.

 

10. Liability of the BKM as the platform operator

10.1.

The BKM shall be liable for damages without limitation insofar as the cause of the damage is based on an intentional or grossly negligent breach of duty by the BKM or its legal representatives.

The BKM shall only be liable for ordinary negligence in the event of a breach of material contractual obligations. Material obligations are obligations the breach of which compromises the achievement of the contractual purpose or the performance of which is essential for the due and proper performance of the contract and on the observance of which the cultural provider is normally entitled to rely. Liability in the event of a breach of such a material contractual obligation shall be limited to the damage typical for the contract, the occurrence of which the BKM would have had to expect at the time of conclusion of the contract on the basis of the circumstances known at that time. The BKM shall not be liable for breaches of obligations due to ordinary negligence, except in case of the obligations specified in the preceding sentences.

The limitations of liability do not apply in case of injury to life, limb and health, to the extent of any assumed warranty for the quality of products and in the event of fraudulently concealed defects. Liability according to the German Product Liability Act remains unaffected.

10.2.

The BKM assumes no liability for faults within the communications network for which it is not culpable.

10.3.

The BKM shall only be liable for the loss of data in accordance with the above paragraphs if such loss could not have been avoided by reasonable data backup measures on the part of the cultural provider.

10.4.

Liability does not extend to impairments to the contractual use of the services provided by the BKM on the KulturPass caused by improper or incorrect use by the cultural provider.

10.5.

The above limitations of liability shall also apply mutatis mutandis to the benefit of third parties entrusted by the BKM.

10.6.

Insofar as the KulturPass allows the possibility of forwarding traffic to third party databases, websites, services, etc., e.g. by setting links or hyperlinks, the BKM is liable according to the general laws. In particular, the BKM bears no liability for such third-party resources being lawful or their content being accurate, complete, up-to-date etc.

 

11. Third-party content

11.1.

Cultural providers are prohibited from placing content (e.g. through links, frames or photographs) on the KulturPass that violates any statutory provisions, any orders from public authorities or good morals. Furthermore, cultural providers are prohibited from posting content that infringes the rights of third parties, in particular intellectual property rights or rights of personality.

11.2.

The BKM does not in any circumstances assume third-party content as its own. The cultural provider undertakes vis-à-vis the platform operator that the goods and services offered for reservation by them in their cultural offerings do not infringe any rights of third parties, in particular intellectual property rights or rights of personality.

11.3.

The cultural provider shall indemnify the BKM against all claims asserted by third parties against the BKM due to the infringement of their rights or due to legal violations on the basis of the cultural offerings and/or content posted by the cultural provider, to the extent they are attributable to the cultural provider. In this respect, the cultural provider shall also bear the BKM’s costs of mounting a legal defence, including court costs and lawyer’s fees.

 

12. Data processing and maintenance of confidentiality by the BKM; protection of secrets

12.1.

The servers of the BKM or third parties entrusted by the BKM are secured by state-of-the-art technology.

12.2.

The cultural provider is aware that the BKM stores and processes the data arising in connection with the offer, reservation, collection and settlement of accounts, and that the BKM

  • stores and processes the company data and billing data provided by the cultural provider as part of the application for acceptance, as well as any updates to such data notified by the cultural provider;
  • stores the data that have been independently entered into the KulturPass by the cultural provider in connection with the cultural provider’s desired presentation of their company in the account management section and keeps it available for retrieval in the public and non-public areas of the KulturPass for other identified and unidentified Users and other cultural providers.
12.3.

The BKM will treat as confidential all data relating to the cultural provider which is marked as confidential by the cultural provider and will only use it in accordance with these Provider Terms. The BKM reserves the right to deviate from this provision if the BKM is obliged to disclose such data due to statutory requirements or orders from public authorities.

 

13. Assignment, offsetting

13.1.

The cultural provider may not transfer its rights under the contract with the BKM to third parties, either in part or in full.

13.2.

The cultural provider may only offset those counterclaims against claims of the BKM which are undisputed and/or established in a final and binding manner by a competent court.

 

14. Term

14.1.

The contract underlying these Provider Terms is concluded for an indefinite period of time. It commences upon acceptance of the cultural provider by the BKM as per Section 3..

14.2.

The contract may be terminated by the cultural provider by giving two months’ notice, effective as of the end of the calendar year.

14.3.

The contract may be terminated by the BKM by giving two months’ notice, effective as of the end of the year, if the cultural provider has not reported any cultural services rendered to the BKM within the previous 6 months.

14.4.

The BKM may terminate this contract by giving one week’s notice, effective as of the end of the month, if it is foreseeable to the BKM that the budgetary resources available for the operation of the KulturPass are no longer sufficient to continue offering the KulturPass or if the KulturPass project is discontinued.

14.5.

Each party has the right to terminate the contract for good cause without notice. Good cause from the perspective of the BKM exists, in particular if:

  • the cultural provider violates the provisions of these Provider Terms and does not remedy the situation within a reasonable period set for such remedy by the BKM;
  • the cultural provider unlawfully works together with Users to misuse the budget;
  • the cultural provider manipulates the IT systems underlying the KulturPass in any unlawful way.
14.6.

Any termination must be in text form. Termination by fax or email does fulfil this requirement.

14.7.

In the event of termination pursuant to Sections 14.2. and 14.3., settlements of account in respect of reservations already concluded prior to termination shall remain unaffected. The right of the BKM to assert claims for damages in the event of termination in accordance with Section 14.5. remains unaffected.

 

15. Changes to these Provider Terms

The BKM will propose any changes to these Provider Terms to the cultural provider in text form no later than one month before their proposed effective date. The Stiftung Digitale Chancen may also send out this proposal of the BKM. The cultural provider shall be deemed to have given its consent if it has not given notice of its rejection of the changes before the proposed effective date of the changes. The BKM will specifically draw the cultural provider’s attention to this approval effect when sending the proposal.

 

16. Final Provisions

16.1.

This contract is governed by German law with the exclusion of the UN Convention on the International Sale of Goods (CISG). The place of jurisdiction for all legal disputes is Berlin if the cultural provider is a merchant, public law entity or a special fund under public law. In such a case, the BKM shall also be entitled to bring an action at the general place of jurisdiction of the cultural provider.

16.2.

In the event of individual points being legally ineffective, the remaining parts of these Provider Terms shall remain binding. The ineffective points shall be replaced by the relevant statutory provisions to the extent such provisions exist.