General Terms and Conditions

General terms and conditions (GTC)

of FILMER UG (haftungsbeschränkt), represented by its managing director Klaus Einwanger, Am Rossacker 9, 83022 Rosenheim

1. General

1.1 Scope of application

FILMER UG (Limited Liability) (F.UG-LL) produces advertising films, short films, feature films, videos and other films across all platforms and formats (hereinafter referred to as “Recording(s) or Production(s)”) on behalf of its clients. The production and licensing of these recordings by F.UG-LL is exclusively based on the following General Terms and Conditions (GTC). These are also valid for all future production and licensing contracts, provided no other subsequent contracts are agreed upon.

These GTC are valid from 01 November 2020.

1.2 International terms and conditions

The client's terms and conditions that deviate from the following conditions are not accepted. Such deviating terms and conditions are not part of the contract even if FILMER UG (haftungsbeschränkt) does not expressly object to them.

2. Production

2.1 Estimate of costs

Cost estimates from FILMER UG (Limited Liability) are non-binding. FILMER UG (haftungsbeschränkt) must only report cost increases if the originally estimated total costs are expected to be exceeded by more than 15%.

2.2 Subsequent change requests/order extensions

2.3 Authorization to employ third parties

In case the project execution requires the services of third parties or contract conclusions with third parties, FILMER UG (Limited Liability) is authorized to assume the corresponding obligations on behalf of and for the account of the client.

2.4 Briefing

The briefing of the client forms the basis for the pictures and calculations to be made by FILMER UG (Limited Liability). The client shall provide the briefing conclusively, completely and in writing (e.g. as written minutes of a meeting via e-mail etc.) to FILMER UG (Limited Liability).

In case the client does not provide a written briefing to FILMER UG (Limited Liability), the Pre-Production-Meeting (PPM), the previous e-mail correspondence between the client and KME GmbH as well as memory minutes of the PPM prepared by the staff members of KME GmbH and phone memos form the basis for the taking of the pictures.

2.5 Artistic scope

When making the recordings, the employees of FILMER UG (haftungsbeschränkt) have artistic freedom, although the client's binding requirements from briefing, PPM and/or oral or telephone instructions must be observed. Complaints and/or complaints regarding the artistic freedom exercised by the employees of FILMER UG (haftungsbeschränkt) are excluded. Subsequent requests for changes by the client require a separate agreement and are to be paid separately.

2.6 Client's own film material

Insofar as the client requires the use of his own production material, he will hand this over to FILMER UG (haftungsbeschränkt) in a data format that is qualitatively appropriate to the end form (at least 2K) in good time before the start of production. In this regard, the client assures that he has the necessary rights, in particular the right to process, and is liable in accordance with the provision in Section 7.3.

In the event that this film material has to be extensively adapted for further processing, the client bears the resulting costs.

2.7 Complaints

If the client himself or a representative authorized by him is present at the production of the recordings, he must examine the recordings while still on set and immediately report any deficiencies to FILMER UG (haftungsbeschränkt) so that it can remedy the defect and create new recordings. If the complaint is omitted, the recordings are considered approved and accepted.

Otherwise, FILMER UG (haftungsbeschränkt) will send the final edited version of the recordings to the client after they have been made. The latter must immediately examine the submitted recordings for any deficiencies. If, in the opinion of the client, this is defective, the client must notify FILMER UG (haftungsbeschränkt) in writing of the defect immediately, but no later than 14 days after delivery of the recordings, and name at least one defect. In this case, the client may refuse acceptance. After expiry of this period, the recordings are considered to have been accepted by the client (Section 640 (2) BGB).

2.8 Availability

If the client or an authorized representative of the client is not present during the production of the recordings, the client must ensure that he/she or an authorized representative of the client can be reached by the producer at all times, at least by telephone and electronic communication media (e.g. e-mail, SMS, etc.) for short-term coordination and decision-making.

2.9 Client's obligations to cooperate

The client is required to supply all agreed information, goods (e.g. products, recipes etc.), releases etc. necessary for the production. When the client accepts responsibility for other tasks relevant to the production, (e.g. booking of actors, models, locations or catering etc.), the client must ensure that the delivery, provision, access to locations, arrival of actors, models etc. is carried out in good time so that the production can begin punctually on the agreed date.

Should the client be aware of any delay he/she must immediately notify F.UG-LL. In the event the production is delayed, the responsibility to resolve such delays is that of the client. Accordingly the client will cover all costs caused by the delay (e.g. additional necessary hotel stays, location days, bookings of actors, models, stylists, make-up artists, assistants, rebooking etc.). Such costs incurred due to the delay will include the fees of all employees of F.UG-LL assigned to the shooting.

2.10 Obtaining releases

If appropriate and agreed by the client, F.UG-LL will obtain the consent of the persons depicted, and the rights holders, as required for the production and the use of the images in accordance with the German Art Copyright Act (KUG), the Basic Data Protection Regulation (DSGVO) as well as any other legal regulations for personal images and images of objects for which third party copyrights, property rights or other rights of third parties exist.

The client agrees to indemnify F.UG-LL from claims by third parties resulting from the violation of this obligation. The indemnification obligation does not apply if the client can prove that he /she is not at fault.

The aforementioned regulation also applies if F.UG-LL selects the persons or objects to be included in the production, provided that F.UG-LL informs the client about the selection made in time, so that the client can obtain the necessary declarations of consent or can select and provide alternative suitable persons or objects for the recording work.

2.11 Music licenses

Any music licenses acquired by F.UG-LL on behalf of the client, these fees or license fees of other licensors will be charged to the client.

2.12 Delivered items

F.UG-LL is allowed to handle, dispose or return objects delivered by the client for production.

If the objects delivered by the client are perishable goods (e.g. food), they will be disposed of by F.UG-LL after the end of the production.

If the items delivered by the client are non-perishable goods (e.g. clothes etc.), they will be returned to the client at the client’s expense within 14 days after the end of production.

2.13 Editing and selecting the film sequences

F.UG-LL will edit and select the film sequences for presentation to the client for acceptance following the completion of the production. Rights of use are only granted on condition of full payment of the production, which the client accepts as being in accordance with the contract.

F.UG-LL is not required to deliver all footage to the client.

2.14 Terms of delivery

The parties agree on the delivery date of the recordings before the start of production. FILMER UG (haftungsbeschränkt) will make every effort to meet the delivery date. Delivery times are extended accordingly if the client has requests for changes, does not comply with contractual obligations incumbent on him or there are delays that lie within the sphere of the client.

2.15 Force majeure

In cases of force majeure or other unforeseeable events, such as strikes, barricades, civil unrest, acts of terrorism, pandemics, natural disasters, extreme weather conditions, wars, local power failures, irreversible failure of computer and telecommunications technology, the delivery periods shall also be extended accordingly.

If the force majeure or unforeseeable event lasts longer than three months, the parties are entitled to withdraw from the contract. The work already undertaken by F.UG-LL is to be compensated proportionately.

3. Production fees / additional costs / invoicing

3.1 Cancellation

In the event the client cancels the contract, for whatever reason, , F.UG-LL is entitled to full payment of the agreed fee and the reimbursement for external costs already incurred at that time. As well as agreed cancellation costs.

Furthermore, both parties have the right to terminate the contract for work and services according to § 648a BGB (German Civil Code) for good cause.

3.2 Overtime

If the time scheduled for the production is significantly exceeded, for reasons beyond the control of F.UG-LL, the company and third parties commissioned by F.UG-LL, will receive the additional fees to be agreed for the time by which the recording work is extended, including any and all contractually agreed fees, allowances and supplements.

3.3 Additional services

Additional services, beyond the those specified and agreed at the beginning of the contract, shall be invoiced at the time of instruction and separately.

3.4 Service charges

In addition to the agreed fees, the client agrees to reimburse F.UG-LL for any and all additional costs incurred by F.UG-LL in connection with the execution of the order (e.g. for digital processing, editing services, and operational expenditure including, but not limited to; actors, models, make-up artists, stylists, travel, accommodation etc.).

3.5 Due date of the fee / advance payment

When production costs exceed € 10,000 net, 40% of the costs estimated in the offer are due immediately after conclusion of the contract and a further 30% after production has been completed. The remaining amount is due after acceptance of the final version and with the final cost calculation.

In other cases, F.UG-LL can request cost advances of an appropriate amount.

Otherwise, the additional costs are to be reimbursed when incurred by F.UG-LL the Production costs are due upon delivery of the recordings.

3.6 Transfer of rights of use

The client acquires the copyright rights to use the recordings only after full payment of the fee and reimbursement of all additional costs.

3.7 Value Added tax, social security contributions for artists

In addition to fees, charges, and costs to be paid by the client, the turnover tax and the artists’ social security contribution, which may be incurred by F.UG-LL for external services, will be added at the respective legal rate.

3.8 Electronic invoicing

F.UG-LL is entitled to issue its invoice in electronic form and send it to the client (§ 14 UStG (Value Added Tax Act)). The client agrees to electronic invoicing and electronic invoice sending.

4. Granting of rights

4.1 Individual granting of rights of use / self-promotion

The client acquires rights to use the recordings as specified in the individual contract.F.UG-LL, KME GmbH and its affiliated companies and individuals involved in the recordings are entitled to use the images for their own advertising and promotion.

F.UG-LL grants the client the simple, non-transferable rights to the performance results, limited to Germany, Austria and Switzerland for 3 years for the one-time use of the performance results for the purpose described in the original contract.

4.2 No further transfer to third parties

The transfer and/or granting of the rights of use acquired by the client to third parties, even if they are affiliated companies, subsidiaries, sales partners of the client or editorial offices of a publishing house, requires the prior written consent of F.UG-LL and subject to a rights transfer contract.

F.UG-LL will not unreasonably withhold any transfer of rights provided the terms of transfer are acceptable.

4.3 No processing

Use of the recordings is only permitted in the original version. Any editing requires the prior written consent of F.UG-LL.

5. Ownership

All materials delivered by F.UG-LL with the performance results (records, data carriers, documentation, etc.) remain the property of F.UG-LL unless otherwise agreed by the parties.

6. Data and digital processing of recordings

6.1 Data transfer/ file format

F.UG-LL will transfer the selected recordings as well as the corresponding data, files and data carriers (recording material) to the client after completion of the production. The data format is determined by mutual agreement between the parties. If no agreement is reached, F.UG-LL will determine a suitable data format and select a suitable data carrier. F.UG-LL is not obliged to archive the contractual recordings on its own data files and does not guarantee that further copies of the recording material will be available after the recording material has been handed over to the client.

6.2 Digital transfer

The passing on of the digital recordings by way of remote data transmission or on data carriers is only permitted if the exercise of the rights of use granted requires this form of reproduction and distribution has been complied with.

6.3 Archiving

The recordings may only be digitally archived for the client’s own purposes and only for the duration of the right of use. The feeding of the recordings into digital networks, the storage of the recordings in online databases or other digital archives, which are accessible to third parties, is not allowed and requires a separate agreement between F.UG-LL and the client.

7. Liability of F.UG-LL

7.1 Scope of liability

F.UG-LL is only liable for damages when such actions caused by its employees or its vicarious agents are intentional or grossly negligent. Excluded from this are damages resulting from the violation of a contractual obligation which is essential for the achievement of the purpose of the contract (cardinal obligation), as well as damages resulting from injury to life, body or health, for which F.UG-LL maybe liable in case of slight negligence.

7.2 Exclusion of liability for third-party services

If F.UG-LL concludes a contract with a third party based on a corresponding power of attorney in the name and for the account of the client, F.UG-LL is not liable for the services and work results of the commissioned persons and companies.

7.3 Disclaimer for use of recordings

F.UG-LL is not liable for the use of the recordings. In particular, it is not liable for the admissibility of the use under competition and trademark law. The client bears the sole legal responsibility for the use of the recordings as far as they are based on ideas, specifications, instructions, documents, materials, brands, slogans, graphics, data, music, provision of external production material, etc. of the client. F.UG-LL is not liable in this respect for the violation of third-party rights (e.g., including but not limited to; copyright, trademark, design, personal, data protection or competition law).

In this respect, the client is obliged to indemnify F.UG-LL against all claims made by third parties against F.UG-LL due to the violation of their rights and will reimburse F.UG-LL for any necessary legal costs incurred.

7.4 Exclusion of liability for damage caused by computer viruses

Subject to the regulations in section 7.1, F.UG-LL is not liable for damages incurred by the client in connection with the use of the services provided by F.UG-LL by computer viruses, Trojans, hacker attacks or similar in or on e-mails, comparable data transmissions or attachments etc.

7.5 Statute of limitations

Claims of the client resulting from a breach of duty by F.UG-LL or its vicarious agents are subject to a limitation period of one year after the legal beginning of the limitation period. Excluded from this are claims for damages based on intentional or grossly negligent breach of duty by F.UG-LL or its vicarious agents, and claims for damages due to injury to life, body or health, even if they are based on a slightly negligent breach of duty by F.UG-LL or its vicarious agents; for these claims for damages the legal limitation periods apply.

8. Client's liability and obligation to pay damages

8.1 Liability for documents

The client is liable for any material and documents handed over to F.UG-LL until they are returned undamaged. The client bears the costs and the risk for the return delivery, whereby the return delivery has to be made by courier-company.

8.2 Contractual penalty / compensation for breach of rights of use

In case of unauthorised use, unauthorised exceeding of the rights of use, unauthorised editing or unauthorised transfer of the recordings to third parties, F.UG-LL is entitled to demand a contractual penalty of 200% of the agreed upon or – in the absence of an agreement – of the usual usage fee, but at least € 10.000. The assertion of a further claim for damages.

Furthermore, in case of exceeding the usage rights, the client is liable to F.UG-LL for any resulting damages. The client exempts F.UG-LL from any claims of third parties and reimburses F.UG-LL for any necessary legal costs incurred.

9. Confidentiality

9.1 Confidentiality obligation of the client

In the event the client decides not to offer film ideas/film concepts or parts of them, the concepts developed and presented by F.UG-LL produced and/or evaluated, the client cannot use them later and to keep them confidential from third parties.

The client agrees to accept a contractual penalty for each violation of omission and secrecy obligations. The amount of which is at the discretion of F.UG-LL and which will be reviewed by the competent court to pay to F.UG-LL.The assertion of further claims for damages by F.UG-LL remains unaffected.

9.2 Confidentiality obligation of F.UG-LL

F.UG-LL will treat all information provided by the client as confidential. However, F.UG-LL is entitled to pass on the information to selected third parties within the framework of the fulfillment of the contract. F.UG-LL ensures that these third parties also treat the information provided confidentially.

10. Final provisions

10.1 Severability clause

Insofar as the individual provisions of these General Terms and Conditions are considered to be invalid in whole or in part, this shall not affect the validity of the contract and the remaining General Terms and Conditions. The invalid provision shall be replaced by a provision which comes closest to the meaning and purpose of the invalid provision.

10.2 Statute and jurisdiction

The law of the Federal Republic of Germany shall apply.

In the event that the client has no general place of jurisdiction in the Federal Republic of Germany or relocates his domicile or habitual residence abroad after conclusion of the contract, the domicile of F.UG-LL is agreed as place of jurisdiction.

gtc.