General terms and conditions – Neiser Filmproduktion
1. Scope of application
The following terms and conditions apply to all contractual relationships with Neiser Filmproduktion (“Neiser Filmproduktion”), represented by Martin Kahl. Deviating terms and conditions of the customer do not apply. With the acceptance of deliveries or partial deliveries, the customer of Neiser Filmproduktion (“customer”) acknowledges the validity of these terms and conditions. These terms and conditions shall also apply to all future contractual relationships with the customer, unless otherwise expressly agreed. Agreements deviating from these terms and conditions must be made in writing. The services offered by Neiser Filmproduktion are directed exclusively at entrepreneurs within the meaning of § 14 BGB, legal entities under public law or special funds under public law.
2. conclusion of contract and withdrawala
a. Offers from Neiser Filmproduktion are subject to confirmation and non-binding. The contract shall only come into effect upon confirmation of the customer’s order by Neiser Filmproduktion or upon delivery of the ordered services by Neiser Filmproduktion without prior confirmation.
b. Should Neiser Filmproduktion be prevented from rendering a service due to circumstances for which it is not responsible or is not responsible, in particular due to incorrect or untimely delivery by suppliers or third parties, untimely return of rental equipment by the previous tenant, unacceptable weather conditions or weather-related breakdowns, Neiser Filmproduktion shall be entitled to withdraw from the contract.
c. The customer is obliged to accept partial deliveries without his prior consent.
3. Scope of services
a. The scope of the agreed services results from the offer of Neiser Filmproduktion on which the provision of services is based. Subsequent changes must be made in writing. Unless expressly stated in the offer, additional and external services such as travel or translation costs will be remunerated separately (in the case of travel: Flight 2nd class, train journey 2nd class, car: 0.35 Euro/km, rental car: upper middle class).
b. If and insofar as the customer does not make any specifications for the provision of services (e.g. with regard to concept, design and/or technology), Neiser Filmproduktion shall be free to implement the provision of services.
c. All work is always carried out to the best of our knowledge and belief, taking into account a balanced relationship between economic efficiency and the best possible success for the benefit of the customer.
d. If the customer requests changes beyond the offer during or after the provision of the service, he shall bear the additional costs. If the execution of the order is delayed for reasons for which the customer is responsible, Neiser Filmproduktion may demand an appropriate increase in remuneration.
e. The provision of services by Neiser Filmproduktion does not include legal advice by Neiser Filmproduktion, nor does Neiser Filmproduktion examine the legal admissibility and correctness of the services, in particular the admissibility under competition law and trademark law.
f. The parties are aware that it is not possible for different technical systems to precisely adhere to the specified colours and that colours displayed on electronic devices are perceived or varied differently. Deviations from the sample or original approved by the customer can therefore not be objected to.
g. Neiser Filmproduktion shall be entitled to render the agreed services in whole or in part itself or through third parties associated with Neiser Filmproduktion or to have them rendered.
4. Obligations of the customer to cooperate
a. Each of the parties shall appoint a project manager for the duration of the implementation of the contract / project. The measures required on both sides to implement the project in accordance with the contractual regulations are agreed between the project managers. The respective project managers must be named in writing to the other party within a period of 10 days after conclusion of the contract. The project managers jointly review the progress of the project at least once a week. Where decisions cannot be taken at the level of project leaders, they will be taken by a project committee. The Project Committee consists of a member of the management of both parties or an employee of the respective party who is authorized to make decisions for this procedure. The Project Committee shall meet at any time at the request of one of the Project Managers. Votes can also be made by telephone. All decisions shall be recorded in writing and signed by the members of the Project Committee.
b. As soon as Neiser Filmproduktion has created a concept that meets the contractual requirements of the respective contract, the customer will release the concept in text form.
c. All services rendered by Neiser Filmproduktion (in particular all drafts, test versions, etc.), on the basis of which subsequent services are to be rendered by Neiser Filmproduktion or commissioned from third parties, are to be checked by the customer immediately after delivery and either released for further use or claimed within 3 working days. If neither a release nor a complaint is made within this period, the release shall be deemed to have been issued by the customer.
d. The customer shall check the legal admissibility of the services, in particular the admissibility under competition law and trademark law, itself or have them checked by third parties. Neiser Filmproduktion arranges for an external legal examination only at the written request of the client and in his name and on his behalf. Neiser Filmproduktion shall invoice the customer for any associated expenses and shall not be liable as intermediary for the result of any legal examination.
e. The customer must ensure that Neiser Filmproduktion is provided with all documents necessary for the execution of its activities, in particular all texts, pictures, graphics, logos and tables to be included, insofar as these are not part of the scope of services, in a timely manner, if necessary on request immediately in a form suitable for processing, Neiser Filmproduktion is provided with all information and Neiser Filmproduktion is informed of all procedures and circumstances necessary for the performance of its services. This shall also apply to documents, processes and circumstances which only become known during the performance of services by Neiser Filmproduktion. Neiser Filmproduktion is not obliged to check the contents made available by the customer, in particular not with regard to whether they are suitable to achieve the purpose pursued with the commissioned service. The technical and content responsibility for the delivered content lies exclusively with the customer. Neiser Filmproduktion is only obliged to inform the customer of defects in the content in the event of obvious errors.
f. As soon as the customer becomes aware of any circumstances which could call into question the contractual fulfilment of the order, Neiser Filmproduktion shall immediately notify Neiser Filmproduktion in writing of these circumstances and any measures to be considered by it.
5. Performance/delivery deadlines and dates
a. Performance/delivery periods and dates (delivery time) are only binding if they have been agreed in writing.
b. Compliance with the delivery period requires that the order has been completely clarified, all approvals granted and all payments, securities and other duties of cooperation to be provided by the customer (e.g. procurement or provision of data and/or documents, provision of information, release of drafts or concepts) have been received or provided by Neiser Filmproduktion on time. The delivery period shall be extended appropriately if the above conditions are not all fulfilled in good time.
c. For the duration of the examination of drafts, test versions etc. by the customer the delivery time is interrupted in each case. The interruption shall be calculated from the date of dispatch to the customer until receipt of his statement.
d. If the customer requests changes to the order after the order has been placed which affect the production time, the delivery time shall change accordingly.
e. Delays in delivery for reasons for which Neiser Filmproduktion is not responsible (e.g. force majeure, natural disasters, fault of third parties or occurrence of other unforeseeable events beyond its control), the delivery period shall be extended accordingly.
f. Should Neiser Filmproduktion be in default with its performance, the customer shall only be entitled to exercise his statutory rights after setting a reasonable grace period of at least two weeks.
g. Neiser Filmproduktion is entitled to make partial deliveries.
a. Neiser Filmproduktion shall make the services rendered available to the customer on a customer server after they have been completed, provided that digital data is involved. The customer shall be obliged to accept within a period of 10 working days from the date on which Neiser Filmproduktion has informed the customer of the completion of the respective order, provided that the completion corresponds to the approved concept. The customer shall confirm acceptance in writing.
b. If no formal acceptance is required or if the acceptance requested by one of the parties does not take place due to circumstances for which the customer is responsible, the contractual performance of Neiser Filmproduktion shall be deemed accepted if the customer uses the performance or notifies Neiser Filmproduktion in writing of any significant defects within ten days of receipt of the performance.
c. If the customer does not accept the service duly offered to him without justification (default of acceptance), Neiser Filmproduktion shall be entitled to invoice all services as if the acceptance had taken place.
7. Prices and terms of payment
a. All rental and production prices are net prices plus statutory value added tax. Costs for packaging, postage and freight will be charged separately. The invoice amount is due for payment without deduction immediately upon receipt of the invoice.
b. Neiser Filmproduktion retains ownership and any rights to the services rendered that may be transferred until the agreed remuneration has been paid in full.
c. Neiser Filmproduktion is entitled to invoice the customer proportionately monthly for partial deliveries from all contracts.
d. If the customer stops his payments, if an over-indebtedness exists or if the opening of composition or insolvency proceedings is applied for or if the customer defaults on the encashment of due bills of exchange or cheques, the total claim of Neiser Filmproduktion becomes due immediately. The same shall apply in the event of any other significant deterioration in the economic situation of the customer. In these cases Neiser Filmproduktion is entitled to demand sufficient security or to withdraw from the contract.
8. Default of payment
a. Default shall occur upon receipt of a reminder after the due date, but in any case 30 days after receipt of an invoice or an equivalent request for payment.
b. If the customer is in default with his payments, Neiser Filmproduktion is entitled to suspend services until full payment has been made.
c. For each reminder from Neiser Filmproduktion a lump sum of € 40.00 is due. In addition, Neiser Filmproduktion shall charge default interest of 9% above the respective base interest rate of the European Central Bank, subject to the assertion of further rights.
9. Retention, set-off and assignment
a. The right of retention due to counterclaims / counterclaims and the offsetting with counterclaims / counterclaims is excluded, unless these are undisputed or legally established.
b. The assignment of rights and/or the transfer of obligations from the contractual relationship without the express consent of Neiser Filmproduktion is excluded. This shall not affect the assignment of rights and / or the transfer of obligations to companies that are associated with the customer within the meaning of §§ 15 ff. of the German Civil Code (BGB). AktG (German Stock Corporation Act).
c. Neiser Filmproduktion may transfer rights and obligations from the contractual relationship to third parties at any time with the consent of the customer.
Any liability on the part of Neiser Filmproduktion is excluded – regardless of the legal nature of the claim asserted – insofar as it is based only on slight negligence. This shall not apply in the event of a breach of a guarantee or essential contractual obligation. In such a case, however, the liability of Neiser Filmproduktion shall be limited to compensation for the foreseeable damage typical for the contract. The above provisions shall not apply to claims for damages due to intentional or grossly negligent conduct or to claims based on damage to life, body or health or in the case of mandatory statutory liability, such as under the Product Liability Act.
11. Liability, Statute of Limitations
a. Objects and materials handed over to Neiser Filmproduktion shall not be insured by Neiser Filmproduktion. The customer must ensure adequate insurance cover. Neiser Filmproduktion is liable for lost objects and materials of the customer only in case of intent and gross negligence.
b. Liability for the restoration of data supplied by the customer shall be limited in amount to the costs necessary to restore the data that would have been lost even if the customer had regularly backed up the data with due care.
c. The limitation period for claims arising from material defects is 12 months. Claims from the product liability law remain unaffected by this regulation.
d. The limitation period with regard to defects of title begins at the point in time at which a third party asserts claims against the customer due to defects of title or the customer learns of the defect of title. The limitation period in this respect is 6 months.
e. In addition, claims of the customer from a breach of duty by Neiser Filmproduktion or its agents expire one year after the start of the statutory limitation period. […]
12. Retention, archiving and release of data and documents
The raw material (footage) and all project files incl. The associated assets are protected by copyright and are the property of Neiser Filmproduktion. If the customer wishes these data to be surrendered, in particular open project data, the surrender does not imply any transfer of rights, unless otherwise agreed. The costs for the transfer of the data and the data carrier shall be borne by the customer. All raw data (footage) as well as raw files and project files created by Neiser Filmproduktion for the production shall be stored by Neiser Filmproduktion with reasonable technical effort and without separate remuneration for a period of one year starting with the termination of the respective production. A liability for data loss during archiving is only assumed for intent and gross negligence. The documents shall be destroyed at the end of the retention period or at the end of the contract before the end of this period.
13. keeping free
a. The customer assures Neiser Filmproduktion that he possesses all necessary rights of use for picture, sound and video material delivered by him including the rights for processing and further licensing and grants Neiser Filmproduktion the rights of use necessary for processing and exploitation of the work upon conclusion of the contract.
b. If a third party asserts justified claims against Neiser Filmproduktion based on copyrights or other industrial property rights in respect of a service delivered by the customer, the customer shall represent Neiser Filmproduktion at his own expense in any legal dispute brought against Neiser Filmproduktion and indemnify Neiser Filmproduktion against such claims. However, this shall only apply if Neiser Filmproduktion immediately informs the customer about corresponding letters of claim from third parties and details of any legal disputes and if the customer is informed of such claims before claims for defects in title become statute-barred.
14. Right of Use, Reproduction and License Release
a. Insofar as Neiser Filmproduktion services rendered for the customer are legally protected, in particular by copyright, all rights of use, processing and exploitation shall in principle lie with Neiser Filmproduktion, unless expressly agreed otherwise in writing.
b. The customer is not entitled to make copies (also in extracts) of works of Neiser Filmproduktion himself or have them made by third parties. Public performance, rental and hiring (also free of charge) are prohibited, unless Neiser Filmproduktion has given its written consent.
c. The customer grants Neiser Filmproduktion the right to refer to the contractual products in a suitable way to his company and / or to advertise with them for his own services – e.g. in a “Showreel”, a compilation of the products for publication on the company homepage, in the credits of the contract product (if customary in the industry).
d. Insofar as Neiser Filmproduktion has granted the customer a temporally limited right of use for services or rights of use end due to termination, the customer shall return or destroy to Neiser Filmproduktion all copies, i.e. in particular data carriers with work data, databases and files as well as any existing written documentation, and cease use after expiry of the period of use. The customer also deletes all stored work data, databases and files from his computer systems, unless he is legally obliged to store them for a longer period.
15. Warranty claim
a. Notices of defects and other complaints based on obvious defects must be made immediately, at the latest within 10 days of receipt of the service and simultaneously sent for inspection purposes. Notification of non-obvious defects must be made within a period of 10 days after the defect has been identified. In the event of violation of the duty to inspect and give notice of defects, the performance shall be deemed to have been approved with regard to the defect in question.
b. Quality requirements which are subject to subjective assessment, in particular colouring, brightness fluctuations, contrast fluctuations or volume differences do not constitute a warranty claim.
c. The customer’s warranty claims are limited to the right to repair or replacement, at Neiser Filmproduktion’s discretion. Neiser Filmproduktion shall be granted a reasonable period of time for this purpose. The warranty right expires if the customer has carried out or has had carried out defect removal work, changes to the script or other changes to the delivered or processed material without the prior written consent of Neiser Filmproduktion.
d. If defects of the delivered material occur after the client has changed original files provided or delivered by Neiser Filmproduktion himself, the warranty claim expires. This shall also apply if the changes do not show any direct connection with the defect that has arisen.
16. Additional benefits
Additional deliveries and services shall be invoiced separately. Subsequent changes at the request of the customer, author’s corrections or additional work costs incurred due to late delivery by the customer (unless mentioned in the cost estimate) will also be charged to the customer.
17. Confidentiality and data protection
a. The parties undertake to maintain secrecy with regard to any confidential information concerning the other party and to use such information only for the purpose of implementing the cooperation and the purpose for which it is intended.
b. “Confidential Information” means all information and documents from and about the sphere of the other party which come to the knowledge of the customer or Neiser Filmproduktion, in particular such information and documents about business transactions such as printing documents, layouts, figures, drawings, audio tapes, film material, pictures, videos, storage media, interactive products and / or other copyrighted materials. In addition, confidential information of each party is any information that by its nature is recognizable as confidential.
c. The confidentiality obligation does not apply to information that was already lawfully known, published and / or expressly released for disclosure to the other party without a confidentiality obligation when the contract was concluded.
d. If confidential information is disclosed to one party by a third party, it shall notify the other party in writing. The Contracting Parties shall not exploit such information without the consent of the other Contracting Party.
e. If the customer transmits data to Neiser Filmproduktion, the customer shall first make backup copies thereof. The customer assumes sole responsibility – also for claims of third parties – for data provided by him to Neiser Filmproduktion. Neiser Filmproduktion assumes no liability in the event of data loss. In this respect, transport shall be at the expense of the customer.
f. Neiser Filmproduktion guarantees the data protection security of the data entered and observes the statutory provisions on data protection in Germany, in particular the Basic Data Protection Ordinance and the Federal Data Protection Act.
18. Law, Place of Jurisdiction and Place of Performance
a. Place of performance for all contracts is the registered office of Neiser Filmproduktion. The place of jurisdiction shall be Hamburg if the customer is a merchant, a legal entity under public law or a special fund under public law. Deviating from this, Neiser Filmproduktion can also sue at the customer’s place of jurisdiction. Any exclusive place of jurisdiction shall not be affected thereby.
b. For the contracts concluded on the basis of these General Terms and Conditions and for any claims whatsoever arising from them, the law of the Federal Republic of Germany shall apply exclusively, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods and excluding German international private law.
18. Severability clause
Should individual provisions of these general terms and conditions be or become ineffective, this does not affect the effectiveness of the remaining clauses. The ineffective clause is to be replaced by an effective clause that most closely approximates the economic meaning of the ineffective clause.