General Terms and Conditions of Business of
Wiethe Content GmbH & Co. KG
General Terms and Conditions for Deliveries and Services
for the area of photography, film and CGI/3D
Section 1 General Provisions
1.1
These General Terms and Conditions of Business (hereinafter referred to as "GTC") apply to all legal relationships between us as a company belonging to Wiethe Content GmbH & Co. KG (Contractor) and our clients. The GTC only apply if the Client is an entrepreneur (Section 14 German Civil Code - BGB), a legal entity under public law or a special fund under public law.
1.2
These GTC apply exclusively, even under circumstances when the Contractor performs the service for the Client without any reservations despite being aware of terms and conditions of the Client which conflict with or deviate from the Contractor’s terms and conditions.
1.3
These GTC also become an integral part of all future transactions with the Client, even if no express reference is made to these GTC and/or no express deviating provision is agreed and/or the relevant services as well as the remuneration to be paid by the Client for these services are only agreed between the contracting parties in the future.
1.4
The Contractor is entitled to have the contractual performance (hereinafter also referred to as "Contractual Service" or "Work Results") performed by its employees or other commissioned third parties at its discretion.
Section 2 Conditions
2.1
The Contractual Services are to be rendered in the form of remuneration on an item basis, hourly rate, daily rate or flat rate/fee plus statutory VAT on the basis of the current price list, on the basis of offers or according to effort involved (in EUR).
2.2
All expenses incurred by us in connection with the Contractual Services or the creation of the Work Results are to be reimbursed by the Client. All expenses, such as the commissioning of models and freelancers, travel and accommodation costs, set construction, props or music for the purpose of creating the Work Results, as well as studio rents, agency commissions, hiring of equipment, social security contributions and insurance are to be charged to the Client. Subject to the proviso that, if no agreement to the contrary has been concluded, these are to be charged at a mark-up of 15% on the total costs. Unless these charges are already included in the offers/calculations.
2.3
The Client is to bear all additional costs incurred due to force majeure, for example, weather conditions such as heavy or continuous rain/storms.
2.4
Payment of any invoice submitted pursuant to this agreement is to be made within fourteen (14) days of the invoice date. Interest on late payment will be charged at the rate of 9 percentage points above the currently applicable base rate of the European Central Bank, without prejudice to any other rights.
2.5
Insofar as it is not a continuing obligation within the meaning of section 2.4, but a one-off project service, the following lump-sum compensation is to be paid to the Contractor, provided the Client withdraws from the agreed Contractual Services after they have been commissioned, but before commencement of any relevant work:
Up to 8 weeks prior to the agreed start of production: 20% of the net remuneration agreed for the relevant Contractual Service,
Up to 4 weeks prior to the agreed start of production: 40 % of the net remuneration agreed for the relevant Contractual Service,
Less than 2 weeks prior to the agreed start of production: 80% of the net order value agreed for the relevant Contractual Service.
The contracting parties reserve the right to prove higher/lower damages
2.6
If, after conclusion of the contract, circumstances become known according to which a significant deterioration in the Client’s financial situation is to be assumed (e.g. due to application for opening of insolvency proceedings), the Contractor will be entitled, at his discretion, to demand advance payments or provision of security against delivery or performance.
If the Client does not comply with the demand, we will be entitled - subject to further statutory rights - to withdraw from the contract.
2.7
If the Client does not comply with the payment obligation after a simple reminder, we may declare our withdrawal and demand damages instead of performance after expiry of a reasonable period of time.
2.8
The Client may only offset against claims of the Contractor or effectively assert a right of retention if his counter-claim has been recognised in an enforceable judgement by the courts.
2.9
Invoicing is to be carried out either according to partial performance or continuously on a monthly basis.
Section 3 Contract
3.1
The order is deemed a binding contractual offer. Unless otherwise stated in the order, the Contractor is entitled to accept the contract offer as soon as it has been received.
3.2
Unless otherwise stated in the order confirmation, offers made by the Contractor are non-binding.
3.3
Acceptance can be made in writing, e.g. by order confirmation or invoicing, or by commencement of actual performance.
3.4
A contract with us also ensues if we render services for the Client, which the Client accepts without reservation. Acceptance without reservation is deemed to have occurred in particular, but not conclusively, if the Client pays an invoice for the services actually rendered. In such a case - unless expressly stated otherwise in the negotiations conducted - an unlimited continuing obligation arises, which is based on the prices paid and the services actually rendered as minimum services. Such a continuing obligation may be terminated by either party with 12 months' notice to the end of a calendar year.
Section 4 Work Results / Transfer
4.1
All Work Results will be transferred as files on data carriers and in the form of images and films, both online and offline. The transfer takes place at the expense and risk of the Client.
The Client determines how and by what means the transfer is to take place.
4.2
If the Work Results are handed over physically, the risk will pass to the accepting party as soon as the Work Results have been dispatched or handed over to the person carrying out the transport. In the case of collection, the risk passes to the Client upon handover of the Work Result.
Section 5 Rights of Use, Retention of Title
5.1
All rights of use, ancillary copyrights and other rights which are necessary for the contractual use by the Contractor of the materials provided by the Client within the framework of the provision of the Contractual Services are guaranteed by the Client. In particular, if a logo, a product designation, a trademark and/or another industrial property right is to be used in connection with the working material provided by the Client within the scope of the respective Contractual Services.
5.2
All materials/content such as images, films, texts and music etc. provided by the Client to the Contractor in connection with the provision of the Contractual Services must be free of conflicting third-party rights and the Client must have all rights for their contractual use.
5.3
The Client is obliged to check the material provided by him for existing copyrights or other property rights of third parties and to obtain any necessary permits for the use of the material before handing it over to the Contractor. The Contractor is not obliged to carry out legal checks.
5.4
If ideas, drafts and designs/concepts are provided by Wiethe as part of the performance of the Contractual Service, or in the run-up to it, e.g. as part of a pitch, these remain the property of Wiethe and the Client is entitled to use them exclusively as part of the use of the Work Results or in accordance with the respective Contractual Service. Wiethe is exclusively entitled to the copyright with all rights to all documents and information provided by Wiethe within the scope of the contractual relationship with the Client. Any use of these ideas, designs, concepts and drafts by the Client outside of the use of the Work Results may only take place with the prior consent of the Contractor.
5.5
Subject to the full payment of the relevant Work Results by the Client, we hereby grant the Client the non-exclusive, non-transferable right of use to the Work Results within the scope of the respective contractually agreed purpose in terms of subject matter, space and time. In the event that the Client uses the material beyond the contractually agreed use, the Client is to be liable for any damage arising from such use and is to indemnify the Contractor against any liability in this connection.
5.6
Rights of collecting societies such as GEMA and GVL are excluded from the granting of rights. The Client is to be solely responsible for the settlement with the aforementioned collecting societies and the payment of the corresponding fees.
5.7
The Client is to use the Work Results exclusively in accordance with the respective Contractual Performance and subject to all restrictions agreed between the contracting parties. The sale, rental or
(sub-)licensing for the purpose of the provision of services against payment to third parties is fundamentally not permitted.
5.8
The Client is to obtain release for publication from the persons depicted in the work results produced (rights of use) in accordance with the agreement reached and the statutory regulations. Insofar as employees or other persons to be provided by the Client are depicted, the Client exclusively is to ensure the timely assignment of the rights required for this purpose.
5.9
The Client is to indemnify the Contractor and hold him harmless from and against all losses, damages, penalties or costs of any kind whatsoever arising from any third party claims, demands, legal proceedings or actions with the following background:
5.9.1
The claim is based on the allegation that the use of the Contractual Services by the Contractor and affiliates and agents in accordance with the terms of this agreement and the relevant contract violates any applicable laws or regulations or third party rights; or
5.9.2
The provision of the Contractual Services or materials by the Client in accordance with the provisions of this agreement would infringe the intellectual property rights of third parties.
Section 6 Dates
6.1
All dates/delivery times are non-binding until they are expressly confirmed in writing as binding.
6.2
Agreed dates and delivery times are to be extended by the period during which we are unable to perform in the event of force majeure (e.g. pandemics, industrial disputes, fire, weather-related events) or due to other circumstances for which the Contractor is not responsible, or due to technical software/network failures as a result of which the Contractor is unable to provide his service. The same applies to the period during which the Contractor is waiting for information and cooperation from the Client. If the Client sets the Contractor a reasonable period of grace following the delay, the Client is to be entitled to withdraw from the contract after the fruitless expiry of this period of grace; the Client is not to be entitled to damages in lieu of performance.
Section 7 Guarantee
7.1
All Contractual Services will be performed by the Contractor in a professional manner and according to market practices with the care of a prudent businessman as well as pursuant to this agreement/the relevant Contractual Service.
7.2
If any Contractual Services are not performed or are not performed properly, the Client is to complain in writing to the Contractor and grant a reasonable period of grace for follow-up improvements.
7.3
The guarantee period will commence upon acceptance by the Client or as soon as the respective Work Result is deemed to have been accepted and ends after 12 months.
7.4
Guarantee claims will be excluded if no specific style guides or written briefings have been provided by the Client. In particular, there are no deficiencies if exclusively artistic or subjective elements of the design deviate from the Client's ideas.
7.5
The Contractor will not be liable for defects in Work Results caused by the Client's actions. This also applies to cases in which the Client undertakes amendments or extensions to Work Results without the prior written consent of the Contractor.
7.6
Liability for defects which do not or only insignificantly impair the value or the usability of the work are excluded in principle.
Section 8 Work Results
8.1
Unless otherwise agreed, Work Results are deemed accepted by the Client if the Client does not object to them in writing within five (5) working days after they have been handed over. Each objection is to be substantiated in detail. Acceptance of Work Results by the Client can only be rejected if they do not correspond in essential points with the agreed services or the specifications contained in a service description.
8.2
If a fixed deadline has been agreed, the Client's timely cooperation is required in order to guarantee the planned schedule. If the Client does not cooperate, the schedule is to be postponed by at least the same amount of time.
Section 9 Changes to Current Orders
9.1
Changes at the request of the Client with regard to execution, model selection, set construction as well as all external costs, and any increases in expenditure must be notified in writing.
Wiethe will point out any resulting changes in costs and have them approved by the Client before implementation.
9.2
By mutual agreement, the Client can change/expand the services in the course of the contract implementation. The change in the total economic order volume can only be made with the written consent of Wiethe.
9.3
If expenses increase or deadlines/delivery times are extended, Wiethe is entitled to an appropriate increase in remuneration or postponement of the deadlines/delivery times. If expenses are reduced, Wiethe reserves the right - subject to a different agreement between the parties - to the originally agreed remuneration.
9.4
Until the contracting parties agree on a corresponding adjustment of the relevant Contractual Service, the Contractor will continue to operate and be remunerated in accordance with the provisions of the original Contractual Service unless the Client requests that the performance in whole or in part is interrupted.
Section 10 Liability
10.1
Any liability of the Contractor for damages arising out of or in connection with the Contractual Services to be rendered, irrespective of the legal grounds, but in particular for delay, defective or incorrect delivery, breach of contract, breach of duties in contractual and tortious acts is excluded. Claims for damages by the Client arising from injury to life, limb or health or from the breach of essential contractual obligations as well as liability for other damages based on an intentional or grossly negligent breach of duty are excluded from this. Essential contractual obligations are obligations, the fulfilment of which is necessary to achieve the objective of the contract.
10.2
In the event of a breach of essential contractual obligations due to simple negligence, the Contractor will only be liable for the foreseeable damage typical for the contract, unless it is a matter of claims for damages arising from injury to life, body or health. In this case, however, the foreseeable damage typical for the contract - irrespective of the number of cases of damage and unless otherwise contractually agreed - is limited to a total amount of 150,000 euros p.a. ("Maximum Liability Sum"). Claims in excess of the Maximum Liability Sum may only be made against the Contractor if he is sufficiently covered by insurance and the insurance company has actually paid.
10.3
The limitations according to paragraphs 10.1 and 10.2 also apply in favour of the Contractor's employees as well as legal representatives and vicarious agents, if claims are asserted directly against them.
10.4
Liability for loss of profit or revenue, for loss of data, reduction of goodwill or loss of business, for indirect or consequential damage, damage arising from business interruptions or other downtime as well as for other exclusive financial loss arising from or in connection with this agreement is excluded to the extent permitted by law.
10.5
In the event of loss of data, the Contractor will only be liable, even below the Maximum Liability agreed in paragraph 10.2, the Contractor will only be liable for the effort and expenditure required to restore the data.
10.6
Regulations concerning the burden of proof remain unaffected by the provisions of this section 10.
Section 11 Obligations to Cooperate
11.1
The Client is to provide all support and make available all information, documents and data that the Contractor requires for the fulfilment of his contractual obligations.
11.2
The Client's fulfilment of the obligations to cooperate set out in paragraph 11.1 is a main contractual obligation and a prerequisite for the correct and proper performance of the Contractual Services by the Contractor.
Section 12 Claims for Defects
12.1
Claims for defects will become time-barred within twelve months after acceptance of the respective Work Results. In cases of supplementary performance, the limitation period does not recommence. Other contractual claims of the Client due to breaches of duty as well as all non-contractual claims of the Client also become time-barred after twelve months, starting with commencement of the limitation period provided for by law in each case.
12.2
Any suspension of the limitation period for claims arising from or in connection with the contractual relations between the parties pursuant to Section 203 of the German Civil Code (BGB) end at the point in time at which the Contractor or the Client refuses to continue negotiations on the claim or the circumstances giving rise to the claim. If one of the parties does not expressly declare failure of the negotiations, continuation of the negotiations will be deemed to have been refused six months after dispatch of the most recent correspondence, the subject matter of which is the claim or the circumstances giving rise to the claim.
Section 13 Data Protection, Data Storage
13.1
The parties undertake to comply with all provisions of data protection law, in particular the provisions of the European Data Protection Regulation (GDPR) and the data protection law applicable in Germany.
13.2
The Client agrees that the Contractor may process its contact information such as names, telephone numbers, e-mail addresses and address of its contact persons within the framework of the existing business relationship and, for example, pass the information on to partner companies.
Section 14 Mention of References
The Contractor is entitled to advertise his work for the Client or to name the Client as a reference. The use of Work Results by the Contractor on the Contractor's website and in online marketing measures as well as on social media platforms is expressly permitted and the Client thus grants the Contractor his consent to a corresponding use of the Work Results.
Section 15 Confidentiality
15.1
The contracting parties mutually undertake to treat as confidential all information and documents they receive or of which they become aware from the other contracting party during the performance of the contract, also beyond the end of the contract, insofar as they are marked as confidential or contain trade or business secrets worthy of protection.
15.2
The foregoing obligation does not apply if and to the extent that the party receiving the confidential information proves the following:
(a)
the information disclosed to the receiving party was already known to the receiving party without the receiving party being under an obligation of confidentiality,
(b)
the receiving party received the information in good faith from a third party lawfully in possession of it and under no obligation of confidentiality;
(c)
the information was in the public domain at the time it was received by the receiving party or became public knowledge otherwise than as a result of a breach of this agreement; or
(d)
the information was developed independently by the receiving party without any use of the confidential information of the other party; or
(e)
disclosure of the information is required by applicable law or regulations or in the context of judicial or administrative proceedings.
Section 16 Final Provisions
16.1
To the extent permitted by law, the exclusive place of jurisdiction for any dispute between the parties arising out of or in connection with this agreement is Osnabrück, Germany.
16.2
This agreement is governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
16.3
Should one or more provisions of this agreement be or become legally ineffective or unenforceable or if there is a loophole in the agreement, this will not affect the validity of the remaining provisions of the contract. Ineffective or unenforceable provisions are to be replaced by such effective and enforceable provisions as best correspond to the intention of the contracting parties. The same applies to gaps in the agreement.
