TERMS AND CONDITIONS
1. SCOPE OF APPLICATION
The following General Terms and Conditions (hereinafter referred to as "Terms and Conditions") apply to all services provided by Clemens Barth (hereinafter referred to as "CB"), especially for the production of films. They also apply to all future orders and contractual relationships between CB and the client, even if they have not been expressly agreed upon again, unless CB has revised these Terms and Conditions and notified the client of the applicability of the updated Terms and Conditions before entering into a new order. CB does not recognize any deviating conditions of the client, even if CB is aware of them, unless CB has expressly agreed to their applicability in writing.
2. ORDER PLACEMENT
2.1 Pre-contractual information, in particular descriptions and cost estimates, are non-binding unless expressly agreed upon.
2.2 Order placement, acceptance, as well as any changes or additions, must be made in writing. Oral side agreements made at the time of contract conclusion are only valid if confirmed in writing by CB. This also applies to contract amendments after contract conclusion.
3.1 The prices provided by CB are stated in Euro (€) and do not include applicable value-added tax, unless expressly indicated. The contractually agreed price includes all production costs, provided that the film is produced according to the specifications in place at the time of order placement, particularly the approved script. The price also includes the provision of a screening-ready first copy, the format of which is to be agreed upon in writing by the parties upon contract signing. CB may request advance payments or payment of partial invoices at any time.
3.2 After the content has been determined according to clause 4.1 but before production commences, CB is obligated to make or have made any requested changes by the client, subject to payment, unless these changes significantly interfere with the artistic and technical design to the extent that CB cannot assume responsibility for their implementation. Changes requested after production has commenced and those for which CB cannot assume responsibility may be rejected by CB. The rejection of change requests does not grant the client a separate right to terminate the contract. CB must promptly inform the client of the estimated costs of the changes. CB may generally make its approval of change requests conditional upon an agreement on the additional costs and receipt of a corresponding advance payment. Otherwise, CB's price list applies.
3.3 Weather-related delays or interruptions of a shoot (weather risk) are not included in the calculated production costs. Any resulting additional costs must be reimbursed separately by the client upon providing evidence. The same applies to additional shooting days that are not attributable to intentional or grossly negligent behavior by CB.
3.4 If a reshoot becomes necessary without being caused by intentional or grossly negligent behavior by CB, such as equipment or material damage, the client cannot claim reimbursement for travel expenses or loss of earnings.
3. COSTS
5.1 Before the start of production, the client and CB agree on a deadline for the completion of the film.
5.2 If it becomes apparent during the course of production that the agreed timeframe cannot be met, CB must promptly inform the client of the reason and the estimated duration of the delay.
5.3 If the delay is caused by circumstances for which the client or third parties attributable to the client are responsible, particularly if necessary cooperation services by the client are not provided in a timely manner, the agreed completion deadline may be exceeded accordingly. Any additional costs resulting from such a delay shall be borne by the client.
5.4 In the event that the agreed completion deadline cannot be met due to extraordinary circumstances that CB cannot influence or foresee despite exercising due care (e.g. natural disasters, strikes, lockouts, official orders, general disruptions of telecommunications, etc.), Article 5.3 shall apply accordingly.
5. TIMEFRAME
4.1 The production is based on a script approved by the client before the start of production. If the creation of a script is not intended, the agreed concept and content of the film must be determined in writing no later than upon order placement.
4.2 The artistic and technical design of the film is the responsibility of CB. The client is responsible for the factual accuracy and legal admissibility of the film content to the extent that CB has followed the client's specifications. See clause 17.4 for further details.
4.3 After completion of the rough cut, the client has the opportunity to view the preliminary version of the film. If the client agrees to the rough cut, any subsequent complaints are excluded to that extent.
4. PRODUCTION
7.1 Immediately after completing a phase of work, CB will provide the client with a version for acceptance or present it to them at their premises. The client is obligated to provide a statement as to whether they accept the phase of work in the presented version. Within the framework of the schedule (see clause 5) and also for agreed or requested advance and partial payments in accordance with clause 3, CB is always entitled to request partial acceptances from the client.
7.2 Acceptance is deemed to have been granted upon receipt of the written (email or fax is sufficient) notification of availability by CB, unless the client refuses acceptance in writing within two weeks (see also clause 11.5). Timely dispatch of the refusal to accept is sufficient to meet the deadline. Use of the work also constitutes acceptance. Unless expressly stated otherwise, acceptance of a phase of work also constitutes acceptance of the underlying (creative) services, such as authorship, direction, sound, music, and editing services. Subsequent complaints are excluded. The assertion of defects based solely on artistic considerations, but still within the scope of the contractual basis according to clause 4.1, is also excluded.
7.3 The client can only refuse acceptance if the work significantly deviates from the contractual basis according to clause 4.1 or does not meet the required quality. Refusal of acceptance for deviations from the contractual basis according to clause 4.1 is excluded if they are based on instructions or agreed participation obligations of the client or their agents, or if they have been approved by the client or their agents (exclusion of so-called "taste returns"). Otherwise, CB is obligated to submit a revised work for re-acceptance once, based on the client's improvement suggestions, which must still be feasible within the budget. If this re-acceptance is also refused by the client, CB may terminate the contract with immediate effect.
7.4 CB will inform the client of the fiction of acceptance according to clause 7.2 upon delivery or presentation of a part or the entire completed film.
7.5 If the client has requested changes after accepting the film, they must communicate the desired changes to CB in writing. Such changes are at the expense of the client. CB must promptly inform the client of the estimated costs of the changes. CB may generally make its approval of change requests conditional upon an agreement on the additional costs and receipt of a corresponding advance payment. Otherwise, CB's price list applies.
7. ACCEPTENCE
6.1 If the client terminates the work order without any fault on the part of CB, 20% of the agreed fee shall be invoiced to the client.
6.2 In the event of termination after the 2nd day before the start of filming and on the day of filming, 30% of the agreed fee shall be invoiced to the client.
6.3 If the client terminates the contract after the start of filming, 50% of the agreed fee shall be invoiced to the client.
6.4 If the already incurred expenses exceed these respective amounts, these additional expenses shall also be reimbursed. The client is free to provide evidence that the loss resulting from the termination is lower.
6. CONTRACT TERMINATION BY THE CLIENT
9.1 CB has all the necessary copyright exploitation rights to achieve the purpose of the contract or will acquire these rights to the extent necessary, unless they are held by a collecting society. The granting of copyright exploitation rights refers exclusively to the contracted film work and not to the underlying film material of the entire production. The acquisition of rights to this film material is dependent on an additional license fee to CB, although CB is not obligated to grant these rights.
9.2 After completion of the film work and full payment of the production costs, CB grants the client the agreed usage rights to and from the film, to the extent that CB possesses them, they have been transferred by the filmmakers, or have been acquired in another manner by the rightful owner within the customary commercial framework.
9.3 Unless otherwise agreed, the client's acquisition of rights includes the right to publicly screen the film and distribute copies of the film within the agreed scope (temporally and spatially). The acquisition and transfer/granting of rights from collecting societies (e.g. GEMA, GVL) and/or rights and approvals from the FSK are not part of the contract. The client is responsible for obtaining these rights and/or approvals at their own expense.
9.4 The rights to adaptation, modification, supplementation, and foreign language dubbing are expressly excluded from the granting of rights, unless explicitly agreed upon in the contract and separately remunerated.
9.5 The client is obliged to display CB's company name and/or logo as a copyright notice in all their exploitations. Regardless of the extent of the transferred usage rights, CB has the right to screen and/or have the film work screened on the occasion of competitions and festivals, as well as for self-promotion. For this purpose, the client grants CB the necessary rights to any contributions made by them for the production (concept, screenplay, film and/or sound material, etc.).
9. COPYRIGHT
8.1 The invoice amounts are due 14 days after receipt of the invoice.
8.2 Unless otherwise agreed, payment shall be made in the following installments:
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1/3 upon contract conclusion
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2/3 upon acceptance, unless CB requests partial acceptances.
8. PAYMENT TERMS
12.1 Liability for damages is excluded if these damages are caused by the client themselves, for example, through their own contributions to the concept or screenplay or other forms of participation such as acting performances, selection and provision of filming locations, etc. Liability for damages is also excluded if they are caused by third parties, especially those involved in the production and employed or commissioned by the client, without CB simultaneously violating any expressly agreed-upon duty of supervision over these third parties. The same applies to defects or damages caused to the client's remaining assets during the filming or through the work itself.
12.2 CB is liable under this contract only for damages to the client that (1) CB or its legal representatives or agents have intentionally or grossly negligently caused, (2) are based on the violation of life, body, or health resulting from a breach of duty by CB or one of its legal representatives or agents, or (3) have arisen from the violation of an obligation, the fulfillment of which enables the proper execution of the contract and on which the client regularly relies and can rely (cardinal obligation).
12.3 CB's liability in cases under clause 12.2 (1) and (2) is unlimited in amount. In all other cases, the claim for damages is limited to the foreseeable, contract-typical damage.
12.4 In cases other than those mentioned in clause 12.2, CB's liability is excluded, regardless of the legal basis. CB is not liable, in particular, for damages incurred by the client due to a contract concluded with a third party, as only the respective contractual partner of the client is responsible for this. CB is not liable for slight negligence in the breach of insignificant contractual obligations.
12.5 In outdoor shoots, the client bears the risk of weather-related changes (see clause 3.3). CB is not liable for operational disruptions or disruptions/interruptions of any event to be filmed for the client if the recordings are carried out at the client's premises or at third-party premises or at the client's event at the client's request.
12.6 The above limitations of liability also apply to all organs, shareholders, employees, and agents of CB (if personal liability exists). Clauses 11.5 and 11.6 also apply to CB's liability.
12. LIABILITY OF CB
11.1 Warranty for defects is excluded if these defects are caused by the client themselves, for example, through their own contributions to the concept or screenplay or other forms of participation such as acting performances, selection and provision of filming locations, etc. Warranty for defects is also excluded if they are caused by third parties, especially those involved in the production and employed or commissioned by the client, without CB simultaneously violating any expressly agreed-upon duty of supervision over these third parties. CB provides warranty for defects in the work by either rectification or re-creation at its own discretion. Notification of a defect is only effective if it is made in writing, by email, fax, or any other form of written communication in accordance with § 126b of the German Civil Code (BGB).
11.2 If CB seriously and definitively refuses to fulfill its obligations, refuses to rectify the defect and provide subsequent performance due to disproportionate costs, if subsequent performance fails, or if it is unreasonable for the client, the client may, at their discretion, demand a reduction in remuneration (reduction) or rescission of the contract (withdrawal) and damages within the scope of liability limitation (see clause 12) instead of performance.
11.3 In the case of only minor contractual non-compliance, especially in the case of only minor defects, the client is not entitled to withdraw from the contract.
11.4 If CB is not responsible for the breach of duty underlying a defect, the client is not entitled to withdraw from the contract.
11.5 An obvious defect can only be objected to within two weeks of receiving the written notification of availability (see clause 7). An obvious defect is one that is noticeable to a non-expert client without further examination of the services provided.
11.6 Otherwise, the client's rights due to defects or damages expire one year from the statutory commencement of the limitation period, unless CB is guilty of gross negligence.
11.7 The client does not receive any guarantees in the legal sense.
11. WARRENTY
The delivered work remains the property of CB until full payment of the remuneration. The client only acquires ownership of the image/sound carrier that contains the contracted film work. The client does not acquire ownership of other image/sound carriers belonging to CB, such as the film material used during the production. CB is not obligated to transfer ownership of these image/sound carriers but may make it contingent upon the payment of an additional (license) fee.
10. OWNERSHIP
16.1 CB undertakes to maintain strict confidentiality regarding information about the client, affiliated companies of the client, any agency used, and their clients, business activities, corporate strategy, information about affiliated companies of the client, in particular the content of this and other production(s), technical implementation, and any existing marketing strategy, personal relationships of the client's participants, all business, operational, organizational, and technical knowledge, processes, and information that CB becomes aware of in the course of its activities for the client. This obligation also extends to matters concerning other companies that are economically or organizationally connected to the client. Confidentiality must be maintained both towards third parties and towards other employees of the client, team members, and performers.
16.2 The obligation of confidentiality begins at the latest with the signing of this contract and continues indefinitely even after its termination and does not end with the termination of this contract or the production covered by this contract. It also applies to confidential information that CB becomes aware of during discussions about future assignments, even if no further contract is concluded. CB shall impose this obligation of confidentiality on its employees and persons commissioned by them.
16.3 The obligation of confidentiality does not apply to information that is demonstrably either:
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already publicly known at the time of disclosure without CB's involvement,
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already in CB's possession prior to disclosure by the client or a third party,
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lawfully transmitted to CB by third parties,
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created independently by CB prior to disclosure, or
required to be disclosed in order to comply with legal regulations or enforceable official proceedings.
16. CONFIDENTIALITY
CB is entitled to refuse to commence or continue its activities if, in accordance with clause 3, CB has requested an advance payment or a partial payment, has issued a partial invoice after partial acceptance, or is awaiting a response or a read/receipt confirmation from the client in accordance with clause 14 until the respective performance by the client has been fully provided.
15. RIGHT TO REFUSE PERFORMANCE THE PRODUCER
The parties intend to document their communication as comprehensively as possible: CB shall promptly prepare protocols with brief summaries of discussions/consultations, which shall be sent to the client by email. These protocols may be in the form of bullet points, scanned notes, or video/audio recordings. The client shall communicate decisions, if possible, also by email. Decisions communicated orally (by telephone) by the client shall be confirmed by CB via email. In order to ensure prompt work by CB, the client intends to check their emails daily (on business days only) and respond within 24 hours, setting a deadline for addressing any questions raised. The client further intends to respond to any requested read and/or delivery confirmations from CB within 24 hours. Reference is made to clauses 15 and 17.
14. COMMUNICATION
CB shall not be liable for items brought by the client for the work, unless they have been specifically requested in writing. If items or materials (including props, digital content, etc.) come into the possession of CB, CB shall have a possessory lien in accordance with Section 647 of the German Civil Code (BGB).
13. ITEMS AND MATERIAL PROVIDED
20.1 If individual provisions of the contract or these terms and conditions are or become invalid, the validity of the contract as a whole shall remain unaffected. Invalid provisions shall be replaced by mutually agreed provisions that are suitable for achieving the desired economic purpose, taking into account the interests of both parties. The same applies to contractual gaps.
20.2 Amendments and additions to this contract require written form. The same applies to any waiver of this written form clause.
20.3 The contract is subject to the laws of the Federal Republic of Germany, excluding conflict of laws provisions.
20. FINAL PROVISIONS
The client is only entitled to offset if their counterclaims have been legally established or acknowledged by CB. Furthermore, the client is only authorized to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
19. OFFSETTING, RETENTION
If the client requests the conclusion of one or more specific insurances, such as weather risk, loss of film material, etc., the client shall bear the costs incurred as a result.
18. INSURANCE
17. LIABILITY AND CONTRATUAL PENALTIES OF THE CLIENT
17.1 The client is liable to CB for damages in accordance with statutory provisions if the client breaches contractual obligations. This applies in particular to:
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the use of copyrighted works by CB before full payment of the remuneration (see clause 3) or despite the non-agreed granting of exploitation rights,
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the assertion of untrue facts for the purpose of reducing or denying the remuneration agreed upon in this contract by CB. This prohibition also applies to representatives or agents such as the client's lawyers.
17.2 For each violation of the prohibition mentioned in clause 17.1, bullet point 1, the client undertakes to pay a contractual penalty of 20% of the net remuneration calculated for the work, and for each violation of the prohibition mentioned in clause 17.1, bullet point 2, a contractual penalty of 50% of the reduction or denied remuneration sought by the untrue assertion, for each case of non-compliance. The contractual penalties apply without prejudice to CB's claim for damages.
17.3 An untrue assertion of facts exists if it can be inferred from the documented communication or other evidence that something different is true. Otherwise, an untrue assertion of facts exists at the latest when it is finally determined in a judicial proceeding that the client's assertion or that of their representatives/agents (such as lawyers) is not true. CB expressly reserves the right to file a criminal complaint.
17.4 Without prejudice to the suspensive condition of the transfer of rights under clause 9.2, the client must be identified as legally responsible for all their exploitation measures. If third parties nevertheless assert claims for the infringement of rights against CB instead of the client in connection with their own exploitation measures or if third parties assert claims for the infringement of rights against CB in connection with their own exploitation measures in accordance with clause 9.5, the client shall indemnify CB to that extent. This means, in particular, that in such a case, the client shall provide CB with an advance payment for the costs of necessary legal defense, including their own expenses and a reasonable remuneration for the work effort that CB deems necessary in the specific situation.