General Terms and Conditions
of FILMER UG (Limited Liability), represented by its managing director Klaus Einwanger, Am Rossacker 9, 83022 Rosenheim, Germany
1. Validity of the terms and conditions
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
Any terms and conditions of the client that deviate from the following terms and conditions shall not be recognized. Such alternative terms and conditions do not form part of the contract even if F.UG-LL does not explicitly contradict them.
2.1 Estimate of costs
F.UG-LL estimated costs are not binding. Cost increases are to be advised by F.UG-LL, will advise the client if the original estimated total costs are exceeded by 15%.
2.2 Subsequent change requests/ contract extension
Requests by the client for changes or amendments to the agreed services; or contract extensions commissioned by the client during or after completion of the project, will be subject to a separate /additional agreement between the parties and shall be budgeted accordingly.
2.3 Authorization to commission third parties
If the production requires the services of a third party or contract a third party, F.UG-LL is authorized to enter into the corresponding obligations in the name and for the account of the client who will be responsible for full payment of any and all third party costs.
2.4 Client Briefing
The client’s briefing documents, templates and/or other information provided by the client shall be regarded as final specifications and will form the basis for the calculations, cost estimates and subsequent production of the shots prepared by F.UG-LL.
In the event that the client does not provide the Company with the above- documents, the pre-production meeting (PPM) minutes/notes, all e-mail traffic between the parties as well as the memory protocols of the PPM and telephone notes made by F.UG-LL will form the basis for the production of the recordings.
2.5 Artistic scope for design
F.UG-LL have artistic freedom of design when taking pictures, although the binding specifications of the client from briefing, PPM and/or verbal or telephone instructions will be observed. Complaints and/or production questions, regarding the artistic freedom of design exercised by the employees of F.UG-LL are excluded. Subsequent change requests by the client require additional agreements and invoiced separately.
2.6 Client own materials
If the client wishes / expects / demands the use of his/her own production material, he/she will transfer this to F.UG-LL in a data format (at least 2K) and in a quality corresponding to the final format in time before the start of production. In this regard, the client assures that he/she has the rights to use, the right to edit, and is liable according to the regulation in section 7.3.
In the event that the film material has to be adapted for further processing, the client agrees to incur the costs incurred for this.
If the client, or authorized representative, is present during the production of the recordings, the client and /or representative has right to advise or review the recordings on the set and has to advise of possible changes to F.UG-LL at that time, so that F.UG-LL can address the issue and create new recordings, otherwise the recordings are considered approved and accepted.
F.UG-LL will send a pre-final cut version of the recording to the client and afford 10 days to review the footage for possible changes or corrections.
Should the client seek changes the client has to inform F.UG-LL in writing immediately, no later than 14 days after delivery of the pre-final cut recordings.
After expiration of this period the recordings are considered accepted by the client (§ 640 para. 2 BGB (German Civil Code).
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 co-operate
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 licences
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 will agree the completion date of the recordings before the start of production. F.UG-LL will make every effort to meet the delivery date. The delivery time may be extended if the client
• requests changes,
• is unable to comply with contractual obligations
• delays outwith the control of F.UG-LL – refer to force majeure below
• due to the responsibility 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
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.
Unless otherwise agreed in the event of cancellation by the client, for whatever reason, F.UG-LL will be entitled charge 25% of the agreed production fee.
Furthermore, both parties have the right to terminate the contract for work and services according to § 648a BGB (German Civil Code) for good cause.
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 copyrighted rights of use of the recordings only after full payment of :
• All fees and any additional costs.
• All relevant taxes including VAT
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.
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.
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.
9.1 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.