3. protection of concepts and ideas
If the potential client has already invited the film production to create a concept in advance and the film production complies with this invitation before the conclusion of the main contract, the following provision shall apply:
3.1 The potential client and the film production already enter into a contractual relationship ("pitching contract") through the invitation and the acceptance of the invitation by the film production. This contract is also based on the GTC.
3.2 The potential client acknowledges that the film production already provides cost-intensive preliminary services with the concept development, although he himself has not yet assumed any performance obligations.
3.3 The concept is protected by copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential client is not permitted to use or edit these parts without the consent of Film Production on the basis of copyright law alone.
3.4 The concept also contains ideas relevant to advertising that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is produced later and thus as the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.
3.5 The potential client undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by the film production within the framework of the concept outside the corrective of a main contract to be concluded at a later date.
3.6 If the potential client is of the opinion that ideas were presented to him by the film production which he had already come up with before the presentation, he must inform the film production of this by e-mail within 14 days of the day of the presentation, citing evidence which allows a chronological allocation.
3.7 In the opposite case, the contracting parties shall assume that the Film Production has presented the potential customer with an idea that is new to him. If the idea is used by the client, it shall be assumed that the film production has made a profit.
3.8 The potential client may release himself from his obligations under this point by paying appropriate compensation plus 8% VAT. The exemption shall only take effect after full payment of the compensation has been received by the Film Production.
4 Scope of services, order processing and the customer's duty to cooperate
4.1 The scope of the services to be rendered is determined by the service description in the film production contract or any order confirmation by the film production, as well as any briefing protocol ("offer documents"). Subsequent changes to the service content require the written confirmation of the film production. Within the framework specified by the client, the film production is free to design the fulfillment of the order.
4.2 All services provided by Film Production (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be reviewed by the client and approved by the client within three working days of receipt by the client. If they are not released in good time, they shall be deemed to have been approved by the customer.
4.3 The Client shall provide Film Production with all information and documents required for the provision of the service in a timely and complete manner. He shall inform them of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer shall bear the costs incurred if work has to be repeated or delayed by Film Production as a result of incorrect, incomplete or subsequently changed information provided by the customer.
4.4 Furthermore, the customer is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of slight negligence or after fulfilling its duty to warn, Filmproduktion shall not be liable - at least in its internal relationship with the customer - for any infringement of such third-party rights by the documents provided. If a claim is made against the Film Production by a third party due to such an infringement of rights, the customer shall indemnify and hold the Film Production harmless; the customer shall compensate the Film Production for all disadvantages incurred by the Film Production as a result of a claim by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support the film production in the defense against any third-party claims. The customer shall provide the film production with all documents for this purpose without being requested to do so.
5 External services / commissioning of third parties
5.1 Filmproduktion is entitled, at its own discretion, to perform the service itself, to use competent third parties as vicarious agents in the provision of contractual services and/or to substitute such services ("third-party service").
5.2 The commissioning of third parties within the scope of a third-party service shall be carried out either in the client's own name or in the client's name. The Film Production shall carefully select such third parties and ensure that they have the necessary professional qualifications.
5.3 Insofar as the Film Production commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the Film Production.
5.4 The customer shall assume any obligations towards third parties that extend beyond the term of the contract. This also applies expressly in the event of termination of the film production contract for good cause.
6.1 Unless expressly agreed as binding, stated delivery or performance deadlines are only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by the Film Production.
6.2 If the delivery/service of the film production is delayed for reasons for which it is not responsible, such as force majeure events and other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and to the extent of the obstacle and the deadlines shall be extended accordingly. If such delays last for more than two months, the customer and the Film Production are entitled to withdraw from the contract.
6.3 If the film production is in default, the customer can only withdraw from the contract after he has set the film production a reasonable grace period of at least 14 days in writing and this has expired fruitlessly. Claims for damages by the customer due to non-fulfillment or delay are excluded, except in cases of intent or gross negligence.
7.1 Unless otherwise agreed, the Film Production shall be entitled to a fee for each individual service as soon as it has been rendered. The Film Production is entitled to demand advance payments to cover its expenses.
7.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the Film Production is entitled to a fee for the services rendered and the transfer of copyright and trademark rights of use at the usual market rate.
7.3 All services provided by the Film Production that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Film Production shall be reimbursed by the client.
7.4 Cost estimates of the Film Production are non-binding. If it is foreseeable that the actual costs will exceed the Film Production's written estimate by more than 20%, the Film Production shall inform the client of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within a reasonable period of time after this notification and at the same time announces more cost-effective alternatives. In the case of a cost overrun of up to 20%, a separate notification is not required. This cost estimate overrun shall be deemed to have been approved by the client from the outset.
7.5 The Film Production shall be entitled to the agreed remuneration for all work of the Film Production that is not carried out by the Client for any reason whatsoever. Upon payment of the fee, the customer does not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed must be returned to the film production immediately.
8 Payment, retention of title
8.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed in writing in individual cases. This also applies to the charging of all cash outlays and other expenses. The goods delivered by Filmproduktion shall remain the property of Filmproduktion until full payment of the remuneration including all ancillary liabilities.
8.2 If the customer is in default of payment, the statutory default interest in the amount applicable to business transactions shall apply. Furthermore, in the event of default of payment, the customer undertakes to reimburse Filmproduktion for the dunning and collection expenses incurred, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the usual market amount as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims shall remain unaffected.
8.3 In the event of default of payment by the client, the Film Production may demand immediate payment of all services and partial services rendered under other contracts concluded with the client.
8.4 Furthermore, the Film Production is not obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay the fee remains unaffected.
8.5 If payment in installments has been agreed, Filmproduktion reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
8.6 The customer is not entitled to offset his own claims against claims of the film production, unless the customer's claim has been recognized in writing by the film production or has been legally established.
9. property rights, rights of use and copyright
9.1 All services of Film Production, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, shall remain the property of Film Production, as shall the individual workpieces and original drafts, and may be reclaimed by Film Production at any time - in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation rights to the services of the film production requires in any case the full payment of the fees invoiced by the film production. If the customer already uses the services of the film production before this time, this use is based on a loan relationship that can be revoked at any time.
9.2 Changes or adaptations of services of the Film Production, in particular their further development by the customer or by third parties working for the customer, are only permitted with the express consent of the Film Production and - insofar as the services are protected by copyright - the author.
9.3 The consent of the Film Production is required for the use of services of the Film Production that go beyond the originally agreed purpose and scope of use, irrespective of whether this service is protected by copyright. The Film Production and the Author shall be entitled to a separate appropriate remuneration for this.
9.4 For the use of services of the Film Production or advertising material for which the Film Production has developed conceptual or creative templates, the consent of the Film Production is also required after the expiry of the Film Production contract, irrespective of whether this service is protected by copyright or not.
10.1 The Film Production is entitled to refer to the Film Production and, if applicable, to the author on all advertising media and in all advertising measures, without the customer being entitled to any remuneration for this.
10.2 Subject to the customer's written revocation, which is possible at any time, Filmproduktion is entitled to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its Internet website by name and company logo (reference).
11.1 The customer must report any defects immediately, in any case within eight days of delivery/performance by Film Production, hidden defects within eight days of recognizing them, in writing with a description of the defect; otherwise the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects is excluded.
11.2 In the event of justified and timely notification of defects, the customer is entitled to improvement or replacement of the delivery/service by Film Production. The Film Production shall remedy the defects within a reasonable period of time, whereby the customer shall enable the Film Production to take all necessary measures to investigate and remedy the defects. Filmproduktion is entitled to refuse to improve the service if this is impossible or involves disproportionately high costs for Filmproduktion. In this case, the customer is entitled to the statutory rights of conversion or reduction. In the event of improvement, the client shall be responsible for transferring the defective (physical) item at its own expense.
11.3 It is also the responsibility of the client to check the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. The Film Production is only obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfillment of any duty to warn the customer, the film production is not liable for the legal admissibility of content if this was specified or approved by the customer.
12 Liability and product liability
12.1 In cases of slight negligence, Filmproduktion and its employees, contractors or other vicarious agents ("people") shall not be liable for property damage or financial loss suffered by the customer, regardless of whether it concerns direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. Insofar as the liability of Filmproduktion is excluded or limited, this also applies to the personal liability of its "people".
12.2 Any liability of the Film Production for claims asserted against the customer on the basis of the service provided by the Film Production (e.g. advertising measure) is expressly excluded if the Film Production has fulfilled its duty to inform or if such a duty was not recognizable to it, whereby slight negligence shall not be detrimental. In particular, the film production is not liable for legal costs, the customer's own legal fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the film production harmless in this regard.
12.3 The customer's claims for damages shall expire six months after knowledge of the damage, but in any case after three years from the infringement by the Film Production. Claims for damages shall be limited to the net order value.
13. data protection
The customer agrees that his personal data, namely name/company name, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, VAT number) may be used for the purpose of fulfilling the contract and supporting the customer as well as for our own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or previous business relationship with the customer (reference). The client agrees that electronic mail may be sent to him for advertising purposes until revoked. This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details listed at the top of the GTC.
14 Applicable law
The contract and all reciprocal rights and obligations as well as claims between the film production company and the customer derived from it are subject to German substantive law.
15 Place of jurisdiction
15.1 The place of jurisdiction for all legal disputes arising between the Film Production and the Client in connection with this contractual relationship shall be the court having subject-matter jurisdiction for the registered office of the Film Production. Notwithstanding this, the Film Production is entitled to sue the customer at his general place of jurisdiction.
15.2 Insofar as this contract refers to natural persons only in the masculine form, they refer to women and men in the same way. When applying the term to certain natural persons, the respective gender-specific form must be used. As of January 2023.