AGB
1. APPLICABILITY, CONCLUSION OF THE CONTRACT
1.1 STILKRAFT Film e.U. (hereinafter referred to as "Film Production") provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These shall apply to all legal relationships between the film production and the customer, even if they are not expressly referred to.
1.2 Any terms and conditions of the client, even if known, will not be accepted, unless expressly agreed otherwise in writing in individual cases. A further objection against the GTCs of the customer by the film production is not required.
1.3 Amendments to the GTC will be notified to the client and are considered agreed upon if the client does not object to the amended GTC in writing within 14 days; the significance of silence will be explicitly pointed out to the client in the notification.
1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision is to be replaced by a valid one that comes closest to the meaning and purpose.
1.5 The offers of the film production are subject to change and non-binding.
1.6 Filmproduktion accepts orders by written order confirmation. If the order confirmation of Filmproduktion differs from the terms of an order, the legal transaction is concluded under the terms of Filmproduktion, unless the customer objects within three days after receipt of the order confirmation.
1.7 The customer has to appoint an official representative who is in charge of carrying out the communication inclusive all kinds of issues with the Film Production.
1.8 If an offer is accepted or the film production is officially commissioned and the order is canceled before the down payment of 50% has been made upon commissioning, the down payment invoice must be paid in full, irrespective of any cancellation before the start of shooting.
2. SOCIAL MEDIA CHANNELS
The film production explicitly informs the customer before the order is placed that the providers of "social media channels" (e.g. Facebook, hereinafter referred to as the provider) reserve the right in their terms of use to reject or remove advertising and appearances for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore a risk that advertising and appearances will be removed without reason, which the film production cannot calculate. In the event of a complaint from another user, the providers also allow for a counterstatement, but in this case the content is also removed immediately. Restoring the original, lawful state may take some time in this case. The film production works on the basis of these terms of use of the providers, which it has no influence on, and also bases a customer's order on them. The customer explicitly acknowledges with the order that these terms of use determine the rights and obligations of any possible contractual relationship. The film production intends to carry out the customer's order to the best of its knowledge and conscience and comply with the guidelines of "social media channels". However, due to the current terms of use and the easy possibility for any user to claim violations of law and thus remove content, the film production cannot guarantee that the commissioned campaign is always available.
3. CONCEPT- AND IDEA PROTECTION
If the potential customer has already invited the film production in advance to create a concept, and if the film production complies with this invitation before the conclusion of the main contract, the following regulation shall apply:
3.1 Already through the invitation and the acceptance of the invitation by the film production, the potential customer and the film production enter into a contractual relationship ("pitching contract"). This contract is also based on the GTC.
3.2 The potential customer acknowledges that the film production already provides cost-intensive preliminary services with the concept development, although he has not yet assumed any performance obligations himself.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential customer is not permitted to use and edit these parts without the consent of the 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 thus do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is later produced and thus as the origin of marketing strategies. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic imprint. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are considered to be an idea within the meaning of this agreement, even if they do not reach the level of a work.
3.5 The potential customer 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 customer 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 temporal allocation.
3.7 In the opposite case, the contracting parties 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 customer, it shall be assumed that the film production became meritorious in the process.
3.8 The potential customer may release itself from its obligations under this item by paying reasonable compensation plus 8% sales tax. The exemption shall only come into effect after full receipt of the payment of the compensation by the Film Production.
3.9 Any conceptual-content agreements between the customer and the production company serve only as a guideline or as a reference in the creation of all final products. STILKRAFT Film reserves the right to artistic freedom during all steps of pre-production, production and post-production. This can occasionally lead to slight conceptual course changes, which the production company will always make to the customer's advantage and in accordance with artistic standards.
3.10 If the creation of concepts for the content design of all products is required in the course of any kind of commissioning of the film production, we expressly point out that only one of various submitted concepts can be selected when commissioning and only one (without mixed forms) will be executed by the film production. In concrete terms, this means that if a customer is presented with two creative concepts, for example, these cannot be mixed together - there must be a clear decision in favor of a single final creative concept which is then produced.
4. SCOPE OF SERVICES, ORDER PROCESSING AND CUSTOMER'S DUTY TO COOPERATE
4.1 The scope of the services to be provided results from 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 written confirmation by the film production. Within the framework given by the customer, Filmproduktion has the freedom to design the fulfillment of the order.
4.2 All services provided by Filmproduktion (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be reviewed by the customer and approved by him within three working days of receipt by the customer. If they are not released in time, they shall be deemed approved by the customer.
4.3 The customer shall make available to Filmproduktion in a timely and complete manner all information and documents required for the performance of the service. He will inform it of all circumstances that are of importance for the execution of the order, even if these only become known during the execution of the order. The customer shall bear the expenses incurred by the fact that work must be repeated or is delayed by the film production as a result of his incorrect, incomplete or subsequently changed information.
4.4 The customer is also obligated to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of rights of third parties and can therefore be used for the intended purpose. The film production is not liable in the case of only slight negligence or after fulfillment of its duty to warn - at least in the internal relationship to the customer - because of an infringement of such rights of third parties by provided documents. 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 due to a claim made by a third party, in particular the costs of an appropriate legal representation. The customer is obligated to support the film production in the defense of any third party claims. The customer will provide the film production with all documents for this purpose without being asked to do so.
4.7 The unrestricted time and location of use of all content produced by the film production company for advertising purposes in their own interest, refers to any form of cooperation between customer and film production company, unless explicitly agreed with the customer (before the submission of the offer) otherwise.
5. EXTERNAL SERVICES / COMMISSIONING OF THIRD PARTIES
5.1 Filmproduktion is entitled, at its own discretion, to perform the service itself, to use expert third parties as vicarious agents for the performance of services that are the subject matter of the contract and/or to substitute such services ("third-party service").
5.2 The commissioning of third parties within the scope of an External Service is either done in its own name or in the name of the customer. Filmproduction will carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 Insofar as Filmproduktion commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of Filmproduktion.
5.4 The customer must enter into obligations to third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the film production contract for good cause.
5.5 Any further processing of delivered products (whether as a still image, photograph, video and/or sound material) by the customer requires the approval and release of the film production company.
6. DATES
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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 events of force majeure and other unforeseeable events that cannot be averted with reasonable means, the service obligations are suspended for the duration and to the extent of the obstacle and the deadlines are extended accordingly. If such delays last 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 passed fruitlessly. Claims for damages by the customer due to non-fulfillment or delay are excluded, except in the case of proof of intent or gross negligence.
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7. PREMATURE DISSOLUTION
7.1 Filmproduktion is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period of 14 days; b) the customer continues, despite a written warning with a grace period of 14 days, to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate. c) there are justified concerns regarding the creditworthiness of the customer and the customer does not make advance payments at the request of the film production nor does the customer provide suitable security before the film production has performed;
7.2 The customer is entitled to dissolve the contract for important reasons without setting a grace period. An important reason exists in particular if the film production continues to violate essential provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
8. HONORARY
8.1 Unless otherwise agreed, Filmproduktion's fee claim arises for each individual service as soon as it has been rendered. Filmproduktion is entitled to demand advance payments to cover its expenses.
8.2 The fee is understood to be a net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, Filmproduktion is entitled to a fee in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.
8.3 All services of the film production that are not expressly compensated by the agreed fee will be remunerated separately. All cash expenses incurred by the film production are to be reimbursed by the customer.
8.4 Cost estimates of the film production are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by Filmproduktion by more than 20%, Filmproduktion will inform the customer of the higher costs. The cost overrun is considered to be approved by the customer if the customer does not object in writing within a reasonable period of time after this notice and at the same time announces less expensive alternatives. If the cost overrun is up to 20%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the customer from the outset.
8.5 For all work of the film production, which for whatever reason is not carried out by the customer, the film production is entitled to the agreed fee. With the 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 are rather to be returned to the film production immediately.
8.6 In the event of a customer being unable to be reached communicatively (e.g. by telephone, email, etc.) for a period of 14 days from the last communication, the customer shall be required to pay the agreed fee even if all the agreed content and all billed services have not been delivered.
9. PAYMENT, RETENTION OF TITLE
9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenditures. The goods delivered by Filmproduktion remain the property of Filmproduktion until full payment of the remuneration including all ancillary liabilities.
9.2 In case of default of payment by the customer, the legal default interest applies in the amount applicable for business transactions. Furthermore, in the event of a delay in payment, the customer agrees to reimburse Filmproduktion for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal action. This includes in any case the costs of two reminder letters in the usual market amount as well as a reminder letter of a lawyer assigned with the collection. The assertion of further rights and claims shall remain unaffected.
9.3 In the event of default of payment by the customer, Filmproduktion may immediately call due all services and partial services rendered under other contracts concluded with the customer.
9.4 Furthermore, Filmproduktion is not obligated to provide further services until the outstanding amount is paid (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment in installments was agreed upon, Filmproduktion reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of deadline).
9.6 The customer is not entitled to set off his own claims against claims of the film production, unless the customer's claim has been acknowledged in writing by the film production or has been established by a court of law.
10. PROPERTY RIGHTS, USE RIGHTS AND COPYRIGHTS
10.1 All services provided by Filmproduktion, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, remain the property of Filmproduktion, as do the individual workpieces and design originals, and may be reclaimed by Filmproduktion at any time - in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation of services of the film production requires in any case the full payment of the fees charged by the film production. If the customer already uses the services of Filmproduktion before this point in time, this use is based on a loan relationship that can be revoked at any time.
10.2 Modifications or adaptations of Filmproduktion's services, such as in particular their further development by the customer or by third parties working for the customer, are only permitted with the express consent of Filmproduktion and - insofar as the services are protected by copyright - of the author.
10.3 For the use of services of the film production that goes beyond the originally agreed purpose and scope of use, the consent of the film production is required - regardless of whether this service is protected by copyright. For this, the film production and the author are entitled to a separate appropriate remuneration.
10.4 For the use of services of the film production or advertising material for which the film production has developed conceptual or design templates, the consent of the film production is also required after the expiration of the film production contract - regardless of whether this service is protected by copyright or not.
10.5 Filmproduktion reserves the right to create still and moving image recordings, including sound recordings of any kind, for its own purposes before, during and after filming of any kind and to publish them without the consent of the client or third parties or other external parties, without any restrictions in terms of time or space. This includes not only recordings that show the production of the content, but also all possible products and content created as part of an assignment.
11. MARKING
11.1 The film production is entitled to refer to the film production and, if applicable, to the originator on all advertising media and in all advertising measures, without the customer being entitled to a claim for payment for this.
11.2 Subject to the written revocation of the customer, which is possible at any time, the film production 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 with name and company logo (reference).
12. WARRANTY
12.1 The customer must report any defects immediately in writing, in any case within eight days after delivery/service by the film production, hidden defects within eight days after recognizing them, describing the defect; otherwise the service is considered 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.
12.2 In the case of justified and timely notice of defects, the customer has the right to improvement or replacement of the delivery/service by Filmproduktion. Filmproduktion will remedy the defects within a reasonable period of time, whereby the customer will allow Filmproduktion to take all measures necessary for the examination and remedy of defects. Filmproduktion is entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for Filmproduktion. In this case, the customer is entitled to the legal rights of conversion or reduction. In the case of improvement, it is incumbent upon the client to carry out the transfer of the defective (physical) item at his own expense.
12.3 It is also incumbent upon the customer to carry out the review of the performance with regard to its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. The film production is only obligated to a rough check of the legal admissibility. The film production is not liable for the legal admissibility of content in the case of slight negligence or after fulfillment of a possible duty to warn the customer, if the content was specified or approved by the customer.
12.4 For acceptance or approval of the final products, when commissioned, a responsible person from the client's ranks should be appointed to collect feedback, and approve the performance of the film production company. Change requests from various bodies of the same institution or from a client will not be recognized as individual points. Any form of feedback must be communicated in a collected form, in a written document (via email to office@stilkraft-film.com).
12.5 In case of change requests/feedback, the client is obligated to do so in an understandable language, in a realistic and proportionate scope and in a comprehensible argumentation.
12.6 Example: "The footage does not meet the company's quality standards" or similar. Such or similarly general formulations of feedback leave too much room for interpretation to ensure professional processing of orders and are therefore not accepted by the film production.
12.7 If no feedback is received within 14 days of submission of a preview of the content to be delivered (after filming and editing have been completed), everything produced shall be deemed to have been accepted and completed. The outstanding payment will be invoiced in full.
13. LIABILITY AND PRODUCT LIABILITY
13.1 In cases of slight negligence, any liability of Filmproduktion and those of its employees, contractors or other vicarious agents ("people") for property damage or financial loss of the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage due to defects, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence has to be proven by the injured party. As far as the liability of the film production is excluded or limited, this also applies to the personal liability of its "people".
13.2 Any liability of the film production for claims made against the customer due to 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 does not harm. In particular, the film production is not liable for legal costs, the customer's own attorney's 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.
13.3 Claims for damages of the client expire six months after knowledge of the damage; in any case, however, after three years after the infringing act of the film production. Claims for damages are limited to the net order value.
14. DATA PROTECTION
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The customer agrees that his personal data, namely name/company, 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 data, VAT number) may be used for the purpose of fulfilling the contract and supporting the customer as well as for own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of reference to the existing or former business relationship with the customer (reference). The customer 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 sending an e-mail to the contact details listed at the top of the GTC.
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15. APPLICABLE LAW
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The contract and all mutual rights and obligations derived therefrom as well as claims between the film production and the customer are subject to Austrian law.
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16. JURISDICTION
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16.1 The place of jurisdiction for all legal disputes arising between the Filmproduktion and the customer in connection with this contractual relationship is agreed to be the court with subject-matter jurisdiction for the registered office of the Filmproduktion in Vienna. Notwithstanding this, Filmproduktion is entitled to sue the customer at his general place of jurisdiction.
16.2 As far as in this contract terms referring to natural persons are only stated in male form, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form is to be used.
17. ARCHIVING
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Regarding the archiving of film material, The Film Production commits to archive all audiovisual content transmitted to the customer for a period of 3 Months. This archiving period begins from the moment of transmission of the film material to the customer. During this time, the Film Production will take all reasonable measures to ensure the security and integrity of the archived data and to prevent unauthorized access. After the expiration of the period, the Film Production reserves the right to delete or destroy the archived content unless there is an explicit written agreement between the Film Production and the customer specifying a longer retention period. The Film Production shall not be liable for the loss or damage of film material after the expiration of the archiving period.
18. Obstructions and prevention of filming - METEOROLOGICAL INFLUENCES / Other
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If the professional execution of filming cannot be guaranteed due to short-term meteorological influences on a planned shooting date, an alternative date must be set within 14 days in consultation with the customer, on which the shooting date canceled due to bad weather will be made up in full. The film production company accepts no liability for any additional costs incurred as a result of a postponed shooting date that had to be postponed due to obstructive meteorological influences.
If the film production is unable to shoot on time due to illness, the client must be informed of this 24 hours before the start of shooting. In this case, the film production will endeavor to find an alternative date within 14 days.