§ 1 Scope/General Provisions

(1) The following General Terms and Conditions (GTC) apply to all business dealings between Company 11 GmbH (hereinafter referred to as the “Contractor”) and the customer (hereinafter referred to as the “Client”), provided that the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB).

(2) Any agreements that deviate from these Terms and Conditions shall only be incorporated and shall supersede the conflicting provisions of these Terms and Conditions if the Contractor has agreed to them. Deviating individual agreements are possible upon mutual agreement.

(3) For the purposes of these Terms and Conditions, “work” includes, depending on the contractual agreement: camera work, post-production (editing, color grading, sound design, etc.), directing, scriptwriting and storyboarding, music research, sound recording, pre-production, and similar work.

(4) For the purposes of these Terms and Conditions, “production” refers to the aggregate of all agreed-upon services and work to be performed by the Contractor.

(5) The filming period, as defined in the contractual relationship between the Contractor and the Client, is the period during which all filming for the respective project is to take place. The completion date, as defined in the contractual relationship between the Contractor and the Client, refers to the date by which the Contractor will make the first video version available to the Client at the latest.

§ 2 Formation of the Contract

(1) The Client may request a quote for the service by phone or in writing without obligation. By making such a request, the Client is not submitting a binding offer to enter into a contract.

(2) Upon request by the Client, a quote or cost estimate for the requested service will be provided. This quote from the Contractor is legally binding. Subject to acceptance by the Client, the quote is valid for 14 days. Upon expiration of this period, the quote expires.

(3) The Contractor’s offer referred to above does not require any specific form, but is generally made in writing.

(4) The Client may accept the offer within the specified time limit only in writing, in electronic form, or in written form. Upon acceptance, a valid contract for the Contractor’s services is concluded.

(5) Upon consultation with the Client, the Contractor is authorized to commission third parties—whose services must be procured for the production—on behalf of, with the authority of, and for the account of the Client. Furthermore, the Contractor is authorized to subcontract portions of the work to third parties or external service providers without prior consultation. Any costs incurred as a result shall not be borne by the Client and are already included in the quotation.

(6) Any offers made by the Contractor to expand the scope of services after the contract has been concluded in accordance with this section are subject to change.

(7) The execution period and completion date specified in the Contractor’s offer are binding performance periods agreed upon upon the Client’s acceptance and are not merely indicative. The legal consequences of any delay for reasons not attributable to the Contractor are governed by Section 6(7) of these General Terms and Conditions.

§ 3 Copyright/Rights of Use

(1) The photo and video files produced by the Contractor are personal intellectual creations and are therefore copyright-protected works within the meaning of Section 2(1)(5) and (6) of the German Copyright Act (UrhG). The Contractor shall remain the owner of the works it produces at all times.

(2) The Contractor represents that it is authorized to grant the Client unrestricted rights of use and that the works are free of any third-party rights that could conflict with the transfer of such rights.

(3) With regard to the rights of use for the photo or video files, the terms individually agreed upon by the parties shall apply (plus a buyout fee, if applicable). If no such agreements have been made, the Client shall be entitled only to a limited right of use for the specific purpose intended by the Client at the time the contract was concluded. Any modifications by the Client require the Contractor’s express consent.

(4) The limited right of use does not include the right to reproduce, sell, distribute, or modify the works, etc. This list is not exhaustive and encompasses all other conceivable uses of the works that are not covered by the right of use guaranteed herein. Any editing of the works by the Client, in particular the combination or mixing with other image, audio, or video material, without the Contractor’s consent is prohibited. Should such editing by the Client be absolutely necessary for the use of the works for the purpose agreed upon in the contract, the Contractor may refuse consent only if the work is distorted within the meaning of §14 of the German Copyright Act (UrhG).

(5) The Client is not authorized to grant or transfer rights of use to third parties with respect to the Works (so-called “sub-licensing rights”). Furthermore, the Client is not authorized to assert claims for damages against third parties based on unauthorized use of the Works.

(6) The transfer of the right of use shall take effect upon completion of the respective work and full payment by the Client of the agreed compensation for the transfer of the right of use, including all work performed by the Contractor.

(7) There is no entitlement to use or receive raw data or any type of project files from, for example, editing or image-processing software, unless otherwise agreed.

(8) Exclusive rights of use to the completed files require a separate agreement and additional compensation.

(9) The Contractor is entitled to publish excerpts from the works on its own online presence (e.g., website, social media channels) for promotional purposes. This also applies, with the Contractor’s consent, to third parties who contributed to the creation of the works.

(10) The Client undertakes to ensure compliance with the granted rights of use. In particular, it is the Client’s responsibility, in the event of an infringement of the contractually guaranteed rights of use, to notify the Contractor of such infringement and to ensure that all agents and/or vicarious agents and other third parties within the Client’s sphere of influence comply with the granted rights of use.

(11) In the event of a breach of the agreed rights of use by the Client, regardless of fault, the Contractor is entitled to reasonable compensation. This does not preclude the assertion of further claims for damages.

(12) The Contractor has the right at any time to receive information regarding the use of the completed files. In addition, the Contractor may use excerpts from the files for its own commercial advertising and promotional purposes.

§ 4 Compensation

(1) The compensation agreed upon by the parties in the offer shall apply. Any deviating agreements must be made in writing.

(2) Upon completion of the service by the Contractor, an invoice will be issued with payment terms. The payment term is 14 days and begins upon receipt of the invoice. No discount will be granted at any time.

(3) Upon expiration of the payment term, if the Client fails to respond to a single request for payment, a collection procedure will be initiated immediately.

(4) The Contractor’s travel to and from the site generally originates in Berlin. Travel expenses are calculated at a rate of EUR 0.40 (plus VAT) per kilometer for distances of 100 kilometers or more. If travel is by train or airplane, or if an overnight stay is required, the resulting costs and expenses will be billed.

(5) Other costs incurred in connection with the assignment, such as stock photography, music licenses, material costs, parking fees, postage, and packaging, are not included in the fee and shall be borne by the Client.

(6) The only accepted method of payment is a bank transfer to the account specified on the invoice.

§ 5 Obligations of the Contractor

(1) The Contractor shall provide the required services to the extent agreed upon in the contract and within the filming period and by the completion date. If the filming period or the completion date is postponed for reasons beyond the Contractor’s control, the Contractor shall not be deemed to be in default. The Contractor is entitled to artistic discretion in its work. Defects that are complained of solely on the grounds of this artistic
discretion cannot be asserted.

(2) The Contractor shall deliver the final work in a standard file format/codec (e.g., mp4/H.264).

§ 6 Obligations of the Client

(1) The Client shall ensure that the Contractor has all the information necessary for the performance of the contract in a timely manner (directions, special requests, etc.).

(2) The Client shall ensure that photography or filming (including authorization for drone footage) is permitted at the respective locations. Any waiting time incurred by the Contractor due to such prohibitions shall count as working time. Any footage already captured that is subject to such a prohibition shall be deleted immediately. There is no entitlement to such footage. Any breaks taken by the Contractor during on-site video production shall also count as working time.

(3) Any complaints regarding defects must be submitted in writing immediately upon discovery.

(4) The Client bears the risk for all circumstances beyond the Contractor’s control, including, but not limited to, weather allowances for outdoor shoots; timely provision of products; availability of props, to the extent that the Client is responsible for their procurement; travel restrictions; failure of announced representatives of the Client to appear; failure of models to appear; illnesses such as COVID-19 affecting the Client or its vicarious agents; and force majeure (such as strikes, floods, epidemics, and pandemics, provided that the Robert Koch Institute has determined a risk level of at least “moderate”).

(5) If the Client cancels or terminates the production for reasons attributable to the Client, the Client shall pay the contractually agreed remuneration for the production. However, the Contractor must allow the Client to offset any expenses saved as a result of the termination of the contract, or any income earned or maliciously failed to earn through the alternative use of its labor. Should the Client postpone individual production or shooting days, the Client shall bear the costs already incurred for each such day.

(6) Upon request by the Client or its employees, the Client agrees to provide information regarding any intermediary services or other factors that led to the conclusion of the contract with the Contractor.

(7) The Client agrees to cooperate promptly at all times in the completion of the respective project. This includes, in particular, the obligation not to postpone or cancel filming projects, filming days, or other dates necessary for the execution of the respective project without compelling reasons, and to respond appropriately to communications from the Contractor without undue delay (14 days). The Client is further obligated to cooperate in the timely fulfillment of the timeframes and deadlines agreed upon at the time of contract conclusion for the filming period and the completion date. If no filming period or completion date was agreed upon at the time of contract conclusion, or if the filming period or completion date is postponed and/or cannot be met, the Client undertakes to cooperate in reaching a new agreement (within 14 days) upon request by the Contractor. Should the Client fail to fulfill its contractual and/or statutory obligation to cooperate, or should the shooting period or completion date be postponed for reasons for which the Contractor is not responsible, the Contractor may, depending on the duration of the delays or postponements of the shooting period or completion date resulting from the Client’s lack of cooperation, demand an adjustment of the contract of up to 30% of the remuneration for the Contractor’s work. A new agreement on the shooting period or completion date does not preclude the Contractor’s right to adjustment under paragraph 5. Section 648 of the German Civil Code (BGB) remains unaffected at all times.
Section 642 of the German Civil Code (BGB) is excluded only in the event of a successful adjustment of the contract pursuant to paragraph 5.

Section 7 Liability

(1) Liability for foreseeable damages typical of this type of contract, as well as for ancillary contractual obligations, is limited to cases of willful misconduct and gross negligence. In addition, the Contractor is liable at all times for injury to life, limb, or health.

(2) From the time the completed files are properly delivered, the Client is responsible for their proper use.

Section 8: Assignment, Set-off, and Rights of Retention

(1) The assignment of warranty claims is prohibited.

(2) The Client’s right to set off or withhold payment is contingent upon a court ruling establishing the grounds for set-off or the Contractor’s written acknowledgment thereof. This does not apply to counterclaims arising from the same contractual relationship.

§ 9 Statute of Limitations

Claims under the warranty for defects expire 20 months after the client becomes aware of the defect, subject to § 634a of the German Civil Code (BGB).

§ 10 Jurisdiction/Governing Law

(1) The place of jurisdiction for all disputes arising from the business relationship between the parties is the Contractor’s place of business. However, this applies only if the Client is a merchant within the meaning of the German Commercial Code (HGB).

(2) In case of doubt, the place of performance shall be the Contractor’s place of business.

(3) This Agreement is governed exclusively by German law.

Stand: 04.01.2024