General Terms and Conditions of B. A. Produktion GmbH, Applicable as from April/May 2021
1. GENERAL, SCOPE OF APPLICATION
1.1 All contracts with B. A. Produktion GmbH (hereinafter the „Contract“) shall be exclusively subject at all times to the following General Terms and Conditions (the „General Terms“). Unless expressly accepted by B. A. Produktion GmbH in writing, any terms and conditions of the Customer inconsistent with or diverging from these General Terms shall be excluded. These General Terms shall apply even if B. A. Produktion GmbH, knowing about inconsistent or diverging terms and conditions of the Customer, executes an order without reserve.
1.2 A consumer within the meaning of these General Terms is any natural person who enters into a business relationship with B. A. Produktion GmbH without exercising any industrial, commercial, or professional activity.
1.3 An enterprise or an entrepreneur within the meaning of these General Terms is any natural person or a corporation or incorporated partnership which enters into a business relationship with B. A. Produktion GmbH in exercise of its industrial, commercial, or professional activity.
1.4 A Customer within the meaning of these General Terms may be either a consumer, an enterprise, an entrepreneur or any related entities that have entered into any business relationships with B. A. Produktion GmbH or that are receiving any services from B. A. Produktion GmbH.
2. CONCLUSION OF THE CONTRACT
2.1 The offers of B. A. Produktion GmbH shall not be binding and shall be deemed to be a request to the Customer to place an order with B. A. Produktion GmbH.
2.2 The Customer’s order shall constitute a binding offer to B. A. Produktion GmbH, which B. A. Produktion GmbH may accept within four weeks by a written confirmation of order or actual performance of the ordered service. Until such time as the order has been accepted, the offer shall not be binding upon B. A. Produktion GmbH.
2.3 Type, scope and time of the service shall result from the individual contract, the order confirmation and/or the delivery notes or performance vouchers or records of B. A. Produktion GmbH. Verbal commitments or commitments during preliminary discussions from B. A. Produktion GmbH are only part of the contract if they have been explicitly accepted in the aforementioned documents. Objections to the content of an order confirmation must be raised without delay in writing, the latest within 8 days of receipt and prior to the performance of services. Later objections will not be considered.
2.4 The time limits agreed under the Contract shall begin to run upon receipt of the order confirmation by the Customer, however at the earliest when all conditions of the order and technical details have been cleared up and, if applicable, all original materials, documents and/or permits which are required by law and/or deemed to be required by B. A. Produktion GmbH have been provided or made available to B. A. Produktion GmbH by the Customer.
2.5 In the event of subsequent requests of the Customer for revisions to the original order, the agreed time limits shall be discontinued and shall run again from the beginning once the revised order is finalized.
3. FILM, VIDEO AND SOUND SERVICES
3.1 B. A. Produktion GmbH shall have the right to add and carry out all markings, identifications, margin cut-outs and retouchings such as clearings, tarnishings, punchings etc. on negatives and positives and provided data carriers and files and to remove existing markings, identifications, inscriptions etc., and to invoice the costs incurred thereby.
3.2 All title templates, title negatives, photographic plates, data carriers, hard drives and other signal carriers and files made by B. A. Produktion GmbH as well as the materials necessary for the copying process (contact and filter tapes, cutting lists, diskettes, data carriers, hard drives, files and databases etc.) shall remain B. A. Produktion GmbH’s property, regardless of the remuneration for B. A. Produktion GmbH’s services. B. A. Produktion GmbH shall not be obligated to store such material beyond completion of processing. For the eventuality of subsequent orders and without assuming any liability, B. A. Produktion GmbH will store such material only under a special written agreement.
3.3 If color copies/phonograms are to be manufactured, subjective appraisal of the colors/tones may vary significantly. In the event that the Customer has not given any instructions in this respect, tuning of the colors/tones shall be effected at B. A. Produktion GmbH’s discretion. The tolerances customary in trade shall apply to material-related, processing-related or system-related color or tone variations. In this respect, express reference is made to Section 11.1 hereof.
3.4 As a rule, all services of B. A. Produktion GmbH will be invoiced per shift or per hour. A shift is an aggregate of eight sequential production hours. To the extent that, according to the price list, the use of certain machines is invoiced per hour, the staff required for the operation of the machines will be invoiced per working hour as well. Any unfinished working hour will be invoiced as a full hour.
4. DELIVERY AND STORAGE OF MATERIALS
4.1 Without prior written agreement B. A. Produktion GmbH assumes no inspection commitment, no liability and gives no warranty for data security and data integrity regarding provided or transmitted video-, audio-, data- and media carrier, analog or digital, including data and files or other materials („Material“). Storage of Material handed over to B. A. Produktion GmbH shall be free of charge for the first-time processing order. B. A. Produktion GmbH’s contractual duties do not include a storage of such Materials beyond the duration of order processing.
4.2 The storage of Material after first-time processing or in other occasions will be carried out in the film storehouse or other areas of B. A. Produktion GmbH, which are not equipped for the storage of archives. The storage is carried out without any guarantee or warranty, particularly with respect to loss and damage. B. A. Produktion GmbH specifically points out that information and data stored on digital or analogue data carriers can be lost, damaged or corrupted due to technical defects or in any other way, without external influences. There will be no separate storage of original negatives and duplicate materials.
4.3 As a principle, B. A. Produktion GmbH takes over Material consigned for storage without checking the state and condition in which they are handed over. Sufficient insurance coverage (e.g. against lost, damage, fire, theft, water damage, Transport etc.) of such materials is the obligation solely of the Customer. Acceptance and return of the Material consigned for storage will be carried out during business hours. The Customer shall notify B. A. Produktion GmbH of his intention to pick up stored Material 24 hours in advance, in order to give B. A. Produktion GmbH sufficient time to make them available.
4.4 If B. A. Produktion GmbH deems it necessary, B. A. Produktion GmbH shall have the right to have the materials stored with third parties on behalf of the Customer.
4.5 The storage fees will be invoiced by B. A. Produktion GmbH according to the respectively applicable price lists. If the Material are not processed by B. A. Produktion GmbH, storage will be invoiced from the date of their delivery and fall due for three months in advance, respectively; any unfinished month of storage shall count as a full month.
4.6 The storage fees indicated in B. A. Produktion GmbH’s price lists do not include remuneration for special services such as stocktaking, preparing inventory lists, searching for individual items, sorting work, data backup, data archiving etc. Such service will be invoiced according to the actual time incurred.
4.7 After expiry of a period of time deemed to be reasonable by B. A. Produktion GmbH and after a corresponding notice, B. A. Produktion GmbH shall have the right to send the stored Material to the Customer’s last known address.
4.8 If such notice cannot be served upon the Customer, B. A. Produktion GmbH shall be entitled, after expiry of a period of one month, at its discretion and at the Customer’s risk and expense, either to deposit the Material with third parties or to sell it in a public auction or as used material, or to destroy it, or to use it, including the rights of use transferred by way of security pursuant to Section 13.10 hereof.
5. LEASE AND TRANSFER FOR USE
5.1 The Customer shall check completeness and exterior condition of the rented object immediately upon its receipt at the place of delivery and notify any damage to or other impairment of the object to B. A. Produktion GmbH, including any transport damage or loss, in writing. Complaints for shortage or evident defects lodged at a later date will not be accepted.
5.2 The Customer shall treat the rented objects with care and provide for a proper and sufficient insurance coverage. He shall not be entitled to sublet or in any means whatsoever transfer the rented objects to third parties for use.
5.3 Unless agreed otherwise with the Customer in writing, B. A. Produktion GmbH reserves the right to choose ways and means of transport. B. A. Produktion GmbH will only take out a transport insurance upon written request and at the expense of the Customer.
5.4 Risk shall pass to the Customer as soon as the rented objects are handed over to the forwarding agent(s) or leave B. A. Produktion GmbH’s storehouse for shipment, whichever shall occur first.
5.5 Upon expiry of the lease term, the Customer shall return the rented objects delivered free to B. A. Produktion GmbH domicile. The transport risks shall be borne by the Customer, even if B. A. Produktion GmbH carries out the transport on his behalf. In case of damage to, destruction or loss of the rented objects, e.g. by theft, the Customer shall notify the circumstances to B. A. Produktion GmbH in a comprehensive manner and without delay. The notification must be in writing.
5.6 Type, duration and extent of the transfer of equipment, objects and furniture shall result from the individual Contract, the confirmation of order and/or the delivery notes or performance vouchers or records of B. A. Produktion GmbH. Regardless of any differing duration of the use claimed by the Customer, said documents, in connection with the respectively applicable price list, shall be the basis for calculation of the remuneration.
5.7 At the end of their use by the Customer, the leased premises shall be returned in the same condition as they were delivered to him at the beginning of the lease. The full daily rent shall be charged for the duration of any necessary dismounting or cleaning work, which shall be at the Customer’s expense, as well as any cost for removal of rubble or debris.
5.8 The minimum lease term shall be one day. If, on some days within the lease term, the studios and adjoining rooms are not used by the Customer, only the rent for the rooms will be charged for up to two days
5.9 The Customer shall meet the deadlines agreed with B. A. Produktion GmbH for the beginning and the end of his work. If he exceeds the deadline, he shall not be entitled to use the rooms beyond the agreed deadline, or on weekends or holidays.
5.10 If an order is cancelled within the last 24 hours before the beginning of the lease term, a cancellation fee of 50 % of the total rent shall be due, unless the Customer can prove to the satisfaction of B. A. Produktion GmbH that the actual damage incurred by B. A. Produktion GmbH as a result of the cancellation is lower or negligible.
5.11 The Customer shall assume any and all legal liabilities for the leased premises and/or rooms, including, but not limited to the duty to maintain safety. He shall observe all applicable VBG (public insurance against occupational accidents), VDE (association of German electrical engineers), VDI (association of German engineers) and DIN regulations and standards, as well as all generally recognized safety and medical rules. To the extent prescribed by the authorities, fire-fighting, medical and order-maintenance staff shall be provided for by the Customer; if Customer fails to do so, such staff will be provided by B. A. Produktion GmbH and charged to the Customer at cost.
5.12 B. A. Produktion GmbH will not assume any liability for objects of any kind brought by the user into the leased premises and will not provide for insurance coverage of such objects.
5.13 If operating difficulties or other operating disruptions for which neither the Customer nor his agent or his auxiliary personnel is responsible, make performance of the agreed services impossible during a period longer than four consequential hours, B. A. Produktion GmbH shall have no right of remuneration for the duration of the disruption exceeding four hours. In such a case, however, the Customer shall only be entitled to rescind the Contract if the cause for the disruption cannot be removed within a reasonable period of time and, as a result, the Customer’s economic interests are substantially impaired.
5.14 If B. A. Produktion GmbH provides data-, network- or internet access to the Customer, the use is at his own risk and B. A. Produktion GmbH assumes no liability for damages of any kind that arise or occur to equipment, software or files of Customer and will not grant any insurance coverage. User guidelines separately issued by B. A. Produktion GmbH must be observed.
6. CUSTOMER’S DUTIES
6.1 The Customer warrants that he is legally and/or contractually entitled to enter into the Contract with B. A. Produktion GmbH and to make all dispositions and execute all legal acts related to the Contract. He represents that no legal obstacles prevent him from placing the order. The Customer undertakes to supply or provide all Materials and all accompanying documents necessary for order processing, assumes full Material and legal risk and releases B. A. Produktion GmbH from all claims made by third parties.
6.2 Upon express request of B. A. Produktion GmbH, the Customer shall represent that he is not subject to any limitation of his rights to exploit the material to be processed; if necessary, he shall obtain the consent of the party entitled to exploit the material. This shall also apply to the rights assigned to any company exploiting such rights (e.g. in Germany GEMA, GVL, etc.).
6.3 Within the framework of the statutory and/or contractual provisions, B. A. Produktion GmbH shall be entitled to deliver all reports required by the exploitation companies. In such cases, the Customer shall indemnify, defend and hold harmless B. A. Produktion GmbH against any claim of the exploitation companies.
6.4 Unless agreed otherwise in writing, B. A. Produktion GmbH shall be entitled to assume that the Customer (depositor – in case of a plurality of depositors each individual one) is entitled to draw rights and grant sublicenses.
6.5 The Customer shall:
provide for full insurance coverage of the items handed over to or deposited with B. A. Produktion GmbH;
keep available any security or duplicate material suitable for replacing the original material;
notify changes of address, company name or of the right holder to B. A. Produktion GmbH without delay;
furnish no nitro material to B. A. Produktion GmbH without prior notice in writing;
inform third party right owners about these General terms and ensure that these are approved in writing;
take delivery of the services in due time;
answer inquiries of and respond to statements by B. A. Produktion GmbH within a time period deemed reasonable by B. A. Produktion GmbH.
7.1 B. A. Produktion GmbH’s prices are in EURO and will be invoiced plus applicable legal VAT. If objects are to be delivered to the Customer, the prices will be ex works. Packaging, loading, insurance and freight as well as other expenses and fees will be invoiced separately.
7.2 If performance of the service takes place more than four months after conclusion of the Contract and if, during this time, B. A. Produktion GmbH’s costs for performance of the service have increased (reasons for the increased costs shall include but are not limited to the result of a wage settlement or price increases of material), B. A. Produktion GmbH shall be entitled to claim payment of the higher prices resulting therefrom.
7.3 B. A. Produktion GmbH will invoice disbursed costs for third-party services with a surcharge for administrative expenses of 20 %, unless Customer proves that B. A. Produktion GmbH’s costs for such third-party service were less.
7.4 Fixed and package prices and other price information refer exclusively to the services described in the individual agreement or order confirmation and are based on known circumstances prior to conclusion of the contract. If extensions or changes in services, variations in the delivered material or changes in other circumstances arise, these or any resulting overtime are not covered by the agreed price and will be charged separately.
8. TERMS OF PAYMENT, NO SETOFF
8.1 Depending upon the agreement, B. A. Produktion GmbH’s invoices shall be due for payment without any deduction at the moment that the Customer picks up or takes delivery of the object of the Contract, with provision of services or in case of contract for work with acceptance of the work.
8.2 B. A. Produktion GmbH shall have the right to demand a fee of €25.00 for each reminder as from the beginning of a default in payment, unless the Customer proves that B. A. Produktion GmbH’s costs for such reminder were less.
8.3 In case of the Customer’s default in payment, B. A. Produktion GmbH shall be entitled to charge a penalty interest on arrears at a rate exceeding the Deutsche Bundesbank Base Interest Rate (Basiszinssatz) by 5 percentage points if the Customer is a consumer and by 9 percentage points if the Customer is an entrepreneur or enterprise. In addition, B. A. Produktion GmbH shall have the right to charge an interest at a higher rate on another legal basis or to claim compensation for any higher damage incurred.
8.4 The Customer’s payments may only be withheld for or set off against undisputed counterclaims or counterclaims which have become final and absolute.
8.5 If, after conclusion of the Contract, the Customer’s financial situation deteriorates to a substantial extent or B. A. Produktion GmbH obtains knowledge of circumstances that could threaten payment of the remuneration, B. A. Produktion GmbH shall have the right to refuse performance of its duties until the Customer has fulfilled his obligations under the Contract or furnished security deemed appropriate by B. A. Produktion GmbH.
8.6 B. A. Produktion GmbH may set a reasonable time limit within which the Customer, at his choice, shall perform his obligation or furnish security simultaneously upon the corresponding counter-performance of B. A. Produktion GmbH under the Contract. If, after expiry of this time limit, the Customer has failed to perform, B. A. Produktion GmbH shall be entitled to rescind the Contract.
9. DELIVERY/PERFORMANCE OF THE SERVICE
9.1 The time limits for the delivery/performance of the service by B. A. Produktion GmbH result from the order confirmation issued by B. A. Produktion GmbH.
9.2 B. A. Produktion GmbH reserves the right to perform advance and part deliveries.
9.3 Any event of Force Majeure occurring shall entitle B. A. Produktion GmbH to delay the delivery or performance by the duration of the impediment.
9.4 If, due to an event of Force Majeure, the delivery or performance becomes impossible on a permanent basis, however at least for six months, B. A. Produktion GmbH shall be released from its obligation to deliver or perform.
9.5 For the purposes of these Terms and Conditions, Force Majeure shall include but not be limited to strike or legal lock-out, war, import or export restrictions, shortages of energy or raw materials, fire, flood, elements of nature or acts of God, public utility electrical failure, terrorism, riots, labor difficulties, court order, third party non-performance, or any other similar cause beyond the reasonable control of B. A. Produktion GmbH. If B. A. Produktion GmbH is released from its duty to deliver or perform and the Customer shall be entitled to rescind the Contract.
9.6 If, after expiry of the provided time limit, a delivery or performance is delayed upon the Customer’s request, B. A. Produktion GmbH will invoice any storage costs incurred as from this date; in case of a storage in B. A. Produktion GmbH’s factory 0.5 % of the total amount of the invoice for each month of storage; any unfinished month of storage shall count as a full month. This shall not affect the Customer’s right to prove that the actual costs incurred by B. A. Produktion GmbH for the storage are lower or negligible.
9.7 B. A. Produktion GmbH reserves the right to provide the services ordered by the Customer itself, through their branches, affiliates or by third parties commissioned by B. A. Produktion GmbH. B. A. Produktion GmbH has to inform Customer about subcontracting of third parties, unless subcontracting only includes auxiliary services.
10. PASSAGE OF RISK
10.1 In case of objects to be delivered, risk shall pass to the Customer as soon as the objects are dispatched or handed over to the forwarding agent. This shall also apply if the objects are forwarded by B. A. Produktion GmbH itself or the persons employed by B. A. Produktion GmbH for such purpose.
10.2 If the objects are collected by the Customer, risk shall pass when they are handed over to him or his agent. If dispatch or collection of the objects is delayed as a result of circumstances for which the Customer is responsible, risk shall pass to the Customer when the objects are ready for being dispatched or collected.
10.3 In the case of performance of a work, risk shall pass to the Customer upon acceptance.
11. CUSTOMER’S RIGHTS AND REMEDIES IN CASE OF DEFECTS
11.1 If motion-picture and/or sound recordings, data and files which were not recorded on B. A. Produktion GmbH’s equipment are copied or processed on its equipment, B. A. Produktion GmbH shall only be liable for a workmanship-like processing. If mixings of multi-channel recordings or master mixings of TV films or cine films are carried out by B. A. Produktion GmbH’s personnel without the Customer or a senior employee of the Customer (i.e. the director of the film) attending, B. A. Produktion GmbH shall only be liable for a technically proper processing. Regarding consulting and other services, B. A. Produktion GmbH is only liable for the timeliness and proper performance of the services, but not for a desired economic success of Customer or other performance success.
11.2 If Customer is an entrepreneur or an enterprise, he shall examine the delivered objects immediately after their delivery, or examine the performed work immediately after completion of the manufacturing process. If the objects or work show an evident defect, this defect must be notified in writing within one week from the time of their delivery; if not, acceptance must be notified.
11.3 Entrepreneurs or enterprises shall notify any non-evident defect within two weeks from the date at which it appears, however at the latest within one year from the delivery of the objects or acceptance of the work.
11.4 If the Customer is a consumer, he must notify in writing evident defects within two months from the date at which the defects appear, and non-evident defects within two years from the delivery of the objects or acceptance of the work, at the latest.
11.5 If the Customer fails to notify evident defects within the bar periods provided in Sections 11.2 to 11.4, the delivered object or the work performed shall be deemed accepted.
11.6 If a delivered object proves to be defective, the Customer may claim removal of the defect(s) either by repair of the defective object or delivery of another, defect-free object, at his discretion. If a performed work proves to be defective, B. A. Produktion GmbH shall be entitled to decide whether it will remove the defect by repair or by performing the work again.
11.7 B. A. Produktion GmbH may subject the removal of defect(s) to the payment of a reasonable share of the agreed price, taking the defect into account. B. A. Produktion GmbH may refuse removal of the defect(s) in the manner chosen by the Customer pursuant to Section 11.6 if the cost incurred is disproportionate.
11.8 If, in the case of a performed work, B. A. Produktion GmbH does not carry out removal of the defect(s) within a reasonable time limit set by the Customer, the Customer shall be entitled to remove the defect(s) himself or have them removed by third parties at B. A. Produktion GmbH’s expense if the cost incurred is not disproportionate with the defect.
11.9 If the repair of a defect fails twice or if B. A. Produktion GmbH refuses both repair and delivery of a new object or performance of a new work, or if B. A. Produktion GmbH does not carry out removal of the defect within a reasonable time limit set by the Customer, the Customer, in the case of both delivery of objects and performance of a work, shall be entitled either to reduce the price or to rescind the Contract. In addition, the Customer shall be entitled to claim either compensation of the costs incurred in vain, or damages instead of delivery or performance. The Customer’s right to rescind the Contract or to claim damages instead of delivery or performance shall be excluded if the defect is not a material defect.
11.10 If the Customer is an entrepreneur or an enterprise, the statutory period of limitation for his/its claims shall be one year from delivery of the object or acceptance of the work. If the Customer is a consumer, the statutory period of limitation for his claims shall be two years from delivery of the object or acceptance of the work.
11.11 The Customer shall not have any of the aforementioned rights or remedies if the defect(s) have been caused by an improper operation or maintenance of or changes to the delivered object or performed work without B. A. Produktion GmbH’s prior approval. Same applies for minor discrepancies from service description.
11.12 B. A. Produktion GmbH does not provide guarantees to Customer within the legal meaning.
12.1 B. A. Produktion GmbH’s liability shall be unrestricted in the case of willful misconduct or gross negligence.
12.2 In the case of ordinary negligence, B. A. Produktion GmbH shall only be liable to the extent that material contractual duties have been violated, and its liability shall be limited to the amount of the typical and foreseeable damage under the Contract, unless in the case of damage to life, body and health. Material contractual duties are those duties whose fulfillment makes the proper execution of the contract possible and on whose compliance the contractual partner regularly relies and may rely.
12.3 To the extent that restoration of the material handed over to B. A. Produktion GmbH for processing is not possible with the Customer’s negatives, copies or other kind of backup or original materials, the typical and foreseeable damage shall amount to the value of a carrier material or data carrier of the same type and length. B. A. Produktion GmbH shall not be liable for data security and data integrity of the data and files provided or made during the provision of services.
12.4 In the case of ordinary negligence, B. A. Produktion GmbH shall not be liable for any indirect and unforeseeable damage, as well as any consequential damage or lost profit, except if material contractual duties have been violated.
12.5 A liability for damages exceeding the liability provided herein shall be excluded regardless of the legal nature of the claim put forward.
12.6 The liability restrictions and exclusions pursuant to Sections 12.2, 12.3, 12.4 and 12.5 shall not apply to a liability without fault (strict liability) provided by statute, in particular under a guarantee, fraud or a product liability law.
12.7 To the extent that B. A. Produktion GmbH’s liability is restricted or excluded, this shall also apply to the personal liability of its employees, other staff members, corporate agents, and of any person employed by B. A. Produktion GmbH in performing the Contract.
13. RETENTION OF TITLE, SECURING RIGHTS AND RIGHTS OF USE
13.1 Objects delivered to consumers shall remain B. A. Produktion GmbH’s property until payment in full of the invoice.
13.2 If objects are delivered to an entrepreneur or enterprise, B. A. Produktion GmbH reserves securing rights to the delivered objects until full settlement of all receivables of B. A. Produktion GmbH from the whole business relationship with the entrepreneur. These securing rights shall be released pro rata as soon as their liquidation value exceeds the amounts to be paid by the entrepreneur by more than 20 % on a continuing basis. In the case of a current account, the rights shall serve to secure the balance receivable by B. A. Produktion GmbH.
13.3 The object of the Contract shall remain B. A. Produktion GmbH’s property until full payment of the invoice. If the entrepreneur resells the object of the Contract before its full payment, he shall assign his claim against the third-party buyer to B. A. Produktion GmbH until full settlement of all receivables of B. A. Produktion GmbH. B. A. Produktion GmbH accepts this assignment. The entrepreneur shall be entitled to collect his claim from the third party-buyer. The aforementioned right of the entrepreneur to resell delivered objects and to collect the claims resulting therefrom shall only apply in the case of a regular business relationship between the entrepreneur and such third party, and not in the case of any prohibition of assignment between them.
13.4 As long as retention of title is effective, the entrepreneur shall not be entitled to pledge, encumber, or dispose of the delivered object under a sale-and-lease-back arrangement or otherwise.
13.5 If the entrepreneur processes an object under retention of title, B. A. Produktion GmbH shall be the owner of the manufactured item. If objects under retention of title belonging to a plurality of retention owners are merged, commingled or processed, B. A. Produktion GmbH shall acquire the ownership of the manufactured item at its pro rata share in the aggregate value of the manufactured item.
13.6 The Customer shall treat the object under retention of title carefully and shall maintain it properly. In particular, he shall insure the object at the value of the new object against any damage or loss by fire, water, theft and destruction. The Customer herewith assigns all his claims under such insurance policy to B. A. Produktion GmbH. B. A. Produktion GmbH accepts this assignment. Furthermore, B. A. Produktion GmbH shall be entitled to require the Customer to furnish evidence of the insurance coverage.
13.7 In the case of attachments or other dispositions by third parties on objects under retention of title, the Customer shall notify B. A. Produktion GmbH in writing without delay in order to allow B. A. Produktion GmbH to institute a third-party action against execution. To the extent that the third party is not able to refund B. A. Produktion GmbH the cost of court and out-of-court expenses for such action, the Customer shall indemnify B. A. Produktion GmbH against the loss.
13.8 In the case of a default in payment, B. A. Produktion GmbH shall be entitled to disclose all securing rights and to enforce all claims resulting from such rights. In such a case, the Customer shall hand over to B. A. Produktion GmbH all documents available concerning the claim or right to be enforced, including, but not limited to contracts and delivery notes; the entrepreneur shall provide immediately the information necessary to enforce B. A. Produktion GmbH’s claim.
13.9 The Customer shall transfer to B. A. Produktion GmbH by way of security all Materials and items handed over to it in connection with the order, such as negatives, VTR-tapes, other original film material, photographic plates, data, files etc. including rights in course of acquisition.
13.10 Upon placing the order, the Customer shall grant B. A. Produktion GmbH the exclusive and unrestricted (as to time, space and content) right of use of all film works, audio works, moving pictures, data, files, databases, software and others, that are the object of the Contract. Such rights shall extend to all known types of utilization. To the extent that third-party rights exist or are created, the Customer shall assign his acquisition rights, if any, to B. A. Produktion GmbH for exclusive use. Subject to the condition subsequent of revocation, the Customer shall be authorized to use the objects. The Customer herewith assigns to B. A. Produktion GmbH all existing and future claims to which he is entitled as a result of a grant of rights of use to third parties. Similarly, the Customer herewith assigns to B. A. Produktion GmbH his claims for insurance benefits relating to these films. Subject to revocation, the Customer shall be entitled to collect the claims. B. A. Produktion GmbH accepts all above-mentioned assignments.
14. PLACE OF JURISDICTION, GOVERNING LAW
14.1 If the Customer is a businessman pursuant to German commercial law, a corporation under public law or special assets of the Federal Government, the place of performance and place of jurisdiction shall be Munich, Germany. Munich is also place of jurisdiction if Customer at time of conclusion of the Contract has no general place of jurisdiction in Germany or transfers his domicile or habitual residence after conclusion of the Contract to a place outside Germany or if his domicile or habitual residence is unknown at time of the complaint.
14.2 This Contract shall be exclusively governed in all respects by, and construed in accordance with, the laws of the Federal Republic of Germany (without giving effect to any principles of conflicts of laws which would lead to the application of the law of another jurisdiction). Application of the UN Agreement on International Sales of Goods (CISG) shall be expressly excluded.
14.3 This General terms are provided in German and English. The English version serves informational purposes only. Only the German version is legally binding and also has priority in the event of inconsistencies or contradictions between the German and English versions.
15. VALIDITY OF AMENDMENTS, SEVERABILITY
15.1 Amendments to the Contract as well as side agreements shall only be valid if made in writing. This shall also apply to this clause.
15.2 Should any of the above Terms and Conditions be or become ineffective, this shall not affect the validity of the other Terms and Conditions stated herein. In such a case, the ineffective provision shall be replaced by an effective one which shall meet as closely as possible the intended economic purpose of the ineffective provision taking into account the parties‘ interests. This shall also apply if these Terms and Conditions prove to have a loophole.
16. LICENSES, DATA PROTECTION, OTHER PROVISIONS
16.1 If B. A. Produktion GmbH provides or delivers software or software products or databases to the Customer, a non-exclusive license for use by the customer for his own purposes is granted, with exclusion of the right to grant sublicenses, unless expressly in writing something to the contrary has been agreed.
16.2 Hardware, software and data carrier has to be provided, delivered or returned free from programs or parts of programs, which are suitable to repeal, interfere or endanger the proper work and functioning of B. A. Produktion GmbH data processing systems. The customer is obliged to back up externally all data and information provided on Material and other media.
16.3 Customer expressly consents to the collection, processing and use of all data relating to the business relationship between B. A. Produktion GmbH and the Customer. B. A. Produktion GmbH will thereby observe the provisions of the Federal Data Protection Act.
16.4 Film and television productions as well as other media content, for which B. A. Produktion GmbH has provided services to the Customer, has to indicate in the title or trailer the following: B. A. Produktion GmbH GmbH (Logo). The presentation shall be made like common in the industry and in a manner comparable to other service providers. All team members will receive a mention in standard fashion in the opening or closing credits. B. A. Produktion GmbH will provide appropriate lists of names.
16.5 With his order the Customer grants B. A. Produktion GmbH the right to make copies of the edited film, sound or other media materials and to use them for self-promotion and his website, presentation- and training purposes, after the first publication by the Customer. This also includes the right to create and publish showreels.
17. HOUSE RULES
In addition, the House Rules of B. A. Produktion GmbH shall be deemed agreed by the Customer and B. A. Produktion GmbH. These House Rules are posted or displayed in all premises and/or central entrance areas to B. A. Produktion GmbH’s premises. They may be handed over to the Customer upon request.