GENERAL TERMS AND CONDITIONS OF BUSINESS OF MISCHFABRIK GmbH

 

 

1. general

a. These following General Terms and Conditions apply to all business relations of MISCHFABRIK GmbH with customers (hereinafter referred to as “Customer”), in particular delivery of material or granting of rights of use. The GTC shall only apply to business relations with entrepreneurs, legal entities under public law or special funds under public law.

b. These GTC apply exclusively. The effect of general terms and conditions of the customer is expressly excluded. Deviating, conflicting or supplementary GTC of the Customer shall only become part of the contract if and to the extent that Mischfabrik GmbH has expressly agreed to their validity. This requirement of consent shall also apply in particular if Mischfabrik GmbH performs the service without reservation in the knowledge of the Customer’s GTC.

c. Legally relevant declarations and notifications to be made by the Customer to Mischfabrik GmbH must be made in writing to be effective.

d. Individual agreements with the customer take precedence over these GTC. A written contract or written confirmation from Mischfabrik GmbH shall be decisive for their content.

e. The place of performance for the delivery is the registered office of the Customer, for the return delivery of Mischfabrik GmbH.

 

2. fee invoicing

a. Any agreed and any further use of the material is subject to a fee. The amount of the fee depends on the type and scope of use and must be agreed in advance.

b. Fees are always net fees without value added tax.

c. The fee is due for payment upon acceptance of the material or upon completion of the project immediately after invoicing. If the customer does not make any comments within seven days of submitting the material, acceptance shall be deemed to have taken place.

d. For projects that exceed a total timeframe (conception to completion) of six weeks or more, 30% of the total amount estimated in the offer will be due after acceptance of the storyboard and a further 30% after completion of filming. The remaining amount shall be paid upon acceptance of the finished version immediately after the preparation of the
“Remaining Balance Invoice” due.

e. If a circumstance occurs during the manufacture of the production for which Mischfabrik GmbH is not responsible and which permanently prevents the manufacture of the production in accordance with the contract, the claim to payment of the total price agreed in the production contract is owed despite the lack of obligation to perform. The total price shall be reduced by the expenses that were not actually incurred due to the lapse of the performance obligations.

f. If the customer cancels the contract up to three working days before the scheduled start of shooting, for example for reasons agreed in the individual contract or for legal reasons, 50% of the agreed remuneration shall be due as default remuneration. After that, the full remuneration is due.

 

3. granting of rights of use

a. The rights to the material in question are granted only for the agreed purpose and language area for one-time use. Any further use or other extension of the originally granted right of use is only permitted with the prior written consent of Mischfabrik GmbH. Exclusive rights or blocking periods must be agreed separately in writing.

b. Granted rights of use cannot be transferred without the consent of Mischfabrik GmbH even if the transfer takes place in the context of the overall sale of a company or the sale of parts of a company (Section 34 (3) UrhG) or if it concerns rights to film works.

c. The passing on of the material and the transfer of rights of use to third parties by the client is only permitted with the prior written consent of Mischfabrik GmbH. The material may not be stored in a database system or otherwise electronically exploited or processed, in particular in online systems (Internet, intranet, mail systems, etc.) without the prior written consent of the production company. Distorting or distorting changes by adding or omitting are not permitted. The material may not be distorted or otherwise impaired within the meaning of Section 14 of the Copyright Act.

d. A copyright notice within the meaning of Section 13 UrhG is always required and in a manner that leaves no doubt as to the identity of the author and the attribution to the individual word or image contribution. Collective proofs are only sufficient if they show that the copyright contribution can be attributed without doubt.

e. The transfer of secondary rights to collecting societies remains reserved.

f. The Customer is obliged to provide Mischfabrik GmbH with a specimen copy free of charge in accordance with § 25 of the German Publishing Act, or at least to grant Mischfabrik GmbH unrestricted use of the material published by it (articles, texts, photos) for the purpose of its own reputation.

 

4. foreign material

a. Any document (file) sent by the Client shall be considered by Mischfabrik GmbH as the final version, unless otherwise known. Changes after the start of the project or after the end of the project may involve additional costs, which are not included in the price quote.

b. Mischfabrik GmbH may pass on third-party material to third parties for processing purposes.

 

5. material

a. Upon full payment of the remuneration agreed in the production contract (including any expenses to be reimbursed by the customer), the customer shall receive sole ownership of the data carrier on which the production is stored. The accompanying material – no matter in which form – on the other hand remains the property of Mischfabrik GmbH.

b. The customer’s data will be archived on servers for 6 months from the delivery of the final product. If the accompanying material is to be stored for longer than 6 months from the date of submission, the archiving period can be extended on request for a price of EUR 0.99 per gigabyte per year. The finished productions remain stored.

c. The accompanying material and the free rights of use for it, can be purchased at an additional cost of +20% of the production costs.

 

6. production offers

a. Offers of Mischfabrik GmbH are subject to change and non-binding. This also applies if product descriptions and documents are provided to the customer. The prices are otherwise staggered according to the type, scope and complexity of the respective project. Items are not specifically researched and adjusted, if necessary, until the client has given its approval. Changes, additional content or similar during production or after completion of the project may mean additional costs that are not included in the offer.

b. Orders of the customer are considered a binding offer of contract. Unless otherwise stated in orders, Mischfabrik GmbH is entitled to accept these contract offers within 14 days. Acceptance may be made in writing or by commencing performance.

c. Any GEMA fees incurred for music tracks used shall be borne by the client.

 

7. liability

a. Unless otherwise stated in these GTC including the following provisions, Mischfabrik GmbH shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

b. The Customer shall be liable for any material provided until it is returned intact to Mischfabrik GmbH. The client shall bear the costs and risk for the return delivery, whereby the return delivery shall be made by courier company.

c. In the event of unauthorized use or disclosure of the material, a minimum fee in the amount of twice the usage fee shall be due, subject to further claims for damages.

d. In the event of further use of the material by the Customer beyond the contractually agreed use, the Customer shall be liable for any damage arising from the use and shall release Mischfabrik GmbH from any liability arising in this context.

e. If the name of Mischfabrik GmbH is not mentioned in accordance with § 13 UrhG or if the client violates § 14 UrhG, the production company is entitled to damages in the form of a surcharge of 100 % of the respective usage fee, unless the client can prove lesser damages.

f. In the event that Mischfabrik GmbH is prevented by force majeure from the timely execution of the commissioned project, he must inform the Client of this as soon as possible. If an event of force majeure occurs, the production company and the client alike may immediately withdraw from the project, in which case the client must pay the production company in full for the work already performed. As far as possible, Mischfabrik GmbH shall assist the Customer in selecting a suitable substitute contractor. Force majeure is defined as strikes, lockouts, labor disputes, civil unrest, natural disasters, acts of war, local power outages, irreversible failure of computer and telecommunication technology, accidents, illnesses, as well as any other obstructive situation that does not result from the intentional or negligent conduct of the production company and makes it impossible for the production company to execute the commissioned project properly and on time.

g. Mischfabrik GmbH assumes no liability for orders under extreme conditions (outdoor shooting, expedition documentation, etc.) for the loss (due to weather, physical or force majeure) of the film material. If the filming is interrupted for reasons beyond the control of Mischfabrik GmbH (snow conditions, avalanche situation, injury to expedition members, etc.), the full fee must be paid. Mischfabrik GmbH accepts no liability for damage caused by premature breakage of rotation.

 

8. warranty

a. Insofar as a certain success is owed by the cooperation (contract for work and services), the following shall apply with regard to the warranty: Insofar as the delivered material is defective, the Customer may initially only demand rectification of the defect. The defect must be notified by telephone within two working days of receipt of the consignment and in writing after a further three working days; in the case of technical and other hidden defects, in writing within ten days of discovery. Insofar as rectification is not possible or is disproportionate in terms of cost, the client may only reduce the fee with regard to the respective defective contribution or withdraw from the individual order; further claims for damages are excluded. The same regulations apply if a right of use is granted for a contribution that has already been created (purchase agreement). As far as a certain service is owed by the cooperation (service contract), a warranty is excluded.

b. In case of removal of defects or delivery of a replacement product by Mischfabrik GmbH, the Customer shall check the performance result or the replacement product within one week and – in case of successful removal of defects or freedom from defects of the replacement product – confirm the success of the subsequent performance in writing or by fax within another week. If the customer either does not make any declaration within the above period or does not report the material defect to be remedied as persisting, the remedying of the defect shall be deemed to have been successfully carried out. However, if the Customer notifies Mischfabrik GmbH in due form and time of the material defect to be remedied as still persisting, Mischfabrik GmbH shall be entitled to a second attempt at subsequent performance (remedy of defect or delivery of a replacement product) within a reasonable period of time. The same deadline applies to this second attempt.

c. Only if the second attempt at subsequent performance has also failed, the customer may assert the further statutory claims in compliance with these terms and conditions.

d. If the customer claims damages after the second attempt at subsequent performance has failed, the production shall remain with the customer, provided this is reasonable for him. In this case, a withdrawal from the contract as well as a claim of the customer for reimbursement of futile expenses or for reimbursement of the expenses required for self-performance are excluded. The compensation to be paid byMischfabrik GmbH in the aforementioned case shall be limited to the difference between the remuneration paid by the Customer for the defective production and the actual value of this production.

e. The client bears sole responsibility under press, civil and criminal law for the publication of contributions. Mischfabrik GmbH therefore assumes no warranty for the rights of third parties due to publication by the Customer if these third parties are mentioned or depicted in published contributions, nor does it assume any express or implied warranty for their personal rights, trademark rights, copyrights and property rights or other claims as a result of publication by the Customer. The client is regularly responsible for clarifying such rights; the client must bear the possible costs of a legal review of the permissibility of a publication. Insofar as third parties or governmental institutions in Germany and abroad raise claims or initiate or enforce press and criminal sanctions due to the use of the material by the Customer, the Customer shall indemnify Mischfabrik GmbH from any possible costs associated therewith, unless Mischfabrik GmbH is liable to the Customer in accordance with the preceding paragraphs. This also applies if the client transfers the rights to the contribution to third parties.

f. Mischfabrik GmbH shall not be liable for any damage incurred by the Customer in connection with the use of files delivered by the Production Company, whether caused by computer viruses in or on e-mails or comparable transmissions or attachments attached thereto, in or in connection with data carriers delivered or from/in Mischfabrik GmbH equipment connected to systems of the Customer. The Customer shall be obliged to protect its computer and other digital systems by means of virus protection programs and other measures customary in the industry and to keep these protection systems up to date in each case, insofar as this is technically feasible and reasonable.

g. Excluded from the limitations of the warranty for work and services or objects of purchase (rights) are defects and consequential damages caused by Mischfabrik GmbH by an intentional or grossly negligent breach of duty. These exceptions also apply if the production company has fraudulently concealed defects or guaranteed freedom from defects.

h. Furthermore, damages to life, body or health due to intentional and negligent breach of duty by Mischfabrik GmbH are excluded. Furthermore, the warranty is not excluded for purchase contracts and contracts for work and services if a major contractual obligation of Mischfabrik GmbH has been breached.

i. If the shooting of the film on the respective day originally planned for this purpose is not possible due to weather conditions or does not seem reasonable to Mischfabrik GmbH, Mischfabrik GmbH is not responsible for this delay. The same applies if there are delays due to the illness of an actor, director or cameraman or any other person who is decisive for the production or due to the failure of other means of production (e.g. animals, props).

j. A prerequisite for the warranty claim is that the customer cooperates to the extent possible and reasonable for him in the identification, analysis and limitation of the defect, in particular that he communicates and explains the defect in a comprehensible form, stating the information that is useful for the identification of the defect.

k. If the customer makes changes to the manufactured production, in particular replaces components of the production, any warranty is void.

 

9. warranty for defects of title, industrial property rights of third parties

The Customer shall inform Mischfabrik GmbH comprehensively in writing or by e-mail without delay if third parties assert claims against it due to the infringement of property rights. The customer authorizes Mischfabrik GmbH already now to conduct the dispute with the third party judicially and extrajudicially on its own, provided that an infringement of property rights for which Mischfabrik GmbH is exclusively responsible is in dispute. If Mischfabrik GmbH makes use of this authorization, which is at our discretion, the Customer may not acknowledge the claims of the third party in whole or in part without prior consent.

 

10. final provision

a. Changes and additions to these general terms and conditions must be made in writing. This shall also apply to amendments to this written form clause.

b. Should any provision of this contract be or become invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by a provision that comes as close as legally possible to the intention of the parties. The same applies in the event of a regulatory gap.

c. The law of the Federal Republic of Germany shall apply exclusively.

d. The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with this contract is Traunstein.

 

 

GENERAL TERMS AND CONDITIONS OF BUSINESS OF MISCHFABRIK GmbH for FREE EMPLOYEES

 

 

1. general

a. These following terms and conditions apply to all business relationships of MISCHFABRIK GmbH with freelancers. These terms and conditions shall only apply to business relations with entrepreneurs, legal entities under public law or special funds under public law. The General Terms and Conditions of Mischfabrik GmbH shall apply in addition.

b. These terms and conditions apply exclusively. The effect of general terms and conditions of the freelancer is expressly excluded. Deviating, conflicting or supplementary general terms and conditions of the freelancer shall only become part of the contract if and to the extent that Mischfabrik GmbH has expressly agreed to their validity. This requirement of consent also applies in particular if Mischfabrik GmbH provides the service without reservation in the knowledge of the freelancer’s GTC.

c. Legally relevant declarations and notifications to be made by the freelancer to Mischfabrik GmbH must be made in writing to be effective.

d. Individual agreements with the freelancer take precedence over these terms and conditions. A written contract or the written confirmation by Mischfabrik GmbH shall be decisive for their content.

2. services

a. All freelancers, in particular camera teams, editors, stunt teams, pyrotechnicians and authors, undertake to inform Mischfabrik GmbH about KSK compulsory levies. Incorrect information will lead to subsequent invoicing of the freelancer by Mischfabrik GmbH.

b. Freelancers shall be remunerated in accordance with daily rates customary in the industry. These are defined before the start of the project and are therefore binding for both parties. If a lump-sum payment is made, it is calculated by the previously determined daily rates. Mischfabrik GmbH reserves the right to reduce the lump sum to the actual working days in case of non-compliance with the agreed working days.

c. If projects cannot be carried out, in particular due to force majeure, weather conditions, serious doubts about the solvency of the client, Mischfabrik GmbH is entitled to withdraw from the contract. The same applies if the start of the project is delayed by more than 3 days.
After the start of shooting, the right of Mischfabrik GmbH to terminate the contract at any time replaces the right of withdrawal.
Mischfabrik GmbH shall not be liable to pay a default fee in any case.

d. Travel and accommodation costs incurred for the provision of the service shall be borne by Mischfabrik GmbH. Additional meal expenses are calculated in accordance with the tax-deductible per diem rates.

e. If you use your own car, Mischfabrik GmbH will reimburse the current tax-deductible mileage allowance against invoice. This increases by 0.02 € per passenger. If a vehicle provided by the client is used (including rental cars), the production company bears all costs. The freelancer undertakes to handle the provided vehicles carefully and properly.

 

3. liability

a. Unless otherwise stipulated in these terms and conditions including the following provisions, Mischfabrik GmbH shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

b. Mischfabrik GmbH shall be liable for damages – irrespective of the legal ground
– in the event of intent and gross negligence. In the event of simple negligence, Mischfabrik GmbH shall only be liable for
i. for damages resulting from injury to life, body or health,
ii. for damages resulting from the breach of one of the essential contractual obligations
(obligations, the fulfillment of which make the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.

c. The resulting b. The resulting limitations of liability do not apply if Mischfabrik GmbH has fraudulently concealed a defect or has assumed a guarantee.

d. In the event of further use of the material by the Customer beyond the contractually agreed use, the Customer shall be liable for any damage arising from the use and shall release Mischfabrik GmbH from any liability arising in this context.

 

4. assignment

a. The freelancer may assign rights from the contract to third parties only with the prior consent of Mischfabrik GmbH.

b. Mischfabrik GmbH is entitled to transfer all obligations and rights arising from the contracts to third parties. Mischfabrik GmbH will ensure that the freelancer does not suffer any disadvantages as a result.

 

5. final provision

a. Changes and additions to these general terms and conditions must be made in writing. This shall also apply to amendments to this written form clause.

b. Should any provision of this contract be or become invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by a provision that comes as close as legally possible to the intention of the parties. The same applies in the event of a regulatory gap.

c. The law of the Federal Republic of Germany shall apply exclusively. International law is excluded.

d. The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with this contract is Traunstein.