AGB's | Straight Impact GmbH
General Terms and Conditions - valid from 01 April 2023
General Terms and Conditions - valid from 01 April 2023
1.1
TheseGeneral Terms and Conditions ("GTC") are an integral part of a contract for work and services for the production of an audiovisual work (colloquially also referred to as "commissioned production") between the party ordering the work (hereinafter referred to as "Client") and the producing company Straight Impact GmbH (hereinafter referred to as "Producer"). These GTC are applicable to the production of all audiovisual works which the Producer produces for the Client, even if this is not always explicitly mentioned in individual cases.
1.2
Thework contract document consists of an individual contract and these GTC. The work contract is concluded by signing the individual contract "Work Contract for the Production of an Audiovisual Work", by accepting the offer/quote or by any other confirmation/agreement. The offer on the part of the Producer is generally based on a written production briefing prepared by the Client or on the Client's behalf and contains the work price, work description, agreed use (media, territory) and rights compensation included in the work price, language/image versions, format of the image and sound carrier, the most important production data, the delivery date and the other requirements on the part of the Client.
1.3
Ifthe Customer is represented by an agency, the Customer and the agency shall be jointly and severally liable until the agency submits a corresponding power of attorney of the Customer fully covering the present contract or until the Customer has validly signed the contract for work in its own name.
1.4
Theproducer submits to the duty of confidentiality and due diligence for all documents, information and objects accessible or made available to him in connection with the production.
1.5
Definitions:
a)
"First day of shooting": An audiovisual work is created by producing sound and image data using various technical processes, such as filming, animation, etc. Subsequently, the "first day of shooting" is the day on which the production of the image data intended for the work begins.
b)
"Commercial": A commercial is a work that is shown in media (TV, cinema, POS, sponsoring, billboards, e-boards, social media, paid posts, Internet banners, etc.) against payment of an insertion fee.
2.1
TheProducer shall produce the Work based on the specifications agreed in the Contract for Work and based on the approved design basis, including any agreed design and technical modifications.
The work must comply in all respects with the customary international standard of cinematographic quality.
Der Kunde nimmt zur Kenntnis, dass der Produzent nicht garantieren kann, dass allfällige im Werk enthaltene Softwarekomponenten (z.B. in Multimediaproduktionen, im Internet oder auf Datenträgern) auf allen Plattformen ohne Unterbruch und Fehler funktionieren werden.
2.2
In order toalign the expectations of the customer and producer, interim presentations in the sense of interim acceptances (rough cuts) shall be carried out for certain work phases (e.g. picture editing, sound mixing, etc.). Agreements reached by the parties on the basis of such interim presentations are binding for further processing. The framework conditions defined in the original production briefing can be further detailed in contact reports/logs in the course of the work. Such contact reports form an integral part of the contract.
2.3
Thecustomer undertakes to cooperate in a manner conducive to the schedule and to deliver in a qualitatively sufficient manner.
2.4
TheProducer undertakes to take into account the Customer's requests for revisions or changes, insofar as this is reasonable and the desired changes remain within the agreed framework conditions.
Extensions, modifications and changes which go beyond the originally agreed scope of work shall result in corresponding increases in the price for the work and possibly in adjustments to the deadline.
2.5
Ifthe production suffersa delay which the producer could neither foresee nor influence (e.g. weather, operational disruptions at suppliers, delayed delivery of products, texts and other documents by the customer, etc.), the delivery deadline shall be deemed extended by at least the duration of the impeding circumstances. The Producer shall inform the Client immediately upon the occurrence of a delay of its extent and consequences (postponement of shooting, additional costs, etc.). Failure to meet the delivery date entitles the customer in this case only to a reduction in the price of the work or to withdraw from the contract if the producer can be proven to be grossly at fault.
2.6
TheCustomer may refuse to accept the Work only if it has significant defects or if the Work deviates significantly from the agreed general conditions. In this case, the Producer shall be given a reasonable period of time in writing to remedy the defect, specifying the alleged defects in detail.
2.7
Unlessotherwise agreed with regard to the scope of delivery, the scope of delivery shall consist of the finished work on a carrier medium customary in the industry and suitable for the intended use, or it shall be made available to the customer for download.
3.1
Ifthe production is cancelled on the part of the customer after conclusion of the contract but before the scheduled first day of shooting, the customer shall be liable as follows:
a)
Cancellation occurs up to 10 days prior to the scheduled first day of shooting: For all costs incurred up to receipt of the written cancellation notice by the producer and contractual obligations entered into vis-à-vis third parties plus full mark-up, calculated on the work price.
b)
Absage erfolgt 9 bis 5 Tage vor dem geplanten ersten Drehtag: Für sämtliche bis Eingang der schriftlichen Absagemitteilung beim Produzenten angefallenen Kosten und gegenüber Dritten eingegangenen vertragsrelevanten Verpflichtungen, mindestens aber 50% des Werkpreises, zuzüglich volles Mark-up, berechnet auf dem Werkpreis.
c)
Cancellation occurs less than 5 days before the scheduled first day of shooting: For the entire contractually agreed work price.
3.2
Therights to already existing recordings and to the results of the preliminary work performed shall remain with the Producer. Contract-specific recordings may not be used elsewhere by the Producer without the Client's consent.
3.3
If, due to force majeure, the production cannotbe completed or cannot be completed on the agreed terms, the party concerned may withdraw from the contract. However, the customer shall compensate the producer for the work already performed or the proven costs exceeding this, plus mark-up.
4.1
TheProducer shall bear the risk for all matters under its control and responsibility and shall insure the same to the extent provided by law or deemed reasonable, such as:
· Gesetzlich erforderliche Versicherungen für sämtliche durch den Produzenten verpflichteten festen und freien Mitarbeiter;
- Liability insurance for the purpose of covering third party damages.
Verlangt der Kunde den Abschluss einer zusätzlichen Versicherung (z.B. Bild-, Ton- und Datenträgerversicherung, Personenausfall- oder Wetterversicherung, Versicherung spezieller Requisiten), so hat er dies dem Produzenten spätestens bei Vertragsabschluss mitzuteilen.
The premiums are to be paid by the customer or are included in the price of the work.
4.2
Thecustomer bears the risk for the matters or filming locations controlled by him directly or by third parties commissioned by him (agency, etc.) (e.g. filming at the customer's premises) as well as for the props or products provided by him.
If the customer provides the producer with image and sound material or other material for the production of the work, the customer guarantees that the material provided does not violate any legal provisions or rights of third parties and indemnifies the producer against all claims in this regard.
4.3
Whenthe work is delivered, the risk for the work is transferred to the customer, even if the master is stored at the producer's or a supplier's (laboratory, post-production facility).
5.1
Thework price stipulated in the contract includes the production of the work by the producer as well as the compensation for the rights of use explicitly granted to the customer in the contract.
5.2
Unlessotherwise agreed in writing, the price of the work is exclusive of value added tax and all prices quoted are in Swiss francs (CHF).
5.3
Theprice of the work does not include:
- costs incurred by the customer when taking pictures at his premises and/or through the involvement of his employees;
- Costs for third parties (e.g. agencies) called in by the customer;
- changes or deviations from the specified conditions of the contract for work requested or accepted by the customer, which cause additional costs;
- Fees for rights administered by collecting societies for the production and use of the work.
5.4
Specialrisks (e.g. weather conditions, admission with animals/children) may lead to additional costs not included in the work price, which are to be borne by the customer.
As a rule, a full buy-out of rights in terms of time, territory and exploitation media does not make sense for audiovisual works, because it leads to unnecessary costs for rights that are often not exercised. In many cases, it is not even possible to grant full rights, because many copyright and ancillary copyright holders do not offer this.
6.1
Therights for the use of music, archive material, third-party works (architecture, designs, etc.), performances by actors, speakers, etc. shall be regulated and compensated separately (industry practice is licensing for 1 year). The amount of compensation depends on the type of use, area of use, duration of use and respective media budgets.
Should the customer wish to extend the use provided for in the contract, the producer may negotiate the additional rights and their remuneration with the rightholders on behalf of the customer.
6.2
Unlessotherwise agreed between the parties, upon receipt of full payment of the price for the Work, the Producer grants the Customer the following rights in the Work for the contractual territory of Switzerland as of the date of the intended first use;
a) On all works except commercials:
During 5 years
I)
the right to publish the Work in the Contractual Territory;
II)
the screening right, i.e. the right to publicly screen the Work by means of technical equipment in the contractual territory as often as desired, whether for commercial or non-commercial purposes (including in-house screenings);
III)
the right to make the Work available for information purposes on the Customer's website (including own/"owned" social media channels, but not used as paid advertising/"paid") to Users in the Contract Territory;
IV)
the archive right, i.e. the right to make the Work passively available on the intranet and on the websites and social media channels belonging to the Customer for an unlimited period of time.
b) For commercials:
During 3 years
I)
the right to publish the Work in the Contractual Territory;
II)
the screening right, i.e. the right to publicly screen the Work by means of technical equipment in the contractual territory as often as desired, whether for commercial or non-commercial purposes (including in-house screenings);
III)
the broadcasting right, i.e. the right to broadcast the work by television stations in the contract territory as often as desired;
IV)
the right to make the work available on the internet for users in the contract area, including use as Paid Media on the internet and on social media (note: Use on Youtube, Facebook or other social media channels may require worldwide rights! These may have to be obtained and paid for separately).
V)
the archive right, i.e. the right to make the Work passively available on the intranet and on the websites and social media channels belonging to the Customer for an unlimited period of time.
6.3
Afterthe expiry of the first period of use regulated in the aforementioned Section 6.2 or in an individual agreement, the agreed periods of use for the Contractual Area may be extended against payment to the Producer of a remuneration in the amount of 10% of the price of the Work per year.
6.4
Ifthe Work is to be exploited beyond the contractual area specified in Clause 6.2 or in the individual agreement, a percentage surcharge shall be owed on the Work price, namely in case of extension to:
a)
EU: 30% of the work price;
b)
worldwiderights: 50% of the work price;
c)
individualcountries: By arrangement.
Upon payment of the additional costs, the defined rights are settled for five years after first use in the corresponding additional area of use.
6.5
TheCustomer has the right to order from the Producer, against reimbursement of the costs, any number of additional copies of the Work and, if necessary and if technically (still) possible, language versions as well as changes and additions to the Work.
6.6
Allrights not expressly granted shall remain with the producer, in particular:
a)
theediting right, i.e. the right to make changes, abridgements and/or rearrangements or to produce other versions of the work or remakes;
b)
theright to name the producer, authors and performers in the work and in corresponding publications;
c)
theright to have the work performed on the occasion of competitions or festivals as well as for self-promotion or to use it otherwise for these purposes (showreels, internet, etc.);
d)
therights to ideas and concepts developed by the producer but not incorporated into the work. These may be freely reused by the Producer. The Client and the Agency may not use ideas and concepts developed by the Producer and presented to the Client and/or the Agency but not implemented without the prior written consent of the Producer and without reasonable compensation;
e)
therights to the software, plug-ins, scripts, etc. created or otherwise used for the creation of the work.
6.7
Theproducer assumes no liability,
- for the legal conformity of content that has not been developed by the producer;
- for the infringement of third party rights in the case of unauthorized processing of the work by the customer or on his behalf;
- for uses that go beyond the contractually agreed use;
- for uses on the Internet that have not been explicitly released in advance by the producer.
The Customer shall indemnify the Producer against all third party claims in this regard, including attorney's fees and court costs.
6.8
Theproducer or the authors and performers involved are entitled to any remuneration from the collecting societies.
7.1
Theownership of the master copy as well as the rights to the image and sound material not used in the work shall remain with the producer. The producer undertakes to store the master properly for at least five years from acceptance of the work. There is no obligation to store the visual and audio material not used in the work.
7.2
Afterexpiry of this period, the Producer is entitled to offer the Customer further storage of the master in writing against payment. If the Customer waives this or does not respond to the request within 30 days, the Producer is entitled to send the documents to the Customer or to destroy them.
7.3
Speciallyproduced props, drawings, files etc. will only be kept at the request and expense of the customer. Subject to instructions to the contrary, the producer is entitled to destroy above-mentioned materials after acceptance of the work.
Unless otherwise agreed, the following terms of payment shall apply:
8.1
Forcommercials:
8.2
Forother contract productions:
8.3
Ifone of the aforementioned or individually agreed partial payments is not received on time, the Producer is entitled to postpone or cancel the production, with full indemnification of the Producer by the Client.
9.1
Theoccurrence of insolvency or the opening of bankruptcy, composition or similar proceedings against the assets of a party shall entitle the other party to rescind this agreement immediately.
9.2
Thisagreement and all individual transactions concluded on the basis thereof shall be governed by Swiss law.
9.3
Für die Beurteilung sämtlicher Streitigkeiten aus oder im Zusammenhang mit dieser Vereinbarung und den gestützt darauf abgeschlossenen einzelnen Geschäften sind ausschliesslich die ordentlichen Gerichte am Sitz der Produzentin zuständig.
9.4
The place of performanceshall be at the registered office of the Producer.
9.5
In the event ofa contradiction between these GTC and individual agreements between the parties concerning the respective work, the individual agreements shall take precedence over the GTC.
