of Marc Comzelmann for Deliveries and Services

These terms and conditions have been translated automatically. For the legally binding version, please read the German version.

§ 1 Scope of application; rejection of the customer’s own GTC

(1) My General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all my offers and contracts for deliveries and services in the field of photo, graphic, audio and video productions of the customer/purchaser/client (hereinafter referred to as “Customer”). They also apply to future contracts with the customer.

(2) The customer’s own terms and conditions are hereby rejected.

(3) These GTC shall only apply to entrepreneurs as a natural or legal person or a partnership with legal capacity within the meaning of Section 14 of the German Civil Code (BGB), which acts in the exercise of its commercial or independent professional activity, as well as to legal entities under public law and special funds under public law within the meaning of Section 310 (1) BGB.

§ 2 Order placement and execution; acceptance; delivery

(1) The service descriptions from the latest offer or my corresponding order confirmation shall apply exclusively to all orders. As a rule, the contract is concluded with my order confirmation at least in text form, otherwise by the execution of the order.

(2) Delivery, production or completion deadlines and corresponding dates shall only be deemed to have been agreed as approximate, unless we have given an express written or at least textual commitment that is designated as binding. The prerequisite for the commencement of such a period is always the clarification of all technical and other details of the order by the customer, the provision of any necessary documents and the payment of agreed advance payments.

(3) The deadlines within the meaning of paragraph 2 shall be extended appropriately - even if a delay has already occurred - in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which we are not responsible. This includes, in particular, operational disruptions, strikes, lockouts or disruptions to transportation routes, insofar as they can be proven to have a significant influence on the planned production. The same shall apply if such circumstances occur at a service provider used by us in accordance with § 3. The customer may demand a declaration within a reasonable period of time as to whether we wish to withdraw from the contract or deliver or perform within a reasonable period of time. If a timely declaration is not made, the customer may withdraw from the contract; claims for damages are excluded in such cases.

(4) The contract shall be deemed fulfilled upon delivery to the customer or the agreed location. If a service under a contract for work and services has been agreed, formal acceptance shall not take place. The customer must inspect the service provided by us in accordance with the contract immediately after delivery for conformity with the contract and, if he considers the service to be defective, notify us immediately. Acceptance may be refused in the event of significant defects. If such notification is not made within 48 hours of delivery of the finished material to the agreed location, the production shall be deemed to have been accepted. The same shall also apply if the customer uses the service as intended.

§ 3 Use of vicarious agents; reference to customer protection agreement; commissioning of third parties

(1) We are entitled to commission service providers, in particular photographers and cameramen, as vicarious agents for the execution of orders at our own discretion. Necessary detailed coordination of the essential details for the execution of the order shall take place directly between the customer and the executing service provider.

(2) The customer acknowledges that the service provider is prohibited from entering into direct business contact with the customer on the basis of the customer protection agreement existing between the service provider and us, and that the service provider may therefore be in breach of contract and liable for damages.

(3) By placing the order, the customer authorizes us to act in his name and for his account insofar as transactions are concerned that are related to the performance of the concluded contract and to receive services from third parties.

(4) Insofar as we commission third-party services on behalf of the customer, these respective contractual partners are not vicarious agents of ours. If we obtain offers from third parties in the course of providing the service, but the order is placed elsewhere by the customer, we shall be entitled to invoice the customer for the time and costs incurred in obtaining the offer in accordance with our current price list.

§ 4 Prices; due date; partial invoices

(1) The prices stated in our most recent offer or the corresponding order confirmation shall apply. If neither an offer nor an order confirmation has been issued, the current price in our price list shall apply to all order components. Travel costs up to a distance of 50 km, calculated from the place of residence or place of work of the photographer or cameraman used, shall not be charged; travel distances beyond this shall be charged at 0.45 EUR/km. Travel times shall be regarded as working time to be invoiced. Any additional costs incurred due to delays or non-observance of on-site appointments by the customer or third parties commissioned by the customer shall be borne by the customer.

(2) My invoices are to be paid immediately without deduction after receipt of the invoice. If the invoice is issued to a third party at the customer’s request, the customer shall nevertheless be liable for full and timely payment and, in the event of late and/or incomplete payment by the invoice recipient, also for the damage caused by delay and any legal costs.

(3) We shall be entitled to issue partial invoices which, in particular, cover the costs incurred during the execution of the order in advance. We are entitled to invoice 30% of the basic fee already upon conclusion of the contract (order placement, order confirmation). The outstanding remuneration is due for payment upon acceptance in accordance with § 2 (4).

(4) All prices are net plus the value added tax applicable at the time of invoicing.

§ 5 Rights of use; rights of third parties

(1) The customer must obtain any necessary declarations of consent, such as rights to his own image, in advance. By placing the order, the customer transfers to us the rights of use necessary for the processing of the order and ensures that no rights of third parties are infringed by the contractual service or its creation. The customer undertakes to indemnify us and the service provider(s) engaged by us for the execution of the order against any claims and demands by third parties due to infringements of third-party rights and to reimburse us and the service provider engaged for the execution of the order for all costs incurred for the necessary legal defense against such claims.

(2) We shall ensure that the service provider carrying out the order only uses its own material or material that is free of rights or freely available for production at its own discretion. If the customer wishes to use material that is copyrighted by third parties (e.g. GEMA-protected music), he shall bear the costs associated with the permits to be obtained; such costs are not included in the offer price. Editing to change the meaning (e.g. of photos) is also not included in the price and must therefore be paid for separately and is the sole legal responsibility of the customer.

(3) We guarantee the existence of the rights of use required for production and publication and/or storage in our own systems (e.g. image database) in accordance with the order or that the elements used are free of rights.

(4) Subject to deviating provisions in the respective order, we shall grant the customer simple rights of use for the intended use of the work results delivered to him in accordance with the contract, such as images and videos, upon full payment of the agreed remuneration, while safeguarding any moral rights I may have. The copyright notice must always be clearly visible, unless this is unusual in individual cases. In particular, use in the area of advertising and the right to modify and edit requires my prior written consent and a separate remuneration agreement. In the event of infringement, the customer shall be obliged to pay appropriate remuneration, the amount of which we shall be entitled to determine at our reasonable discretion, irrespective of any claims for injunctive relief and damages on our part. To enable us to exercise our discretion properly, the customer is obliged to inform us of the exact extent of the unauthorized use.

(5) Even after the service has been provided, we shall remain entitled to use all images, videos and graphics created on behalf of the customer for our own advertising in all media.

§ 6 Retention of title

(1) We shall retain title to all goods delivered or produced by us subject to retention of title until full payment of our total claims arising from the business relationship with the customer. Upon conclusion of the contract, the customer assigns to us in full, by way of security, the claims to which he is entitled against his buyer from the sale of the reserved goods or for any other legal reason, together with all ancillary rights.

(2) If the customer is in default of payment or otherwise acts in breach of contract, we shall be entitled to take back the reserved goods if we withdraw from the contract. After taking back the goods subject to retention of title, we shall be entitled to realize them; the proceeds of realization, less reasonable realization costs, shall be set off against the customer’s liabilities.

(3) In the ordinary course of business, the customer shall be entitled to resell and/or process the goods subject to retention of title - insofar as this has been permitted by us in accordance with § 5 (4). Other dispositions, in particular pledging or transfer by way of security, are not permitted. Resale may only take place subject to retention of title, unless it takes place against immediate payment upon delivery. The authorization to resell shall expire if the customer ceases to make payments, as shall the authorization to collect the receivables from the resale of previously sold goods subject to retention of title.

(4) Upon request, the customer shall notify us of the assigned claims and their respective debtors, provide all information necessary for collection, hand over to us the relevant documents and notify the debtor of the assignment.

(5) The processing or transformation of the goods subject to retention of title by the customer is only permitted if the customer is entitled to the corresponding rights of use and is always carried out for us within the scope of the retention of title. If the reserved goods are processed or inseparably mixed with other material not originating from us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods supplied by us to the rest.

(6) The customer is prohibited from entering into agreements with his customer or a third party which could exclude or impair our rights in any way, in particular agreements which nullify or impair the advance assignment. In the event of seizure or other interventions by third parties, the customer must notify us immediately, handing over the documents necessary for intervention.

§ 7 Offsetting; right of retention; assignment

(1) Offsetting against our claims with counterclaims is excluded unless the counterclaims are undisputed or have been legally established.

(2) The customer may only exercise a right of retention if the counterclaim on which he bases the right of retention is undisputed, legally established or ready for decision and is based on the same contractual relationship.(3) The assignment of rights and/or the transfer of the customer’s obligations arising from contracts concluded with us is not permitted without our prior written consent.

§ 8 Remedy of defects

(1) If my performance exhibits obvious defects, deficiencies or incorrect deliveries, or defects that are recognizable during a proper inspection, any warranty for the defects concerned shall be excluded if the period for notification of defects pursuant to § 2 (4) is not observed.

(2) Production-related deviations in dimensions, content, color shades, etc. are permissible within the tolerances customary in the industry and do not constitute a defect.

(3) In the event of further utilization and/or permitted processing of the delivered contractual performance despite the customer’s knowledge of the defectiveness, any warranty claim shall lapse unless the customer has previously expressly reserved the right to warranty claims or we have assumed a guarantee for the quality of the material.

(4) If there is a material defect for which we are responsible, we shall be obliged to provide subsequent performance at our discretion by subsequent delivery or subsequent improvement, unless we are entitled to refuse subsequent performance on the basis of the statutory provisions. The customer must grant us a reasonable period for subsequent performance. In the event of rectification of defects, we shall bear the necessary expenses within the scope of reasonableness.

(5) Subsequent performance in the event of defects of title shall be effected by providing the customer with a legally unobjectionable possibility of use. We may exchange the affected contractual item for an equivalent item that complies with the contractual provisions if this is acceptable to the customer. If third parties assert industrial property rights against the customer, we must be informed immediately in writing. If we are responsible for the infringement of rights, we shall, at our own discretion and in consultation with the customer, defend against or satisfy the claims at our own expense and indemnify the customer against all reasonable costs and damages associated with the defense against the claim. The customer may not recognize third-party claims on his own initiative.

(6) If the subsequent performance has failed, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or, in the case of significant defects, declare his withdrawal from the contract. Rectification shall be deemed to have failed after the third unsuccessful attempt, unless further attempts at rectification are appropriate and reasonable for the customer due to the subject matter of the contract. In the case of fraudulent intent and in the case of a guarantee assumed by us, the statutory provisions for material defects and defects of title shall remain unaffected.

(7) Subject to the provisions in para. 6 sentence 3, the limitation period for claims for rectification of defects due to material defects or defects of title and any claims for damages shall be one year from delivery/acceptance of the contractual service. In the case of an existing claim for subsequent performance, the acknowledgement of the claim by us associated with the subsequent performance in accordance with § 212 Para. 1 No. 1 BGB only relates to those defects that were the subject of the customer’s request for subsequent performance or are caused by defective subsequent performance. In all other respects, the limitation period for the original contractual performance shall continue to run.

§ 9 Liability

(1) The customer may only assert claims for damages due to a defect if the subsequent performance has failed. Otherwise, we shall grant compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds, to the following extent: in the event of intent in the full amount; in the event of gross negligence in the amount of the typical and foreseeable damage that should have been prevented by the duty of care; in other cases only in the event of a breach of a material contractual obligation or in the event of default, and in each case only to compensation for typical and foreseeable damage.

(2) Any further liability is excluded regardless of the legal nature of the asserted claim; this also applies in particular to tortious claims or claims for reimbursement of futile expenses instead of performance.

(3) Liability for the absence of an assumed guarantee, for fraudulent intent, for damage to life, body or health and in accordance with the Product Liability Act shall be governed by the statutory provisions.

(4) Insofar as my liability is excluded or limited, this shall also apply to the personal liability of my employees, workers, staff, representatives and vicarious agents, in particular service providers within the meaning of § 3.

§ 10 Liability of the customer in the event of cancellation, postponement of service provision or termination

(1) If the customer cancels (cancels - hereinafter: cancels) or postpones the order, he shall be liable to us as follows: Cancellation up to six working days before the deadline or start of production and in the event of postponements: 50% of the basic fee; in addition, the costs already incurred by us with regard to the execution of the order, in particular for third-party services that can no longer be canceled, shall be reimbursed; Cancellation later than six working days before the start of the deadline or production: 100% of the agreed basic fee plus reimbursement of the costs for third-party services that can no longer be canceled.

(2) In the event of termination by the customer after the start of production, the customer shall in any case pay us the agreed basic fee in full plus any additional costs already incurred that are to be borne in accordance with the respective contract or these GTC, without prejudice to any further statutory claims on our part.

(3) This shall not affect the right to terminate the contract without notice for good cause.

(4) Any termination must be in writing to be effective.

§ 11 Amendments to the GTC

We are entitled to amend the provisions of these GTC. The customer shall be notified of any changes in writing without delay. The customer is entitled to object to the changes in writing within a period of two weeks. If the customer does not object within this period, the amended provisions shall become part of the contract. In the event of a timely objection, the original provisions shall remain unchanged.

§ 12 Confidentiality / data protection / naming of references

(1) The contracting parties undertake to keep secret all business and trade secrets or information designated as confidential which they receive or become aware of from the other contracting party during the execution of the contract, even after the end of the contract, and to oblige the respective employees accordingly.

(2) Information and documents which are generally known and accessible at the time of disclosure or which were already known to the receiving contracting party at the time of disclosure or which were legitimately made accessible to it by third parties shall not be covered by the confidentiality obligation.

(3) The customer is hereby informed that we collect, store, process and, if necessary, transmit to third parties his data to the extent necessary for the performance of the contract and on the basis of the data protection regulations. Both contracting parties are obliged to obligate their employees to maintain data secrecy in accordance with § 5 of the Federal Data Protection Act.

(4) We are entitled to name the customer as a reference and to use the customer’s logo for this purpose.

§ 13 Written form; place of performance; place of jurisdiction; applicable law; other provisions

(1) There are no collateral agreements or verbal assurances. Agreements deviating from the GTC shall only be binding if expressly confirmed by us in writing or in text form; this shall also apply to any assurances made by my employees that go beyond the written or text form contract or my order confirmation, but not to oral statements made by persons who are authorized to represent me without restriction or who are authorized to represent me externally without restriction.

(2) The place of performance for my services, the place of subsequent performance and for the customer’s payments shall be the registered office of my company.

(3) German law shall apply exclusively to these GTC and to contracts concluded between the customer and us on the basis of these GTC, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(4) Should individual clauses of my GTC be invalid, this shall not affect the validity of the remaining clauses. The ineffective clauses shall be replaced by the permissible rule that comes closest to the economic purpose of the ineffective clause.

(5) The exclusive place of jurisdiction for disputes arising from this contract (including actions on checks and bills of exchange) is my registered office. However, we are also entitled to sue the customer at his general place of jurisdiction.