General Terms and Conditions of Delivery and Business of WA Walandi Apoussidis GmbH
I. Area of validity
1. The following General Terms and Conditions of Delivery and Business (hereinafter referred to as GTCDB) apply to all the orders, quotations, deliveries and services carried out by WA Walandi Apoussidis GmbH.
2. They are considered to be agreed on receipt of the quotation of WA Walandi Apoussidis GmbH by the customer.
3. General terms and conditions of the customer apply only insofar as they have been expressly approved in writing by WA Walandi Apoussidis GmbH.
4. Deviations from these contractual conditions are effective only if they have been confirmed in writing by WA Walandi Apoussidis GmbH.
5. Insofar as there are no stipulations in the GTCDB or there are no agreements with the customer that are different to the GTCDB, then the law shall apply.
6. Should individual provisions of these “General Terms and Conditions of Delivery and Business” be impractical, then this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of the latter. The impractical provision is to be replaced by a practical provision, which is as close as possible to the former in terms of meaning and purpose.
II. Commissioned productions/Conclusion of the contract
1. The quotations compiled by WA Walandi Apoussidis GmbH are based on the agreement reached with the customer previously about the nature and scope of the service as well as on the basis of a 12-hour day. They do not include any overtime or subsequent productions; the latter are to be paid for additionally.
2. If the customer would like to accept the quotation, he can declare this in writing to WA Walandi Apoussidis GmbH. E-mail, fax, WhatsApp and letter are sufficient for the written form.
3. Should the production costs increase during production, they are to be borne by the customer until they exceed 10 % of the order total.
4. If the production period envisaged is exceeded for reasons for which WA Walandi Apoussidis GmbH is not responsible, as of the 13th hour per day every member of the production crew working on the commissioned production (drivers, production managers, stylists, etc.) will be paid 50 % per hour of the estimated total daily budget additionally by the customer. The time spent will be calculated in units of 15 minutes.
5. If a service is requested by the customer, which is not envisaged in the contract, WA Walandi Apoussidis GmbH is entitled to special payments. WA Walandi Apoussidis GmbH will notify this entitlement to the customer before the service is provided. The basis for calculating this special payment is the existing contractual basis. If possible, an agreement about the total special payment should be reached before the services are carried out.
6. Weather-related (weather risk) postponements of filming or shooting or those caused by force majeure are not included in the calculation of the production costs. Additional costs that are incurred as a result of the latter will be invoiced in accordance with the extra expenditure as substantiated with documentary evidence.
7. This also applies to other delays in production, for which WA Walandi Apoussidis GmbH is not responsible, e.g. unexpected refusal to cooperate by the models employed.
III. Fees/Advance payment/Right of retention
1. The agreed fee is understood to be plus the value added tax applicable in each case.
2. After order confirmation (acceptance of the quotation/conclusion of the contract) by the customer, an advance payment of 75 % of the net order total will fall due for payment. This payment must be made no later than three days before the start of production. WA Walandi Apoussidis GmbH has the right to withhold the provision of the service until the advance payment has been made in full.
3. After completion of the work, WA Walandi Apoussidis GmbH will compile a final invoice and charge for the services provided. This will fall due for payment when the invoice is compiled and received by the customer. The customer will fall into arrears no later than within 15 days after receipt of the invoice (payment arrears). Objections to the final invoice must be notified by the customer within seven days after it is received. Otherwise the final invoice will be considered to have been recognised.
4. If the customer falls into payment arrears, WA Walandi Apoussidis GmbH has the right to charge interest on arrears in accordance with § 288 German Civil Code (BGB). WA Walandi Apoussidis GmbH will charge EUR 2.50 for every reminder letter.
IV. Provision of image and video material
1. Image material (analogue and digital)
a) The GTCDB apply to any image material provided to the customer, regardless of the stage of the creative process or the technical form in which they are available. They apply in particular also to image material transmitted electronically or digitally.
b) The customer recognises that the image material supplied by the photographer consists of photographic works protected by copyright within the meaning of § 2 Para.1 No. 5 Copyright Act.
c) The image material provided remains the property of WA Walandi Apoussidis GmbH, and namely also in the case that compensation is provided for it.
d) The customer must handle the image material with caution and care and is permitted to pass it on to a third party only for internal business purposes of viewing, selection and technical processing.
e) Complaints regarding the content of the broadcast supplied or the content, quality or condition of the image material are to be notified within 10 days of receipt. Otherwise the image material will be regarded as having been received in the correct from, in accordance with the contract and as documented.
2. Video material (film)
a) WA Walandi Apoussidis GmbH will hand over the film or video after completion to the customer or the agency instructed by the latter directly either as a data carrier or will provide it as a download link.
b) The customer or the agency instructed by the latter must confirm acceptance of the film/video within 10 days after it is handed over. If there is no written agreement, the film or video will be regarded as having been accepted.
c) The customer is obliged to acceptance if the film or video corresponds to the agreement reached or the concept/screenplay and the established quality standard. Even if the film deviates from the agreements reached or the concept/screenplay, but these deviations were incorporated at the request of the customer, the customer is obliged to acceptance. In principle returns on the grounds of taste are ruled out.
d) Complaints must be submitted in writing within a period of 10 days after delivery of the film/video. Later complaints will not be taken into account. Artistic differences within the agreed concept do not represent a deficiency.
e) As for the rest, the statutory provisions apply to any deficiencies.
V. Rights of use
1. Image material
a) The customer will in principle acquire only a simple right of use for single use. Releases on the internet or insertion in digital databases are limited in time subject to other agreements to the duration of the release periods of the corresponding or a comparable print subject.
b) Exclusive rights of use, media-related or geographical exclusive rights or embargo periods must be agreed separately.
c) With the delivery, merely the right of use for the single use of the image material is transferred for the purpose indicated by the customer and in the publication and in the medium or data carrier, which the customer has indicated or which arises from the circumstances of the granting of the order. In cases of doubt, the purpose is decisive, for which the image material has been provided as shown on the delivery note or the address for dispatch.
d) Every use, utilisation, exploitation, distribution or release not mentioned under Section a)., b). and c). is subject to a fee and requires the prior express consent of WA Walandi Apoussidis GmbH.
This applies in particular to:
– a second utilisation or second release, in particular in omnibus volumes, brochures accompanying the product, advertising or other reprints, any processing, amendment or re-design of the image material, digitalisation, storage or duplication of the image material onto data carriers of all kinds (e.g. magnetic, optical, magneto-optic or electronic carrier media such as CD-ROM, DVD, hard discs, main memories, microfiche etc.), insofar as this is used not only for technical processing and management of the image material in accordance with Section IV. 1d. GTCDB,
– any copying or use of the image data on digital data carriers, any recording or reproduction of the image data on the internet or in online databases or in other electronic archives (also insofar as these are internal electronic archives of the customer), the dissemination of the digitalised image material by way of remote data transmission or onto data carriers, which are suitable for public broadcasting on screens or for the production of hard copies.
e) Changes to the image materials by photo-composing, montage or through electronic aids to create a new work protected by copyright are permitted only after the prior written consent of WA Walandi Apoussidis GmbH. The image material must also not be validated, photographed in a reproduction or used as a motif in another manner.
f) The customer is not entitled to transfer the rights of use granted to him in full or in part to a third party, also not to other group companies or subsidiaries.
g) Every use, reproduction or transmission of the image material is permitted only under the condition of affixing the copyright notice prescribed by WA Walandi Apoussidis GmbH in a conclusive attribution to the relevant image.
h) The granting of the rights of use is subject to the condition precedent of full payment of all the payment claims of WA Walandi Apoussidis GmbH with regard to the customer from the relevant contractual relationship.
2. Video material (film)
a) The ownership of all the raw materials that occur during the film and video production and the resulting products as well as written agreements/concepts/screenplays remains with WA Walandi Apoussidis GmbH.
b) Insofar as nothing to the contrary has been agreed, the acquisition of rights by the customer includes the exclusive right to use the film on the internet (YouTube, website) and produce copies of the film/video for its own use, insofar as no rights of a third party are infringed by doing so.
c) The rights for sound carriers, performance and broadcasting must be acquired separately for every other type of use (e.g. TV, cinema). The costs and responsibility for this will be borne by the customer.
d) The rights of use shall be transferred to the customer only after full payment of the agreed production costs.
e) The rights for processing, changing and supplementing the video material are exempted from the granting of rights, insofar as nothing else has been agreed in writing.
f) WA Walandi Apoussidis GmbH will receive from the customer the right that is unlimited in terms of time and territory to use the film and video content it has produced for its own direct requirements (e.g. for presentations to customers, for its own advertising, presentations at competitions and festivals) without charge. However, these rights apply only if the customer has the film or video material available for its own use.
g) The customer is obliged to arrange for all the processing or approved changes to be made by WA Walandi Apoussidis GmbH, unless this is unreasonable for economic, commercial or technical reasons.
h) In order to safeguard the rights of use protected by copyright, the original material (image and sound), in particular negatives, master tape and also the residual material will remain with WA Walandi Apoussidis GmbH.
i) WA Walandi Apoussidis GmbH undertakes to neither archive nor store the raw material nor the finished film. Should professional archiving and storage (with compensation for the costs) of the original, image and sound material be desired, the customer or his authorised agent must request this in writing. The period of safekeeping is seven years for television productions and five years for all other commissioned productions.
The customer must request further safekeeping in writing before the expiry of the relevant deadline.
VI. Return of image material
1. Analogue image material is to be sent back in the delivered form immediately after release or the agreed use, however no later than three months after the delivery date, without prompting; two specimen copies are to be enclosed. An extension of the three-month period requires the written consent of WA Walandi Apoussidis GmbH.
2. Digital data is in principle to be deleted or the data carriers are to be destroyed after completion of use.
3. If WA Walandi Apoussidis GmbH at the request of the customer or with the latter’s agreement provides image material merely for the purpose of checking whether a use or release comes into consideration, the customer must return analogue image material no later than within one month after receipt, insofar as no other deadline is stated on the delivery note. Digital data is to be deleted or the data carriers are to be destroyed or returned. An extension of this deadline is effective only if it has been confirmed in writing by WA Walandi Apoussidis GmbH. The return of the image material will be undertaken by the customer at the latter’s costs in the packaging that is normally used in the industry. The customer shall bear the risk of the loss or damage during transportation until receipt by WA Walandi Apoussidis GmbH.
1. Image material
a) WA Walandi Apoussidis GmbH assumes no liability for the breach of rights of persons or items depicted, unless a corresponding signed release form is enclosed. The acquisition of the rights of use exceeding photographic copyright, e.g. for depicted works of the visual or applied arts as well as obtaining release permits for collections, museums etc., is the responsibility of the customer. The customer bears the responsibility for adding text and for meaningful correlations arising from the specific release.
b) As of the time of the correct delivery of the image material, the customer is responsible for its appropriate use. WA Walandi Apoussidis GmbH is not liable for the inventory and/or the option of a replacement delivery of both the analogue and digital image material.
2. Video and film material
a) As of the time of the handover of the film or video material to the customer, an agency instructed by the latter or another third party instructed by the customer to receive the film or video material, the customer is responsible for the appropriate use of the latter. WA Walandi Apoussidis GmbH is not liable for the inventory and/or the option of a replacement delivery of the film or video material.
b) If a circumstance occurs when implementing the project, which makes production in accordance with the contract impossible, WA Walandi Apoussidis GmbH is responsible only for intent and gross negligence.
c) This applies correspondingly if production of the video/film is not on schedule. If the impossibility of production or completion of the video/film by the deadline is not the responsibility of either WA Walandi Apoussidis GmbH or the customer, this entitles the customer only to withdraw from the contract. The services provided previously plus general expenses are to be paid by the customer.
VIII. Contractual penalty, compensation/ image material Any unauthorised use, utilisation, reproduction or dissemination of the image material (without the consent of WA Walandi Apoussidis GmbH), will lead to a contractual penalty of five times the agreed fee in each case, subject to more extensive claims for compensation.
Failure to add a copyright notice or an incomplete, incorrectly placed or unassignable copyright notice will incur a surcharge of 100% on the agreed or usual fee.
IV. Place of jurisdiction, applicable law, obligation
1. The business relationship between WA Walandi Apoussidis GmbH and the customer is subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. The place of jurisdiction is Berlin, insofar as the customer is an entrepreneur or businessman or a legal entity under public law or a special fund under public law.
X. Agreement on confidentiality
The provisions of this contract, including the agreed fee, will be treated in the strictest confidence by the customer and not passed on to a third party.