General terms of Business of Bavaria Film Interactive GmbH (hereafter referred to as "BFI")
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§ 1 Conclusion of Contracts
These Terms of Business shall be the only ones applicable to all contracts concluded with BFI. Objection is hereby expressly raised to any regulations in the General Terms of Business of the customer which may diverge from these Terms of Business.
Offers made by BFI in brochures, advertisements etc. are not binding and are subject to change without notice. This includes any indications of price, unless a binding confirmation is explicitly given.
BFI researches and calculates its work carefully. The customer is therefore bound by his instructions for a period of ten days. The contract shall be regarded as confirmed if BFI does not refuse the mandate within this period.
Verbal agreements are invalid. Any alterations to the terms of the contract must be made in writing, including changes to the clause regarding the compulsory use of the written form.
The observance of deadlines is dependent upon the punctual delivery of the necessary material by the customer.
§ 2 Range of Services
BFI provides its services in accordance with the wishes of and information supplied by the customer. Instructions and training are only included in the range of services supplied by BFI when this has been expressly agreed. BFI will take into account as far as possible any subsequent customer requests for a change or extension to the services to be provided.
If considerable changes to the agreed duties of BFI should become necessary in order to adapt the product to suit customer requirements, BFI shall be entitled to invoice the customer for the additional work entailed. This also applies to a comprehensive examination of whether, or under what circumstances, the change or extension would be feasible, provided BFI has given prior notice in writing.
§ 3 Prices and Payment
The prices quoted in BFI’s offer are valid. The prices should be regarded as fixed prices only in cases when the agreed price in the case in question (e.g. based on an offer) does not include the possibility of a price increase. In the case of services provided over a period of time, BFI shall be entitled to raise the prices for staff services appropriately when wage increases have been agreed.
The prices quoted do not include value-added tax at the applicable rate. Shipping costs, installation costs, travel expenses, training and other additional services are not included in the price unless indicated to the contrary in the contract.
Additional services which are not included in the offer will be charged for separately. This applies in particular to additional work incurred as a result of
- the customer’s supplying data in non-digital form,
- the necessary and reasonable use of services of third parties,
- the cost of licence management,
- contracted test or research services and legal verification,
- services carried out outside normal business hours as well as
- the archival storage of video/data/feedstock etc.
If the customer is in default of payment he shall be required to pay interest on the arrears in the amount of 8% above the base interest rate. Default interest shall become due if the payment deadline is exceeded, irrespective of whether a payment reminder has been issued.
The customer must bear in mind that BFI will deduct payments made from old debts in the first instance. If costs for legal action including payment reminders have already been incurred, then BFI will offset a customer’s payment initially against these costs, then against the interest due and only then against the principal claim.
BFI is entitled to demand a down payment of fifty percent of the total amount for production and programming services.
§ 4 Delivery Dates, Deadlines and Impediments
Delivery dates and deadlines may be binding or not binding. In both cases they must be agreed in writing.
If the co-operation of the customer is necessary or agreed in conjunction with the services of BFI, BFI’s delivery date shall be extended by the period of time during which the customer has not provided the agreed assistance.
In the case of delays caused by
- changes to customer requirements,
- inadequate conditions within the customer’s area of responsibility, inasmuch as these were not and could not be previously known to BFI,
- problems relating to products or services of third parties (e.g. pictures and sound material, software from other software producers),
the deadline or delivery date shall be extended correspondingly.
BFI shall not be subject to legal penalty if it should be unable to supply its agreed services as a result of labour disputes, acts of God or other circumstances beyond its control, or should the aforementioned circumstances cause a delay in delivery.
If the customer requests changes or extensions to the agreed services which are more than minor in scope, then the delivery dates and deadlines which were agreed in the original contract shall no longer be valid.
§ 5 Acceptance
The customer shall take delivery of the services of BFI without delay as soon as BFI indicates that such services are ready for examination and acceptance.
BFI’s services shall be regarded as accepted if BFI indicates that the services are ready for delivery and points out the significance of failing to sign the document of acceptance, provided that
- the customer does not sign the document of acceptance within a period of time which is necessary for him to examine the services with the requisite care in order to recognise major faults – at the latest, within ten working days – or refuses to accept the goods and lists the faults in detail as far as possible,
- or the customer makes the services of BFI or parts thereof available for the use of third parties without further examination, as long as the non-acceptance is not the result of a substantial fault in the services supplied by BFI.
If no indication is given that the services are ready for examination and acceptance, then the date of the conveyance of this information shall be replaced by the date on which the customer could reasonably have been expected to become aware of the services.
§ 6 Duty of Co-operation
The customer shall make available the necessary data, in particular the content to be included in the BFI productions in good time and – unless otherwise agreed – in digital form.
Should BFI supply the customer with drafts and/or test versions and name a reasonable deadline for the verification of their correctness and completeness, such preliminary versions shall be regarded as approved upon the expiry of the deadline unless BFI has received from the customer details of the corrections required.
The customer is responsible for the provision of sufficient resources and information within the framework of his duty of co-operation. He will ensure that the necessary number of staff who are competent in the subject matter are available, and that the technical requirements are adequately met.
If BFI considers it necessary, the customer shall make a test environment available.
The customer shall inform BFI immediately if faults or impairments to the functionality of BFI’s services should occur, listing the time and nature of the fault together with the name and contact details (telephone, e-mail) of the staff member who reported the fault and the staff member in charge of the project.
If necessary the customer is responsible for the remote servicing and maintenance necessary to ensure the smooth functioning of the equipment, especially the provision of stable data transmission cables and interfaces.
§ 7 Rights of Use
Unless otherwise agreed, BFI grants the customer a single, non-transferable right of use for the agreed purpose. If BFI supplies services related to the design of the customer’s internet presence, then the purpose of the website and/or its components is restricted to use in the internet. The customer acquires all rights under the condition precedent until payment in full of the services of BFI has been made.
The customer is obliged to supply BFI upon request with information in writing regarding the extent of the use.
When making use of models or material supplied by the customer, BFI assumes that such models or samples are not encumbered with the rights of third parties, and that the customer is in possession of the rights of use which are necessary for the project in question.
BFI also makes use in its productions of the rights of third parties (foreign licence material), which can only be transferred to the customer in a limited manner – in particular, for only a limited period of time. This limited transfer of rights, of which the customer will be informed in detail as appropriate, may result in the fact that foreign licence material is no longer available or is only available under very different conditions, over which BFI has no control. In such cases BFI will use its best efforts to substitute similar material.
BFI is entitled to charge the customer for the costs of foreign licence material; upon presentation of the invoice of the licensor BFI shall charge the customer the amount due plus a service charge of 15 percent. There will be no additional listing of the production items which are subject to the rights of third parties.
The customer is entitled to use the foreign licence material only in connection with and within the framework of the production. If BFI is subject to claims because the foreign licence material is not being used for the agreed purpose, the customer shall be liable to reimburse BFI for the resulting claim.
The customer shall be obliged to inform BFI of every irregular use of the licence material of which he may become aware, and also to institute legal proceedings against infringers of industrial copyright or to support BFI in such proceedings.
The customer shall inform BFI immediately if he becomes aware of infringements of rights of use through the services of BFI, e.g. through the warnings issued by third parties.
§ 8 Copyright Notices and Reference Indications
The customer grants BFI the right to include in the production the BFI logo and an imprint. The customer shall adopt all protective marks such as copyright statements and reservations of rights without alteration. This applies in particular to references to the owner of copyright.
BFI reserves the right to use for presentation purposes services rendered such as drafts and other objects, even if they are based on material supplied by the customer. In particular BFI shall be entitled to note the products created according to the customer’s instructions and to refer to them in a reference list for advertising purposes, and if necessary to insert corresponding links.
BFI shall be entitled to publicise the business connection to the customer in press releases.
§ 9 Guarantee
Upon receipt of a corresponding request from the customer, faulty products or services will be repaired or replaced by BFI within the guarantee period of twelve months beginning from the date of delivery or acceptance. BFI will repair the fault without charge or will provide the customer at no charge with a modified version which no longer contains the notified defect. Additional modifications requested beyond the repair of the defect will be charged according to the work involved.
The customer shall put the measures necessary for the repair of defects into operation immediately and shall observe his obligations to inform BFI of the results if necessary (§ 6 para. 4).
Defect claims are not valid if the defect is only trivial, in particular if it has no substantial effect on the agreed use.
If the subsequent fulfilment of the contract is not carried out within the period of grace set by the customer for its subsequent fulfilment, the customer shall be entitled to demand the annulment of the contract or a reduction in the purchase price.
Obvious defects which are evident to the average customer without further inspection must be reported to BFI within ten working days of delivery by registered letter. Defects which are not immediately obvious must be reported to BFI within ten days of their discovery. Otherwise claims based on these defects cannot be enforced. The defects must be described in detail as far as possible.
§ 10 Liability
BFI shall assume full liability for defects of title and guarantees.
BFI shall be liable for deliberate or gross negligence. This also applies to BFI’s legal representatives and persons employed by BFI in the performance of its obligations.
In cases of minor negligence the liability of BFI and persons employed by BFI in the performance of its obligations shall be limited to typical contractual and foreseeable damage.
BFI shall not be liable for damage which was not foreseeable within the framework of the agreement. Untypical, unforeseeable damage is not covered by BFI’s liability.
BFI shall not be liable for loss of profit on the part of the customer, nor for interruption of business, loss of programs or other data in the customer’s information systems. BFI does not accept liability for subsequent damage of all kinds, in particular for the damage claimed by third parties against the customer.
§ 11 Data Protection and Confidentiality
BFI will store the customer’s details which are necessary for the negotiation and execution of a contract (e.g. address and bank details).
The connection of a network to the internet creates the possibility for the misuse of data. The customer must therefore protect in particular sensitive data against unauthorised access by establishing his own security measures.
Both parties to the contract will treat confidentially information which is marked as confidential and which becomes known to them during the execution of the contract. Software details and documentation and above all the source code must be protected from unauthorised access.
BFI would like to point out that it is not yet possible for current technology to prevent the reproduction of works, especially graphics and other optical or acoustic design features which are placed online.
§ 12 Termination of Contract
In the case of contracts due to run for an indefinite period, under normal circumstances the customer may terminate the agreement at the earliest six months after signing. The contract will be automatically extended for a further period of six months in each case if it is not terminated in writing three months before the end of the agreement.
This rule does not affect the right to terminate the contract for good cause. In particular BFI shall be entitled to terminate the agreement without notice in the case of an infringement of § 7 – Rights of Use – or if the customer is more than one month in arrears with payment.
§ 13 Correspondence
If the parties to the contract communicate by electronic mail (e-mail) they hereby agree to recognise the unlimited validity of statements of intent communicated in this manner according to the following terms:
The e-mail must contain the name and e-mail address of the sender, the time of sending (date and time) and must repeat the name of the sender at the end of the message.
There is no guarantee of confidentiality for messages sent unencrypted via internet. Should the other partner so wish, both partners to the agreement are prepared to use an agreed encryption system.
An e-mail received under the above-mentioned conditions shall be considered as originating from the other partner to the contract, unless proved otherwise.
The binding nature of e-mail and thus of the text form applies to all statements which usually form part of the conclusion of a contract. The text form is, however, not valid in the case of a termination of contract or for measures to introduce or execute the process of arbitration or for declarations which expressly require from one of the parties to the contract a statement in written form which diverges from this agreement.
§ 14 Arbitration Clause
An arbitration court shall decide finally and in a binding manner without recourse to the normal judiciary over all disputes resulting from and in connection with this contract, including disagreements regarding its existence or end.
The arbitration court shall consist of three arbitrators and shall be convened for each disagreement separately, whereby each party shall name one arbitrator. The two arbitrators thus nominated shall then elect the representative.
The place of the court of arbitration shall be Munich. Sessions of the arbitration court can also take place at another location, in particular at the seat of the representative.
The representative shall lead the proceedings, which shall be determined by the members of the arbitration court at their discretion.
Both parties shall be heard verbally before the arbitration judgment is pronounced, unless both agree in writing to relinquish their right to verbal proceedings.
The arbitration court shall decide in accordance with valid substantive law. It shall also decide regarding the costs of arbitration, taking into account §§ 91 ff. ZPO. At all stages of the proceedings it shall attempt to bring about an amicable solution of the dispute.
The arbitrators are bound to secrecy and are entitled to remuneration and reimbursement of expenses.
It is agreed that the Higher Regional Court of Munich shall be regarded as the court of jurisdiction in accordance with § 1062 ZPO.
§ 15 Applicable Law and Place of Performance
The contractual parties agree that the applicable law shall be German law with regard to all legal relationships arising from this contractual relationship.
The place of performance for all mutual acts resulting from this contract shall be Grünwald. In this case the place of jurisdiction shall be Munich.
§ 16 Severability Clause
Should any terms of these General Terms of Business be or become ineffective, then the effectiveness of the other terms shall remain unaffected. The parties to the contract shall replace the ineffective clause by an effective one which shall as far as possible have the same economic effect as the contractual parties would have wanted.
Date: September 2010