General Terms and Conditions Part I and Part II of BLACKCAM 4D GmbH
Part I – General Aspects and Sales Terms
§ 1 Scope of application, formal requirements
- These General Terms and Conditions (GTCs) apply to all our business relationships with our customers (“Customers”). The GTCs shall only apply provided the Customer is an entrepreneur (Section 14, German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
- These GTCs shall particularly apply to contracts for the sale and/or delivery of movable goods (“goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433 and 650 of the German Civil Code (BGB)). These GTCs shall also apply to services set out in Part II of these GTCs, unless otherwise stipulated therein. Unless otherwise agreed, the GTCs in the version valid at the time of the Customer’s order and/or, at all events, in the version most recently communicated to the Customer in text form, shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
- Our GTCs shall apply exclusively. Any differing, conflicting or supplementary general terms and conditions of the Customer shall only become an integral part of the contract if, and to the extent that, we have expressly consented to their application. Such requirement of consent shall apply in all cases, for example even if, in the knowledge of the Customer’s GTCs, we carry out the delivery to the Customer without reservation.
- Individual agreements made with the Customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTCs. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative with regard to the content of such agreements.
- Legally relevant declarations and notifications by the Customer with regard to the contract (e.g. the setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legally required formal requirements and further proofs, particularly in the case of doubt about the legitimacy of the person making the declaration, shall thereby remain unaffected.
- References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCs.
§ 2 Conclusion of the contract
- Our offers are subject to change and non-binding. This shall likewise apply if we have provided the Customer with catalogues, technical documentation (e.g. drawings, plans, estimates, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve property rights and copyrights.
- The placement of the order for the goods by the Customer shall be deemed a binding contractual offer. Unless the order requires a different approach, we shall be entitled to accept the said contractual offer within 21 calendar days following our receipt of the said order.
- Acceptance may be declared either in writing (e.g. by confirmation of the order) or through delivery of the goods to the Customer.
§ 3 Delivery period and default in delivery
- The delivery period shall be agreed individually or specified by us upon our acceptance of the order. Should this not be the case, the delivery period shall be approx. 6 weeks from the date of concluding the contract.
- Should we be unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the Customer of this immediately and at the same time inform them of the estimated new delivery deadline. Should the service not be available within the new delivery period either, we shall be entitled to withdraw from the contract in whole or in part; we will immediately refund any payment already made by the Customer. In particular, the failure of our supplier to deliver on time if we have concluded a congruent covering transaction, if neither we nor our supplier are culpably responsible for the said failure, or if we are not obliged to procure in an individual case, shall be deemed to be a case of non-availability of the service in this sense.
- The occurrence of our default in delivery shall be determined in accordance with the statutory provisions. In any case, however, it shall be necessary for the Customer to send us a reminder. Should we get into default of delivery, the Customer may demand lump-sum compensation for the damages suffered due to the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Customer has suffered no damages at all or has only suffered significantly less damages than the aforementioned lump sum.
- The rights of the Customer pursuant to Section 8 of these GTCs and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g. due to the impossibility or unfeasibility of performance and/or supplementary performance), shall thereby remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
- Delivery shall be ex warehouse, which shall also be the place of performance for the delivery and any supplementary performance. At the Customer’s request and expense, the goods can be dispatched to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the mode of dispatch (particularly own dispatch, transport company, dispatch route and standard packaging) ourselves.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover of the goods. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the Customer upon consignment of the goods to the forwarding agent, the carrier or any other person or entity commissioned to carry out the shipment. Should an acceptance procedure have been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. If the Customer is in default of acceptance, the handover and/or taking over of the goods shall be deemed to be equivalent to acceptance.
- Should the Customer be in default of acceptance, fail to cooperate or our delivery be delayed for other reasons for which the Customer is responsible, we shall be entitled to claim damages for the resulting losses, including any additional expenses (e.g. storage costs). We may charge costs for the storage and preservation of the non-accepted item as follows: 0.5% of the purchase price per calendar week, a maximum of 5% in total or a maximum of 10% in the event of final non-acceptance.
The proof of greater damages and our statutory claims (particularly reimbursement of additional expenses, reasonable compensation, termination) shall thereby remain unaffected; however, the lump sum shall be offset against further monetary claims. The Customer shall be at liberty to prove that we have not suffered any damages at all or that the damages suffered are significantly less than the aforementioned lump sum.
- 5 Prices and terms of payment
- Unless otherwise agreed in an individual case, our current prices at the time of concluding the contract shall apply, ex warehouse, plus the statutory value added tax.
- In the case of sale by delivery to a place other than the place of performance (Section 4 (1)), the Customer shall bear the transport costs ex warehouse and the costs of any transport insurance they may desire. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.
- The purchase price shall fall due and shall be paid by the Customer within 14 calendar days of invoicing and delivery and/or acceptance of the goods. The credit entry in the bank account designated by us shall be determinative for compliance with the payment deadline. However, we shall at any time be entitled to make a delivery, in whole or in part, only against advance payment – including within the framework of an ongoing business relationship. We shall declare the relevant proviso at the latest on confirmation of the order.
- Upon expiry of the aforementioned payment deadline, the Customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim damages for any further losses suffered due to the default. With respect to traders, our claim to the commercial interest on arrears (Section 353, German Commercial Code (HGB)) shall thereby remain unaffected.
- The Customer shall only be entitled to set-off or retention insofar as their claim has been legally established or is undisputed. In the event of defective delivery, the Customer’s counter-rights shall remain unaffected, particularly in accordance with Section 7 (6) sentence 2 of these GTCs.
- If, after concluding the contract, it becomes clear (e.g. due to the Customer filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the Customer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – after setting a deadline, if need be – to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of unfeasible items (e.g. the production of unique, customised products), we may immediately declare our withdrawal; the statutory regulations on the dispensability of setting a deadline shall thereby remain unaffected.
§ 6 Retention of title
- We shall retain title to the goods sold until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer shall immediately notify us in writing if an application for the opening of insolvency proceedings is filed or if third parties gain access to the goods belonging to us (e.g. due to seizure).
- In the event of conduct by the Customer that is in breach of contract, particularly in the case of failure to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods based on our retention of title. The demand for return shall not simultaneously include a declaration of withdrawal from the contract; rather, we shall be entitled only to demand surrender of the goods and to reserve the right to withdraw from the contract. Should the Customer fail to pay the purchase price due, we may only assert the said rights provided that we have previously set the Customer a reasonable deadline for payment without success, or provided that the setting of such a deadline can be dispensed with pursuant to the statutory provisions.
- Until our revocation in accordance with point (c) below, the Customer shall be authorised to resell and/or process the goods that are subject to retention of title in the ordinary course of business. In such a case, the following provisions shall additionally apply.
- The retention of title shall extend to any products that result from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer.
If, in the event of processing, mixing or combining our goods with those of third parties, the said third parties’ ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
- By way of security, the Customer hereby assigns to us all claims against third parties arising from the resale of the goods or the product, as a whole or to the amount of our co-ownership share, if any, in accordance with the foregoing clause. We hereby accept the assignment. The obligations of the Customer stated in clause 2 above shall also apply in respect of the assigned claims.
- Besides us, the Customer shall also remain authorised to collect the claim. We undertake not to collect the claim provided that the Customer meets their payment obligations towards us, that their ability to pay is not jeopardised and that we do not assert our retention of title by exercising a right pursuant to para. 3. Should, however, the opposite be the case, we may demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the said assignment. In such a case we shall, furthermore, be entitled to revoke the Customer’s authority to further sell and process the goods that are subject to retention of title.
- Should the realisable value of the securities exceed our claims by more than 10%, we shall, at the request of the Customer, release securities of our choice.
§ 7 Defect claims of the Customer
- In the event of material defects and defects of title (including wrong and short delivery as well as improper assembly, or defective assembly instructions), the statutory provisions shall apply to the Customer’s rights, unless otherwise stipulated in the following. In every case, the special statutory provisions shall remain unaffected in the event of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to Section 478 of the German Civil Code (BGB)). Claims arising from supplier recourse shall be excluded if the defective goods have been further processed by the Customer or another entrepreneur, e.g. by being incorporated into another product.
- The basis of our liability for defects shall, above all, be the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract, or which have been publicly announced by us (particularly in catalogues or on our Internet homepage) at the time of concluding the contract shall be deemed to constitute an agreement on the quality of the goods.
- Insofar as no agreement has been reached regarding the quality, the statutory regulation shall be applied to assess whether or not a defect exists (Section 434 (1) sentences 2 and 3 of the German Civil Code (BGB)). However, we dol not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the Customer has not drawn our attention as being a determinative factor in the Customer’s decision to purchase.
- In principle, we shall not be liable for any defects of which the Customer is/was aware at the time of concluding the contract or is/was not aware due to gross negligence (Section 442 of the German Civil Code (BGB)). Furthermore, the prerequisite for the Customer’s claims for defects shall be that the Customer has fulfilled their statutory obligations to inspect the goods and give notice of defects (Sections 377 and 381 of the German Commercial Code (HGB)). In the case of building materials and other goods intended for installation or other further processing, an inspection must, in any case, be carried out immediately prior to processing. Should a defect become apparent upon delivery, inspection or at any later time, we must and shall be notified thereof in writing without delay. At all events, we must and shall be notified in writing of any obvious defects without delay, at the latest within 6 working days of delivery, and notified of any defects which are/were not immediately apparent upon inspection within 6 working days from the time of discovery. Should a defect be immediately apparent without inspection, or should a defect have been detected, we must be notified of the said defect in writing within 2 days. Should the Customer fail to duly inspect the goods and/or notify us of a defect, any liability on our part for the defect of which we have not been notified or have not been notified in due time or in a proper manner, shall be precluded in accordance with the statutory provisions.
- Should the delivered item be defective, we may initially choose whether to provide supplementary performance by remedying the defect (rectification) or by delivering a non-defective item (replacement). Our right to refuse supplementary performance under the statutory requirements shall thereby remain unaffected.
- We shall be entitled to make the supplementary performance owed dependent on the Customer paying the due purchase price. However, the Customer shall be entitled to retain a portion of the purchase price in reasonable proportion to the defect.
- The Customer shall grant us the time and opportunity required for the supplementary performance owed, particularly by handing over the rejected item to us for examination purposes. In the event of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. If we were not originally obligated to install the said item, the supplementary performance shall neither include the de-installation of the defective item nor its re-installation.
- Should a defect actually exist, we shall bear or reimburse the necessary costs incurred for the purpose of examination and supplementary performance, particularly transport, travel, labour and material costs and shall, if necessary, bear or reimburse the costs of dismantling and installation, in accordance with the statutory provisions. Otherwise, we may demand that the Customer reimburse the costs (particularly the costs of examination and transport) incurred as a result of the unjustified request to remedy the defect, unless the lack of defect(s) was not discernible to the Customer.
- In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damages, the Customer shall have the right to remedy the defect themselves and to demand reimbursement from us of the expenses that are actually necessary for this purpose. We must be immediately informed of any such self-remedy – if possible, in advance. The right of the Customer to remedy the defect themselves shall not apply if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
- Should the supplementary performance have failed or a reasonable deadline to be set by the Customer for the supplementary performance have expired without success or can be dispensed with pursuant to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. However, in the case of an insignificant defect, there shall be no right of withdrawal.
- The Customer shall only be entitled to claim damages or the reimbursement of fruitless expenses in accordance with the stipulations in Section 8 below, including in the case of defects, and any other claims for damages and reimbursements of expenses are hereby excluded.
§ 8 Other liability
- Insofar as nothing to the contrary is stipulated in these GTCs, including in the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
- We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. same diligence as in our own affairs; insignificant breach of duty), only for the following cases:
- a) for damages resulting from injury to life, limb or health,
- b) for damages suffered due to the breach of an essential contractual obligation (i.e., an obligation of which the fulfilment is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); however, in such a case our liability shall be limited to compensation for the foreseeable, typically occurring damages.
(3) The limitations of liability laid down in para. 2 above shall also apply to third parties as well as to any breaches of duty by persons (including in their favour) for whose fault we are responsible according to the statutory provisions. The limitations of liability shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed, nor shall they apply to claims of the Customer under the Product Liability Act.
(4) The Customer may only withdraw or terminate due to a breach of duty which does not consist of a defect provided we are responsible for the said breach of duty. A free right of termination of the Customer (particularly pursuant to Sections 650 and 648 of the German Civil Code (BGB)) is hereby excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(5) Admissible alternative individual agreements on claims/limitations of liability in accordance with Section 7 and Section 8 above shall take precedence over these GTCs.
§ 9 Force majeure
- Force majeure shall result in a restriction or exclusion of our obligation to perform due to the impossibility or infeasibility of performance and/or supplementary performance in accordance with the following provisions.
- “Force majeure” means the occurrence of an event or circumstance (a “force majeure event”) which prevents us from performing one or more of our obligations under the Contract if, and to the extent that, we can prove that: a) such hindrance is beyond our reasonable control; and b) it could not reasonably have been foreseen at the time of entering into the contract; and c) the effects of the hindrance could not reasonably have been avoided or surmounted by us.
- Non-performance by third parties: Should we fail to perform one or more of our contractual obligations due to the failure of a third party whom we have engaged to perform the entire contract or part of the contract, we may invoke force majeure only to the extent that the requirements for presuming the existence of force majeure, as defined in paragraph 2 of this clause, apply not only to us but also to the third party.
- Presumed force majeure events: Until proven otherwise, the following events affecting us shall be presumed to meet the requirements for the presumption of force majeure under paragraph 2 (a) and (b) above. In this case, we shall only have to prove that the condition under paragraph 2 (c) has actually been fulfilled:
- war (declared or undeclared), hostilities, attacks, acts of foreign enemies, large-scale military mobilisation;
- civil war, rioting, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy;
- currency and trade restrictions, embargoes, sanctions, blockades;
- lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalisation;
- plague, epidemic, pandemic, natural disaster or extreme natural event;
- explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or electrical power;
- general unrest in the labour force such as boycotts, strikes and lockouts, go-slow strikes, occupation of factories and buildings.
Events not listed above shall justify the claim of force majeure provided they fall under the definition given in paragraph 2 above.
- Notification: We will immediately give notification of a force majeure event.
- Consequences of force majeure: Should we successfully invoke the force majeure clause, we shall be released from the obligation to perform our contractual obligations and from any liability for damages or any other contractual remedy for breach of contract, provided that we immediately send notification thereof in text form. If such notification is not given immediately, the said release shall only take effect from the time when the notification is sent.
- Temporary impediment: If the effect of the alleged impediment or event is temporary, the consequences set out in paragraph (6) above shall apply only for as long as the alleged impediment prevents us from performing our contractual obligations. We will immediately give notice as soon as the impediment no longer prevents us from fulfilling our contractual obligations.
- Duty to mitigate: We will take reasonable steps to as far as possible limit the effects of the event which was invoked in the course of fulfilling the contract.
- Termination of the contract: Should the duration of the alleged impediment have the effect of substantially depriving the parties of that which they had a right to expect on the basis of the contract, the respective party shall be entitled to terminate the relevant contract by giving notice to the other party within a reasonable period of time. Unless otherwise agreed, the contract may be terminated by either party if the duration of the impediment has exceeded 120 days. Our exclusions of liability shall remain unaffected by such termination.
(10) Unjustified enrichment: Should paragraph 9 be applicable and should one contracting party have gained an advantage through the actions of another contracting party in the course of performing the contract prior to the termination of the contract, then the first contracting party shall pay the other party a sum of money that is equivalent to the value of the advantage.
§ 10 Disposal
Should the Customer be subject to regulations on the disposal of old equipment (e.g. electrical equipment or electronic equipment), the Customer hereby agrees to be responsible for taking all the necessary action and for all the costs of the prescribed disposal, particularly the environmentally friendly disposal of the products.
§ 11 Limitation period
(1) In deviation from Section 438 (1) no. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall begin upon acceptance. Further special statutory provisions on the limitation period (particularly Section 438 (1) nos. 1 and 2, Section 438 (3) and Sections 444, 445b of the German Civil Code (BGB)) shall thereby remain unaffected.
(2) The above limitation periods laid down in German sales law shall also apply to contractual and non-contractual claims for damages suffered by the Customer due to a defect in the goods, unless applying the regular statutory limitation period (Sections 195 and 199 of the German Civil Code (BGB)) would lead to a shorter limitation period in an individual case. Claims for damages asserted by the Customer pursuant to Section 8, para. 2, sentence 1 and sentence 2(a) above, and also pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall lapse exclusively in accordance with the statutory limitation periods.
- 12 Property rights, surrender
- We shall retain ownership and/or all property rights to all offers and cost estimates that we provide, as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids that we make available to the Customer.
- The Customer may not make the said items (as specified in paragraph 1 above) accessible to third parties, either physically or in terms of content, or disclose them, use such items themselves or use them through third parties, or reproduce them, without our express consent, unless they are under a statutory obligation to do so, or this is required in the context of performing the contract.
- At our request, the Customer shall return these items to us in full and shall destroy any copies made if such copies are no longer needed by the Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 13 Choice of law and legal venue
- These GTCs and the contractual relationship between us and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particularly the UN Convention on Contracts for the International Sale of Goods.
- If the Customer is a merchant/trader as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive legal venue – including the international legal venue – for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Berlin. The same shall apply if the Customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, we shall, in all cases, also be entitled to bring a legal action at the place of performance of the delivery obligation in accordance with these GTCs or a prior individual agreement or at the general legal venue of the Customer. Overriding statutory provisions, particularly on exclusive jurisdictions, shall thereby remain unaffected.
§ 14 Precedence of provisions
- Contractual and/or individual agreements shall take precedence over provisions in accordance with our GTCs Part I and/or Part II.
- Should an overriding provision (see paragraph 1 above) be or become ineffective, the more general provision, if one exists, shall apply.
Part II – Specific Aspects/Additions to Services/Assembly
§ 1 Object
- In addition to Part I, Part II of our GTCs shall apply to our additional services or assembly services in connection with the sale or rental of our products, or the deployment of staff provided by us, and our products at events of the Customer (hereinafter also called “productions”).
- The following provisions shall supplement the provisions in Part I of our GTCs, but not replace them. Consequently, they shall apply cumulatively. In the event of any contradictions between provisions in Part II and provisions in Part I, the provisions in Part II shall take precedence.
§ 2 Obligations of the Customer
- The Customer shall appoint an authorised representative who is entitled to make decisions on site. Should the Customer fail to fulfil this obligation, we may assume that employees of the Customer are authorised to make on-site operational decisions.
- In the contractual offer, the Customer shall already be obliged to provide us with all information that we need in order to duly carry out the order within the desired time frame. This shall, for example, include:
- Floor plans, technical plans, drawings, seating plans, emergency escape route plans, stage and sound system plans, lighting plans,
- power requirements and lists of materials,
- communication on the schedule of planned events of the Customer,
- staff requirements, necessary operating times of our staff, staff provided by the Customer and their tasks, and
- special conditions at the place of performance which would not normally be expected (e.g. low clearance heights, narrow stairways, etc.), special hazards and risks at the place of use.
- We shall be entitled to rely on the information provided being accurate and complete unless the information is obviously incorrect or incomplete in itself, in which case we will point this out.
- The Customer shall be obligated to create all the conditions necessary for the place of performance and the service specifics that enable us to provide our services. These shall include, in particular:
- all legal, licensing and regulatory copyright requirements,
- the work coordination procedure stipulated by the respective employers’ liability insurance association pursuant to the German Social Accident Insurance (DGUV) (Section 6 of the BGV-A1 health and safety regulations), and
- an uninterrupted power supply and Internet connection in accordance with predefined specifications.
- Insofar as employees of the Customer or third parties commissioned by the Customer are made available to us or are designated to plan or carry out the order, we shall not be obligated, without a separate agreement, to monitor the adherence to protective provisions of labour law applicable to such employees, such as statutory working hours and occupational health and safety regulations.
- Insofar as the Customer provides items of any kind whatsoever, particularly materials, technical equipment, studio technology, devices, lifting gear, cables, they must and shall be in an approved condition that is safe for operation and use and suitable for performing the services that have been agreed upon with us, particularly regarding quantity, size, technical interfaces and availability.
This shall not affect any of our own obligations to inspect and notify, should such exist.
- The Customer shall guarantee us unhindered access to the place of performance, freedom to carry out installations and that all the conditions necessary for us to perform our services will be maintained throughout the period of our performance.
- The Customer shall guarantee the security of the technical equipment used by us during our service-free period(s) (especially, in the case of events lasting several days, the period from the end of one event to the start of the next event), particularly the protection of the said technical equipment from damage, deterioration, theft and unauthorised use.
- The Customer shall guarantee an uninterrupted supply of electricity. Power outages, in particular, can result in data loss for which we do not accept any liability.
(10) The Customer shall specify all the technical parameters required for the performance of our service, particularly all construction-relevant data (track length, cable routes and lengths, stage heights, types of break-through openings, etc.) as well as all planned signal couplings with a physical connection (plug connectors), electrical power levels and signal formats.
(11) The Customer shall ensure that sufficient and appropriate space is available for our operators to set up their workstations.
§ 3 Liability of the Customer
- The Customer shall be liable, in accordance with the statutory provisions, for any damages we suffer that have been caused by the Customer, or for which the Customer is responsible, through being in breach of their obligations as stipulated in Part II, Section 2. Any liability on other grounds shall thereby remain unaffected.
- The Customer shall also be liable for any damages we suffer that have been caused by, or are
attributable to, staff that the Customer has provided, vicarious agents or third parties working in our production area and commissioned by the Customer, or persons who have trespassed into our production area in breach of the Customer’s security obligations.
- Should any unauthorised persons gain access to our production area during our scheduled absence due to lack of security provided by the Customer and if, on resuming our activities, it emerges that our technical equipment is now subject to malfunctions or damage that demonstrably did not exist before, then the said malfunctions or damage shall be deemed to be the responsibility of the Customer and the Customer shall be liable to pay corresponding damages.
- Insofar as damages suffered by us are covered by insurance benefits, an appropriate amount of credit shall be set off against the damages to be paid by the Customer.
- Insofar as the Customer is liable for damages caused to us by third parties, we hereby undertake to assign our own claims against damaging parties to the Customer, step by step, in return for damage compensation and to cooperate in the enforcement of the Customer’s claims.
§ 4 Additional limitations of liability
In addition to the general liability provisions in accordance with Part I, we shall not be liable for the performance of services as defined in Part II, Section 1 above with regard to delays, or the interruption or the cancellation of services due to a breach of individual obligations of the Customer as defined in Part II, Section 2 above or for any other reasons that lie outside our sphere of responsibility, such as:
- Breakdowns or impairments due to items provided by the Customer;
- problems due to the fact that the order was carried out with limited staff at the request of the Customer;
- the holding of presentations of our production contrary to our specifications, particularly regarding quality, formats, resolution and standards;
- accidents that occur to our staff due to events that lie outside our sphere of responsibility;
- failure to adhere to our specifications regarding production prerequisites/parameters with regard to both the location/space provided and, in particular, to temperatures, and light and/or acoustic conditions;
- inadequate security for the aids and devices that we use for the production in the event that unauthorised persons have access to our area, resulting in damage to our technical equipment or software or adverse effects on the contractual performance of our services.
§ 5 Prices
Unless otherwise agreed, we shall charge the following In addition to the agreed price:
- Such costs for food, accommodation and travel for staff as are normal in the sector
- An overtime surcharge for every additional hour worked by the staff over and above the daily agreed working hours, amounting to:
- 25 % for the first 2 hours
- 50% for the 3rd and 4th hour
- 100% for each additional hour
§ 6 Insurance
- None of the materials and technology provided to us by the Customer will be insured by us. It is the Customer’s duty to adequately insure the objects and materials that they provide to us within the scope of the production.
- The Customer shall furthermore be obligated to adequately insure the materials and technical equipment that we bring with us for the production.
- The scope of the insurance in accordance with the above paragraphs shall be based on conditions that are normal in the sector. In particular, it shall include insurance against theft, vandalism, fire, water, damage to property, including by third parties, software damage, e.g. due to power failure or overvoltage, and damage to hardware caused by damaged software.
- Insofar as the Customer is obligated to insure in accordance with paragraph (2) above, this shall apply to materials and technical equipment specified by us in the contract or protocol.
- Insofar as an event regulated herein is not insurable or is insurable only at unreasonably high cost to the Customer, the Customer shall inform us prior to the start of production sufficiently in advance as to enable us to make our own insurance arrangements, if necessary.
§ 7 Cancellation
- In the event that orders are cancelled, insofar as the cancellation is not our fault or the cancellation does not take place within a contractual cancellation period, we shall be entitled to the agreed remuneration, taking into account any expenses saved.
- In the event of cancellation, we shall attempt to obtain a replacement order if possible and to correspondingly reduce the loss for the Customer by offsetting any income generated through the said replacement order.
- Alternatively, we shall be entitled to claim for our expenses and for damages arising from a cancellation for which we are not culpably responsible, as set out below. In the event of cancellation:
- Less than 14 calendar days before the start of production: 25 % of the total remuneration,
- Less than 7 calendar days before the start of production: 50 % of the total remuneration,
- Less than 3 calendar days before the start of production: 75 % of the total remuneration,
- Less than 1 calendar day before the start of production: 100 % of the total remuneration.
- The above provisions shall not affect our options to claim higher damages, particularly if we are subject to claims by third parties due to the cancellation.
- The Customer shall be at liberty to prove that no damages or reduction in value have occurred at all, or that such damages or reduction in value are significantly lower than the lump sum.
§ 8 Termination
- The commissioning of a production may only be terminated by either party for good cause. This shall also apply to any agreed additional services.
- Good cause for termination by us shall, in particular, exist if the Customer fails to meet their payment obligations, if seizures or other compulsory enforcement measures are taken against them, or if insolvency proceedings or out-of-court settlement proceedings are applied for in respect of their assets, and furthermore if the Customer fails to meet their material obligations to collaborate despite being sent a reminder, and if the contractual performance of our service is thereby jeopardised.
§ 9 General points, advertising, intellectual property rights
- In the case of productions that are broadcast live and/or as recordings, the Customer undertakes to name us in the credits together with our area of work and the core name BLACKCAM.
- We shall be entitled to engage subcontractors to fulfil our obligations.
- We reserve the right to discontinue or interrupt the service if, as a result of external influences, further operation may result in hazards to the life and health of persons or if the technical equipment might be damaged.
- as the scope of our services includes making and supplying recordings of the Customer’s event, the following shall additionally apply:
- Through handing over the source material and placing the copy order with us, the Customer guarantees that they own all the rights, particularly copyrights and ancillary copyrights. Should the Customer not own these rights, they shall be obligated to declare this to us in advance and to indemnify us against third party rights.
- The Customer shall be responsible for ensuring that no statutory or official prohibitions or restrictions are violated by the services that are the object of the order. Should the Customer fail to comply with this obligation, they shall indemnify us against all possible claims by third parties and shall compensate us for any damages that we may suffer as a result of the Customer’s breach of the obligation to provide information.
- On request, the Customer shall provide us with proof of their aforementioned copyrights and ancillary copyrights. Should they fail to do so, we shall be entitled to refuse to perform our services.
- The Customer shall be solely responsible for any GEMA fees incurred. The Customer is aware that the Contractor is obligated to notify GEMA and to comply with this obligation.