General Terms and Conditions
01. GENERAL PROVISIONS, SCOPE OF APPLICATION
01.1 The following General Terms and Conditions (GT&C, Allgemeine Geschäftsbedingungen, AGB) of Wavefront Studios GmbH shall apply exclusively. Any general terms and conditions of the customer that oppose or deviate from Wavefront Studios GmbH’s General Terms and Conditions shall not be recognized, unless Wavefront Studios GmbH explicitly agrees to their application in writing. The General Terms and Conditions of Wavefront Studios GmbH shall also apply in the event that Wavefront Studios GmbH performs a delivery without reservation whilst being aware of general terms and conditions that oppose or deviate from these General Terms and Conditions.
02. CONCLUSION OF THE CONTRACT
02.1 Offers by Wavefront Studios GmbH are non-binding and subject to change without notice, they constitute an invitation to the customer to place an order with Wavefront Studios GmbH.
02.2 The customer’s order constitutes a binding offer that may be accepted by Wavefront Studios GmbH within four weeks by written order confirmation or by actual performance of the service.
02.3 The nature and scope of the service and the time when it is to be carried out result from the individual agreement, from the order confirmation, and/or from the delivery certificates and/or performance documents of Wavefront Studios GmbH.
02.4 The time limits shall begin to run when the customer receives the order confirmation, however not earlier than at the point in time when all conditions of the order and technical details have been clarified and, if applicable, all original materials, documents and/or permissions which may be required have been provided or made available by the customer.
02.5 In the event of any subsequent change requests on the part of the customer, the time limits shall be interrupted and shall commence to run yet again from the beginning.
03. VIDEO AND SOUND SERVICES
03.1 As a rule, all services of Wavefront Studios GmbH will be invoiced per shift or per hour. A shift is an aggregate that amounts to eight sequential production hours. Every new hour that has been commenced shall be counted as a full hour.
03.2 In the event that image recordings and/or sound recordings that were originally not recorded on equipment of Wavefront Studios GmbH are copied or processed on equipment of Wavefront Studios GmbH, Wavefront Studios GmbH shall merely assume the obligation to implement the processing in a professional manner.
03.3 In the event that the staff of Wavefront Studios GmbH has to undertake sound mixings and neither the customer nor a responsible employee designated by the customer (in particular, the director) are present, the tuning of the tones (tone colors) in the context of the performance of the order shall be implemented at the discretion of Wavefront Studios GmbH. However, solely an obligation that such activities will be carried out in a technically flawless manner can be assumed, because the appraisal of tone colors is extremely subjective, which means that it is not possible to assume any creative responsibility.
03.4 If any interruptions of operation or any other operation-related disruptions occur and neither the customer nor its representatives or its auxiliary persons are responsible for them or have caused them, and if such interruptions or disruptions prevent the performance of the agreed-upon services for more than three consecutive hours, Wavefront Studios GmbH shall have no claim for compensation for the duration of the disruption that exceeds these three consecutive hours. In such a case, however, the customer shall only be entitled to withdraw from the contract if the cause for the disruption cannot be remedied in a timely manner and, as a result, the customer’s economic interests are substantially impaired by this.
03.5 Wavefront Studios GmbH shall be entitled to outsource parts of the service to subcontractors. For this purpose, Wavefront Studios GmbH may have third parties handle the work material and may have it stored at their place.
04. WORK MATERIAL
04.1 The storage of image, audio, and other work materials that were made available to Wavefront Studios GmbH will be effected free of charge for the duration of the first processing order. A storage for the time after the processing time does not form part of the performance obligation of Wavefront Studios GmbH.
04.2 As a rule, Wavefront Studios GmbH receives material submitted to it without examination and in the condition in which it was handed over. It is the customer’s responsibility to take out appropriate insurance for the material submitted to Wavefront Studios GmbH. The acceptance and return of the submitted material shall be effected during business hours.
04.3 Wavefront Studios GmbH shall be entitled to send the material, after prior notification, within an appropriate amount of time, to the address of the purchaser last known to Wavefront Studios GmbH.
04.4 In the event that the notification was undeliverable by mail and a period of one month has passed, Wavefront Studios GmbH shall be entitled, at its own discretion and at the customer’s risk and expense, to either deposit the material elsewhere or to destroy it.
05. DISPATCH, PERMISSION TO USE
05.1 Wavefront Studios GmbH reserves the right to select the mode of shipping and the means of transportation, provided that there is no other written agreement with the customer. Wavefront Studios GmbH shall only take out transportation insurance if the customer has requested this in writing and if the customer bears the costs thereof.
05.2 As to deliveries, the risk passes to the customer as soon as the contractual object has been dispatched and/or handed over to the company or person executing the transport, or if it has left the premises of Wavefront Studios GmbH – or, if applicable, the premises of its employees – for the purpose of being dispatched. This shall also apply in the case that the transport is executed by Wavefront Studios GmbH and/or its vicarious agents.
05.3 In the event that the contractual object is collected, the risk passes to the customer when the contractual object is handed over. If the dispatch and/or the collection is delayed due to circumstances for which the customer is responsible, the risk shall pass on the day on which the object was ready to be dispatched or collected.
06. OBLIGATIONS ON THE PART OF THE CUSTOMER
06.1 The customer vouches that it is legally and/or contractually entitled to carry out the orders and to make all dispositions and execute all legal acts related thereto. The customer asserts that there are no legal impediments that prevent the order from being placed.
06.2 Upon the express request of Wavefront Studios GmbH, the customer shall undertake to issue a declaration that it is not subject to any restrictions with respect to the materials to be processed and that, if necessary, it shall obtain the consent of the party that holds the rights in the material. This shall apply likewise to any rights exercised by any copyright collecting societies (e.g., GEMA, GVL, etc.).
06.3 Wavefront Studios GmbH shall be entitled to provide the collecting societies with the reports they require in accordance with the statutory and/or contractual provisions. The customer expressly indemnifies and holds harmless Wavefront Studios GmbH from any claims asserted by collecting societies.
06.4 Unless otherwise provided for in writing, Wavefront Studios GmbH shall be entitled to assume that the customer is authorized and has the right to grant sublicenses.
06.5 For the purpose of detecting any defects, the customer shall examine the contractual object immediately after delivery, and if an obvious defect is found, it shall notify Wavefront Studios GmbH thereof in writing within one week.
06.6 If the customer fails to report obvious defects within the specified time limits, the contractual object shall be deemed to have been approved and/or accepted.
06.7 The customer shall be obliged:
to arrange for full insurance cover for the items that are handed over to, and/or stored for it by, Wavefront Studios GmbH.
to provide for suitable back up duplicate material in case the work material gets lost or is destroyed.
to inform Wavefront Studios GmbH immediately about any changes of the address, the company name, and the rightholders.
inform third-party rightholders, if any, about these GT&C and to ensure that they consent.
to take delivery of the services in due time.
to respond to inquiries and declarations of Wavefront Studios GmbH within an appropriate time limit.
07. RIGHTS OF THE CUSTOMER
07.1 In the event that the contractual object proves to be defective, the customer may demand repair of the defect in the form of subsequent performance. Only a breach of generally accepted standards of technology shall be deemed as a defect. However, a breach thereof shall not be deemed as a defect if such breach is a consequence of creative specifications requested by the purchaser.
07.2 Wavefront Studios GmbH may make the subsequent performance dependent on the customer paying a reasonable portion of the compensation, taking the defect into account. Wavefront Studios GmbH may refuse the subsequent improvement if it is only possible at disproportionate cost. In that regard, account must be taken in particular of the value of the item in the non-defective state and the significance of the defect.
07.3 In the event that the subsequent improvement attempted by Wavefront Studios GmbH fails twice, or if Wavefront Studios GmbH refuses to provide the subsequent performance, the customer shall have the right to reduce the compensation or to withdraw from the contract. The right of the customer to withdraw and/or to claim damages in lieu of performance shall be excluded if the defect is merely insignificant. In case of doubt, the insignificance shall be confirmed by means of an independent expert report. The costs for such an expert report shall be equally shared by the customer and Wavefront Studios GmbH.
07.4 The customer shall not be entitled to any rights based on defects which were caused by its faulty operation of the contractual object or by any unauthorized modifications of the contractual object.
08.1 Wavefront Studios GmbH’s prices are in EURO and shall be invoiced plus the applicable statutory value-added tax. If objects are to be delivered to the customer, the prices shall be ex works. Packaging and shipping costs shall be invoiced separately.
08.2 If the period of time between conclusion of the contract and the performance of the service amounts to more than six weeks and if, during this time, the prices for the provision of the service on the part of Wavefront Studios GmbH were to change (in particular because of changes in prices for material), Wavefront Studios GmbH shall, if applicable be entitled to invoice the higher prices resulting therefrom to the customer.
09. TERMS OF PAYMENT, NO OFFSET
09.1 Depending on what was agreed, the invoices of Wavefront Studios GmbH shall become due for payment without any deductions at the moment when the customer collects or takes delivery of the contractual object.
As to large-scale orders (e.g., motion picture projects), whose processing takes more than 4 weeks, Wavefront Studios GmbH may divide the quoted amount into three equal parts and issue corresponding invoices for down payments/payments on account. Usually, the invoicing for motion picture projects is as follows:
1st instalment: due for payment when the order is confirmed
2nd instalment: due for payment upon the successful interim acceptance of the soundtrack
3rd instalment: due for payment upon the total acceptance of the soundtrack
09.2 In the event of a delay of payment, Wavefront Studios GmbH may claim default interest of 8% above the base rate of interest. Furthermore, Wavefront Studios GmbH shall be entitled to claim more interest based on another legal reason or to assert a claim for further damages.
09.3 The customer shall only be entitled to offset against counterclaims if the counterclaims are undisputed or have been finally and definitively established with the force of res judicata.
09.4 In the event that, after the conclusion of the contract, the financial situation of the customer was to deteriorate significantly or Wavefront Studios GmbH becomes aware of circumstances which may endanger the claim for compensation, Wavefront Studios GmbH shall be entitled to refuse the fulfilment of its own performance obligations under the contract until the customer has fulfilled its obligations under this contract or has provided security therefor. This shall apply in particular with respect to delayed payment or non-payment of down payments/invoices for payments on account which have already been issued to the customer.
10. TIME LIMITS AND/OR DELIVERY
10.1 Any delivery dates or times for performance result from the order confirmation of Wavefront Studios GmbH.
10.2 Wavefront Studios GmbH reserves the right to make advance deliveries or partial deliveries.
10.3 If, after an order was placed and/or an order was confirmed, there is a cancellation or a significant postponement of a project on the part of the customer, or if Wavefront Studios GmbH is prevented from implementing a third-party project because of such postponement, Wavefront Studios GmbH shall have the right to charge the damage/loss incurred by Wavefront Studios GmbH to the customer.
10.4 Force majeure events shall entitle Wavefront Studios GmbH to postpone the delivery or performance of the service for the duration of the impediment.
10.5 If, as a result of force majeure, Wavefront Studios GmbH is permanently prevented to provide the delivery and/or perform the service, or if not permanently, at least for a period of time of six months, Wavefront Studios GmbH shall be released from the obligation to deliver and/or perform the service.
10.6 The term of force majeure includes any and all circumstances for which Wavefront Studios GmbH is not responsible and because of which the delivery and/or performance of the service is rendered impossible or unreasonably difficult, e.g., war, import and export bans, shortage of energy and raw materials. If Wavefront Studios GmbH is released from the obligation to deliver and/or perform the service, the customer shall be entitled to withdraw from the contract.
11.1 Wavefront Studios GmbH shall not assume any liability for objects of any kind which the customer, its representatives, or auxiliary persons brought to the premises of Wavefront Studios GmbH that are accessible to them, and Wavefront Studios GmbH also shall not provide any insurance cover for such objects.
11.2 Wavefront Studios GmbH shall assume unlimited liability as to intent and gross negligence.
11.3 In case of ordinary negligence, Wavefront Studios GmbH shall – with the exception of cases of injury to life, body or health – only be liable if obligations that are essential to the contract (material contractual obligations) are breached, and the liability shall be limited to the damage which is foreseeable and typical to this type of contract.
11.4 To the extent to which restoration of the material that was handed over to Wavefront Studios GmbH for processing is not possible with the customer’s negatives, copies, or any other kind of original materials, the typical and foreseeable damage shall amount to the value of the carrier material of the same type and length.
11.5 Any liability for indirect and unforeseeable damages as well as consequential damages and loss of profit shall be excluded in the case of ordinary negligence, unless there is a breach of obligations that are essential to the contract (material contractual obligations).
11.6 Any liability for damages exceeding the liability provided under these General Terms and Conditions shall be excluded, irrespective of the legal nature of the claim that is being asserted.
12. RETENTION OF TITLE, SECURITY INTEREST AND RIGHT OF USE
12.1 The contractual object remains the property of Wavefront Studios GmbH until the agreedupon price has been paid in full.
12.2 The customer transfers to Wavefront Studios GmbH by way of security all objects that came into the possession of Wavefront Studios GmbH in connection with the placement of the order, in particular, VTR tapes, other original film material, etc., including entitlements, if any.
13. PLACE OF JURISDICTION, GOVERNING LAW
13.1 If the customer is a Kaufmann [merchant pursuant to German commercial law], a legal person under public law, or a special entity governed by public law, the place of performance and the place of jurisdiction shall be München (Munich, Germany). Moreover, Munich shall also be the place of jurisdiction if, at the point in time when the contract is concluded, the customer has no general place of jurisdiction in Germany or if, subsequent to the conclusion of the contract, it transfers its domicile or habitual residence to a place outside of Germany or if its domicile or habitual residence is unknown at the time when the complaint is filed.
13.2 The laws of the Federal Republic of Germany shall apply exclusively.
14. WRITTEN FORM, SEVERABILITY
14.1 Any changes and amendments to the contract as well as any supplementary agreements must be made in writing. This shall also apply to any waiver of this provision stipulating the requirement of written form.
14.2 In the event that one of the provisions above is or becomes invalid, the validity of the remaining provisions shall remain unaffected. Invalid provisions shall be replaced by such provisions which are suited to achieve the intended economic purpose when taking the interests at issue into account.