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General Terms and Conditions Productions
(GTC Productions)

of Kurt Woischytzky, Impact Hub Alameda, Calle de la Alameda, 22, 28014 Madrid, Spain (hereinafter referred to as “Contractor”)

 

§ 1  General, scope of application

(1) The following general terms and conditions of the contractor apply exclusively. They shall apply to all audio and video productions of the Contractor, in particular podcasts, podcast intros and YouTube videos. If the customer did not have the opportunity to take note of them when the contract was concluded, they shall nevertheless apply if the customer knew or should have known the general terms and conditions from previous transactions.

(2) Conflicting terms and conditions of the Customer that deviate from the Contractor’s General Terms and Conditions shall not apply. If the Contractor performs the delivery or service incumbent upon it in the knowledge of such terms and conditions of the Customer, it shall also not recognize such terms and conditions of the Customer that are not contradicted by these General Terms and Conditions of the Contractor.

(3) The Contractor only offers its services to business clients. These GTC only apply to business clients and not to consumers.

 

§ 2  Offer, conclusion of contract, content of contract

(1) The Contractor’s offers, in particular on websites or in brochures, are non-binding unless otherwise specified. The Customer may request an offer from the Contractor and accept it. The basis of the contract is the service description in accordance with the Contractor’s price quotation. If the contract is concluded on a website, the Contractor’s offer is an invitation to submit a contract offer. If the customer makes such a contract offer, the contract is concluded upon confirmation by the contractor.

(2) The Contractor shall create audio productions for the Customer in the MPEG-1/2 Audio Layer III (MP3) 48 kHz format, alternatively also in the WAVE (WAV) 48 kHz format at the Customer’s request, and video productions in the MP4 format with a resolution of Full HD (1920 x 1080 pixels). Functionalities and playback behavior can only be guaranteed within the scope of the audio and video playback programs used. The customer is only entitled to an audio or video production that runs in the ordered format and corresponds to the agreed qualities. Specific functionality for a particular playback device (e.g. smartphone or computer) and even more so integration into broadcasting and distribution systems or websites cannot be guaranteed due to the variety of presentations and functionalities in the various audio and video players and systems, over which the Contractor has no influence.

(3) Flawless functionality cannot be guaranteed for older and future audio and video player versions. If optimization for these versions is desired, this can be booked for a fee.

(4) Costs for required media (voice recordings, stock videos, special sound effects or noises, music requested by the customer for a fee) are not included in the price, unless otherwise agreed.

(5) If the Contractor has used music protected by collecting societies for the audio or video production, it shall inform the Client of this. The Contractor shall not be liable for any infringements of rights or license fees if the Client then publishes the recording at broadcasting stations not affiliated to the collecting societies or fails to pay the collecting fees.

(6) In the event of unforeseen difficulties for which third parties are responsible (providers, media providers, etc.) and which result in additional work, the customer shall be obliged to pay the additional work on an hourly basis on the basis of the contractually agreed or customary, appropriate remuneration.

(7) The processing of sound files (e.g. normalizing, compressing, limiting, equalizing, de-noising, converting to 48 kHz sample rate and to WAV or MP3 format), video files (e.g. tonal value correction, contrast, saturation, converting to Full HD and to MP4 format), music, scripts or concepts is not included in the price, unless agreed separately. The customer is responsible for ensuring that all media is provided in the correct sample rate and quality and in the correct file format. Otherwise, the customer shall be obliged to pay for the additional processing work on an hourly basis at the contractually agreed or customary, appropriate rate.

(8) With the exception of voice recording, unless otherwise agreed in the offer, one correction loop with one change per item from the offer is included. Reversal of desired changes, subsequent changes and functional or structural changes are to be paid additionally by the customer by the hour on the basis of the contractually agreed or customary remuneration, as are subsequent changes made after acceptance of a partial service (such as a script or concept).

(9) The Contractor shall be entitled, at its own discretion, to perform the service itself or to have it performed by competent third parties as subcontractors.

(10) The contractor is entitled to withdraw from the contract if there is an important reason for refusing participation in the person or project of the customer, in particular incompatible political views or an incompatible business model.

 

§ 3  Prices, terms of payment, offsetting, retention

(1) All prices to business clients are net prices plus the applicable statutory VAT, unless otherwise agreed.

(2) The Contractor is entitled to demand a down payment of an appropriate amount when the order is placed. The Contractor shall be entitled to demand reasonable payments on account for project parts already delivered to the Customer and to issue partial invoices in accordance with the progress of the project.

(3) The contractual remuneration shall only apply insofar as contractual services have also been agreed. Additional services shall be remunerated according to the contractual rates in accordance with the offer, or alternatively according to the customary, appropriate remuneration. Accompanying services such as user introductions, documentation, training, support or similar are not included in the order as standard, but only form part of the contract if this has been expressly agreed.

(4) The customer’s payment is due immediately. The customer is advised that he is in default at the latest 14 days after receipt of the invoice. If the customer is in arrears with payment, he is obliged to reimburse a flat rate of USD 2.00 for expenses for each further reminder.

(5) The Customer may only offset if its counterclaims have been legally established, are undisputed or have been recognized by the Contractor or the right to offset is based on the Customer’s rights due to incomplete or defective performance arising from the same contractual relationship.

(6) The Contractor is authorized to exercise a right of retention for all claims arising from the business relationship with the Customer.

 

§ 4  Performance time

(1) The commencement of any specified performance period is subject to the clarification of all technical, legal and design issues and the timely and proper fulfillment of the customer’s obligations. The Contractor reserves the right to plead non-performance of the contract.

(2) Force majeure or operational disruptions occurring at the Contractor or the Contractor’s subcontractors, e.g. due to riot, epidemic, pandemic, strike, lockout, which temporarily prevent the Contractor from delivering the service on any agreed date or within any agreed period through no fault of its own, shall change the performance times by the duration of the performance disruption caused by the circumstances. If a corresponding disruption leads to a delay in performance of more than two months or if the customer’s interest in the fulfillment of the contract objectively ceases even before this, the customer is entitled to withdraw from the contract.

 

§ 5  Customer’s duty to cooperate, liability

(1) The client is obliged to provide the contractor with the information and materials required for the project in good time (e.g. format and length specifications, time codes, content guidelines, concepts and texts, voiceover requirements, stylistic specifications, audio and video material, sound logos, music or other agreed materials provided by the client).

(2) If information, documents or templates such as texts, voiceover requirements, stylistic specifications or audio or video material are not available on time and in full, the Contractor shall be entitled not to begin with the service in accordance with § 4 (1) or to work provisionally with placeholders. The subsequent incorporation of the material submitted late shall count as a change to the order and shall be remunerated additionally in accordance with the contractually agreed, or alternatively the customary, appropriate remuneration.

(3) In the event of a delay of more than three weeks in the realization of the order caused by the customer, the contractor reserves the right to issue an interim invoice, to charge additional training time if necessary or to terminate the order prematurely after unsuccessfully setting a grace period and to invoice the services rendered to date.

(4) The customer is obliged to provide the required materials in a common, directly usable digital format. The customer shall ensure that the necessary rights of use are granted, in particular also reproduction, distribution and processing rights to the extent necessary for the realization of the project and the work of the contractor. The review of legal admissibility with regard to intellectual property and copyright law can only be carried out by a lawyer and is not part of the order.

(5) If the Customer provides the Contractor with physical or non-physical objects, in particular image, text or sound files, which infringe the rights of third parties, the Customer shall be obliged to indemnify the Contractor against any third-party claims upon first request. This includes in particular the costs of legal action.

(6) The Client agrees that the Contractor may name the service for the Client as a reference on its website and in other online and offline publications. For this purpose, the Contractor may reproduce excerpts from its work for the Customer, offer them for playback or run them, link the URL and use the Customer’s name, brand and logo for this purpose. The customer may revoke this consent with effect for the future for good cause.

 

§ 6  Default of the customer, default of acceptance, withdrawal

(1) The Customer is advised that the Contractor works on a project-related basis and does not take on more than a certain number of projects at the same time. If the Customer is in default with its obligations to provide, cooperate or accept, the Contractor shall be entitled to postpone the performance period. This shall apply in particular if this results in a conflict with other projects already scheduled by the Contractor. Furthermore, in the event of default, the customer shall be obliged to pay for the services rendered by the contractor up to that point.

(2) If the Customer fails to fulfill its obligations to cooperate, in particular under § 5, even after the fruitless expiry of a grace period, the Contractor may withdraw from the contract and claim damages in lieu of performance. This includes in particular the remuneration already earned and the loss of profit or the unearned overhead contribution less expenses saved by the Contractor.

(3) If the Customer terminates the contract without good cause, the Customer shall be obliged to pay the agreed remuneration less any expenses saved by the Contractor and acquired or maliciously refrained from acquiring through other use of its labor. Due to the project-related scheduling by the Contractor, it may not be possible to acquire the work elsewhere at short notice. Alternatively, the Contractor shall be entitled to 5% of the part of the remuneration attributable to the service not yet rendered.

 

§ 7  Project, completion, acceptance

(1) The audio and video productions are produced in project phases in accordance with the client’s instructions. After each project phase, the customer will be requested to accept the project; after acceptance by the customer, the next project phase begins, unless the customer explicitly requests immediate implementation.

(2) The project phases are:

  • Briefing
  • Concept
  • Production

(3) The Contractor shall deliver or demonstrate each part of the work to the Customer and, after each completed project phase, request the Customer to accept the part of the work or the complete work within a period of one week (shorter periods may be selected for urgent orders). If the customer does not express any change requests or reservations within this period, the partial work (complete work) shall be deemed to have been accepted, provided that it was ready for acceptance, i.e. there were no significant defects in the partial or complete work.

(4) The customer is obliged to carry out acceptance within a period of one week after receipt of the request for acceptance, insofar as the work is ready for acceptance, or to notify reservations. If the customer defaults on this obligation, the provisions of this contract on the customer’s duty to cooperate and default of acceptance, in particular § 5 (4) and § 6, shall apply accordingly.

(5) If changes are requested after a partial acceptance, § 2 para. 7 shall apply accordingly.

 

§ 8  Rights of use

(1) After acceptance and full payment, the customer acquires the simple, non-exclusive right to use the contractor’s overall performance for the specified project purpose. This does not apply to broadcasting on radio, television, online advertising media or cinema or to currently unknown types of use. Such rights of use can be acquired additionally on request or agreed in the Contractor’s offer.

(2) The customer’s rights of use relate exclusively to the overall production. Individual elements of the audio or video production are therefore not licensed. If the customer wishes to use individual pieces of music, video segments, voice parts, sounds, sound logos or other elements separately, this requires an additional purchase of rights of use.

(3) The Contractor shall retain all rights to partial works created prior to acceptance and shall not be obliged to hand over to the Client any open files, concepts or recordings created on the computer.

(4) If works are used that are used under a CC license or an open source license, these license terms apply.

 

§ 9  Warranty rights, statute of limitations

(1) If the customer is a business client, he must inspect the service immediately after handover or acceptance, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, notify the contractor immediately. If the customer fails to make this notification, the service shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If such a defect is discovered later, the Customer must notify the Contractor immediately after discovery, otherwise the service shall be deemed to have been approved even in view of this defect. The timely dispatch of the notification is sufficient to preserve the rights of the customer. This shall not apply if the Contractor has fraudulently concealed the defect.

(2) There is freedom of design within the scope of the order. Claims for defects in artistic designs shall only exist insofar as these designs deviate significantly from the pre-contractual proposals and these deviations are not attributable to technical causes, lack of granting of rights or lack of cooperation on the part of the customer. If changes beyond this are desired, these shall be remunerated additionally in accordance with the contractually agreed, or alternatively the customary, appropriate remuneration.

(3) If the customer makes changes to the service, the warranty shall lapse if the customer does not refute a corresponding substantiated claim by the contractor that it was such a change that caused the defect.

(4) Advertising information provided by third parties, in particular by manufacturers of software or technology used by the Contractor for the provision of services, shall not be binding on the Contractor.

(5) If the customer is a business client, the customer’s rights due to defects in the service shall expire one year from the handover or acceptance of the service. This also applies to the customer’s rights to compensation for damages or compensation in lieu of performance, including for all damage to other legal interests of the customer caused by the defect, unless it is a matter of damage to the life, body or health of the customer or the contractor is responsible for the defect due to intent or gross negligence.

 

§ 10  Contract documents, lien

(1) The Contractor reserves all property rights and copyrights to illustrations, drawings, calculations, sketches, texts, drafts, concepts, photographs, graphics, designs, video recordings, voice and sound recordings, pieces of music and other documents. They are not part of the contract and the client cannot demand their return.

(2) For the Contractor’s claims against the Customer arising from this contract, the Customer shall provide a contractual lien on the objects and rights provided by the Customer to the Contractor for processing, such as in particular software, texts, pieces of music and other objects and rights protected by copyright and intellectual property rights. This contractual lien also secures other claims of the Contractor against the Customer that do not originate directly from the order.

(3) The Customer is obliged to provide the Contractor with its current address if and for as long as the lien exists. Otherwise, the Customer cannot derive any rights from the fact that the Contractor has sold the item in the event of a – justified – lien sale and has only sent the notice of lien sale to the last address known to the Contractor, unless a new address was readily ascertainable for the Contractor by means of residential registration information.

 

§ 11  Mediation

(1) In the event of disputes arising from the business relationship between the Contractor and the Client, the parties are obliged to seek an amicable solution. If an agreement cannot be reached, they undertake to settle their differences in mediation before taking legal action. The possibility of summary proceedings by way of interim legal protection remains unaffected.

(2) If one party requests mediation from the other party, both parties are obliged to agree on a mediator within eight days. If this agreement is not reached within the deadline, a lawyer mediator – whereby primarily those mediators who offer online mediation should be chosen – is to be appointed by the President of the Bar Association or a representative at the contractor’s registered office at the request of one of the parties. This is also the place of mediation, unless the Presidium of the Bar Association makes a proposal for online mediation.  The language of mediation shall be English, unless all parties agree on another language.

(3) Legal action (or alternatively agreed arbitration, if applicable) is only admissible if the mediation has failed because (a) the parties mutually declare the mediation terminated, (b) further negotiations are refused by one party after the first mediation session, (c) the mediator declares the mediation failed or (d) an agreement is not reached within 3 months of the start of the first mediation session, unless the parties extend the deadline by mutual agreement.

(4) The costs of an unsuccessful mediation shall be borne internally by the parties in equal shares vis-à-vis the mediator. Irrespective of this provision in relation to the mediator, the parties are at liberty to demand reimbursement of these costs and those of any accompanying legal advice as legal costs in subsequent proceedings; the respective decision in the dispute shall then apply.  If an agreement is reached, the agreed cost regulation shall apply.

 

§ 12  Data protection

(1) Contract data is collected for the contract in accordance with Art. 6 para. 1 lit. b GDPR (e.g. name, address and e-mail address, any services used and all other data transmitted electronically or for storage that is necessary for the execution of the contract), insofar as it is necessary for the establishment, content or amendment of this contract.

(2) The contract data will only be passed on to third parties if this is necessary (in accordance with Art. 6 para. 1 lit. b GDPR) for the fulfillment of the contract, if this corresponds to the overriding interest in an effective service (in accordance with Art. 6 para. 1 lit. f GDPR) or if the consent of the data subject (in accordance with Art. 6 para. 1 lit. a GDPR) or other legal permission exists. The data will not be transferred to a country outside the EU unless the EU Commission has established a level of data protection comparable to that in the EU, consent has been given or the standard contractual clauses have been agreed with the third-party provider. 

(3) Data subjects can request information about the stored personal data free of charge at any time. You can request the correction of incorrect data at any time (also by supplementing it) as well as the restriction of its processing or the deletion of your data. This applies in particular if the purpose of the processing has expired, a required consent has been revoked and there is no other legal basis or the data processing is unlawful. The personal data will then be corrected, blocked or deleted immediately within the legal framework. You have the right to withdraw your consent to the processing of personal data at any time. This can be done by informal notification, e.g. by email. The revocation does not affect the legality of the data processing carried out up to that point. Transfer of the contract data in machine-readable form may be requested. If an infringement of the law is feared as a result of the data processing, a complaint can be lodged with the competent supervisory authority. 

(4) In principle, the data will only be stored for as long as is necessary for the purpose of the respective data processing. Further storage may be considered in particular if this is still necessary for legal prosecution or for legitimate interests or if there is a legal obligation to retain the data (e.g. tax retention periods, statute of limitations).

 

§ 13  Place of jurisdiction, place of performance

(1) The contract language is English.

(2) If the Customer is a business client, the Contractor’s place of business shall be the place of jurisdiction; however, the Contractor shall also be entitled to sue the Customer at his place of residence or business.

(3) Unless otherwise stated in the order confirmation or the contract, the Contractor’s place of business shall be the place of performance.