General Terms and Conditions of TAKE Creative Production GmbH
1. The following general terms and conditions (hereinafter referred to as GTC) apply to all orders, offers, deliveries and services of TAKE Creative Production UG (hereinafter referred to as TAKE).
2. General terms and conditions of the customer shall only apply, if they have been explicitly accepted by TAKE in writing. The same applies to deviations from these terms and conditions.
II. Commissioned productions/conclusion of the contract
1. The offers made by TAKE are based on the previous agreement with the customer about the type and scope of the service and on the basis of a 10-hour day. They do not include overtime or post-productions; the latter have to be paid additionally. The usual remuneration for overtime is 15% of the freelancer’s daily fee (producer, driver, photographer, stylist, lighting and digital operator, etc.)
2. Verbal acceptance of offers by the customer will be confirmed by TAKE with an order confirmation. This confirmation is considered accepted by the customer, if the customer does not raise any objection. In order to be effective this objection must be made in writing at the latest 3 days after receipt of the order confirmation and 2 days before the start of production.
3. If the production costs increase during production, the customer has to pay up to 10% of the order amount, higher additional costs have to be approved by the customer in writing.
4. TAKE will inform the customer immediately if the photographer is prevented from working due to illness, in order to find a replacement photographer together. TAKE will not be liable for any costs caused by this. The customer shall indemnify TAKE from possible claims of third parties.
5. Postponements of shooting due to weather conditions (weather risk) or force majeure (e.g. acts of terrorism or natural disasters, etc.) are not taken into account when calculating production costs. Any additional costs incurred as a result will be invoiced in accordance with the additional expenditure proven by documentary evidence.
III. Fee/prepayment/right of retention
1. The agreed fee is understood to be exclusive of the applicable value added tax.
2. After confirmation of the order (acceptance of the offer/conclusion of the contract) by the customer, a down payment of 80 % of the net order amount is due for payment. This payment must be made at the latest three days before the start of production. TAKE has the right to withhold the provision of the service until the advance payment has been paid in full.
3. After completion of the work TAKE will issue a final invoice. The customer accepts in principle that TAKE may, if necessary, charge on items as a lump sum without receipt.
4. The final invoice is due for payment 14 days after receipt. Objections to the final invoice must be raised by the customer within seven days after receipt of the invoice, otherwise it is considered accepted.
IV. Provision of image and video material
1. The GTC apply to all analogue or digital image and video material made available to the customer, regardless of the phase of the creative process or the technical form in which it is made available. They also apply in particular to electronically or digitally transmitted picture and video material.
2. The customer acknowledges that the photographic material supplied by the photographer, as well as films and video material, are copyright-protected (photographic) works within the meaning of § 2 (1) No. 5 UrhG (German Copyright Act).
3. After completion, TAKE shall hand over the film or video to the customer or the agency/director commissioned by the customer directly as a data carrier or make it available as a download link.
4. Complaints concerning the content of the delivered shipment or the content, quality or condition of the photographic material shall be notified within 5 days after receipt. Otherwise, the photographic material shall be deemed to have been received correctly, in accordance with the contract and documented.
5. The customer shall be obliged to accept if the film or video complies with the agreement reached or the concept/screenplay and the specified quality standard. Even if the film deviates from the agreements made or the concept/screenplay, but these deviations have been incorporated at the request of the customer (e.g.: set acceptance), the customer shall be obliged to accept. Returns for reasons of taste are generally excluded.
V. Rights of use for image and video/film material
1. The customer only acquires the rights of use that are stated in the offer/order confirmation.
2. Any use, exploitation, distribution or release not mentioned under 1. is subject to a fee and requires the prior explicit consent of TAKE.
This applies especially to:
– temporal extension of the right of use
– Expansion of the spatial use
– Extension of the media by the customer
Any violation of the right of use will be honoured by TAKE. Any unauthorised use, application, reproduction or transmission of the picture or video material without TAKE’s consent shall lead to reasonable claims for damages.
4. Alterations of the picture or video material by photo-composing, mounting, new cutting or supplementation of the video material or by electronic means to create a new copyrighted work are only permitted with the prior written consent of TAKE. The picture or video material may also not be validated, photographed in a reproduction or used in any other way as a motif.
5. The rights for sound carriers, performance and broadcasting shall be acquired separately for any other type of use (e.g. TV, cinema). The customer shall bear the costs and responsibility for this.
6. The rights of use shall only be transferred to the customer after full payment of the agreed production costs.
7. The rights to edit, change and supplement the video material are excluded from the granting of rights, unless otherwise agreed in writing.
8. TAKE receives from the customer the right, unlimited in time and space, to use the image, film and video content produced by TAKE for its own direct use (e.g. for presentations to customers, for its own advertising, the company website, presentations at competitions and festivals) free of charge. However, these rights only apply if the customer has the picture, film or video material available for his own use.
1. TAKE shall not be liable for the infringement of rights of persons or objects depicted unless an appropriately signed release form is enclosed. The acquisition of rights of use that exceed the photographic copyright, e.g. for depicted works of fine or applied art, as well as the obtaining of release permits for collections, museums etc. is the responsibility of the customer. The customer is responsible for adding text and for meaningful contexts resulting from the specific release.
2. From the time of correct delivery or handover of the picture, film or video material, the customer is responsible for its proper use. TAKE is not liable for the stock and/or the possibility of a replacement delivery of both analogue and digital photo material or film or video material.
3. If circumstances occur during the execution of the project that make a contractual production impossible, TAKE shall only be liable for intent and gross negligence.
4. This shall apply accordingly if the production of the video/film material is not carried out in due time. If neither TAKE nor the customer is responsible for the impossibility of production or the completion of the video/film in due time, this only entitles the customer to withdraw from the contract.
The customer shall pay for the services rendered so far plus the general costs.
VII. Place of jurisdiction, applicable law, obligation
1. The business relationship between TAKE and the customer is subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on contracts for the International Sale of Goods (CISG).
2. The place of jurisdiction is Berlin, if the customer is an entrepreneur or a merchant or a legal entity under public law or a special fund under public law.into account when calculating the production costs. Any additional costs incurred as a result will be invoiced according to the additional expenditure proven by documentation.