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General Terms and Conditions of Pixelschickeria GmbH & Co. KG ("PX")

(Last updated: February 2024)

 

1. GENERAL INFORMATION

1.1. The following terms and conditions shall apply exclusively to PX's offers, deliveries and services and serve as PX's terms and conditions of purchase.

 

1.2. General terms and conditions of business, purchase and other terms and conditions of the clients/customers or suppliers of PX are hereby expressly rejected. They shall not become part of the contract unless PX expressly agrees

to their inclusion in the order confirmation. This shall also apply if PX performs the delivery or services without reservation in the knowledge of conflicting or deviating conditions of the client. By accepting and executing an order and/or purchase order, the supplier accepts these General Terms and Conditions of Purchase in the version valid at

the time of the order.

 

1.3. The General Terms and Conditions of PX shall also apply to all future transactions and contracts with clients/customers or suppliers of PX, even if PX does not expressly refer to them in the future.

2. CONCLUSION OF CONTRACT/CONTENT OF CONTRACT

2.1. Offers from PX are always subject to change. PX's quotations referred to as "proposal", "budgeting", "rough cost" or similar are only cost estimates.

 

2.2. A contract is concluded with the written order confirmation, and at the latest with the start of the service provision by PX. Subsequent changes to the content of the contract shall be governed by Clause 2.4.

 

2.3. PX is entitled to render partial performances and to invoice them separately, as far as this is reasonable for the client.

 

2.4 If the client requests or considers necessary an additional service, extension or other change of the services defined in the offer, PX will check the feasibility and give an opinion regarding the expected costs and the impact on the schedule. PX is obliged to implement the change request only to the extent that the parties have reached a written

agreement on the change request, in particular on the price. Until such agreement is reached, PX will proceed with the project unchanged in accordance with the original offer.

3. COMMISSIONING OF THIRD-PARTY SERVICES

Third-party services are generally commissioned by PX in its own name and for its own account, but may also be arranged directly with the client upon agreement. In the latter case, a contract is concluded between the client and the agent. In this case, PX shall be authorised, as the Customer's representative, to commission such contracts within the

scope of the accepted concept in the name of and for the account of the client.

4. SERVICE RANGE OF PX

4.1. The details, in particular details of services, contract duration and remuneration, are set out in the respective separate contract.

 

4.2. General services

PX offers consulting, strategy development, conception, planning, analysis, content development, research, location &

studio scouting, casting, execution and production as well as follow-up for the following areas, among others:

• Social media

• Events & trade fairs

• Commercial interior fit-out projects

• Video production for various formats (such as image films, recruitment videos, event documentaries, explanatory videos, etc.)

• Trailer production on-air and online

• Pre-production

• Post-production including audio design, motion design (2D & 3D, CGI), edit

• Live streaming

• Various other services in the field of advertising and marketing, etc.

 

4.3 Rental of equipment within projects

 

4.3.1. PX rents equipment to the client as part of joint projects. The details are outlined in the respective separate contract.

 

4.3.2 The client shall not be entitled to the provision of specific equipment (hereinafter referred to as "Rental Object"), even if this is designated in the list of services, but shall only be entitled to a Rental Object of this type. If during the rental period the Rental Object is damaged or destroyed and becomes unusable as a result, PX shall be entitled to replace the originally provided Rental Object with an equivalent one.

 

4.3.3 Any strict liability of PX for the existence of material defects existing at the time of the handover of the Rental Object is excluded. Section 536a para. 1 BGB is waived to this extent.

 

4.3.4 The client is liable for damage and loss of the Rental Object and its parts until its return.

5. REMUNERATION

5.1. The offer prices are valid only for undivided orders.

 

5.2. All prices are net plus statutory value added tax.

 

5.3. Services not estimated in the offer, which are carried out at the client's request or subject to additional expenses, which are caused by incorrect information provided by client, by delays in transport through no fault of the client or by preliminary services of third parties, which are not vicarious agents of PX, will be invoiced to the client additionally according to the current rates of remuneration of PX. Depending on the individual case, PX shall pass on third-party costs to the client with or without a surcharge to cover the administrative costs.

Unless explicitly stated, licence costs (e.g. for image rights, copyrights or GEMA) and buyouts for models, voice actors, music and performers are not included in the offer. GEMA fees, artists' social security contributions and customs costs will be invoiced to the client without surcharge, even if they are only levied subsequently.

 

5.4. PX reserves the right to make price changes due to factors beyond PX's control. In the event of price increases of more than 10%, the client shall be entitled to withdraw from orders not yet executed. In this case, the withdrawal must be notified to PX in writing within 10 days from the date of notification of the new prices. After that, withdrawal for this reason is no longer possible.

 

5.5. PX daily rates are based on 8 hours plus a 1 hour break. If this time span is exceeded on individual days, e.g. in the case of on-site productions, additional hours will be charged according to the agreed hourly rate, but at least EUR 85.00 per hour net.

6. DATES

6.1 Except for agreed event, production and shooting dates themselves, dates communicated by PX are always non-binding. Fixed transactions are not concluded. All appointments must be made at least in text form. The supplier of PX is obliged to inform PX without undue delay if circumstances occur or become apparent to it which indicate that the agreed delivery time cannot be met. Otherwise, it cannot refer to such circumstances later.

 

6.2 Compliance with agreed deadlines and schedules shall be subject to the condition that any necessary permits, documents and technical information to be provided by the client, releases, official (turning) permits, services to be rendered and other obligations of the client are available or fulfilled in due time. If this does not happen, the deadline shall be extended by a reasonable period of time.

6.3 Disruptions in the business operations or at its upstream suppliers or service providers for which PX is not responsible, in particular work stoppages and lockouts as well as cases of force majeure based on an unforeseeable event for which PX is not responsible, restrictions or lockdowns due to a (Covid-19) pandemic shall extend the delivery period accordingly.

6.4 In case of a delay in the sense of Clause 6.3 of more than 1 month, PX and the client are entitled to terminate the contract extraordinarily.

 

6.5 The prerequisite for an extraordinary termination by the client is that the client has granted PX a reasonable (at least two weeks) grace period in writing with a threat of refusal.

 

6.6 In the event of delay in partial deliveries, the client shall only be entitled to extraordinary termination if the partial performance is of no interest to it.

 

6.7 Clause 10 shall apply for claims for damages resulting from delay or impossibility, also those which have been incurred up to the point of the extraordinary termination.

7. TERMS OF PAYMENT, DEFAULT

7.1 All payments shall be made in euro plus VAT exclusively to PX.

 

7.2 Invoices are due for payment 14 days after receipt without deduction. Deviating agreements, in particular the granting of discounts, shall only apply if they are agreed in advance and noted on the order confirmation.

 

7.3 Unless otherwise agreed, the following method of payment shall apply:

• 40% of the agreed remuneration upon placement of the order,

• 40% of the agreed remuneration 4 weeks before final service provision,

• 20% of the agreed remuneration 14 days after final settlement

Up to a contractually agreed net remuneration of EUR 10,000 or a project period of less than 4 weeks, the following payment method applies:

• 70% of the agreed remuneration when the order is placed,

• 30% of the agreed remuneration 14 days after the final invoice.

 

7.4 If the client is in default with a payment for more than 2 weeks, PX may, without prejudice to any other rights, declare all outstanding invoices immediately due and payable, withhold all deliveries or services from contracts not yet performed and withdraw from the contract or claim damages instead of performance if the client is not prepared to perform concurrently despite being requested to do so.

 

7.5 In addition, PX is entitled to charge interest in the amount of 12% above the respective base interest rate from the date of default. The assertion of any further damage caused by delay shall remain unaffected. The customer shall be at liberty to prove that the damage was less.

 

7.6. If an order of the customer is cancelled, the following cancellation conditions shall apply 7.6.1. In the case of external services: depending on the cancellation or default conditions of the subcontractors, plus expenses for the settlement of the cancellation costs according to actual expenditure and a net hourly rate of EUR 85.00.

 

7.6.2. For agency performance:

• 40% from order confirmation and up to two months before final service provision

• 60% from two months and up to six weeks before final service provision

• 75% from six weeks and up to three weeks before final service provision

• 100% from three weeks before final service provision

8. ACCEPTANCE

8.1 Acceptance typically takes place on the occasion of dress rehearsals or trial runs. Otherwise, acceptance shall take place upon receipt of the service or work without objection. Planning services (such as the detailed concept) shall be deemed completed and accepted two weeks after their receipt by the client. This will be pointed out to the client upon provision of the services.

8.2 Any outstanding partial services or the elimination of defects shall be made good or remedied as soon as possible. Provided that they do not significantly impair the function of the object of performance, they shall not entitle the customer to refuse acceptance.

9. LIABILITY FOR MATERIAL DEFECTS / OBLIGATIONS TO INSPECT AND GIVE NOTICE OF DEFECTS IN PURCHASE CONTRACTS AND CONTRACTS FOR WORK AND SERVICES

9.1 Deviations in quality customary in the trade as well as deviations from existing illustrations, descriptions or technical data stated in sales brochures due to construction shall not constitute a defect subject to an express guarantee of quality or durability.

9.2 PX does not assume any liability for insignificant reductions of the value or the suitability of the delivery.

 

9.3 The client shall carefully inspect deliveries immediately upon their arrival. Incomplete or obviously defective deliveries shall be notified to PX in writing without delay, but no later than two weeks after delivery - if necessary in advance by telephone - and shall be clearly substantiated. Notification of non-obvious defects must be given within four weeks. The date of dispatch of the notice of defect shall be decisive for compliance with the deadline. After the expiration of the deadlines, the delivery is considered approved.

 

9.4 The prerequisite for the assertion of warranty claims is that the client, if applicable, makes the rejected goods available to PX for inspection upon request. If there is a defect for which PX is responsible, PX shall be entitled at its own discretion to remedy the defect or to deliver a defect-free item (subsequent performance). If rectification is impossible due to the passage of time (completion of the event, production or filming), the client shall only be entitled to a reduction in price.

 

9.5 If PX seriously and finally refuses performance, refuses to remedy the defect and subsequent performance due to disproportionate costs, subsequent performance fails or is unreasonable for PX, the client may, at its option, only demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) and damages within the scope of Clause 10.

 

9.6 In the event of only minor breaches of duty, however, the client shall not be entitled to withdraw from the contract. The same shall apply if PX is not responsible for the breach of duty due to a defect of the work.

 

9.7 The warranty period shall be 12 months from delivery/provision for collection or acceptance.

 

9.8 Any further liability of PX towards the client due to defects in the delivery or in the performance is excluded – within the scope of the provision in Clause 10.

10. LIABILITY

10.1 PX is liable within the scope of this contract on the merits for damages of the client caused by intent or gross negligence of PX or its legal representatives or senior vicarious agents or by intent of its ordinary vicarious agents, caused by breach of an obligation by PX which is essential for the achievement of the purpose of the contract (cardinal

obligations), if these claims result from the Product Liability Act, furthermore for damages caused by organisational fault on the part of PX which is not due to slight negligence, if in case of contracts for sale or for work and services by PX a guarantee for the quality of the item has been given or if PX has been fraudulently misled, finally for damages to life, body or health caused by a breach of duty by PX or one of its legal representatives or vicarious agents.

 

10.2 PX is fully liable for damages caused intentionally or by gross negligence. Otherwise, the claim for damages shall be limited to the foreseeable damage typical for the contract, in case of delay to 5% of the order value. Liability under the Product Liability Act remains unaffected.

 

10.3. In cases other than those mentioned in paragraphs 1 and 2, PX's liability - irrespective of the legal grounds – is excluded.

 

10.4. Claims for damages against PX shall become time-barred 12 months after they have arisen, unless they are based on a tortious or intentional act.

 

10.5. As far as the liability of PX is excluded, this shall also apply to the personal liability of PX's employees, representatives and vicarious agents.

 

10.6. If offers are prepared according to the information or documents provided by the client, PX shall neither be liable for the correctness and suitability of these documents nor for the occurrence of success due to the use of this information or these documents, unless PX is liable within the scope of this clause for a breach of its duty to inform.

11. TERMINATION

11.1 The Client shall only be entitled to terminate the contract pursuant to Section 650 Sentence 2 of the German Civil Code (BGB) for exceeding the cost estimate if the final price for the services specified in the cost estimate increases by more than 20%. PX shall notify the client in due time of any cost increases, unless such cost increases are based on a request for change in accordance with Clause 2.4.

 

11.2. Should the client exceptionally terminate in accordance with § 649 BGB, PX shall receive the agreed remuneration for the services already rendered. With regard to services not yet rendered, 30% of the fee agreed for them shall be agreed as saved expenses. The client is at liberty to prove lower performances and expenses of PX.

 

11.3 The right to extraordinary termination shall remain unaffected. PX is entitled to an extraordinary right of termination in particular,

a. if the client violates terms or conditions of this contract in a significant manner or fails to fulfill main performance obligations under the contract and does not remedy this breach of duty within a period of two weeks despite a written warning.

 

b. if the client withholds or suspends its services without justification,

 

c. if the client becomes insolvent (e.g. no longer meets salary claims or supplier claims ) or is overindebted,

 

d. if insolvency, composition or similar proceedings are instituted against the client's assets or if an application is made to institute such proceedings and the application is not withdrawn within a period of five days.

 

e. if industrial property rights of third parties are infringed upon by the client and the use of services or partial services of the contractor is impossible or only possible to a limited extent for more than one week for this reason.

 

f. if there is a change of shareholders, the assets of the client or a substantial part thereof is acquired by a third party, or if control of the client otherwise changes.

 

g. if the client ceases its business activities or is dissolved.

11.4 The above right of termination may be exercised with a notice period of 8 weeks from knowledge of the circumstances providing entitlement for extraordinary termination.

 

11.5. If client does not accept the services of PX without good cause despite declaration of completion or if the client does not meet its payment obligations or does not meet them properly, PX shall be released from its obligation to perform after setting a reasonable grace period and may claim damages instead of performing the services.

 

11.6. As compensation for non-performance, PX may claim the value of the services rendered until the termination of the contract and 30% of the value of the services not yet rendered. The customer shall be at liberty to prove that no damage was incurred at all or that the damage was not incurred in the amount stated. PX reserves the right to claim higher proven damages.

 

11.7 If it is not reasonable to adhere to the contract due to force majeure (e.g. in the event of a lockdown due to a (Covid-19) pandemic, severe weather, earthquakes, floods or similar serious environmental disasters), each contracting party may terminate the contract extraordinarily and, in extreme cases, without notice. However, the obligation to pay for deliveries and services until written notice of termination is given shall remain in force. The latter is all the more true if a business interruption insurance policy steps in or state (Covid-19) aid is granted.

12. PROPERTY RIGHTS

12.1. All industrial property rights (copyrights and ancillary copyrights, trademark rights, ancillary copyrights under competition law, patent rights) arising in connection with the services to be rendered at PX or by its employees or third parties commissioned by PX - also on behalf of the client - shall remain exclusively with PX, unless expressly agreed otherwise. The transfer of rights of use and exploitation requires a written agreement and always applies only to the specific project. Changes to concepts, designs, etc. may only be made by PX or persons expressly authorized by PX.

 

12.2. The client is entitled to use PX's concepts, designs, etc. only for its own purposes as provided for in the separate individual contract. Reproductions are only permitted with the express prior consent of PX. Artwork etc. produced by PX on its behalf remains the property of PX, even if it is charged to the client.

 

12.3. With regard to the execution of orders according to information or documents provided by the client, the client shall guarantee that the production and delivery of the services executed according to its information and documents do not infringe upon the property rights of third parties. PX is not obliged to verify whether the information or documents handed over by the client for the performance of services infringe or may infringe upon third party intellectual property rights. The client is obliged to indemnify PX immediately against any claims for damages of third parties and to pay for all damages resulting from the infringement upon the client's intellectual property rights.

 

12.4. PX is entitled to record the event and to use the recordings together with background information about the project for the purpose of documentation as well as its own PR. PX is also entitled to use the work results from consulting services as well as productions for its own advertising purposes.

 

12.5 If and to the extent that, according to the contractual provision, rights of use are to be transferred from PX to the client, the transfer shall only take place after full payment of the agreed remuneration including production costs in the agreed temporal and spatial scope, if and to the extent that the rights of use are due to PX itself. The ownership of all raw materials created during the film production and resulting products as well as written agreements/concepts/scripts remains with Pixelschickeria.

 

12.6. If the cooperation between PX and the client gives rise to joint property rights, a separate agreement shall be concluded between the contracting parties.

13. SET-OFF, RETENTION, ASSIGNMENT

The client may only set off claims against claims of PX if the client's claims are undisputed or determined without further legal recourse. It may assert a right to refuse performance or a right of retention if its claims are undisputed or have been legally established and the counterclaim is based on the same contractual relationship. The client is not entitled to assign any claims arising from this contractual relationship to third parties without the consent of PX.

14. DOCUMENT RETENTION

PX shall keep the documents related to the order for a period of 6 months. If the client provides PX with original documents, the client undertakes to produce duplicates. PX does not assume any liability for templates of the client that are not reclaimed within one month after completion of the order. Archiving of electronic data is executed by PX on two servers (1 x main server, 1 x back-up server).


15. DATA PRIVACY

It is pointed out that the data obtained in the course of business relations or in connection with these persons, regardless of whether they originate from PX itself or from third parties, are processed within the meaning of the Federal Data Protection Act.

16. NON-DISCLOSURE

Both contracting parties undertake to maintain secrecy with regard to all business and trade secrets of which they have become aware or which become known to them, as well as with regard to information of the respective other contracting party which is designated as confidential or which is recognisably to be treated as confidential due to other circumstances.

17. FINAL PROVISIONS

17.1 Special agreements and ancillary agreements made prior to the conclusion of the contract shall only become part of the contract if they are included in the order confirmation. Subsequent amendments must be made in writing to be effective. This shall not apply to individual contractual agreements within the meaning of Section 305b of the German Civil Code (BGB) with a representative of the client or the contractor authorised to represent the client. However, such verbal agreements must be documented in writing without delay. No verbal collateral agreements were made.

 

17.2 The place of performance for both parties is Munich.

 

17.3 The contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

 

17.4 The exclusive place of jurisdiction for legal actions against PX is Munich. PX is entitled to bring an action against the client in any other court having jurisdiction under national or international law.

 

17.5 Should individual provisions of these Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The same applies if a loophole is found in this contract. The parties shall endeavour to replace the provision that is invalid in whole or in part by an appropriate provision that - as far as legally possible - comes as close as possible to what the parties would have intended if they had considered the invalidity. The same applies to the subsequent discovery of a contractual loophole.

KONTAKTDATEN

Pixelschickeria GmbH & Co. KG

Infanteriestrasse 11

80797 Munich, Germany

Registered office: Munich,

Munich Local Court, HRA 101792

Shareholder authorised to represent the company:

Pixelschickeria Verwaltungs GmbH

Registered office: Munich, Munich Local Court, HRB 209335

Managing Director: Amin Abousteit, Ulrike Zimmermann

Tel: +49 89 2500 390 55

info@pixelschickeria.de

GENERAL TERMS AND CONDITIONS

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