The General Terms and Conditions (hereinafter referred to as "GTC") are intended to regulate the contractual relationship between Avocado Productions GmbH and the customer.
1. SUBJECT MATTER OF THE CONTRACT
1.1 These GTC are an integral part of a contract for the production of audiovisual work between the client (hereinafter referred to as "client") and the producing company (hereinafter referred to as "Avocado Productions GmbH" or "Avocado360"). These GTC apply to the production of all audiovisual works which Avocado Productions GmbH produces for the client, even if this is not always explicitly mentioned in individual cases.
a) audiovisual work: the term "audiovisual work", colloquially also called "commissioned production", means the result of a work done by Avocado Productions GmbH for the client according to the agreement made between the parties. b) Avocado Productions GmbH: The company commissioned for the audiovisual work is Avocado Productions GmbH (hereinafter referred to as Avocado360). c) Customer: The "Customer" is the natural or legal person who orders the audiovisual work from Avocado360. The term "Customer" in these GTC refers to persons of both genders.
2. SCOPE OF APPLICATION
2.1 The contract for work consists of an individual contract and these GTC. The work contract is concluded by acceptance of the offer/estimate by the customer, by other confirmation, an agreement with the customer or informally by the use of Avocado360's services by the customer. The offer from Avocado360 is usually based on a production briefing prepared by or on behalf of the customer in writing or electronic form (e.g. by e-mail). It contains the work price, work description (possibly storyboard), agreed use (media, area, duration) and compensation for rights, language/image versions, the format of the image and sound carrier, the most important production data, the delivery date and other customer requirements included in the work price. The GTC shall also be deemed tacitly accepted for future business. Avocado360 can change the general terms and conditions at any time. Relevant is the current version at the time of the agreement. Deviating terms and conditions must be accepted by Avocado360 in writing or electronic form (e.g. by e-mail). If the individual contract and the GTC contain provisions that deviate from each other, the individual contract provisions generally take precedence over those of the GTC. However, if the provisions of the individual contract are unclear or incomplete, the provisions of the GTC shall apply. For contractual relationships with Avocado360, these GTC of Avocado360 apply exclusively. If these GTC conflict with the terms and conditions of the customer entering into a business relationship with Avocado360, the GTC of Avocado360 shall prevail, even if Avocado360 does not explicitly object to the GTC of the customer or if these should contain a priority clause.
2.2 If the Customer is represented by an agency, the Customer and the agency shall be jointly and severally liable for the performance of the contract for work and services until the agency submits a corresponding power of attorney from the Customer covering the contract for work and services in full or until the Customer has validly signed the contract for work and services in his name.
3. PRODUCTION AND DELIVERY
3.1 Avocado360 will produce the Work based on the specifications agreed in the Work Contract and the approved design basis, including agreed design and technical modifications.
The customer acknowledges that Avocado360 cannot guarantee that any software components included in the work (e.g. in multimedia productions, on the internet or data carriers) will function on all platforms without interruption or error.
3.2 To align the expectations of the Client and Avocado360, interim presentations in the sense of interim acceptances, also called iteration loops, will be carried out for certain work phases (e.g. PPM, picture editing, sound mixing, etc.). Agreements reached by the parties based on such iteration loops are binding for further processing.
3.3 The framework conditions set out in the original production briefing may be further detailed in protocols by mutual agreement during the work. Such protocols shall form an integral part of the contract.
3.4 The client undertakes to cooperate in the production in accordance with the circumstances and to complete or provide the necessary acts of cooperation or resources (props, equipment, products, data, information, deadlines, organisation, etc.) in good time. In case of a delay in production due to a lack of cooperation from the client, Avocado360 is entitled to demand an advance payment / partial payment of up to 50% of the total price at any time.
3.5 Avocado360 considers the customer's requests for revisions or changes, as far as this is reasonable for Avocado360 and the requested changes are within the agreed framework conditions. Extensions, modifications and changes that go beyond the originally agreed scope of work and/or cause additional effort will lead to corresponding increases in the price for the work and possibly to deadline adjustments.
3.6 If production suffers a delay that Avocado360 could neither foresee nor influence (in particular, but not conclusively, weather, operational disruptions at suppliers, late delivery of products, texts and other documents by the customer, etc.), the delivery period is deemed to be extended by at least the duration of the impeding circumstances. Avocado360 will inform the customer immediately upon a delay about its extent and consequences (postponement of filming, additional costs etc.). Avocado360 is not responsible for the contract's non-fulfilment or bad fulfilment or delay due to the mentioned reasons. In particular, failure to meet the delivery date does not entitle the Client to a reduction in the price of the work or withdraw from the contract, or claim damages.
3.7 The customer may only refuse to accept the work if it has defects or deviates significantly from the agreed general conditions. In this case, Avocado360 is to be given a reasonable time in writing to rectify the defect, specifying the alleged defects in detail. Claims for damages by the customer due to non-fulfilment or delay are excluded.
3.8 If nothing to the contrary is agreed concerning the scope of delivery, this will consist of the finished work on a carrier medium customary in the industry and suitable for the intended use, or it will be made available to the customer for download. The customer is required to download and save the data within seven days. If the data has not been downloaded within seven days, the customer may be charged additionally for making the data available again. Costs for additional media/forms of delivery (e.g. hard disk, USB stick) will be charged additionally.
The customer shall bear all risks during the transport/dispatch of goods (transport insurance is the customer's responsibility). The customer is responsible for the function in the desired medium.
The scope of delivery does not include software, control data, source codes, data sets and parameters (usually referred to as "open data") used by Avocado360 to produce the work.
3.9 The customer has the right to order language versions and changes and additions to the work from Avocado360 against reimbursement of the costs if this is (still) technically possible.
4. BINDING NATURE
4.1 The order confirmation is binding. In the event of cancellation or termination after the conclusion of the contract on the part of the customer for reasons for which Avocado Productions GmbH is not responsible, the customer is entitled to compensation for the work already carried out or the damage incurred, but at least 50% of the total price (minimum flat rate). Avocado Productions GmbH reserves the right to claim further damages.
4.2 In case of insufficient availability of resources (props, equipment, products, data, information, deadlines, organisation etc.) on the part of the client Avocado Productions GmbH is entitled to carry out the service according to its own possibilities and at its discretion and to charge any additional costs incurred to the client.
4.3 If the work or the service or an essential part of the work or the service cannot be realised by Avocado Productions GmbH due to a lack of cooperation of the customer or only with considerable additional expenditure, Avocado Productions GmbH is entitled to stop the service/production completely. In this case, the customer has to compensate for the effort made and the damage incurred, at least 50% of the total price (minimum flat rate). Avocado Productions GmbH reserves the right to claim further damages. In this case, any damage incurred by the customer, must be borne by the customer.
4. 4. If the work cannot be completed due to force majeure (the term force majeure is understood to mean an unforeseeable and unavoidable event that occurs externally and cannot be averted; in other words, the event does not depend on human behaviour and it also does not fall within the sphere of influence of the contracting parties; including but not limited to epidemics, pandemics, accidents, fire, explosions, floods, strikes, labour disputes, lock-outs, sabotage, riots, war or civil war, blockades, restrictions imposed by governments or authorities, etc. ) are not completed or not completed at the agreed conditions, Avocado Productions GmbH can withdraw from the contract. The customer has to compensate Avocado Productions GmbH for the work already done or the proven costs exceeding this, plus the costs of third parties or auxiliary persons called in. Avocado Productions GmbH is not responsible for the non- or bad fulfilment of the contract or the delay as a consequence of force majeure. Especially the non-fulfilment or bad fulfilment of the contract or delay due to force majeure does not entitle the customer to withdraw from the contract.
Suppose a person of Avocado Productions GmbH is absent at short notice on the agreed date (illness/accident). In that case, Avocado Productions GmbH will organise a replacement to the best of its ability.
6.1 The price for the work stipulated in the contract includes the production of the work by Avocado Productions GmbH and the compensation for the rights of use explicitly granted to the client by contract.
6.2 Prices are quoted in Swiss francs. The hourly rate (fee) of the employees of Avocado Productions GmbH does not include VAT. Total amounts on offers are calculated excluding VAT, invoices are always calculated with VAT. Cost advertisements on websites, advertising materials, etc., are non-binding. Avocado Productions GmbH calculates the offer to the best of its knowledge and belief. Avocado Productions GmbH can renegotiate the conditions for unforeseen or extraordinary expenses.
6.3 Not included in the work price are:
Costs incurred by the client for recordings in his company and/or through the involvement of his employees; costs for third parties called in by the client (e.g. agencies); changes or deviations from the stipulated conditions of the work contract requested or accepted by the client, which give rise to additional costs; fees for rights administered by collecting societies for the production and use of the work. 6.4 Special risks/special requests (e.g. weather conditions, shooting with animals/children) may result in additional costs not included in the price of the Work, which the Client shall bear.
7. TERMS OF PAYMENT
7.1 Payment for the Work shall be made on the account. Unless otherwise agreed with the client, the following terms of payment shall apply to production costs (up to CHF 10,000):
50% of the total costs are to be paid upon order confirmation. 50% of the total costs are to be paid after completion of the work. For production costs exceeding CHF 10'000.-, the following terms of payment may be applied:
50% of the total costs are to be paid upon order confirmation. 30% of the total costs are to be paid during the production of the work. 20% of the total costs are to be paid after completion of the work. 7.2 Agreed advance payments / partial payments are binding. In case of outstanding payments, Avocado360 is entitled to interrupt the work's performance or production of the work or to cancel it completely. In case of interruption or termination of the production of the work, Avocado360 is entitled to compensation for the work performed and the damage incurred, but at least 50% of the agreed total price (minimum lump sum). Avocado360 reserves the right to claim further damages. In this case, any damages incurred by the customer shall be borne by the customer.
7.3 Unless otherwise agreed, the work will be invoiced with a payment term of 30 days. Until payment in full, work remains the full property of Avocado360 (the customer has no right of use).
7.4 If a payment is not made when due, the customer is directly in default without a reminder. In case of late payment, Avocado360 is entitled to charge interest on arrears and reminder fees in the amount of the additional costs incurred. The customer shall bear all costs and expenses incurred with any collection procedure/debt enforcement proceedings.
8. DEFECTS AND WARRANTY
8.1 The customer shall inspect a work after its completion. Any errors shall be objected to in the final iteration loop. Upon receipt of the final version (master file), the work shall be deemed approved.
8.2 Slight deviations in content and style compared to underlying concepts/drafts are considered foreseeable and cannot be claimed as defects. The quality and quantity of the material depend on the local and temporal conditions. Qualitative reductions due to unfavourable light, difficult weather conditions, space etc., cannot be objected to. Complaints or notices of defects regarding the artistic design are excluded. Subjective features of artistic design, such as colours and dimensions, cannot be the subject of a complaint unless the customer has given precise instructions. Avocado360 does not assume any liability for documents or materials provided by the customer or third parties commissioned by the customer.
Avocado360 is granted the priority right to repair or replace in case of a complaint. If the rectification of defects or the replacement delivery is not possible within a reasonable period or if it fails, the customer has the choice between the right of reduction or cancellation in case of significant defects. Claims for damages are expressly excluded. Avocado360's liability for defects expires if the customer himself or a third party makes changes or repairs to the delivered work without Avocado360's prior consent.
9. RISK, LIABILITY AND INSURANCE
9.1 Avocado360's contractual and non-contractual liability (Art. 41 et seq. CO) is hereby fully excluded within the limits of the law. In particular, the company is only liable for intent or gross negligence. Avocado360 is only liable for direct damage if the customer proves that Avocado360's intentional or gross negligence caused it. The liability is limited to the price of the respective service or work. Avocado360 is not liable for auxiliary persons. Any further liability of Avocado360 for damages of any kind is excluded. In particular, the company is not liable for indirect or consequential damages, and there is no claim for compensation for damages resulting from loss of production, use, orders, or profit.
9.2 Avocado360 insures the risk for matters under its control and responsibility to the extent provided by law or deemed reasonable, as follows:
Legally required insurance for all permanent and freelance employees engaged by Avocado360; Public liability insurance. Damages covered up to CHF 5'000'000.00 Suppose the client requires the conclusion of additional insurance (e.g. image, sound and data carrier insurance, personal injury or weather insurance, insurance of special props). In that case, he/she must inform Avocado360 of this at the latest when concluding the contract. The premiums are to be borne by the customer and will be invoiced to the customer together with the price of the work.
9.3 The Customer bears the risk for the matters or locations controlled by him directly or by third parties commissioned by him (agency etc.) (e.g. filming at the Customer's premises) as well as for the props, products, equipment, data, information etc. provided by him.
9.4 Upon the Work's delivery, the Work's risk shall pass to the Client, even if the Master is stored at the Producer's premises or at a supplier's premises (laboratory, post-production facility).
10. THIRD-PARTY RIGHTS / CONTENTS
10.1 Avocado360 is allowed to involve third parties for the execution of the contract and to invoice their services to the customer in their name. The Customer will be informed before the involvement of third parties.
10.2 Avocado360 acquires the necessary rights for using the work by the Customer following the contract from the authors (director, scriptwriter) and ancillary copyright holders at the Customer's expense.
10.3 The rights for the use of music, archive material, third-party works (architecture, designs, etc.), performances by actors, speakers, etc. shall be regulated and compensated separately (depending on the direct agreement between the client and the authorised third party) (licensing for one year is customary in the industry). The amount of compensation depends on the type of use, area of use, duration of use and respective media budgets. Should the customer wish to extend the contractually intended use, Avocado360 can negotiate the additional rights and their remuneration with the authorised parties on behalf of the customer.
10.4 Avocado360 does not assume any liability or guarantee
for the legal conformity of content not developed by Avocado360; for the infringement of third-party rights in the case of unauthorised editing of the work by the customer or on his behalf; for uses that go beyond the contractually agreed use; for uses on the internet which have not been explicitly released by Avocado360 before. The customer indemnifies Avocado360 from all third-party claims in this respect, including legal fees and court costs.
10.5 Avocado360 or the authors and performers involved are entitled to any remuneration from the collecting societies.
10.6 Should the parties, in deviation from the above provisions regarding the limited granting of rights, agree on a so-called "buy-out" or a clause that provides for the transfer of all rights or something similar, only the granting of all contractual rights created by Avocado360 or its employees is meant. The rights of central co-participants in the copyright sense, such as director, scriptwriter, composer, actor, narrator, etc., are always to be regulated explicitly, i.e. by stating their name and function and the type of granting of rights (geographical extent, duration, type of use, etc.). The same applies to music, archive material, third-party works (e.g. architecture, designs), etc.
11. INTELLECTUAL PROPERTY / COPYRIGHT
11.1 The customer expressly acknowledges Avocado360's intellectual property rights to all results, products and work created within the scope of Avocado360's performance, in particular, the copyright to all suggestions and ideas expressed within the scope of presentations and concepts as well as to the work created. All rights to such results of Avocado360's services, namely ownership rights, proprietary rights, intellectual property rights (in particular, but not limited to, inventions, know-how as well as the copyrights and other intangible or industrial property rights, whether registered or not), including the right to register intellectual or industrial property rights as well as the right to modify and to transfer intellectual or industrial property rights to third parties, remain exclusively with Avocado360. The use of such rights (especially intellectual property and copyrights) is not permitted to the customer without other agreement with Avocado360 or consent of Avocado360.
The customer may only use the audiovisual work for the agreed purpose and time. If no such period has been agreed, the duration is determined by the purpose of the order.
All rights not expressly granted to the customer by Avocado360 remain with Avocado360, in particular:
a) the editing right, i.e. the right to make changes, cuts and/or rearrangements or to produce other versions of the work or remakes, prequels and sequels; b) the right to name the Client, authors and performers in the Work and relevant publications; c) the right to have the Work performed on the occasion of competitions or festivals as well as for self-promotion or to use it otherwise for these purposes (showreels, Internet, etc.); d) the rights to ideas and concepts that Avocado360 has developed but have not been incorporated into the Work. Avocado360 may freely use these. Client and Agency may not use ideas and concepts developed by Avocado360 and presented to Client and/or Agency but not implemented without Avocado360's prior written consent and reasonable compensation; e) the rights to the software, plug-ins, scripts etc., created or otherwise used for the creation of the Work. 11.2 The material may not be modified, sold or transferred to third parties without written consent from Avocado360.
The conditions for further rights of use are to be regulated contractually (in writing). Using the raw material for internal company purposes (e.g. Christmas dinner) is permitted without agreement and does not need to be regulated.
11.3 Only the customer is entitled to use the work within the framework of the agreement made with Avocado360. Without mutual written agreement, the customer is not entitled to give third parties the right to use the audiovisual work.
11.4 In the event of unlawful use or use in breach of the contractual agreements, the customer owes Avocado360 a contractual penalty of CHF 50,000 per infringement. Avocado360 reserves the right to claim further damages. Payment of the contractual penalty does not invalidate the prohibition of unlawful use or use in breach of the contractual agreements, and the customer may continue to demand its removal.
11.5 All files created during the project (concepts, raw files, project files, drafts, etc.) may not be further used by the Client. Avocado360 is not required to hand over, show, or store said material. Avocado360's material may be used for other projects.
11.6 The Federal Copyright and Related Rights Act (URG) provisions remain reserved.
12.1 Ownership of the copy template ("master") and the rights to the visual and audio material not used in the work remain with Avocado360.
12.2 Completed digital works will be archived by Avocado360 for at least one year. The customer is responsible for a data backup of his images and videos.
12.3 Specially produced props, drawings, files etc., will only be stored at the request and expense of the client. Subject to contrary instructions, Avocado360 is entitled to destroy the above-mentioned materials after acceptance of the work.
Subject to instructions to the contrary, Avocado360 is allowed to use all created works for self-promotion. All works may be presented publicly by Avocado360 in all media (also in modified form). It is allowed to report about the work for the client. However, the client may inform Avocado360 in writing or electronic form (e.g. by e-mail) if he/she wishes to keep the collaboration confidential.
14. DATA PROTECTION
The customer's data will be treated confidentially and will only be passed on to third parties (partners) as far as necessary for the service provision. A further exception is the publication in the context of self-promotion listed in point 13.
Avocado360 is subject to the duty of confidentiality and due diligence for all documents, information and objects made available or accessible to it in connection with the audiovisual work unless otherwise stipulated in the contract or these GTC.
16. MISCELLANEOUS PROVISIONS
16.1 The occurrence of insolvency or the opening of bankruptcy, composition or similar proceedings against the assets of one party shall entitle the other party to rescind this contract immediately.
16.2 By receiving and taking note of the order confirmation, the customer confirms that he has carefully read and understood all pages of the GTC. Changes or additions to the contractual arrangements between the customer and Avocado360 must be agreed in writing or electronic form (e.g. by e-mail).
17. APPLICABLE LAW AND PLACE OF JURISDICTION
Swiss law exclusively applies to all disputes arising from the business relationship between the customer and Avocado360. The place of jurisdiction for all disputes arising from the business relationship between the customer and Avocado360 is the registered office of Avocado360 and, therefore, Lucerne (LU).