General Terms and Conditions for the creation of video clips for the purpose of publication

1. Scope of application

(1) The following General Terms and Conditions (GTC) apply to all orders for the creation of one or more videos by Malik Boysen, Peterskampweg 64, 22089 Hamburg (hereinafter „Malik Boysen“) on behalf of the client for the purpose of publication and public reproduction on the Internet.

(2) The GTC are aimed exclusively at entrepreneurs, i.e. natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity. Consumers are expressly excluded from the scope of these GTC.

(3) Any general terms and conditions of the client are expressly excluded insofar as they do not agree with these General Terms and Conditions.

(4) These GTC shall also apply to all future orders with the Client in the case of ongoing business relationships, even if the GTC are not expressly referred to again.

2. Conclusion of contract, subject matter of the contract

(1) A contract between Malik Boysen and the client regarding one or more services is concluded when the client accepts Malik Boysen’s offer. A binding offer from Malik Boysen can be found in the respective offer that Malik Boysen sends to the client at the client’s request. Acceptance by the client is effected by the client’s declaration. This is not bound by any formal requirements and can therefore be made verbally, in text form, in writing or in electronic form. Acceptance by the client can also be made by the client transferring the invoice amount stated in the offer to Malik Boysen. To facilitate legal transactions and for documentation purposes, it is recommended that the client declares its acceptance in text form, for example by sending an email to Malik Boysen. Additions and modifications to the offer by the client shall only become part of the contract if Malik Boysen confirms them in text form or in writing. After conclusion of the contract, Malik Boysen shall send the contract documents to the client. The contract is also concluded through the provision of the service by Malik Boysen.

(2) The subject matter of the contract is the creation of one or more video clips (hereinafter: „work“).

(3) Malik Boysen is entitled to have the services incumbent upon him provided in whole or in part by third parties.
(4) Malik Boysen reserves the right to change prices and the scope of services in the future. Malik Boysen shall inform the client in good time of any changes that affect the client.

3. Obligations of Malik Boysen

(1) Malik Boysen shall provide the material and equipment (camera, lighting, sound) on the day of shooting and is responsible for editing, animations, in- and outro as well as the soundtrack of the contractual work.(2) As a rule, Malik Boysen shall only use license/GEMA-free music. If, at the express request of the client, material is to be used that is protected by copyright by third parties (e.g. GEMA-protected music), separate costs shall be incurred.(3) Malik Boysen shall provide the client with a copy of the work produced in web-optimized HD resolution on the agreed storage medium and shall grant the client the rights of use to the work to the extent described in Section 7.

4. (Cooperation) obligations of the client, indemnification against liability

(1) The client shall name a contact person who is available to Malik Boysen for queries and to coordinate details relating to the video shoot.

(2) If Malik Boysen is prevented from providing a service due to a circumstance for which the client is responsible, the claim to consideration shall remain in force. Insofar and as long as the client does not, does not properly or does not timely fulfill the obligations to cooperate within its sphere of influence and responsibility, Malik Boysen is released from the fulfillment of its obligations affected by this. Non-fulfilment by Malik Boysen in this respect does not constitute a breach of duty and does not entitle the client to terminate the contract.

(3) If the client is unable to meet its obligation to cooperate on an agreed (shooting) date, e.g. by not providing the product on time, it must inform Malik Boysen of this at least 48 hours before the agreed (shooting) date. Reference is made to the provision in Section 9 Para. 6 of these GTC.

(4) The client agrees that Malik Boysen has his own creative freedom in the creation of the video work.

(5) The client is obliged to accept the work produced in accordance with the contract. Acceptance cannot be refused due to insignificant defects.

5. Provision of image/sound material, declaration of rights, release

(1) Insofar as the client provides Malik Boysen with image and/or sound material (hereinafter: „material“) for the creation of the work, this must be handed over or transmitted to Malik Boysen in the agreed form at the agreed time. In the event of a later delivery, Malik Boysen reserves the right to postpone the delivery date appropriately.

(2) The client is liable for ensuring that the transmitted data is free of computer viruses. If Malik Boysen nevertheless discovers computer viruses on a file transmitted to it, this file will be deleted without the client being able to assert any claims – in particular due to missing backup copies. Malik Boysen reserves the right to claim damages from the client if Malik Boysen suffers damage due to malware from the client.

(3) The client is solely responsible for the content of the material provided by the client and the clarification of all rights thereto. Malik Boysen does not undertake any legal examination of the material received from the client. The client guarantees that the material supplied by him is lawful, in particular that it does not violate trademark, copyright, media, press, advertising or competition law regulations and does not infringe any third-party rights. The client shall indemnify Malik Boysen against all third-party claims arising from or in connection with the material provided by the client. The indemnification also includes the resulting costs of legal defense.

(4) Malik Boysen is entitled to reject the material provided by the client if there is an objective reason for this, in particular if the material has been objected to by the German Advertising Council, the material violates applicable law or morality or is unacceptable for Malik Boysen due to its content, origin or technical form.

6. Defect rights, warranty

(1) The client must check that the work produced and the preliminary and intermediate products sent for correction (in particular production concept, editing and sound recording) comply with the contract and give his approval in text form (e.g. by e-mail) in due time.

(2) Complaints about the work or the preliminary and interim results are only permitted within the deadline specified by Malik Boysen. Malik Boysen shall take into account all corrections of errors that are communicated to it within the deadline set when the work is sent.

(3) If the work produced does not correspond to the contractually owed quality and a complaint has been made in good time in accordance with § 6 Para. 2, rectification or the creation and delivery of a flawless replacement video (subsequent performance) can be demanded. The right to the creation of a flawless video is completely excluded if this is associated with disproportionate costs for Malik Boysen. If Malik Boysen allows a reasonable deadline set for the creation of a replacement video to expire, refuses to provide supplementary performance or if this is unreasonable or fails, the client is entitled to a reduction in payment or to cancel the order. In the case of insignificant defects in the work, rescission of the order is excluded.

(4) Defects in part of the delivered work shall not entitle the client to complain about the entire delivery, unless the partial delivery is of no interest to the client.(5) Warranty claims by merchants and entrepreneurs shall expire 12 months after acceptance of the corresponding work.

7. Granting of rights

(1) In addition to the agreements made, the provisions of the Copyright Act shall apply to any use.

(2) Unless expressly agreed otherwise, the client may use the film created for him completely free of charge. Broadcasts, such as TV and radio, and cinema screenings are excluded. In these cases, consultation with Malik Boysen is required. This may be associated with an additional charge.

(3) Furthermore, the client only acquires the rights of use to the final film file itself upon commissioning. If the client wishes to use additional elements of the film (e.g. individual graphics/illustrations, audio, speakers, etc.), this requires an additional acquisition of rights of use.

(4) Rights of use granted may not be transferred without the consent of Malik Boysen, even if the transfer takes place as part of the overall sale of a company or the sale of parts of a company (§ 34 para. 3 UrhG).

(5) The transfer of the material and the transfer of rights of use to third parties by the client is only permitted with prior written information from Malik Boysen. Falsifying or distorting changes by addition or omission are not permitted. The material may not be distorted or otherwise impaired within the meaning of § 14 of the German Copyright Act.

(6) A copyright notice within the meaning of § 13 UrhG is always required in such a way that leaves no doubt as to the identity of the author and the attribution to the individual word or image contribution. Collective credits are only sufficient if they leave no doubt as to the attribution of the author’s contribution.

8. Delivery, impediments to performance

(1) Delivery dates are only valid if they have been expressly confirmed by Malik Boysen. Agreed delivery dates are subject to the proviso that the order data on which the contract is based remain unchanged. Subsequent changes initiated by the client will invalidate any agreed delivery dates.

(2) If Malik Boysen is unable to meet the agreed delivery date for reasons for which Malik Boysen is not responsible or which are not attributable to Malik Boysen, in particular due to force majeure, lawful strike or disruptions from the area of responsibility of third parties (e.g. subcontractors), the delivery date shall be postponed accordingly. Malik Boysen’s entitlement to remuneration shall remain unaffected if the delivery date is made up within a reasonable time after the disruption has been rectified. Claims for damages are excluded in these cases.

9. Remuneration, terms of payment

(1) Unless otherwise agreed, the prices stated in the order shall apply. The prices stated therein are net prices plus the applicable statutory value added tax.

(2) Unless otherwise agreed, 50% of the remuneration shall be paid after conclusion of the contract and the remaining 50% after acceptance of the work by the client.

(3) The prices stated in the order or in the order confirmation shall apply subject to the proviso that the underlying services and expenses remain unchanged. Malik Boysen reserves the right to demand payment of additional travel expenses (travel costs and/or accommodation costs) from the client after informing the client in advance.

(4) Invoicing by Malik Boysen shall take place after conclusion of the contract or after acceptance of the work. Payments by the client shall be made no later than 10 days after receipt of the respective invoice.

(5) If Malik Boysen provides services at the client’s request that go beyond the contractually agreed scope of services, these additional services shall be remunerated separately. Malik Boysen and the client shall agree on the amount of remuneration for these additional services in good time in advance.

(6) If Malik Boysen incurs additional costs due to delays and/or failure to meet deadlines and/or failure to cancel deadlines in good time (see clause 4, paragraph 5) by the client or third parties commissioned by the client, the client shall bear these costs.

(7) Offsetting with counterclaims by the client is only permitted if these counterclaims are undisputed or have been legally established.

10. default of payment

(1) In the event of late payment, interest shall be charged at the applicable statutory rate as well as collection costs. In the event of late payment, Malik Boysen may postpone further execution of the current order until payment has been made and demand advance payment for the provision of any further contractual services.

(2) Objectively justified doubts about the solvency of the client entitle Malik Boysen, even during the term of the contract, to make the delivery of further videos dependent on the advance payment of the amount and the settlement of outstanding invoice amounts, regardless of the originally agreed payment term.

11. Liability

(1) In the event of further use of the material by the client beyond the contractually agreed use, the client shall be liable for any damages arising from the use and shall indemnify Malik Boysen from any liability arising in this context.(2) If the client fails to name the author in accordance with § 13 UrhG or violates § 14 UrhG, Malik Boysen shall be entitled to compensation in the form of a surcharge of 100% of the respective usage fee, unless the client can prove a lower damage.

(3) Malik Boysen is not liable for the fact that the videos produced could not achieve certain results (e.g. possible increase in sales).

(4) Malik Boysen shall only be liable for damages, regardless of the legal grounds, in the event of intent, gross negligence and the absence of a warranted characteristic.

(5) This also applies to vicarious agents and legal representatives of Malik Boysen.

(6) In all other cases, Malik Boysen shall only be liable if essential contractual obligations (cardinal obligations) have been breached. Essential contractual obligations are essential obligations which arise from the nature of the contract and whose breach would jeopardize the achievement of the purpose of the contract as well as obligations which the contract imposes on Malik Boysen according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the contract possible in the first place and on whose compliance the client may regularly rely. Compensation is therefore limited to typically foreseeable damages. There shall be no compensation for atypical or unforeseeable damages.

12. Warranty

(1) Insofar as a specific result is owed by the cooperation (contract for work and services), the following shall apply with regard to the warranty: If the delivered material is defective, the client may initially only demand rectification of the defect. The defect must be reported by telephone within two working days of receipt of the consignment and in writing after a further three working days; in the case of technical and other hidden defects, in writing within ten days of discovery. If rectification is not possible or is disproportionate in terms of cost, the client may only reduce the fee with regard to the respective defective contribution or withdraw from the individual order; further claims for damages are excluded. The same regulations apply if a right of use is granted to a contribution that has already been created (purchase contract). Insofar as a specific service is owed as a result of the collaboration (service contract), a warranty is excluded.

(2) The client bears sole responsibility under press, civil and criminal law for the publication of contributions. Malik Boysen therefore assumes no warranty for the rights of third parties due to publication by the client if these third parties are mentioned or depicted in published articles, nor does it assume any express or implied warranty for their personal rights, trademark rights, copyrights and property rights or other claims as a result of publication by the client. The client is generally responsible for clarifying such rights; the client must bear the possible costs of a legal examination of the admissibility of a publication. If there is a dispute between Malik Boysen and the client as to whether a guarantee for certain third-party rights has been assumed or what has been agreed as the intended quality of the material and permissible purpose of use, the client is responsible for providing evidence of the content of the agreements. These must always be made in writing. If third parties or state institutions in Germany or abroad assert claims or initiate or enforce sanctions under press and criminal law due to the use of the material by the client, the client shall indemnify the journalist against all associated costs, unless the journalist is liable to the client in accordance with the above paragraphs. This shall also apply if the client transfers the rights to the article to third parties.

13. right of withdrawal

Malik Boysen reserves the right to refuse the production of videos even after conclusion of the contract for reasons that make it unreasonable for Malik Boysen to fulfill the contract. This is particularly the case if the production of videos violates copyright, competition, press, criminal or other legal provisions.

14. indication of reference

(1) Furthermore, the client grants Malik Boysen the right to use the produced film as a reference for an unlimited period of time and in any place where Malik Boysen wishes to present itself.

(2) The client also grants Malik Boysen the right to use the client’s logo as a reference for an unlimited period of time and in any place where Malik Boysen wishes to present itself.

(3) If the client does not wish the film or client logo to be used without restriction in terms of time and space, an express written request from the client is required. Malik Boysen’s approval for the non-use of the created film or client logo may be subject to a surcharge.

15. data protection

The contract for the creation and publication of a video clip is processed in accordance with the applicable data protection regulations. Personal data will only be stored and used for the execution and processing of the order and will only be passed on to subcontractors commissioned by Malik Boysen for the sole purpose of processing the contract. Otherwise, personal data will only be passed on, processed and used with the consent of the data subject or if this is permitted by data protection regulations or another law. The privacy policy available at www.malik-boysen.de/datenschutz applies.

16. Place of performance, place of jurisdiction, other provisions

(1) The place of performance is, as far as legally permissible, the registered office of Malik Boysen.

(2) The place of jurisdiction for all disputes arising from the contract for the creation of a video in business transactions with merchants, legal entities under public law or special funds under public law is the registered office of Malik Boysen.

(3) The contract for the creation of a video clip and these General Terms and Conditions are subject exclusively to German law, excluding the UN Convention on Contracts for the International Sale of Goods.

(4) Should one or more provisions of the order for the creation of a video clip or these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.