General terms and conditions
for the production of film productions
I General information
1.1 The General Terms and Conditions of Production and Delivery of the Professional Association of the Film and Music Industry
Austria's advertising film production is basically designed for legal transactions between companies and is an integral part of every offer and every contract.
1.2 If, as an exception, legal transactions with consumers within the meaning of the Consumer Protection Act, Federal Law Gazette No. 140/1979 in the currently valid version are also based on them, they shall only apply insofar as they do not contradict the provisions of the first main section of this Act.
1.3 A legal obligation on the part of the producer shall only arise through the company confirmation of the offer/order (confirmation by fax is permissible) or the signing of the contract. By signing the order letter or the order confirmation, the General Terms and Conditions of Production and Delivery are accepted. Confirmation by fax or e-mail shall be deemed equivalent to written confirmation.
1.4 The production of the film work - no matter on which carrier material, analogue or digital - takes place on the basis of the script approved by the client or made available by him under the conditions laid down in writing in the production contract or the accepted offer.
1.5 The treatments, scripts, drawings, plans and similar documents worked out by the producer or on his behalf shall remain his intellectual property if they are not used in the film or if no fee has been agreed for them. Any use, in particular passing on, duplication and publication, requires the express consent of the producer. Documents supplied by the client can be reclaimed by him.
2.1 The agreed price shall include all production costs, including a broadcast or demonstration first copy, as well as the granting of rights to the cinematographic work to the extent provided for in Section 7.2. The calculated working time per shooting day shall be a maximum of 10 hours.
2.2 Weather-related shifts in shooting (weather risk) are not included in the calculated production costs.
Additional costs arising from this title will be invoiced according to documented expenditure plus HU.
2.3 A separate contract can be concluded for the production of a treatment or script. The price agreed in this contract is to be paid by the client even if he does not have the treatment or script filmed or withdraws from the order. If a screenplay or a pre-existing film work is made available by the client or his authorised representative, the full unlimited transfer of rights to the producer is to be carried out.
2.4 In accordance with the agreement between CFP (Commercial Filmproductions Europe) and EAAA (European Advertising Agencies Association), a surcharge of 15% for overhead costs (HU) and 10% for profit, i.e. 26.5%, will be added to the calculated net production costs, unless otherwise agreed in writing. In addition there is the legal sales tax.
2.5 If the client demands the conclusion of a specific insurance policy, he must inform the producer of this at the latest when the contract is concluded and reimburse the costs for this.
2.6 The client shall bear the costs for any professional advice he may have initiated.
III Production, modification, acceptance, foreign language versions
3.1 Preliminary or shooting work begins at the earliest after signing the production contract.
3.2 The artistic and technical design of the work is the responsibility of the producer. The Producer shall inform the Client or its authorised representative of the location and planned procedures of the preparatory work, recording and post-production.
3.3 Acceptance by the client or his authorised representative means approval of the artistic and technical quality.
3.4 If the client demands changes to the time schedules, the manuscript, the screenplay or the parts of the film already produced before the acceptance of the film, these changes shall be borne by the client, insofar as they do not involve the assertion of justified complaints about defects. The producer must inform the client or his authorised representative immediately of the anticipated costs of these changes.
3.5 If the client requests changes after acceptance of the film, he must inform the film producer in writing of the desired changes. The producer alone is entitled to make changes. Such changes shall be at the expense of the Client.
3.6 If, for artistic or technical reasons, the producer proposes changes to the already approved script that lead to additional costs compared to the agreed production price, these require the prior written consent of the client or his authorised representative. Additional costs not expressly approved cannot be claimed.
3.7 If foreign-language versions are to be produced by the cinematographic work by synchronisation, packshot or title change, a corresponding agreement shall be made.
4.1 The producer undertakes to deliver a technically perfect broadcast copy (film / digital / HD format). He expressly warrants that the production will be of impeccable sound and image quality. No liability is assumed for improper further processing by third parties (e.g. Mpeg coding).
4.2 If a circumstance occurs during the production of the film which makes the contractual production impossible, the producer is only responsible for intent and gross negligence. The impossibility of production or late completion of the film, for which neither the producer nor the client is responsible, only entitles the client to withdraw from the contract. However, the services rendered so far plus HU and profit shares will be charged.
4.3 Defects of quality acknowledged by the producer shall be remedied by him. If these corrections cannot be carried out without the cooperation of the Client or his specialist consultant, the Producer may consider the contract fulfilled after the fruitless expiry of a period of at least two weeks set for the performance of the corresponding action. The producer is entitled to refuse to remedy the defects until the payments due at the time of the correction have been made.
4.4 Any liability of the producer for claims made against the customer on the basis of the service provided by the production is expressly excluded if the production has fulfilled its obligation to provide information or if such obligation was not recognisable to it, whereby slight negligence shall not be detrimental. In particular, the Producer shall not be liable for legal costs, the Client's own lawyer's fees or the costs of the publication of judgements as well as for any claims for damages or other claims of third parties; the Client shall indemnify and hold the Production harmless in this respect.
V Withdrawal from the contract by the client
5.1 If the production order has been placed and the client withdraws from the order before the start of shooting without any fault on the part of the producer, the latter shall be entitled to invoice the net costs actually incurred as well as the pro rata HU and the lost total profit.
5.2 If an order is cancelled between 10 and 4 days before the start of shooting, the producer is entitled to charge 2/3 of the calculated net costs accepted by the client plus HU and lost total profit.
5.3 If the client occurs between the 3rd and the 1st day
before the scheduled start of shooting, the calculated and commissioned total sum will be invoiced.
VI Terms of payment
Unless otherwise agreed, the following terms of payment shall apply:
- For short to normal production times:
1/2 at order placement, 1/2 at acceptance
- For longer production times:
1/3 when placing the order, 1/3 when shooting starts, 1/3 after completion
In the event of late payment, interest on arrears will be charged at the rate of the secondary market yield plus 3% from the due date.
7.1 The film is produced on the basis of the script accepted by the client and the film producer. Pursuant to § 38/1 UrhG (German Copyright Act), the producer has all necessary copyright exploitation rights (except if they are held by a collecting society), in particular the reproduction, distribution, broadcasting, performance and ancillary copyrights necessary for the performance of the contract, which are also administered by the producer after completion of the work.
7.2 In the production contract it shall be agreed which rights of use to the finished work shall be granted to the Client after full payment of the production costs and to what extent (spatially, temporally).
7.3 According to current practice, these are the broadcasting / performance rights for the territory of the Republic of Austria ORF, TV, cable companies and/or cinema for a period of one year from completion/first use. The documents binding for an extension or extension of the broadcasting / performance rights concerning compensation for copyrights and ancillary copyrights, in particular for actors, speakers, music and archive materials, are available from the Austrian Film and Music Industry Association (Fachverband der Film- und Musikindustrie Österreichs). These costs shall be invoiced by the producer in accordance with point 2 of the General Terms and Conditions. This shall also apply to a broadcast via satellite beyond the country of transmission if the rights of the producer or copyrights and ancillary copyrights, in particular for performers, speakers, music and archive materials, are thereby impaired. The tariffs published by CFP shall serve as the basis for the compensation of buy-outs.
7.4 A separate agreement shall be made for the use of the work on the Internet or for similar analog or digital platforms (so-called new types of exploitation; e.g. use on handheld computers, mobile telephones).
7.5 Rights to reproduction, editing, modification, supplementation, foreign-language synchronisation and the use of excerpts in image and/or sound are excluded from the granting of rights in any case, unless they are expressly agreed in the contract and separately compensated. For the compensation of these assigned rights of use at least the lost profit of the production is to be used. This shall not affect the claim for damages.
7.6 The Client expressly agrees that the legally prescribed reports to the relevant collecting societies shall be made by the Producer.
7.7 The client is obliged to immediately notify the producer of any use of the film outside the countries and periods specified in the production contract.
7.8 In order to secure the copyright exploitation rights, the source material (image and sound), in particular negatives, master tapes and also the remaining material shall remain with the producer.
7.9 The producer undertakes to store the original, picture and sound material of the delivered work professionally against reimbursement of costs. The storage period is two years for spots and five years for all other commissioned productions. Before expiry of the respective period, the client or his authorised representative must request in writing the duration of further storage. With regard to the cost compensation for this additional storage, the guidelines of the advertising film producer professional group of the Austrian Film and Music Industry Association shall apply.
7.10 Upon delivery of the copy ready for transmission, the risk for the copy documents shall pass to the client, even if the film is stored at the producer's, at a copying company commissioned by him or at an archive commissioned by him.
VIII Other provisions
8.1 The Producer is entitled to display his company name and logo as a copyright notice. He also has the right to show the film work or have it shown at competitions and festivals. The producer is also entitled to present the film work or have it presented for the purpose of self-promotion; this also applies to publications on the Internet, on the producer's website or other corresponding analogue or digital platforms (so-called new types of exploitation; e.g. for use on handheld computers, mobile phones).
8.2 If more than one client places an order with the producer for a film work, it must be recorded in writing before the start of filming which client has to make declarations to the producer in the sense of the preceding points on behalf of the other clients. This applies in particular to the naming of the person responsible for the acceptance of the final version of the film work.
8.3 If several co-producers are contractual partners of the client, the provisions of point 8.2 shall apply mutatis mutandis.
8.4 Changes to the production contract and/or these manufacturing conditions require written confirmation. Should any provision of the production contract render any provision of these terms and conditions of manufacture and delivery invalid, this shall not affect the validity of the remaining provisions.
8.5 The place of performance shall be the producer's head office.
8.6 In the event of disputes, the place of jurisdiction shall be the competent court at the producer's head office. This court shall apply Austrian law.