Rise and Shine Films LLC
Bern, 17. March 2019
General Terms and Conditions (GTC)
Rise and Shine Films LLC
1. PLACING OF ORDERS, CONTRACTING PARTIES
1.1 The order to produce an audiovisual work (hereinafter referred to as "commissioned production") is placed by the conclusion of a production contract or other confirmation of the contract for work between the ordering company or person (hereinafter referred to as "Client") and the producing company or person (hereinafter referred to as "Producer").
Furthermore, individual numbers also refer to the manufacture and work on parts of works (hereinafter referred to as "production services") or services in the areas of consulting and training (hereinafter referred to as "consulting mandate"). Relevant sections refer explicitly to their reference to work outside the manufacture of a complete plant.
1.2 If the client is represented by an agency, the client and the agency shall be jointly and severally liable, unless the agency submits a corresponding power of attorney from the client covering the present contract in its entirety.
1.3 The commission for the production of a work shall be placed by the client countersigning or confirming a quotation and/or a cost estimate (hereinafter referred to as "work contract") (verbal, confirming e-mail, etc.) so that the price of the work as well as its description and content can be determined (the "work"). As a rule, the offer is based on a written production briefing prepared by the Principal, which defines at least the duration of the performance, the expected use, language/image versions, format and technology of the image and sound carrier, the most important production data, the delivery date as well as the parameters on the part of the Principal.
1.4 A production service or consultancy mandate shall be awarded by the Client countersigning or confirming an offer and/or a cost estimate (verbal, confirming e-mail, etc.) so that the duration and the desired result of the service can be determined. The offer is usually based on a written briefing prepared by the client, which at least defines the task, the expected objectives and results of the service, the date of performance and the client's parameters.
1.5 The Producer shall be subject to the duty of confidentiality and care for all documents, information and objects accessible or made available to it in connection with the order.
1.6 Unless otherwise agreed, the Producer reserves the right to subsequently charge for services rendered prior to the placing of the order within the framework of the order. If an order is not placed, the Producer (unless otherwise agreed) shall bear all costs incurred up to that point and retain all its full rights to the results of this preceding performance (concepts, ideas, designs, etc.; see Section 6.9e), which may not be further used by the Client without the consent of the Producer. Unauthorized use of such content will result in a contractual penalty of 15,000.00 CHF.
2. PRODUCTION AND DELIVERY
2.1 The producer is responsible for the production of the work, based on the approved design basis including agreed design and technical modifications. The work must comply in all respects with the national standard of film quality with regard to the production budget. The Client acknowledges that the Producer cannot guarantee that any software components contained in the Work (e.g. in multimedia productions, on the Internet or on data carriers) will function without interruption or error.
2.2 In order to align the expectations of the Client and the Producer, interim presentations shall be carried out for certain work phases (e.g. conception, PPM, image editing, sound mixing, etc.) in the form of personal or written interim acceptances. Agreements made by the parties on the basis of such interim presentations are binding for further processing. The interim acceptances of a production which are binding for the producer shall be recorded in writing in the contract for work and services.
2.3 The general conditions specified in the original production briefing may be further detailed and/or modified in the course of the work in consultation between the Producer and the Client. Such changes to be recorded in writing
form an integrating part of the contract and are superior to the original contract for work and services.
2.4 The client undertakes to cooperate in a manner conducive to the timetable and to deliver goods of sufficient quality.
2.5 The Producer undertakes to take into account the Client's requests for processing, which it may make on the occasion of an interim presentation, insofar as this is reasonable and the desired changes are within the agreed framework conditions. Modifications and changes which go beyond the originally agreed scope of work will lead to corresponding increases in the price of the work and possibly to deadline adjustments.
2.6 If the production suffers a delay which the Producer could neither foresee nor influence (e.g. weather, operational disturbances at suppliers, delayed delivery of products, texts and other documents by the Client etc.), the delivery period shall be deemed extended by at least the duration of the hindering circumstances. The producer shall inform the client immediately of the extent and consequences of the delay (postponement of the delivery date, additional filming, additional costs etc.). Failure to comply with the delivery date shall only entitle the client to a reduction in the price of the work or to rescind the contract if the producer can be proven to be grossly at fault.
2.7 The client can only refuse acceptance of the work if it has considerable defects or if the work deviates considerably from the agreed framework conditions. In this case, the Producer shall immediately (within a maximum period of one week) be granted a reasonable period in writing to remedy the defect, specifying the alleged defects in detail.
2.8 If nothing to the contrary has been agreed with regard to delivery, this shall be effected via a download link and shall exclusively include the finished work.
2.9 Control data, unprocessed video and audio recordings (raw material), source codes, data sets and parameters leading to the finished work are not included in the scope of delivery.
3. PRODUCTION STOPPAGE
3.1 If the production is cancelled by the client (this must be done in writing) after placing the order, but before the planned first day of shooting or the planned first production of sound or image data (hereinafter referred to as "first day of shooting"), the client shall be liable as follows:
a) Cancellation is made up to 10 days before the planned first day of shooting:
For all costs incurred by the producer until receipt of the written notice of cancellation and all contract-relevant obligations entered into with third parties plus 1/3 of the work price.
b) Cancellation takes place 9 to 5 days before the planned first day of shooting:
For all costs incurred by the producer until receipt of the written notice of cancellation and for all contractual obligations entered into with third parties, but at least 50% of the work price.
c) Cancellation shall take place less than 5 days before the planned first day of shooting:
For the entire contractually agreed work price.
3.2 Already existing recordings and all results of the preliminary work remain with the producer.
Order-specific recordings may not be used elsewhere by the Producer without the consent of the Client.
3.3 If, as a result of force majeure, the production cannot be completed or cannot be completed under the agreed conditions, the party concerned may withdraw from the contract. However, the client must compensate the producer for the work already performed or for any additional proven costs, plus mark-up.
4. RISK AND INSURANCE
4.1 The Producer shall bear the risk for all matters under its control and responsibility and shall insure them as far as this appears proportionate and possible, such as for example:
- Legally required insurance for all permanent and freelance employees obliged by the Producer;
- Liability insurance to cover third-party damage;
The premiums are to be borne by the client or will be included in the price of the work.
4.2 The Client bears the risk for the interests and locations (e.g. shooting at the Client's premises) controlled by the Client and the third parties commissioned by the Client (e.g. the Agency).
4.3 During production, the Producer bears the risk for the visual and audio material as well as any props procured by her. The client bears the risk for the props or products provided by her.
4.4 If the Client requests the conclusion of an extraordinary insurance policy (e.g. personal injury or weather insurance, insurance of special props), it shall notify the Producer of this prior to conclusion of the contract and shall bear the corresponding premiums if these have not already been included in the contract for work and services.
4.5 After delivery of the work, the Producer shall bear the risk for all copying documents (negative, master etc.) for a period defined in the contract for work and services (as a rule 2 years) at a price also defined in the contract for work and services (hereinafter referred to as "archiving"). A new delivery to the client after a loss will be handled and invoiced as a follow-up order.
If the Client does not make use of this archiving service, it releases the Producer from the responsibility of archiving.
5. WORK PRICE
5.1 The price for the work specified in the contract shall include the production of the work as well as compensation for the rights to the work granted to the Principal to the extent mentioned in Clause 6 or specified in the contract.
5.2 Unless otherwise agreed in writing, the price of the work shall be inclusive of value added tax and all prices offered shall be in Swiss francs (CHF).
5.3 Not included in the price of the work:
- Costs incurred by the client in connection with recordings in her company and/or through the cooperation of her employees;
- Costs for third parties called in by the client (e.g. agencies);
- Changes requested or accepted by the Principal or deviations from the specified framework conditions which cause additional costs;
- Fees for rights administered by collecting societies, in particular for the production and for uses of the production which are subject to copyright compensation.
5.4 Special risks (e.g. weather conditions, admission with animals or children) may lead to additional costs not included in the work price, which shall be borne by the client.
5.5 Cost overruns of more than 10% of the work price must be reported to the client as soon as possible. Resulting additional costs will usually be invoiced within one month after delivery of the work.
6. RIGHTS TO THE WORK
6.1 The Producer shall acquire from the authors and ancillary copyright holders called in by the Producer all rights necessary for the use of the work intended by the Client in accordance with the briefing or the higher-level contract for work and services, with the exception of the rights mentioned under item 6.2.
6.2 The rights for the use of music, archive material, third-party works (architecture, designs, etc.), performances by actors, speakers, etc. shall be regulated and settled separately. The amount of the compensation depends on the type of use, area of use, duration of use and respective media budgets.
The client shall inform the producer comprehensively in each case, in particular also about changes or additional uses. If this information is available, the producer can negotiate the corresponding agreements on behalf of the client with the entitled parties.
In this case, the rights negotiated by the producer and settled with third parties for use in accordance with the briefing or the higher-level contract for work form part of the work price.
6.3 If the Client provides the Producer with image and sound material for further processing, it guarantees the Producer that the material provided does not violate any legal regulations or the rights of third parties and indemnifies the Producer against all claims in this respect.
6.4 Upon full payment of the price of the Work (including all additional costs incurred) to the Producer, the following rights to the Work shall pass to the Principal from the date of the planned first use:
a) For commissioned works, with the exception of commercials:
Taking into account the restrictive provisions of Clauses 6.1 and 6.2, the global right of performance (unless otherwise agreed) shall pass to the Client for a period of two years (subject to individual agreements to the contrary). This includes an online evaluation free of charge.
b) For advertising spots:
An advertising spot is a work that is used in the media against payment (TV, cinema, POS, sponsoring, billboards, eBoards, Internet banners, etc.).
Taking into account the restrictive provisions under Sections 6.1 and 6.2, the following rights for the contract territory (Switzerland, subject to individual agreements to the contrary) shall pass to the Principal:
aa) the right to publish the work in the contract territory for a period of two years;
bb) the right to perform, i.e. the right to publicly perform the work by technical means in the contract territory as often as desired during a period of two years, whether commercial or non-commercial (including in-house performances);
cc) the broadcasting right, i.e. the right to broadcast the work as often as desired during two years through television stations in the contract territory;
dd) the right to make the work available on the Internet for users in the contract territory for a period of two years (to be observed: Use on YouTube, Facebook etc. usually requires worldwide rights! These must be clarified separately.).
6.5 After expiry of the first period of use regulated in the aforementioned Section 6.4 or an individual agreement, the agreed rights (with the exception of the rights pursuant to Section 6.2) for the contract territory may be extended in return for payment of 10% of the work price (including all additional costs incurred up to delivery) per year. The rights pursuant to Clause 6.2 shall be clarified and compensated separately. The Producer may make these enquiries on behalf of the Client in return for compensation.
6.6 If the work is to be evaluated beyond the contractual territory specified in Clause 6.4 or in the individual agreement, a percentage surcharge shall be owed on the price of the work (including all additional costs incurred up to the time of delivery), namely on extension to:
a) EU: 30% of the work price;
b) Worldwide rights: 50% of the work price;
c) Individual territories: by arrangement.
Upon payment of the additional costs, the defined rights (with the exception of the restrictions pursuant to Clause 6.2) are settled for one year after the first use in the corresponding additional area of use.
6.7 The Producer cannot guarantee the temporal and/or geographical extension of the originally agreed use or additional types of use, as this depends on third parties granting the Producer the necessary additional licenses.
6.8 The Client shall be entitled to order any number of additional copies of the Work from the Producer against reimbursement of the costs and, if necessary and if technically (still) possible, also language versions as well as changes and additions to the same. It should be noted that this is a follow-up order, which means that any tariffs defined in the original work contract are not binding.
6.9 All rights not expressly transferred shall remain with the Producer, in particular:
a) the right of reproduction;
b) the right to edit, i.e. the right to make changes, reductions and/or conversions or to produce other versions of the Work;
c) the right to mention the name of the producer, the authors and performers in the work and in corresponding publications;
d) the right to have the work performed on the occasion of competitions or festivals as well as for self-promotion or to use it in any other way for these purposes (showreels, Internet, etc.);
e) the rights to all ideas and concepts developed within the framework of order processing, even if they have not been implemented. Non-executed ideas and concepts developed by the Producer may be freely used by the Producer. The client and the agency may not use ideas and concepts that have been presented but not implemented without the prior written consent of the producer and appropriate compensation for the same;
f) the rights to the software, plug-ins, scripts, designs, digital assets, etc. created or otherwise used for the creation of the work.
6.10 The Producer shall be entitled to any legally provided remuneration for ancillary copyrights and related rights.
6.11 If, in deviation from the above provisions concerning the limited granting of rights, the parties agree on a so-called "buy-out" or a clause providing for the transfer of "all rights" or something similar, this shall only mean the transfer of all contractual rights created by the Producer's employees. The rights of central parties in the copyright sense, such as director, screenwriter, composer, actor, narrator, etc., are always to be regulated explicitly, i.e. by stating the name and function and type of rights granted (geographical extent, duration, type of use, etc.). The same applies to music, archive material, third-party works (e.g. architecture, designs), etc.
7.1 The Producer retains ownership of the copy documents and of the image and sound material not used in the work. The Producer undertakes to retain these documents and/or data only if the archiving service is used for a limited period of time in accordance with Section 4.5.
7.2 After expiry of the agreed archiving period, the Producer shall be entitled to offer the Client further storage of the copy documents in writing for a fee. If the Client waives this right or does not respond to the request within 30 days, the Producer shall be entitled, but in no way obliged, to send the documents to the Client or to destroy them.
7.3 Specially produced props, drawings, files, etc. shall only be stored at the request and expense of the Client. Subject to instructions to the contrary, the producer is entitled to destroy the above-mentioned materials or to transfer them into her possession after completion of the project.
8. TERMS OF PAYMENT
Unless otherwise agreed in the contract for work and services, the following terms of payment shall apply:
8.1 For advertising spots and other commissioned productions:
- 1/2 when placing the order;
- 1/4 before the planned first day of shooting (respectively the planned first production of sound or image data);
- 1/4 after final acceptance and before delivery.
8.2 For production services and consulting mandates:
- 1/2 when placing the order;
- 1/2 after delivery or execution of the service.
8.3 If one of the aforementioned or individually agreed partial payments is not received on time, the Producer shall be entitled to postpone or cancel the production, with full indemnification of the Producer by the Principal.
If the project is continued, any additional costs incurred shall be borne by the Client.
8.4 Until full payment of the remuneration (including all additional costs incurred up to delivery) has been made, the Client is only permitted to use the work or parts thereof on a revocable basis and may be prohibited by the Producer until payment of the payment with which the Client is in default has been made.
9. MISCELLANEOUS PROVISIONS
9.1 The occurrence of insolvency or the opening of bankruptcy, estate or similar proceedings against the assets of a party shall entitle the other party to immediately withdraw from this contract.
9.2 This agreement and all individual transactions based thereon are subject to Swiss law.
9.3 All disputes arising out of or in connection with this Agreement and the individual transactions concluded on the basis thereof shall be subject exclusively to the jurisdiction of the ordinary courts at the registered office of the Producer.
9.4 The place of performance shall be the registered office of the Producer.
9.5 In the event of a contradiction between these GTC and individual agreements between the parties concerning the corresponding work, the individual agreements shall take precedence over the GTC.
9.6 In the event of a contradiction between these General Terms and Conditions and other General Terms and Conditions or other general terms and conditions of contract or delivery etc., these General Terms and Conditions shall take precedence over the other provisions. This shall also apply if such other provisions contain a priority clause on their part.
9.7 In August 2017, the management of Rise and Shine Films LLC prepared the GTC. As of September 1, 2017, the present version shall apply, which therefore applies to all contracts concluded after September 1, 2017 for the production of an audiovisual work, parts thereof and consulting mandates.
Rise and Shine Films LLC, Berne, 15 August 2017