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Terms and conditions

GENERAL TERMS AND CONDITIONS OF ZOOOM PRODUCTIONS GMBH

Last update April 2010

GENERAL TERMS & CONDITIONS FOR CLIENTS: 

1. GENERAL INFORMATION, AMBIT AND CONTRACT CONCLUSION

1.1. The following Terms and Conditions („TC“) govern all business relations between ZOOOM Productions GmbH as the agent („Agency“) and the client as the customer („Customer“). The relevant version as amended periodically is applicable at the time of contract conclusion.

1.2. Notwithstanding acknowledgment, aberrant, conflicting or amendatory terms and conditions will not become subject of the TC, unless their validity is expressively approved by the Agency in writing.

1.3. Quotations by the Agency are subject to change and without any commitment on the part of the Agency.

1.4. Orders or modifications thereof are binding only if submitted in writing.

1.5. The contract will come about only after written confirmation by the Agency.

2. SIZE AND TRANSACTION OF ORDER, COOPERATION OBLIGATION OF THE CUSTOMER

2.1. The range of activities results bindingly from the acknowledgment of the Agency or from the service specification in an existing Agency contract. Within the framework specified by the Customer the Agency has freedom of scope in the fulfillment of the order.

2.2. All performances of the Agency (in particular all preliminary drafts, layouts, final artwork, proofs, blueprints, copies, color printouts and digital files) must be reviewed and released by the Customer within three workdays upon receipt. Should the release be delayed the Customer's approval shall be presumed.

2.3. The Customer shall make all information and data required for the provision of a service available to the Agency in a timely manner and in extenso. Furthermore, he shall inform the Agency of all circumstances that are of substance to the performance of the order, regardless of whether those emerge only in the course of the implementation of the order. The Customer shall bear all expenditures arising from incorrect, incomplete or belatedly modified information by the Customer resulting in extra operations that must be repeated by the Agency
or which are delayed.

2.4. Furthermore, the Customer is bound to verify possible copyrights, trademarks or other rights of third parties regarding the documents submitted for the performance of the order (photos, logos, etc.). The Agency is not to be made liable for infringements of such rights. The Customer undertakes to indemnify and hold harmless the Agency respectively in the event of being claimed against. He shall compensate the Agency for all losses incurred through claims laid by third parties.

2.5. The Agency, at its sole discretion is entitled to carry out the services alone, to employ competent third parties in the supply of services covered by the contract as vicarious agents and/or to substitute services.

2.6. The assignment of third parties in line with an external service will take place on the Agency's own behalf, but in all events on account of the Customer. The Agency shall select third parties carefully and make every effort to ensure the required professional qualification.

2.7. Should the Agency commission essential or stipulated external services the respective contractors are not vicarious agents of the Agency.

3. DEADLINES AND DELIVERY TERMS

3.1. The denoted delivery or service terms are held to be only proximate and noncommittal, provided that they were not explicitly stipulated to be mandatory. Mandatory scheduling is to be recorded in writing or to be approved in writing by the Agency, respectively.

3.2. In the case of a delay of a delivery/service of the Agency due to events the Agency is unaccountable for, e.g., force majeure and other unforeseeable events unpreventable through reasonable means, contractual obligations are suspended for the duration and the scope of the hindrance. The deadlines are extended accordingly. The Customer and the Agency are entitled to withdraw from a contract provided that such delays persist for more than General Terms and Conditions for Customers two months.

3.3. Should the Agency be behind schedule the Customer may withdraw from the contract only when the Agency has been granted a grace period of 14 days minimum and the grace period has elapsed effectless. Claims for damages of the Customer due to failure of performance or default are foreclosed provided that no evidence of deliberate intention or culpable negligence has been provided.

4. PREMATURE TERMINATION

4.1. The Agency may terminate the contract for cause with immediate effect. Cause is given when
a) the performance of the service becomes impossible for reasons accountable by the Customer or is being
further delayed after expiration of a granted grace period of 14 days;
b) the Customer continues to transgress constitutive obligations notwithstanding written notice of 14 days, e.g.,payment of an amount due or cooperation obligations;
c) justifiable reservations regarding the creditworthiness of the Customer persist and upon the Agency's demand he fails to make a deposit or offer suitable collateral prior to any performances of the Agency;
d) the Customer has been adjudged bankrupt or bankruptcy and composition proceedings have been dismissed due to lack of self-liquidating assets or when the Customer suspends payments.

4.2. The Agency may terminate the contract for cause with immediate effect. Cause in particular is given, when the Agency continues to infringe integral provisions of the contract notwithstanding a written reminder with a grace
period of 14 days in which to rectify the default in the performance.

5. FEES, PAYMENTS AND RESERVATION OF PROPRIETARY RIGHTS

5.1. The Agency is entitled to payment for every single service upon provision unless agreed otherwise. For the cover of expenditures the Agency is entitled to demand advance payment. Furthermore, the Agency is entitled to provide interim billing or advance invoices, respectively or to draw installments.

5.2. Fees are quoted net plus statutory sales tax. In particular cases, failing express agreement the Agency is entitled to fees of a market standard amount for services rendered and, if applicable, for the cession of copyright and trademark utilization.

5.3. Such Agency services not explicitly covered by the agreed upon fee shall be compensated for separately. The Customer is required to refund the Agency for all cash expenditures accrued.

5.4. Cost estimates of the Agency are noncommittal. The Agency shall advise the Customer if it is to be anticipated that the actual costs will exceed the assessed costs of the written estimate of the Agency by more than 15 %. Should the Customer not object in writing within three workdays of the advice, concurrently disclosing more favorable alternatives the cost overrun is to be assumed accepted by the Customer. Cost overruns of up to 15 % are considered to be approved by the Customer from the outset. The Agency is not required to specifically advise the
Customer in this case.

5.5. The Agency is entitled to the agreed upon fee even for those services that, for whatever reason are not being realized by the Customer. The Crediting Clause of § 1168 of the German Civil Code is foreclosed. The Customer does not acquire any right of utilization whatsoever of services already rendered by payment of remuneration. In fact, unimplemented drafts, designs, and other documentation must be returned to the Agency without delay.

5.6. The account is due net upon receipt unless special payment terms have been agreed upon in writing on an individual basis. The same goes as well for the further charging of cash expenditures and other expenses. The merchandise delivered by the Agency remains the property of the Agency until the remuneration including all
lateral liabilities have been paid in full.

5.7. In case of the Customer's default the statutory moratory interest rates apply to the amount applicable to transactions between entrepreneurs. Furthermore, in case of default the Customer is obliged to reimburse the Agency all accrued collection expenses and dunning fees inevitable for an expedient litigation. This comprises at least the standard cost of two notices as well as one notice of a law office in charge of execution. The Agency explicitly reserves the right of enforcement of further rights and arrears.

5.8. In the case of the Customer's default the Agency is entitled to invoice any accumulated claims for performances and partial performances rendered within the scope of all other contracts closed and to demand immediate payment. Moreover, the Agency is not indented to render any further services until the outstanding amount has General Terms and Conditions for Customers been canceled. If partial payments have been agreed, disregard of rates or collateral charges entitles the Agency to demand payment of all the outstanding amounts.

5.9. The Customer is not entitled to charge his receivables up against receivables of the Agency, unless the Customer's receivables have been acknowledged by the Agency in writing or determined by a court decision.

6. COPYRIGHT AND TERMS OF USE

6.1. All Copyright is owned by the Agency. The Agency reserves the right to determine whether to label the works developed by the scope of services and if yes, in what manner.

6.2. The Agency reserves the exclusive right to grant license or right of utilization, which may be restricted temporally or locally. The concession of the respective license or right is subject to a separate agreement. Should no separate agreement have been made as to the scope of the license or right, a temporally unlimited license of utilization localized to the Austrian territory applies by default, however granted exclusively for the works created according to the scope of services rendered. Products that are not encompassed by the scope of services rendered are not furnished with any automatic license or right.

6.3. The Agency exclusively precludes the adaptation right by the customer or third parties, unless the Agency explicitly consents. If the adaptation right has been issued, the result may not be labeled with an author's designation in a manner that imparts the adaptation with a semblance of the original.

7. LABELING

7.1. The Agency is entitled to indicate the Agency as author of all advertising media and all promotions, as the case may be. The Customer is not entitled to any claims in return.

7.2. The Agency is entitled to refer to existing business relations with the Customer, using his name and corporate symbol on the Agency's own communication media, in particular his internet website.

8. WARRANTY

8.1. The Customer must advise in writing of possible deficiencies immediately, at all events within seven days after delivery/performance by the Agency, hidden defects within seven days after identification. Otherwise the service
shall be deemed to have been accepted, in which case no warranty claims or claims for compensation or avoidance on account of mistakes shall be recognized.

8.2. In the event of justifiable claims, which have been received by the Agency within the agreed period, and which the Agency is clearly and unequivocally responsible for then the Agency undertakes to rectify the defects in an
appropriate manner or provide an appropriate replacement service within a reasonable period. Should the improvement of the service prove impossible or should it require disproportionately high expenditures from the Agency, the latter is entitled to refuse improvements. In this case the Customer is entitled to the compulsory rights of conversion and reduction. In the case of improvement the customer is incumbent upon the transfer of the defective (physical) objects at his own expense.

8.3. It is for the Customer to ensure that the service complies with all legal requirements, in particular with the requirements regarding competition, brand names, copyright and administrative law. The Agency is not liable for
the accuracy of contents that were provided or authorized by the Customer.

8.4. The period of warranty is 12 months after delivery/performance. The right to recourse against the Agency according to § 933b Sec. 1 Civil Law Code expires 12 months after delivery/performance. The assumption ruling of § 924 Civil Law Code is foreclosed.

9. LIMITATION OF LIABILITY AND INDEMNIFICATION CLAUSE

9.1. The Agency's liability for material or financial damages to the Customer is foreclosed in cases of slight negligenceregardless of whether the damages are proximate or collateral, result in lost profit or consequential harm, are dueto delay in performance, impossibility thereof, positive breach of obligation, default upon completion of thecontract, inadequate or incomplete service. The burden of proof of gross negligence lies with the customer.

9.2. Any liability of the Agency for claims lodged against the Customer on account of services rendered by the AgencyGeneral Terms and Conditions for Customers are expressly foreclosed when the Agency has complied with his information obligation or when such obligationwas not in evidence. Slight negligence does not cause any damage. The Agency is not liable for litigation costs,the Customer's own attorney fees or judgment publication costs, neither for possible compensation claims nor formiscellaneous claims of third parties. The Customer must save the Agency harmless in this regard.

9.3. Compensation claims of the Customer expire after six months' awareness of the damage. In any case they fallunder the statute of limitations three years after the Agency's infringement.

10. PROPRIETARY INFORMATION

The Customer expressly agrees that the Agency automatically determines, processes, and stores the datadisclosed by the Customer (name, address, email, credit card data, bank transfer data) for the purpose of contractfulfillment and customer support as well as for the Agency's own advertising purposes in the form of automaticdata processes. The customer agrees to receive electronic mail for promotional purposes until revoked.

11. FINAL CLAUSE

11.1. Place of fulfillment is the registered office of the Agency. For the legal venue for all disputes arising directly or indirectly from the contract or these general terms and conditions the Austrian court of law competent for the seat
of the registered office of the Agency will be stipulated. Regardless of this agreement conferring jurisdiction the Agency is entitled to lodge a claim against a Customer at any place and before any court of law that has jurisdiction according to statutory provisions – in particular the court of the Customer's domicile.

11.2. The laws of the Republic of Austria shall govern the contract the rights and the obligations of the parties hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is foreclosed.

11.3. The effectiveness of other provisions is not affected should individual provisions of the contract or of these general terms and conditions be or become wholly or partially ineffective. The wholly or partially ineffective provision shall be regarded as being replaced by such provision that comes as close as possible to the economic intent.

 

GENERAL TERMS & CONDITIONS FOR SUPPLIERS:

1. GENERAL INFORMATION, AMBIT AND CONTRACT CONCLUSION

1.1. The following Terms and Conditions („TC“) govern all business relations between ZOOOM Productions GmbH („Agency“) and the contractor („Contractor“) arising from an already established contractual relationship between the Agency and its client or customer („Client“), irrespective of whether the Agency concludes the contract on its own behalf or under the name of the client, in any case however on account of the Client.

1.2. Aberrant, conflicting or amendatory terms and conditions will not become subject of the TC unless their validity is expressively approved by the Agency in writing.

1.3. Quotations by the Agency are subject to change and without any commitment on the part of the Agency.

1.4. Orders or modifications thereof are binding only if submitted in writing.

1.5. The contract will come about only after written confirmation by the Agency.

2. SIZE AND TRANSACTION OF ORDER

2.1. The quantitative scope of services results from the Agency's notice of award, which is binding. Optional surplus quantities shall not be remunerated – even though they may have been essential for the production. The scope of services also comprises designs and quotations, in particular those for alternative solutions.

3. DEADLINES AND DELIVERY TERMS

3.1. Deadlines and delivery terms agreed upon in writing between the Agency and the Contractor are binding.

3.2. Should the Contractor be behind schedule the Agency may withdraw from the contract after the expiration of a grace period of 14 days and demand compensation for failure of performance or default.

3.3. If the Contractor delivers ahead of schedule the Agency is not obliged to accept the service on the one hand and on the other hand the due date for payment claims agreed upon shall not be altered.

3.4. The Contractor is obliged to immediately inform the Agency in writing of an apprehended delay in delivery. If it is foreseeable that delivery/performance cannot be provided on schedule and consequently a considerable interference with production is to be expected with the Agency and/or its Client the Agency is entitled to withdraw from the contract.

3.5. Delivery takes place at the Contractor's risk and expense and to the delivery address specified by the Agency.

4. ACCEPTANCE, NOTICE OF DEFECTS, WARRANTY AND SUBSEQUENT IMPROVEMENT

4.1. The acceptance of the delivery/performance is effected only when the Agency has expressly acknowledged it as being as stipulated in the contract.

4.2. The acceptance of the contractual object and payment before deficiency statement do not constitute recognizance of a faultless delivery and performance, or a waiver of the right of reprimand. This goes as well for the delivery receipt of inward goods by the Agency or the Client.

4.3. The Contractor expressly waives his right stipulated in § 377 of the Austrian Business Code which for want of a notice of defects forecloses the enforceability of a warranty claim, compensation of damages for the deficiency itself and due to an error regarding the faultlessness of an item.

4.4. Regarding the deliveries of the design or production of promotional material the assigned tasks must have been solved and comply with the latest state of technology and, where applicable, conform with the provided drafts and instructions. Provided the Contractor has submitted work samples prior to the contract award, the deliveries must be on a level with the technical, promotional and artistic standard of these samples.

4.5. In the case of a notice of defects the Agency is entitled to improvement or replacement of the delivery/performance by the Contractor. The Contractor is obliged to immediately redeem the rejected delivery and performance. In case of negligent refusal of acceptance of the return the Agency stores the items until pickup, however no longer than three months at Contractor's risk and expense. After expiry of this period and written General Terms and Conditions for Subcontractors notice given to the Contractor the Agency is entitled to destroy the items at the Contractor's risk and expense after a grace period of 14 days.

5. FEES, INVOICE AND PAYMENT

5.1. The costs agreed upon are quoted net plus statutory sales tax and are binding.

5.2. The Contractor shall be paid separately for additional expenditure that may arise due to amendment and complement requests by the Client after contract award only when he submits a notice regarding the claim for payment to the Client immediately and in writing.

5.3. Eventual packaging costs shall not be refunded.

5.4. The invoice must be forwarded to the Agency immediately after delivery/performance. Unless particular payment terms have been stipulated in individual cases payment of the invoice amount shall take place within 14 days after receipt less 2% discount or within 30 days after receipt due net.

6. SPECIAL PROVISIONS FOR PHOTOGRAPHERS AND STYLISTS

6.1. In the name of the Client the Agency is entitled to specify persons participating in the design of a photo motif (such as models, makeup artists, stylists and their costumes), props, specific technical effects (such as particular lighting) as well as the location. This is essential in regard to an optimal implementation of the campaign concept endorsed by the Client. The Contractor has to close the required employment, purchase and lease contracts by order and on account of the Client. The Contractor has to close the contracts mentioned above in line with the quotations approved by the Client and in line with the special provisions valid for photographers and stylists.

7. INSURANCE

7.1. The Contractor undertakes to procure adequate insurance for potential damages of all kind in conjunction with the fulfillment of the assignment. In particular cases the Agency may request proof of insurance.

7.2. The Contractor carries the cost for the insurance. The costs are on account of the Agency only when the Agency commissions the Contractor in writing to procure the insurance is by.

8. PROPRIETARY RIGHT OF UTILIZATION/ANCILLARY COPYRIGHT

8.1. After payment the proprietary right of utilization and ancillary copyrights of the Contractor as well as the right to use the image of the model – regarding the contract subject respectively – are transferred to the Client without temporal or regional limitations for his exclusive utilization. Purpose of usage: promotional and non-promotional, primary and multiple utilization; type of use: All conceivable as well as new future types of use, all conceivable as well as new future reproduction techniques; further authorizations: utilization of parts of the contract subject as well (also utilization of clippings, photo-composing, film-composing), modification right, complete or partial transfer of the exclusive right of utilization to a third party.

8.2. In his quotation the Contractor must inform the Client whether and which of, as the case may be, the utilization rights to be transferred to him according to section 8.1. he has transferred to collecting societies.

8.3. Insofar utilization rights have not been transferred notwithstanding section 8.1. the Client may subsequently claim their transfer wholly or partially in exchange for an adequate compensation. Insofar as possible the compensation conforms with what has already been agreed with the Contractor or otherwise with the fees of the collecting societies; as long as the latter do not interfere the compensation shall be assessed by the Client based on fair judgment, verifiable by law.

8.4. Should the Contractor appoint collaborators and/or subcontractors and/or models in fulfillment of the contract he is obliged to acquire their utilization rights and transfer them to the Client to the extent as stipulated in section 8.1. for the Contractor's own performances. In addition, he has to entail the same obligations on these persons for their performance contribution in favor of the Client as he must assume for his performance himself.

8.5. The Contractor guarantees that third party rights on his contractual performance that may interfere with the transfer of rights and/or the stipulated utilization of his performance (e.g., personal rights of pictured persons) do not exist.

8.6. The Contractor has to provide the utilization rights that are to be transferred by him comprehensively according to section 8.1., as well as restricted to the type of advertising media to be commissioned for the contract subject, but in other respect according to section 8.1. Any further restrictions are to be explained in an additional alternative quotation. The working fee is to be disclosed separately, it is included in the remuneration agreed upon.

8.7. The Contractor is obliged to have collaborators and/or subcontractors and/or models sign a declaration on the transfer of utilization rights and to submit it to the Agency.

8.8. The Agency shall be entitled but not obligated whatsoever to name the Contractor or any authors, inventors or designers in connection with the utilization of the services/works. The Contractor shall also apply this to any involved third parties.

8.9. In addition, the Agency has the right to register provided services/works as a trademark, registered design, copyright, utility model, patent or other intellectual property right. The Contractor waives its right to be mentioned in connection with the registration.

9. ACQUISITION OF OWNERSHIP, CUSTODY, ASSURANCE AND LIEN

9.1. With payment of the royalties for illustrations as well as the reproduction material manufactured or procured by the Contractor for the fulfillment of the contract (such as printing material like typesetting, photographs, stamping die molds, lithography, films, tools, electronic files etc. including drafts not delivered and archival backup copies) the Client gains ownership or unrestricted utilization rights. From this moment on the Contractor carefully stores these items for the Client for up to a maximum of 24 months. At the end of this period and after a written notice to the Client with a deadline of at least six weeks the Contractor is entitled to destroy the items at his own expense.

9.2. The Contractor has to store an archival backup copy of every electronic file on a separate storage medium at his own expense and to store it apart from the primary storage medium.

9.3. Regarding the items that the Contractor receives from the Agency or the Client the Contractor does not gain ownership nor any exploitation rights. He may use these items only for the transaction of the contract. The Contractor must store them carefully and return them immediately upon demand.

9.4. The Contractor does not retain a possessory lien on the items to be returned.

10. CONFIDENTIALITY

10.1. The Contractor has to treat all information and documentation to which he gains access in the course of contract development as well as the commissioned promotional media and items according to section 9. as strictly confidential. The duty to observe secrecy remains effective even after completion of the contract and even then if the contract does not come to conclusion.

10.2. The Agency remains the owner of all provided documents and fully retains all intellectual property rights. Upon the Agency’s request, the Contractor shall return or destroy all provided documents.

10.3. The Contractor may use copies of the contractual performance for his own advertising only with prior written approval by the Agency.

10.4. The Contractor commits to impose a confidentiality agreement in writing on his collaborators, subcontractors, models, etc. involved with the implementation of the contract, insofar this is essential for safeguarding confidentiality.

10.5. Furthermore, the Contractor shall disclose any received information only to those employees who need the information to work on the project.

10.6. The Contractor is only permitted to use any produced materials as a work reference after prior approval by the Agency.

10.7. The Contractor shall ensure that all provided information is properly protected against theft, damage, loss or unauthorized access.

10.8. A breach of confidentiality may entail a contract penalty of € 6,000.00 for each single offence. This contractual penalty shall not depend on any actual damage suffered, it shall be due for each instance of infringement, regardless of negligence, and shall not be subject to an equitable review by the courts. Payment of the contractual penalty shall not affect the Agency’s right to claim damages exceeding the amount of the contractual penalty.

11. TRANSFERABILITY OF RIGHTS, RETENTION

11.1. A relinquishment of the Contractor's rights from the contract, particularly the claim for remuneration is possible only with prior sanction of the Agency.

11.2. The Contractor is not entitled to charge his own receivables against the Agency's receivables unless the Contractor's receivables have been acknowledged by the Agency or were determined by a court decision.

11.3. A retaining lien for the Contractor is not applicable.

12. LIABILITY

12.1. The contract must be conducted through the Agency in any case, even when the Agency has commissioned it on behalf of a third party. Any liability of the Agency for the Client's contract fulfillment or for his credit rating that was not verified by the Agency is excluded in this case.

13. COMMITMENT TO STANDARDS

13.1. The Agency is committed to the FTA’s Business Social Compliance Initiative (BSCI) for improving social standards in the global supply chain of commerce and expects the Contractor and all of its subcontractors to respect the standards outlined in this initiative as well.

14. FINAL CLAUSE

14.1. Place of fulfillment is the registered office of the Agency. For the legal venue for all disputes arising directly or indirectly from the contract or these general terms and conditions the Austrian court of law competent for the seat of the registered office of the Agency will be stipulated. Regardless of this agreement conferring jurisdiction the Agency is entitled to lodge a claim against a Customer at any place and before any court of law that has jurisdiction according to statutory provisions – in particular the court of the Customer's domicile.

14.2. The laws of the Republic of Austria shall govern the contract the rights and the obligations of the parties hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is foreclosed.

14.3. The effectiveness of other provisions is not affected should individual provisions of the contract or of these general terms and conditions be or become wholly or partially ineffective. The wholly or partially ineffective provision shall be regarded as being replaced by such provision that comes as close as possible to the economic intent.