Terms and Conditions (Last updated: 11.03.2022)
§ 1 Scope and Form
1) Our services and offers are provided exclusively on the basis of these Terms and Conditions. They form an integral part of all contracts we enter into with our customers (hereinafter referred to as "Customer").
2) Any conflicting terms and conditions of the Customer or third parties shall not apply unless we have expressly agreed to them in writing. Our Terms and Conditions shall also apply if we provide services without reservation while being aware of the Customer's conflicting or deviating terms and conditions.
3) Individual agreements and provisions in our offers and order confirmations take precedence over these Terms and Conditions.
4) Legally relevant declarations and notices submitted by the Customer regarding the contract (e.g., setting deadlines, notices of defects, withdrawal, or price reduction) must be made in writing. For the purposes of these Terms and Conditions, "in writing" includes both written and text form (e.g., letter, email, fax).
§ 2 Offer and Conclusion of Contract
1) All offers are subject to change and non-binding unless they are expressly marked as binding. An order placed by the Customer constitutes a binding offer to contract. Unless otherwise specified in the order, we are entitled to accept this offer within 4 weeks of receipt. If our offers are marked as binding, they remain valid for 2 weeks from the date of the offer; the time of receipt of the acceptance by us is decisive.
2) The contract is only concluded upon our confirmation of the order in text form or through the mutual signing of a production contract, unless our offer was already expressly marked as binding.
§ 3 Subject Matter of the Contract / Services
1) The production is carried out based on the concept approved or provided by the Customer and in accordance with the provisions set out in writing in the production contract or the accepted offer.
2) If agreed upon in the offer, the parties shall conduct a conception phase in accordance with § 4.
3) We are responsible for the artistic and technical design of the film. We shall inform the Customer or their authorized representative about the location and planned procedures for preparatory work, filming, and post-production.
4) We will provide the Customer with the opportunity to be present during all key phases of film production. Before production begins, the Customer shall appoint a responsible employee (authorized representative) who is solely authorized to make decisions and issue instructions. In case of doubt, instructions given by this representative during filming and post-production will modify the basis of the order.
5) If the Customer wishes to take still photos or film footage of the shoot (making-of), they must do so at their own risk and responsibility and obtain the necessary consent from identifiable persons, particularly the crew and cast. We reserve the right to take film and photo footage of the shoot for our own purposes.
6) The production will be delivered in HD unless otherwise agreed in an individual contract. Additional delivery formats, encodings, transfer services, or other format changes are subject to additional charges and will be billed based on time and effort. If the Customer requests the raw footage or the master file of the finished production, these are subject to additional charges.
7) Production will be mastered in a 1920x1080 timeline (ProRes or higher), unless otherwise agreed upon by the parties. The shooting format may differ from the master format, and we generally have the freedom to choose the shooting format.
8) Munich is the agreed-upon location for filming, unless the parties have mutually agreed on a different location. Should filming or parts thereof take place outside a 50 km radius of the agreed location, the resulting travel expenses and costs for transporting materials will be charged based on actual expenditure, provided these are not already included in the estimate or arise additionally.
9) We schedule the necessary resources for our clients according to an agreed-upon timeline. If no timeline has been established, we are free to plan the schedule as we see fit. Should booked dates be shifted for reasons beyond our control, any resulting additional costs will be borne by the client. Should the client request a postponement, any resulting additional costs will also be borne by the client. Unless otherwise agreed, payment milestones for postponed services remain based on the originally agreed-upon schedule.
§ 4 Concept Phase
1) As a general rule, the parties will first conduct a concept phase, provided this has been agreed upon. The goal of this phase is to create a concept, e.g., in the form of a script.
2) We commit to providing one (1) draft for the concept, unless otherwise agreed.
3) The client has the right to one round of changes/corrections to the draft. Any resulting changes are covered by the agreed-upon fee, provided they do not result in an entirely new draft. A new draft is considered to exist if the changes require 50% or more additional time compared to the initial draft. In this case, we are entitled to charge for all additional expenses incurred for the new draft.
§ 5 Prices and Payment
1) The prices we quote at the time of contract conclusion apply; these are net prices in Euros plus the applicable VAT and any costs for packaging and shipping.
2) Unless otherwise agreed in an individual contract, the agreed fee is payable as follows: 25% upon order placement, 25% upon delivery of the script, 25% upon completion of pre-production, and 25% upon delivery of the final film. If the contract is based on a cost estimate, the following applies: payment installments refer to the total estimated price; any discrepancies between the calculated and actual costs will be settled with the final installment.
3) The contractually agreed price includes all production costs as well as the granting of rights to the production to the agreed extent. Unless otherwise agreed, rights are granted for internal use only.
4) The calculated working time for film and photo shoots is a maximum of 10 hours per shooting day, including travel to and from our office and a mandatory 45-minute break. If additional hours (overtime) are incurred on the shooting day, these are subject to additional charges. For every hour or part thereof, a fee of 10% of the agreed daily rate will be charged, plus an overtime surcharge as follows:
a) For the first and second hour of overtime, a surcharge of 25% on the overtime rate (= 10% of the agreed daily rate) will be charged for each hour.
b) For the third and fourth hour of overtime, a surcharge of 50% on the overtime rate (= 10% of the agreed daily rate) will be charged for each hour.
c) For more than 4 hours of overtime, a surcharge of 75% on the overtime rate (= 10% of the agreed daily rate) will be charged for each hour.
d) For work on Sundays and public holidays, a surcharge of 100% on the daily rate will be charged if the client requests that these activities (filming, preparation, post-production, etc.) take place on these days despite our notification that a surcharge will apply. Any additional effort beyond the original estimate must be paid for separately.
5) Weather-related postponements of the scheduled shoot (weather risk) are generally not included in the calculated production costs. Any additional costs resulting from weather-related postponements will be invoiced based on actual expenditure. This also applies to postponements due to force majeure.
6) Failures of equipment, personnel, contributors, props, locations, etc., may necessitate a reshoot. The resulting additional costs are generally not included in the calculated production costs. Any additional costs incurred will be invoiced based on actual expenditure. At the client's request and expense, appropriate insurance (such as negative or property damage excess insurance) can be taken out; the client must communicate such a request by the time the contract is concluded. Our liability for the listed risks is excluded in accordance with industry standards.
7) All billing is conducted in euros. The customer bears the exchange rate risk. In the case of international bank transfers, the customer is responsible for any bank fees incurred.
8) If the customer makes decisions during the creative process that lead to deviations from the original briefing or previous project stages, we will endeavor to accommodate these change requests within the scope of our available resources. If this is not possible, additional requests will be billed based on the effort involved, subject to prior consultation. Additional costs of up to 10% of the total order value do not require a separate written order confirmation and will be billed accordingly based on the effort incurred.
9) We are entitled to reimbursement for our expenses. To the extent that these are not included in the quote or if additional costs arise due to extra shooting days, overtime, or additional resources, they will be governed by the following provisions:
a) Accommodation and travel expenses will be reimbursed at cost upon proof of expenditure, with per diems charged at the maximum tax-deductible rates. We reserve the right to choose the mode of transport at our reasonable discretion. We will only undertake travel where costs are disproportionate to the total fee with the express approval of the customer.
b) Expenses that we deem necessary for the procurement of content elements and which have been coordinated with the customer (e.g., license fees) will be reimbursed at cost upon proof of expenditure (plus a 20% handling fee).
c) Travel time is considered working time and will be billed at 50.00 euros per hour. Travel time is billed in one-minute increments.
10) Invoices are due immediately and must be paid within 14 days without any deductions, unless otherwise agreed in writing. The date of payment is determined by the date the funds are received by us.
11) Offsetting against customer counterclaims is only permitted if the counterclaims are undisputed or have been legally established. The customer is only entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
§ 6 Rights of Use
1) The scope of the granted rights of use is determined by the provisions set out in the quote or the contract.
2) Rights managed by collecting societies such as GEMA are not included in the transfer. The customer is advised that they must personally register the use of the commissioned concept/film, etc., as well as any musical works used therein, with the relevant collecting society regarding the intended use and pay the corresponding fees.
3) The customer is advised that they must personally register the use of the commissioned concept/film, etc., as well as any musical works used therein, with the relevant collecting society regarding the intended use and pay the corresponding fees.
4) Further excluded from the transfer of rights are format rights as well as rights to drafts, raw data, samples, calculations, shooting scripts, and other documents and aids, unless the parties have reached a different agreement. Individual elements used within the scope of the service (e.g., music, stage design, graphic elements, characters, etc.) are only covered by the transfer of rights within the scope of the agreed cinematic exploitation of the work subject to the contract, and not beyond that.
5) The granting of rights only becomes effective pursuant to § 158 (1) of the German Civil Code (BGB) once the customer has paid the contractually owed remuneration in full, including the calculation, expenses, and any additional costs incurred. We may provisionally permit the use of the service subject to the contract even before this time. A transfer of rights under this paragraph does not occur through such provisional permission.
6) Use of the concept/production outside the content-related, geographical, and temporal scope of the rights granted in the quote/contract is not permitted and must be agreed upon separately.
7) To secure copyright exploitation rights, the source material (image and sound, in particular negatives), the raw material, and the master tape remain with us. We undertake to back up the source material and the master tape of the delivered film work on LTO tapes and to store or archive these tapes for a fee. The retention period is two years. Before the respective period expires, the customer or their authorized representative must request a further retention period in writing. The storage costs amount to 1% of the production costs, but at least 190 euros plus VAT; these costs are borne by the customer. The customer is advised that upon delivery of the production, the risk for the source material and the master tape passes to the customer, even if the film work is stored by us, by a copying facility commissioned by us, or in an archive commissioned by us.
8) Insurance for LTO backups will only be taken out at the express request of the customer and against reimbursement of costs; liability for damages resulting from data loss is excluded.
9) Should the customer wish for storage beyond the agreed storage period, they must inform us in writing before it expires, and we will submit an offer for the extension of the storage period. If we do not receive such information, we are entitled to delete the material without further inquiry.
Section 7 Customer Cooperation Obligations
1) The customer is obligated to perform all necessary acts of cooperation, in particular to provide all materials and resources to be incorporated that they wish to have considered in a form or quality suitable for implementation upon request without delay, and to make all other resources required for the service available immediately. The customer must provide all materials intended for use in a suitable format or resolution. For the purposes of this agreement, "resources" refers to all persons and objects required for a film/post-production, e.g., premises, props, materials (film stock, music, graphics, etc.), licenses for copyrighted or otherwise commercially protected rights, performers, and film personnel (director, cameraman, editor, etc.).
2) Insofar as materials and resources are provided by the customer, the following applies:
a) The customer warrants that all materials and resources provided are free from third-party rights, in particular that no copyrights, personality rights, trademark rights, design rights, registered design rights, patent rights, etc., are infringed, and that no legal infringements regarding these are known or are being committed through their transmission/use. The customer is solely responsible for materials and resources they provide.
b) If we are held liable by a third party due to materials and resources provided by the customer for injunctive relief, removal, disclosure, reimbursement of expenses, or damages, the customer shall indemnify us against such expenses, including reasonable costs of legal defense. This applies in particular to infringements of copyright, trademark, naming, data protection, and competition law.
c) The customer further indemnifies us, our employees, agents, and vicarious agents against all claims or demands by third parties—including reasonable costs of legal defense—arising from or in connection with this contract and alleged breaches of this agreement or the alleged infringement of third-party rights.
d) The customer hereby grants consent for the processing of an object to be depicted or resources provided by them, insofar as professional production requires it. Should the objects represent a special, non-obvious economic value, the customer is obligated to inform us of this value so that appropriate insurance can be taken out or so that any impact on the object can be avoided if necessary. If the customer does not inform us, our liability for any damage to the object is excluded, provided that the processing/impact on the object was necessary for professional production.
e) Insofar as property damage or personal injury is caused due to or through the use of the customer's resources, the customer is responsible for this. The customer must insure the resources at their own expense.
f) We will inform the customer immediately, within the scope of what is legally permissible, if third parties or authorities assert claims against us or if there are indications that a breach of statutory and/or regulatory requirements or an infringement of third-party rights attributable to the customer has occurred.
g) The customer will support us to the best of their ability in our legal defense. If the alleged legal infringement is based on the fact that works used by the customer or at the customer's instigation infringe copyrights, trademark rights, and/or other third-party industrial property rights, we may demand that the customer also cover the costs of any damages in addition to the costs of reasonable legal defense.
h) We are entitled to immediately remove or deactivate content if there are indications that it could infringe third-party rights. Indications of illegality and/or legal infringement exist in particular, but not exclusively, if authorities and/or other third parties take measures of any kind against us and/or the customer and base these measures on the allegation of illegality and/or legal infringement.
3) If the customer commissions third parties to assist with the agreed services or books other external services through third parties, the customer is responsible for the organizational and temporal coordination of these third parties with our activities, unless otherwise expressly agreed with us.
Section 8 Procurement of Resources by Us
1) Unless otherwise agreed, the customer must procure the performers, equipment, premises, or licenses involved in the production and provide them in consultation or at the latest by the first day of shooting. If the customer wishes to use musical works, the customer must procure the necessary rights and make them available to us in a suitable form, in particular by registering them with collecting societies and paying the associated fees. If a reshoot or an extension of the shooting schedule becomes necessary, the customer must provide the resources for this free of charge.
2) Insofar as we have been commissioned to procure resources, we will—where possible—first use resources from our own assets/personnel/premises. The costs incurred for this are included in the calculation. We remain the owner or holder of rights in rem regarding the licenses/equipment contained therein, unless a different agreement is made at the time of placing the order.
3) Insofar as it is contractually agreed that we procure the resources, we will make the necessary bookings in the name of and for the account of Panda Pictures. Should we procure resources in the name of the customer as agreed, the customer grants us a corresponding power of attorney upon conclusion of the contract. If procurement in the name of and by power of attorney of the customer is not possible in this case, the resources will also be procured in our name and for our account. In this case, the customer undertakes to indemnify us in the internal relationship against all liabilities arising from the procurement.
4) We assume no guarantee for the availability of the desired resources. If the desired resource(s) should no longer be available, we will endeavor to procure an alternative, with the selection being at our discretion; the additional costs for this shall be borne by the customer. Should no alternative resource be available, we will submit alternative solutions for how the filming can be arranged otherwise.
5) If the service to be booked was not explicitly specified by the customer, the selection is at our discretion. Since our calculation is a mixed calculation, we are free to reallocate resources within the production.
6) We receive a service fee for the procurement of resources. This is calculated at 20% of the total net amount required for booking the procured resources.
7) If additional resources or an extension of the booked resources are required after the contract has been concluded, the costs will be agreed upon with the client in advance. The client shall bear any resulting additional costs, plus a service fee in accordance with paragraph 6, as well as any additional expenses incurred (e.g., for extra casting, tenders, etc.).
8) Items procured and paid for on behalf of the client are the property of the client and may be collected by the client within 1 week of the completion of filming. After the 1-week storage period has expired, any uncollected items will be destroyed by us at the client's expense. Licenses obtained on behalf of the client will be made available for download for 1 week following the final approval of the film. After this week, the data will be deleted.
§ 9 Change Request
If, during the creation of the respective work and prior to its final approval, the client requests changes to the service description, the production schedule, the concept, the works, or any other services already provided, we will assess the feasibility of the requested change. We will inform the client within a reasonable period—no later than 10 business days after receipt of the change request—whether the change is feasible, what adjustments to the schedule are required, and the approximate costs associated with implementing the client's request (provided these costs are not already covered by the agreed-upon budget). The client or their authorized representative must inform us immediately, and no later than within 5 business days, whether they wish to proceed with the change. If the client does not respond within this period, the change offer is considered rejected, and we will continue production without the requested changes. This procedure also applies if we propose changes for artistic or technical reasons that result in additional costs beyond the agreed production price.
§ 10 Force Majeure
1) We are not liable for impossibility of performance or delays in performance insofar as these are caused by
a) force majeure (e.g., civil unrest, acts of terrorism, strikes/lockouts, natural disasters, acts of war, difficulties in material procurement, local power outages, accidents, difficulties in obtaining necessary official permits, pandemics, epidemics, or illnesses resulting in special measures such as quarantine or other containment efforts)
b) virus attacks or other third-party attacks on our IT system, despite our having implemented state-of-the-art protective measures, or
c) obstacles resulting from German, U.S., or other applicable national, EU, or international foreign trade regulations, or due to other circumstances for which we are not responsible.
2) In the event that the ordered service is unavailable due to the aforementioned events in paragraph 1 for which we are not responsible, the client will be notified immediately of the inability to perform. If such events make performance impossible for us and the obstruction is not merely temporary, we are entitled to withdraw from the contract, provided we have not assumed the procurement risk. In the case of temporary obstacles, performance deadlines will be extended or delivery dates postponed by the duration of the obstruction plus a reasonable lead time.
3) If a delivery date has been bindingly agreed and the agreed date is exceeded by more than four weeks due to events under paragraph 1, sentence 1, or if, in the case of a non-binding delivery date, it is objectively unreasonable for the client to adhere to the contract, the client is entitled to withdraw from the contract regarding the unfulfilled portion. In the event of withdrawal by the client, any services already rendered will be reimbursed immediately, less the flat-rate compensation agreed upon in § 14. Further claims by the client, particularly claims for damages, do not exist in this case.
§ 11 Acceptance of Work
1) Unless otherwise agreed, the client is responsible for procuring the actors, equipment, locations, or licenses involved in the production and for providing them in consultation with us or by the first day of filming at the latest. If the client wishes to use musical works, the client must obtain the necessary rights and provide them to us in a suitable form, in particular by registering them with the collecting societies and paying the associated fees. If a reshoot or an extension of filming becomes necessary, the client must provide the resources for this free of charge.
§ 12 Warranty Rights
1) In the event of a material defect, the statutory provisions shall apply unless otherwise agreed below.
2) The limitation period for claims based on defects is one year. It begins upon acceptance of the service, or at the latest by the end of the year in which the service was provided.
3) If a defect is reported to us in a timely manner within the applicable period, we will rectify the performance within a reasonable timeframe. If subsequent performance fails, the customer may set a further reasonable grace period in writing. If this also fails, or if subsequent performance is unreasonable for the customer, or if we refuse to perform, the customer is entitled to withdraw from the contract, reduce the price, or demand damages or reimbursement of wasted expenditure in accordance with applicable law. Statutory cases where setting a deadline is unnecessary remain unaffected. Claims for damages by the customer are limited to 10% of the order value.
§ 13 Liability
1) Regardless of the legal grounds, we are only liable in accordance with the following provisions.
2) We are liable for intent and gross negligence in accordance with statutory provisions.
3) In the event of slight negligence, we are only liable for the breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on whose compliance the customer may regularly rely (cardinal obligation). In such cases, our liability is limited to the foreseeable, contract-typical damage.
4) In cases of slight negligence, liability for all other damages, in particular consequential damages, indirect damages, or loss of profit, is excluded.
5) The above limitations do not apply to injury to life, body, or health, or to liability under the Product Liability Act. They also do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed, nor to customer claims under the Product Liability Act.
6) The liability limitations resulting from this provision also apply to third parties as well as to breaches of duty by persons (including for their benefit) for whose fault we are responsible under statutory provisions.
7) In the event of a breach of duty that does not consist of a defect, the customer may only withdraw from or terminate the contract if we are responsible for the breach of duty.
§ 14 Termination
1) If orders are terminated by the customer without us being responsible for such termination, we are entitled to demand the agreed remuneration, while crediting what the customer saves in expenses as a result of the contract cancellation or what we could have earned or have earned through other use of our labor. It is therefore presumed that we are entitled to at least the following flat rates for the portion of the work not yet performed:
a) in the event of termination during the concept phase, 90% of the calculated net costs for the concept phase plus VAT.
b) In the case of film productions:
aa) In the event of termination up to 4 weeks before the start of shooting (or, if there is no shooting, at the start of post-production), 50% of the portion of the work not yet performed.
bb) In the event of termination up to 14 days before the start of shooting (or, if there is no shooting, at the start of post-production), 75% of the portion of the work not yet performed.
cc) In the event of termination from 24 hours before the start of shooting (or, if there is no shooting, at the start of post-production), 100% of the portion of the work not yet performed.
2) The customer expressly reserves the right to prove to us that the saved expenses are significantly higher than the deductions considered above or that the services/materials were used elsewhere. In the event of such proof, the customer is only obliged to pay the correspondingly lower amount.
3) If we prove that the costs incurred for the non-performed part, which were already incurred due to and in view of the concept creation/production, are higher than the flat rates claimed in paragraph 2, or that the saved expenses are lower than the credited savings, we are entitled to demand the actual costs incurred.
4) Termination must be made in writing.
Section 15 Copyright / References / Awards
1) We are entitled, but not obligated, to include our company name and logo as a copyright notice on and in our works, unless otherwise agreed.
2) We are entitled to exhibit or have exhibited our works, in whole or in part, as well as adaptations thereof (e.g., cutdowns), at competitions and festivals, and for our own promotional purposes. We are likewise entitled to use the production in whole or in part, the associated secondary materials (e.g., making-ofs), and the concept. This grant of rights applies to all commercial and non-commercial, editorial and non-editorial, digitized, electronic, and printed uses, in particular reproduction, distribution, making available to the public, public performance, broadcasting, exhibition, and advertising, both online (e.g., website, showreels) and in print products. This also applies to use on social media channels. For these purposes, we are also entitled to pass the aforementioned data on to third parties. To the extent that this contains protected content belonging to the client, we receive from the client the non-exclusive, geographically and temporally unlimited, sub-licensable right to distribute, reproduce, exhibit, and publicly perform the content in whole or in part, in particular to make it publicly available, present or perform it, and to edit it, in particular to present it interactively.
3) Awards and prizes granted for our works belong to us.
4) We, as well as the creators involved in the production of the film (directors, camera operators, post-production) and the performing artists (actors, voice-over artists, etc.), are entitled, after the communicated release date—or otherwise four weeks after delivery—to reproduce and distribute, make or have made publicly available, or publicly perform or have publicly performed the production, in whole or in part, with or without the client's identifiers such as name and brand, for the purpose of self-promotion (reference advertising), without limitation in terms of content, geography, or time. This applies in particular to publications on the internet, on our website, on social media platforms, or on other corresponding analog or digital platforms. The aforementioned persons are also entitled to grant sub-licenses to third parties for the stated purposes. We are further entitled to use the client as a reference for our work by citing their company identifier/name, company address, logo, and web address, and to reproduce and distribute any reviews they may have provided about us through the aforementioned channels.
Section 16 Data Protection
We collect, process, and use the client's personal data in accordance with statutory data protection regulations. Supplementary information on this can be found in our privacy policy.
Section 17 Applicable Law and Place of Jurisdiction
1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction is Munich, to the extent legally permissible.
2) The place of performance for all contractual obligations, except in cases involving a delivery obligation or other agreements, is Munich.