Terms and Conditions of nürburgring.tv GmbH & Co. KG, based at Nürburgring Boulevard 2, 53520 Nürburg
Last revised 01.03.2017
I Validity of Terms and Conditions
- The following Terms and Conditions shall apply exclusively to all contracts concerning goods and services of nürburgring.tv GmbH & Co. KG (hereinafter referred to as nürburgring.tv).
- If the client is a businessperson, the following shall apply additionally: Any inclusion of other terms and conditions or conditions of business or purchase is hereby expressly rejected. This shall also apply if the commercial letter of confirmation contains references to such an inclusion
II Conclusion of contract, estimate of costs, fees, risk, withdrawal from contract
- All offers by nürburgring.tv are subject to change. Contracts shall come into effect only after nürburgring.tv has confirmed in writing the order placed by the client. Notwithstanding the foregoing, a contract shall also come into effect if nürburgring.tv indicates by other means – for instance by acting on the basis of the order – that it accepts the order of the client.
- As a rule, nürburgring.tv lists all services in a cost estimate. All production prices are net prices excluding the statutory value added tax.
- The agreed fee shall be payable as soon as nürburgring.tv has provided the service for which the fee was agreed. If phased billing was agreed, the fee shall be payable when billed by nürburgring.tv or, at the latest, after complete provision of the service.
- If nürburgring.tv calculated estimated total fees in the quotation, it shall be deemed in conformity with the contract if said fees are exceeded by up to 10%. Should deviations go beyond this limit, nürburgring.tv shall point this out to the client and state the expected additional fees. The additional fees shall be deemed approved if the client does not object within two working days after receiving a written notice from nürburgring.tv.
- The fee shall only cover the services for which it was agreed. All services not expressly covered by the agreed fee may be billed separately by nürburgring.tv. This shall apply in particular to ancillary services and expenses.
- The contractually agreed price shall cover all production costs, including a master copy as well as the granting of rights to the cinematographic work pursuant to item VI “property rights.”
- Weather-related postponements or cancellations of the shooting (weather risk) shall not be included in the calculated production costs. Additional costs due to such issues shall be billed as documented. The same shall apply to additionally required days of shooting which are not attributable to grossly negligent or intentional behaviour of nürburgring.tv.
- A separate contract may be concluded for the production of a concept, storyboard or script. The client shall be obliged to pay the price agreed in this contract even if the client decides not to turn the concept, storyboard or script into a film, or if the client withdraws from the order.
- If a concept, storyboard or script, resp. existing cinematographic works or scenes are provided by the client or the client’s authorized representative, the rights required for further use are to be transferred to nürburgring.tv. nürburgring.tv shall be responsible for the artistic and technical design of the work.
- If a re-shoot becomes necessary that is not due to grossly negligent behaviour or caused by the fault of nürburgring.tv, for instance due to equipment or material failure, the client may not claim compensation for incurred travel expenses or loss of earnings.
- As part of the film production, the client resp. the client’s authorized representative has to approve the preview copy prior to the film’s completion. The preview copy can be seen locally at nürburgring.tv, presented by nürburgring.tv at the client’s premises, or watched online. Once the client resp. the client’s authorized representative has accepted the preview copy without objection, the realisation of the film production shall be considered completed.
- Should the client demand changes to the product following acceptance that go beyond the warranty described in item IV “Acceptance, warranty, liability”, these changes shall be at the client’s expense. All requests for modification shall be made in writing. nürburgring.tv shall be obliged to immediately inform the client resp. the client’s authorized representative about the projected costs of the requested changes. nürburgring.tv alone shall be entitled and obliged to implement the requested modifications. Should nürburgring.tv suggest changes to the approved concept/ storyboard/script for artistic or technical reasons that lead to additional costs beyond the agreed production price, these shall require prior written consent by the client resp. the client’s authorized representative. Additional costs not expressly agreed may not be claimed.
- If a contract for works and services has been awarded and the client withdraws from the agreement without any fault on the part of nürburgring.tv, nürburgring.tv shall be entitled to invoice the client 10% of the agreed fee. If the client withdraws after the tenth day before shooting begins, the client shall be billed 50% of the agreed fee. If the client withdraws from the contract after shooting has begun, the client shall be obliged to pay 100% of the agreed fee. Should the expenses already incurred exceed the respective amounts, the additional expenses shall be reimbursed as well. The client shall have the right to prove that the loss incurred due to the termination of or the withdrawal from the contract is lower.
- If shooting dates are postponed for reasons beyond the control of nürbrugring.tv, 10% of the shooting costs shall be charged additionally in case of a postponement after the tenth day before shooting begins. 20% of the shooting costs shall be charged additionally in case of a postponement after the fifth day before shooting begins, and 30% after the third day before shooting begins. Should the expenses already incurred exceed the respective amounts, the additional expenses shall be reimbursed as well. The client shall have the right to prove that the loss incurred due to the postponement is lower.
III Working hours, deadlines, delivery times, overtime, public holiday/ weekend surcharges
- The calculated working time per shooting day shall be 10 hours at most, from and to nürburgring.tv, Nürburgring Boulevard 2, 53520 Nürburg. Travel days and time shall be charged at 50% of the respective daily rate.
- Overtime, work on weekends or public holidays, and work between 10 p.m. and 6 a.m. shall be invoiced at a surcharge of 25% on the hourly or daily rates offered.
- Deadlines and delivery times shall be non-binding until nürburgring.tv has expressly and in writing confirmed them as binding.
- If noncompliance with a binding deadline or delivery time is due to force majeure, labour dispute, fire, unforeseeable obstacles or other circumstances for which nürburgring.tv is not responsible, the delivery period shall be extended for the duration of these circumstances. This shall also apply if nürburgring.tv is in default when said circumstances occur.
- Should the impediment to fulfilment last longer than one month, both nürburgring.tv and the client shall be entitled to withdraw from the contract without further notice. Any other rights of the client shall remain unaffected. nürburgring.tv shall be obliged to immediately notify the client in case of an impediment to fulfilment and, in case of a withdrawal, reimburse payments already made by the client without delay.
IV Acceptance, warranty, liability
- Insofar as the service of nürburgring.tv consists of the production of cinematographic, graphic or other works, the following regulations shall apply:
a. The service shall be considered accepted as soon as the client has cleared the draft presented by nürburgring.tv.
b. nürburgring.tv shall assume warranty within the framework of statutory provisions.
c. Only technical shortcomings in the templates, files etc. supplied by nürburgring.tv shall be considered defects. Complaints about content and design matters shall be settled by the client prior to approval. Such issues may not be asserted as defects.
d. nürburgring.tv shall not be liable for the copyrightability of the created products, unless copyrightability has been expressly guaranteed. A lack of copyrightability shall not constitute a defect in the service rendered.
e. The warranty shall not cover defects and damage that is due to the client not having complied with the regulations on installation, hardware and software environment and use and conditions of use. This shall not apply if the client can prove that these circumstances did not cause the claimed defect.
f. nürburgring.tv shall only be liable to the client for damage caused intentionally or through gross negligence to the extent required by law. Liability for slight negligence shall be excluded. This limitation shall not be applicable in cases of injury to life, limb or health.
g. The client may, at their own discretion, demand rectification or replacement. If one of the two types of subsequent improvement entails disproportionate cost for nürburgring.tv, the claims of the client shall be limited to the respective other type of subsequent improvement. If subsequent performance fails twice, the client shall have the right to withdraw from the contract or demand a reduction of the fees. Claims for damages shall be excluded unless they are due to intent or gross negligence. This limitation shall not be applicable in cases of injury to life, limb or health.
- nürburgring.tv shall only be liable for errors in advertising advice, other advice, or in the provision of other services in case of intent or gross negligence. This limitation shall not be applicable in cases of injury to life, limb or health.
- When it comes to designs and texts supplied by the client, or approved by the client ahead of production, the client shall be responsible for accuracy, especially the correctness of texts and images.
- If the client expressly demands that specific insurance be taken out, the client shall be obliged to notify nürburgring.tv upon acceptance of the order at the latest and bear the cost of said insurance.
nürburgring.tv and the client shall be mutually obliged to safeguard all business and trade secrets of the respective other party that are revealed as part of the contract and its execution, and introduce and monitor sufficient measures to ensure that this obligation is also fulfilled by all employees. This confidentiality obligation shall extend beyond the term of the contract.
VI Property rights
- All rights to services rendered by nürburgring.tv or parts of them shall remain the property of nürburgring.tv. Unless otherwise agreed in individual contracts, the client shall acquire a simple right of use that is limited to the purpose of the contract for products by nürburgring.tv that are protected by copyright.
- All rights shall remain the property of nürburgring.tv until receipt of the full invoice amount. This shall apply in particular if the product has already been delivered in part or in full.
- nürburgring.tv guarantees that all services are free of third-party property rights. This shall not apply if nürburgring.tv, in a specific case, has notified the client due to reasonable doubt that the absence of property rights of third parties cannot be guaranteed, or with regard to property rights to preliminary work produced or supplied by the client. Should a third party make a claim to the client that the services rendered by nürburgring.tv or work results from said services infringe an existing property right of third parties, the client shall be obliged to immediately inform nürburgring.tv. nürburgring.tv shall be entitled but not obliged to handle such claims. However, if it turns out that the claim of the third party is substantiated and the infringement is due to circumstances for which nürburgring.tv is responsible, nürburgring.tv shall be obliged to remedy the violation and, in cooperation with the client, make sure that the contractually agreed services may be rendered in full without infringing on the property rights of the third party.
- The client shall be obliged to indemnify nürburgring.tv from and against any third-party claims brought against nürburgring.tv for infringements on property rights, as far as the violation is due to preliminary work produced or supplied by the client.
VII Labelling, references
nürburgring.tv shall be entitled to indicate the work carried out by nürburgring.tv free of charge in all products created for the client and in all measures carried out on behalf of the client, and use the services rendered for the client as reference in an appropriate manner. nürburgring.tv further reserves a limited right of use for using references for promotional purposes, irrespective of the type or the medium used as reference. The client shall be entitled to object in writing to nürburgring.tv’s use of the products created as reference.
VIII Offsetting, right of retention
- The client may only offset uncontested or legally established claims against claims by nürburgring.tv.
- If the client is a businessperson, the following shall apply additionally: The client may only exercise the right of retention or the right to refuse performance in case of uncontested or legally established counterclaims.
IX Personal data
The client acknowledges that nürburgring.tv stores their personal data for its own purposes (section 33 subsection 2 clause 1 German Federal Data Protection Act). The disclosure of personal data to third parties shall be expressly prohibited.
X Applicable law, place of performance, place of jurisdiction
- This contract shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded. If parts or individual terms of this text do not comply with the current legal situation, or no longer comply or do not comply in full therewith, the remaining parts of this document shall remain unaffected in terms of content and validity.
- If the client is a businessperson, the following shall apply additionally: The place of performance for all claims arising from the contract between the client and nürburgring.tv shall be the registered office of nürburgring.tv GmbH & Co. KG. The exclusive place of jurisdiction for all disputes arising directly or indirectly from this contract shall be Koblenz.
In case of doubt, the German version shall prevail.