GENERAL TERMS AND CONDITIONS
OF MANUFACTURE AND DELIVERY

1 GENERAL

1.1 The General Terms and Conditions of Contract and Delivery of the Austrian Film and Music Industry Association shall apply to all commissioned productions, with the exception of the production of advertising films. They are generally designed for legal transactions between companies and are an integral part of every offer and every contract. If, by way of exception, they are also used as a basis for legal transactions with consumers within the meaning of the Consumer Protection Act, Federal Law Gazette No. 140/1979 in the currently valid version, they shall only apply insofar as they do not contradict the provisions of the first main section of this Act. The Producer shall only be legally bound by the company confirmation of the offer/order (confirmation by e-mail with digital signature is permissible) or the signing of the contract. By signing the order letter or the order confirmation, the General Terms and Conditions of Order and Delivery are accepted.

1.2 The production of the film work, regardless of the carrier material, is based on the screenplay approved by the client or provided by the client under the conditions laid down in writing in the production contract or the accepted offer. The treatments, scripts, drawings, plans and similar documents prepared by the Producer or on his behalf shall remain his intellectual property unless they are used in the film or unless a fee has been agreed for them. Any use, in particular the passing on, duplication and publication, requires the express consent of the Producer. Documents supplied by the Client may be reclaimed by the Client.

1.3 The production contract or the accepted offer must already state the distribution areas, media and time periods for which the film work is to be produced.

 

2 COSTS

2.1 The contractually agreed price includes all production costs, including a screenable first copy, as well as the granting of rights to the film work to the extent provided for in point 7.2.

2.2 Weather-related postponements of filming (weather risk) are not usually included in the calculated production costs. Any additional costs arising from this title shall be invoiced according to documented expenditure plus HU.

2.3 A separate contract can be concluded for the production of a treatment or screenplay. The price agreed in this contract shall be paid by the client even if he does not have the treatment or screenplay filmed or cancels the order. If a screenplay is provided by the client or a pre-existing film work is provided by the client or his authorised representative, the full transfer of rights must be made to the producer.

2.4 If the Client requires the conclusion of a specific insurance policy, he must inform the Producer of this at the latest upon conclusion of the contract and reimburse the costs for this.

2.5 The Client shall bear the costs of any professional advice he may have arranged.

 

3 PRODUCTION, CHANGES, ACCEPTANCE, FOREIGN-LANGUAGE VERSIONS, DELIVERY DEADLINE

3.1 Pre-production or filming and comparable work (see point 5.2) shall begin at the earliest after the production contract has been signed or the offer has been accepted.

3.2 The Producer is responsible for the artistic and technical design of the work. The Producer must inform the Client of the location and planned sequence of filming.

3.3 If the Client requests changes to the scheduling, the manuscript, the screenplay or the parts of the film that have already been produced before the film is accepted, these changes shall be at the Client’s expense, unless they are due to the assertion of justified complaints. The Producer shall inform the Client immediately of the expected costs of these changes.

3.4 If the Client wishes to make changes after acceptance of the film, he must inform the Producer of the desired changes in writing. The Producer is obliged and solely authorised to make changes. Such changes shall be at the expense of the client.

3.5 If, for artistic or technical reasons, the Producer proposes changes to the already approved screenplay that will lead to additional costs compared to the agreed production price, they require the prior written consent of the Client. Additional costs that have not been expressly authorised cannot be claimed. The length of the film work is specified in the production contract. The running time shall be deemed to have been complied with if the edited copy does not deviate from the agreed length by more than 5%.

3.6 If foreign-language versions of the film work are to be produced through dubbing or subtitling, a corresponding agreement must be made.

 

4 LIABILITY

4.1 The Producer undertakes to produce a technically flawless product. The Producer expressly warrants that the production will have perfect sound and picture quality.

4.2 If a circumstance arises during the production of the film which makes the contractual production impossible, the Producer shall only be liable for intent and gross negligence. The same shall apply if the film is not completed on time. The impossibility of production or late completion of the film, for which neither the Producer nor the Client is responsible, shall only entitle the Client to withdraw from the contract. However, the services rendered so far plus HU will be charged.

4.3 Material defects that are recognised by the Producer must be rectified by the Producer. If these corrections cannot be carried out without the cooperation of the Client or its specialist advisor, the Producer may consider the contract to have been fulfilled after the expiry of a statutory period of at least two weeks to carry out the corresponding actions. The Producer is entitled to refuse to remedy the defects until the payments due at the time of the correction have been made.

4.4 The Producer shall be liable for all infringements of rights that may be caused by him during production, but the Client shall bear the risk of the props provided by him.

 

5 CANCELLATION OF THE CONTRACT BY THE CLIENT

5.1 If the production order has been placed and the Client cancels the order through no fault of the Producer, the latter is entitled to invoice the net costs actually incurred as well as the pro rata HU and the lost total profit.

5.2 If the order is cancelled between 10 and 4 days before the start of shooting or before a comparable status in the case of film works that are to be produced from existing and/or computer-saved image material, the Producer is entitled to charge 2/3 of the calculated net costs accepted by the Client plus HU and lost total profit.

5.3 If the client cancels between the 3rd and 1st day before the scheduled start of shooting or comparable activities (see 5.2), the calculated and commissioned total amount shall be invoiced.

 

6 TERMS OF PAYMENT

6.1 Unless otherwise agreed, the following terms of payment shall apply:

1/3 upon signing of the contract

1/3 at the start of filming (or start of comparable activities / see point 5.2)

1/3 upon acceptance of the production

In the case of a production volume of at least € 250,000 excluding VAT, the last third shall be divided as follows: 1/6 upon rough cut acceptance 1/6 upon delivery and final acceptance

 

7 COPYRIGHTS, EXPLOITATION RIGHTS

7.1 The film work shall be produced on the basis of the screenplay accepted by the Client and the Film Producer. Pursuant to § 38/1 Urh.G., the Producer shall hold all necessary copyright exploitation rights (except if they are held by a collecting society), in particular the reproduction, distribution, broadcasting, performance and neighbouring rights necessary for the fulfilment of the contract, which shall be administered by the Producer even after completion of the work.

7.2 The production contract shall stipulate which rights of use to the finished work are granted to the client after full payment of the production costs and to what extent (in terms of territory, time).

7.3 The rights to reproduce, edit, change, supplement, foreign-language dubbing and the use of excerpts in image and/or sound are in any case excluded from the granting of rights, unless they are expressly contractually agreed and separately compensated. The compensation for these assigned rights of use shall be at least equal to the lost profit of the production. This shall not affect the claim for damages.

7.4 The Client expressly declares that it agrees that the legally required notifications to the relevant collecting societies will be made by the Producer.

7.5 In order to secure the copyright exploitation rights, the source material (image and sound), in particular negatives, master tape and also the residual material, shall remain with the Producer.

7.6. The Producer undertakes to store the original, image and sound material of the delivered work in a professional manner against reimbursement of costs. The storage period shall be seven years for television productions and five years for all other commissioned productions. Before expiry of the respective period, the client or his authorised representative must request in writing the duration of further storage. With regard to the settlement of costs for this additional storage, the guidelines of the Austrian Film and Music Industry Association shall apply.

7.7 Insofar as the rights excluded from the granting of rights pursuant to 7.3 have been compensated and contractually transferred to the client for utilisation, the obligation pursuant to § 7.6 for storage shall apply to the client, unless expressly agreed otherwise.

7.8 Upon delivery of the film work, the risk for the copy documents shall pass to the Client, even if the film work is stored at the Producer’s premises or at a copy centre commissioned by the Producer.

 

8 OTHER PROVISIONS

8.1 The title credits and end credits must be approved by the client as part of the script.

8.2 The Producer is authorised to display his company name and logo as a copyright notice. He shall also have the right to screen the film work or have it screened on the occasion of competitions and festivals as well as for self-promotion (sample reel). The use of excerpts or other image material on the Producer’s website for self-promotion is permitted and is deemed equivalent to a screening for self-promotion.

8.3 If several clients place an order with the Producer for a film work, it must be recorded in writing before the start of shooting or before a comparable status in the case of film works that are to be produced from existing and/or computer-generated image material, which client is to make declarations to the Producer on behalf of the other clients in accordance with the previous points. This applies in particular to the naming of the person responsible for the acceptance of the film work.

8.4 If several co-producers are contractual partners of the client, the provision of point 8.3 shall apply mutatis mutandis.

8.5 Amendments to the production contract and/or these terms and conditions of production require written confirmation. Should a provision of the production contract render a point of these Terms and Conditions of Production and Delivery invalid, this shall not affect the validity of the remaining provisions.

8.6 The place of fulfilment is the head office of the Producer.

8.7 In the event of disputes, the place of jurisdiction is agreed to be the competent court at the Producer’s headquarters. This court must apply Austrian law.