Terms of Service

General

1. general terms and conditions of the nhb group (nhb video GmbH, nhb ton GmbH, nhb studios Düsseldorf GmbH, nhb studios Berlin GmbH), hereinafter referred to as nhb. These General Terms and Conditions shall apply exclusively. General Terms and Conditions of Business or Terms and Conditions of Delivery and Payment that are contrary to or deviate from these Terms and Conditions shall not be recognized by nhb unless nhb has expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if the company nhb performs the service for the client in knowledge of conflicting or deviating terms and conditions of the client. The services and offers of the company nhb are exclusively based on these terms and conditions.

2. all prices are in principle exclusive of value added tax. Offers of the company nhb are always subject to change, unless otherwise stated in a written order confirmation. The company nhb reserves the property rights and copyrights to illustrations, drawings, calculations, radio cuts, sound and picture layouts as well as other documents and materials. They may not be made accessible to third parties without prior agreement.

3. elements on master tapes, multi-track tapes and all data carriers as well as all productions and/or production parts on image and/or sound carriers are archived – unless expressly agreed otherwise – at the discretion of the company nhb.

General terms and conditions

1. all services, deliveries, deliveries and returns shall be for the account and at the risk of the customer.

2. the client is the person who has initiated the execution of the order – in writing or verbally – even if the invoice is issued to a third party at his request, i.e. he is fully liable for the invoice amount alongside the third party. If the order is placed in the name of and for the account of a third party, the Contractor shall be expressly informed of this fact when placing the order. There is no obligation for the contractor to verify the authority of the order transmitter.

3. The Contractor shall only be obliged to confirm the order in writing if this is expressly requested by the Client.

4. in case of orders, i.e. for productions and/or 4. If protected works, music, sounds, samples or language are used in the course of orders, i.e. in the production of radio/TV/cinema commercials, data and CD pre-masters and/or masters, as well as all other possible image and sound carrier pre-masters and/or masters or in the case of other productions as layouts or final artwork at the express request of the Client, the Client is hereby informed by the Contractor, that the Client is solely responsible for the clarification, collection and remuneration of all third party claims existing on the material used, unless otherwise agreed with the Client in writing in individual cases or the company nhb has been expressly commissioned with the clarification of copyright and/or ancillary copyright issues. In such a case, the client shall be obliged to generally indemnify the contractor against any claims of third parties which are, have been or could be raised in connection with the processing of the material requested by the client. The Client is hereby informed by the Contractor that the reproduction, processing and/or distribution and publication, as well as any other form of commercial and/or public exploitation of works, sounds, samples, music or speech protected by copyright and/or ancillary copyright, which is not undertaken for purely private purposes, is subject to approval and is therefore unlawful without the corresponding approvals. The contractor is not obligated to verify to what extent the content of the work commissioned by the customer is subject to approval or violates legal regulations. In the event of such a violation, the Customer shall be solely liable to third parties for all disadvantages or damages – including those incurred by the Contractor – to the full extent. Rights on the part of GEMA are in principle not transferable, so that they are not compensable or settled by payments of the client to the contractor. As a matter of principle, nhb offers its clients to clarify or process copyright and/or ancillary copyright issues for the client.

5. liability for retained sound and image material can only be assumed up to the material value of the carrier material and only up to the maximum period of 3 months after invoicing.

6. The Contractor shall be liable for processing damage to third-party image and sound material as follows: For audio tape, image and data carrier recordings up to the material value of the carrier material. The order for voucher/broadcast copies must be made in writing. In the case of verbal orders, the contractor assumes no liability! This exclusion of liability applies expressly and in particular to pecuniary and consequential damage!

7. if the client provides irrecoverable or difficult to replace data, sound and/or image recordings for processing, presentation or similar purposes, the risk, if necessary the conclusion of an insurance policy in excess of the material value, as well as the arrangement of the production of backup copies, shall lie with the client.

8. it is incumbent upon the client to ensure the unambiguousness of an order by means of markings on the material to be processed or by means of written information. Expenses which are necessary to clarify existing doubts (telephone call, checks, etc.) or which arise from a lack of information shall be borne by the customer.

9. Intermediary activities, such as the acceptance and delivery of supplies to and from the copying plants, postal and rail forwarding, order forwarding and bookings with other companies, the procurement of speakers, actors, etc., shall always be carried out on behalf of and for the account of the Client, unless they are expressly the subject of a production or editing order, even if this is not expressly indicated by the Contractor. The Contractor shall not assume any liability or warranty of any kind for such intermediary activities.

10. Promises by the Contractor regarding deadlines for processing and production processes are made to the best of its knowledge and belief, but without guarantee. The Contractor shall not assume any liability for delays caused by third-party service operations. For delays caused by the contractor in the course of a processing or production operation, the contractor shall only be liable up to the amount of the own work at nhb caused by the delay. Third-party services as well as indirect damages (such as financial and/or consequential damages) are not included in the liability.

11. If no special price agreements are made, the Contractor’s prices valid on the day of delivery shall be deemed agreed. Prices and price lists shall be made available upon request at any time.

12. the conditions written on the invoice shall apply as terms of payment. If the invoice does not contain a separate note, immediate payment “strictly net cash” shall be deemed agreed. Cash discount deductions shall not be granted, unless something else results from a separate written agreement with the Client referring to the individual case or from the invoice text of nhb. The Client shall be in default of payment after the expiry of thirty days after the invoice has been sent (the invoice date listed at the top of the invoice shall be decisive), so that the Contractor shall then be entitled to demand default interest in the amount of 4% above the respective discount rate of the Deutsche Bundesbank as flat-rate compensation from the Client from the thirty-first day of the invoice due date. If the contractor is able to prove a higher damage caused by default than this (such as by confirmation of his bank that the overdraft interest, with which the company nhb has to work, is higher than the legal default interest), he is entitled to claim this higher damage against the client as well. However, the client on his part is entitled to prove to the contractor that he has not suffered any damage or considerably less damage as a consequence of the delay in payment. The Customer shall only be entitled to set-off claims if its counterclaims have been legally established, are undisputed or have been acknowledged by the Contractor. The Client shall also not be entitled to a right of retention due to disputed counterclaims.

13. Oral subsidiary agreements on the method of payment shall require written confirmation by the Contractor in order to be legally valid.

14. if in the course of the execution of an order external services are required, i.e. services which cannot be carried out with nhb’s own equipment and personnel, the contractor shall in principle not be held responsible for the quality, punctuality and costs of these services, provided that these services are selected by the client. However, upon request of the Client, the Contractor shall, to the best of its knowledge and belief, undertake the procurement as well as, if applicable, the disbursement of such external services against the surcharge customary in the industry and the costs to be disbursed by the Contractor (fees for speakers, performers, postage, COD, telephone calls, cabs, courier services, etc.). The Contractor reserves the right to make the delivery of the production dependent on the reimbursement of disbursed amounts by the Client in the event of unreasonably high cash disbursements.

15. The performance of the services to be rendered by the Contractor requires the clarification of all technical issues. If the Contractor is in default of performance for reasons for which it is responsible, liability for damages shall be excluded in the event of ordinary negligence. If, after the Contractor has already defaulted on performance, the Client sets the Contractor a reasonable grace period with the threat of refusal, the Client shall be entitled to withdraw from the contract after the fruitless expiry of this grace period. The customer shall only be entitled to claim damages for non-performance in the amount of the foreseeable damage if the delay was caused intentionally or by gross negligence. Otherwise, the liability for damages shall be limited to 50% (fifty percent) of the damage incurred. If the Contractor is in default of performance for reasons for which it is not responsible, or if its performance is defective as a result, the Contractor’s liability for damages shall be excluded in principle.

16. The warranty claims of the Customer shall be subject to the condition that the Customer has duly complied with its obligations to inspect and give notice of defects pursuant to Sections 377 and 378 of the German Commercial Code (HGB). Insofar as the Contractor is responsible for a defect in its performance, it shall be entitled at its discretion to remedy the defect or to provide a replacement performance, insofar as a remedy of the defect or a replacement performance is still possible for a fixed date of performance and is still of interest to the Customer under objective assessment criteria. Insofar as the contractor violates a “cardinal obligation” or an obligation essential to the contract, his obligation to pay compensation shall, however, be limited to the foreseeable damage typical for the contract. As far as the liability of nhb is excluded or limited due to these terms and conditions, this shall also apply to the personal liability of its employees, workers, freelancers, representatives and vicarious agents. The client shall be liable for damages which are not caused by the contractor but by third parties called in or involved or commissioned by the client (such as vicarious agents or assistants etc.).

16.1 The customer shall in any case inspect the contractual conformity of the Deliveries/Services provided immediately upon receipt and, if a work is owed, accept it. Transport damages or losses shall be reported to nhb immediately by means of a statement of facts by the carrier or an affidavit, which must be signed by two witnesses and by the customer.

16.2 Entrepreneurs must notify nhb in writing of obvious defects without undue delay, at the latest, however, within a period of 2 weeks from receipt of the delivery/service; otherwise the assertion of warranty claims shall be excluded. Defects of a part of the delivery/service do not entitle to complain about the entire delivery/service, unless the partial delivery/service is of no interest for the customer, for which the customer has the burden of proof. Timely dispatch shall be sufficient to meet the deadline. The entrepreneur shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. Hidden defects which cannot be found after immediate inspection may only be claimed against nhb if the notice of defect is received by nhb within 6 months after transfer of risk.

16.3 Unless otherwise stated below, any further claims of the Customer – irrespective of the legal grounds – shall be excluded. In particular, the Contractor shall not be liable for loss of profit or other financial losses of the Customer. This shall not apply to claims for injury to life, limb or health, claims under the Product Liability Act or claims based on tort. This exemption from liability shall not apply if the cause of the damage is based on intent or gross negligence on the part of the Contractor or a vicarious agent or legal representative of the Contractor or if the Contractor has negligently breached a material contractual obligation. It shall also not apply if the Contractor has fraudulently concealed a defect or has assumed a guarantee with regard to the quality of the work and the purpose of this guarantee was to protect the Customer against the damages claimed. In the event of simple negligence, the Contractor’s obligation to pay compensation shall be limited to the foreseeable damage typical for the contract.

16.4 Prerequisite for the warranty is that the defective delivery/service can be inspected and checked at the customer’s premises at nhb’s discretion. Expenses incurred for this may be charged by nhb to the customer in an appropriate amount. Upon request of nhb, the customer shall return the defective delivery/service to nhb for inspection, freight prepaid and at its own risk.

16.5 Any modifications and repair work carried out by the customer or third parties shall exclude liability for the resulting consequences. At the same time, any warranty claim shall expire.

16.6 If the customer is a consumer, he shall initially have the choice whether the supplementary performance shall be effected by rectification or replacement delivery/service. nhb shall, however, be entitled to refuse the type of supplementary performance chosen if it is only possible with disproportionate costs and the other type of supplementary performance remains without considerable disadvantages for the consumer. If the customer is an entrepreneur, nhb shall initially provide warranty for defects of the owed delivery/service at its own choice by rectification or replacement delivery/service. Rectifications carried out during the warranty period shall in principle not lead to an extension of the warranty period. Replaced parts shall become the property of nhb.

16.7 If the supplementary performance fails, the customer may in principle demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) at its discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract. Subsequent performance shall be deemed to have failed if it has been attempted several times and the customer cannot reasonably be expected to accept further subsequent performance.

16.8 If the customer receives defective assembly instructions, nhb shall only be obliged to provide assembly instructions free of defects, and this only if the defect in the assembly instructions prevents proper assembly.

16.9 The customer does not receive guarantees in the legal sense from nhb. Manufacturer’s warranties shall remain unaffected.

16.10. nhb shall only assume warranty for information and consulting services if a written consulting agreement has been concluded. Otherwise they are non-binding.

16.11. nhb does not assume any warranty for the correct selection, deployment, application and use of the products. This applies in particular in connection with the use of other hardware and software systems.

16.12. A breach of the above obligations shall exclude any warranty claims against nhb. The assignment of warranty claims to third parties is excluded.

17. dispatch and transport of material of any kind shall be for the account and at the risk of the customer.

18. Rights of use, exploitation, ancillary copyrights and/or assignable copyrights as well as copyright shares shall be transferred by the speakers, singers, musicians and/or performers employed, commissioned or booked via the Contractor in many cases exclusively only for the period of 1 (one) year from invoicing or first broadcast (placement) for nationwide exploitation (within the Federal Republic of Germany). Details are in principle incumbent on the artists themselves, who are not restrictable in their invoicing and wording, unless otherwise agreed in individual cases. In the case of foreign and/or time-transcending exploitation of productions for which only temporary domestic assignments and transfers of rights exist, the Client shall independently pay subsequent fees to the entitled parties. However, if the Contractor should claim such additional fees for artists on their behalf, the Client undertakes to pay such fees also upon the Contractor’s request. The liability for additional fees arising from such utilization shall be assumed solely by the Client. The Client shall be obliged to notify the Contractor of any foreign or time-exceeding exploitation. Furthermore, the Client shall be obliged to notify the Contractor of the first broadcast of a production produced in whole or in part by the Contractor, so that, if necessary, the due date of additional fees from layout productions, which thereby become broadcast licenses, can be verified, and corresponding settlements can be made by the Contractor or notifications can be made to the entitled parties involved.

19. if the client is a registered trader in the sense of the law (HGB), the place of jurisdiction and place of performance is agreed to be the registered office of the company nhb, i.e. Hamburg. However, the company nhb is also entitled to sue the client at the court of his domicile. If the client is not a registered trader in the sense of the law, and he moves his domicile or usual place of residence out of the area of validity of the Federal Republic of Germany after conclusion of the contract, the place of jurisdiction is the registered office of the company nhb. This shall also apply if the domicile and habitual residence of the client are not known at the time the action is filed.

20. All legal relations between the company nhb and the Client shall be governed solely by the law applicable to the legal relations of domestic parties at the registered office of the company nhb.

21. If individual provisions of these Terms and Conditions should be invalid or these Terms and Conditions contain loopholes, the validity of the remaining provisions and the validity of the General Terms and Conditions shall not be affected thereby. In place of the ineffective provisions, those effective provisions shall be deemed agreed which correspond to the sense and purpose of the ineffective provisions which both parties would have agreed upon if they had known about the ineffectiveness or the gaps. In such a case, the Contractor and the Client shall be mutually obliged to cooperate in a corresponding clarification of the terms and conditions.

Hamburg, 21.04.2017