GENERAL TERMS AND CONDITIONS
The business relationship between COSMOPOLA GMBH, Ackerstrasse 39, 10115 Berlin or artists represented by it (hereinafter: "Contractor" or "we") and their Clients shall be governed exclusively by these General Terms and Conditions ("T&C"). In their most recently included version, they shall also apply to future services and commissions, even if they are not mentioned separately in the respective order. Deviating conditions or contract offers of the Client are hereby contradicted. They shall only become part of the contract on the basis of an individual agreement between the parties. These T&C do not apply to Clients who are not entrepreneurs within the meaning of §14 BGB (German Civil Code).
1 Fundamentals
1.1 The contract for performance shall be concluded upon confirmation by the Client of a binding offer by the Contractor, alternatively upon acceptance by the Contractor of a corresponding order by the Client. Cost estimates, on the other hand, are subject to change and non-binding. The possibly deviating user of the services of the Contractor shall be listed separately as "customer" within the scope of the offer. The object of the contract is – exclusively – the agreed service and the use of the service results by the customer. If we offer services "in the name and on behalf" of an artist represented by us, the contract is concluded exclusively between the Client and the artist represented by us.
1.2 All prices are exclusive of the applicable statutory value-added tax. The Client acknowledges that the individual cost items may shift within the calculated budget and agrees to this within the framework of the agreed overall budget.
1.3 We owe a professional execution, whereby the suitability of the service for a certain purpose requires the explicit written agreement (§126 BGB). Within the scope of the order, we shall be free to design creative service components (e.g. design, text creation, graphics, photo or film) at our dutiful discretion, unless an explicit agreement has been made on execution in text form.
1.4 We do not owe the achievement of an economic success – apart from an agreed concrete result. The inclusion of production conditions and other technical or logistical or other circumstances and specifications attributable to the Client shall only be owed if this has been expressly agreed in text form.
1.5 Subsequent changes to the object and scope of the service require the mutual consent of both parties. Additional services shall be appropriately remunerated by the Client. Repeated design work and corrections shall also be deemed to be subsequent changes, insofar as they do not involve the rectification of defects.
1.6 The place of performance shall be our place of business. The dispatch from our place of business or the respective place of production to the Client shall be at the risk of the Client. We shall be pleased to obtain transport insurance at the Client's special request and expense.
1.7 When providing or transmitting data, we are only to be held responsible for the infrastructure for which we are in charge. We are not responsible for errors in the transmission network or circumstances that occur in intermediate bodies or end points of the transmission network. The Client is responsible for setting up his infrastructure in such a way that data transmitted by us can be accepted to the necessary extent and within the required time. This applies in particular to the provision of sufficient storage space contingents and the correct configuration of security devices. We are entitled to communicate with the Client by e-mail within the scope of the execution of the order. Unless otherwise requested by the Client and agreed in writing, electronic communication shall be unencrypted and unsecured.
1.8 Reasonable travel and subsistence costs shall be reimbursed by the Client upon presentation of proof, insofar as the travel or subsistence was provided for in the offer, or was made without an express offer for the purpose of fulfilling the contract and with the approval of the Client, or was necessary taking into account the effort and effectiveness of alternative means of transmission or communication. The travel costs calculated in our offers are estimates. Travel and entertainment costs calculated by us do not extend to the costs of the Client, his customers and employees and/or agents, unless expressly mentioned.
1.9 The Contractor does not owe the storage of documents, semi-finished and finished products of the Client or his customers, which the Client has not demanded back within one month after completion of the order. Objects and documents provided to the Contractor by the Client or his costumers shall be insured by the Client against damage, loss and theft. The Contractor shall be liable for damages not covered by the insurance up to a maximum of the value of the material.
1.10 We shall only be in default on the basis of a written reminder from the Client, unless a fixed-date transaction has been agreed. The agreement of binding completion dates must be made in writing.
1.11 Guarantees in the legal sense by us only exist in the case of a written guarantee agreement using the term "guarantee".
1.12 Within the scope of our performance, we may be dependent on the cooperation of the Client or his customers. This applies, for example, to the provision of equipment, information or other templates which form the basis of an order to be carried out by us. An early termination of the order as well as a postponement require our consent. If we are unable to perform the contractual service due to circumstances for which the Client or his customer is responsible (in particular due to the Client's or Client's obligations to cooperate not fulfilled, not fulfilled correctly or incompletely), we shall not be in default. In this case, the date of performance shall be postponed by the duration of the hindrance plus a reasonable period for resumption, without the Client being entitled to a reduction in price, termination of the contract or any other kind. We shall point out to the Client any cooperation still to be provided by him. The Client shall reimburse us for any additional expenses caused by culpably omitted or faulty cooperation.
2 Special regulations for the development and production of printed matter or illustrations
2.1 For the development and possible production of printed matter and illustrations (hereinafter collectively referred to as "printed matter") by the Contractor, the following regulations shall apply in addition:
2.2 The Contractor shall prepare a concept proposal for the printed matter, which shows the planned number of pages or type and scope of the illustrations to be produced as well as their essential elements and features.
2.3 After submission of the concept proposal, the Client shall release the proposal to the Contractor within two weeks in writing or by e-mail or present detailed improvement requests in writing or by e-mail. If the Client rejects the concept proposal twice in succession in a substantially modified version, taking into account his wishes, or if he does not comment on the first or an adapted concept proposal within 7 days, the Contractor has the right to terminate the contract and demand the agreed remuneration for the concept development phase. If such remuneration of the concept has not been expressly agreed, the Contractor shall have the right to demand a pro-rata remuneration amounting to 25% of the remuneration agreed for the entire project.
2.4 After approval of the concept by the Client, the Contractor shall prepare the draft in accordance with the concept. After its presentation by the Contractor and control as well as approval by the Client, the final drawing and implementation will be carried out by the Contractor. In this performance phase, the Contractor owes the delivery of printable templates or digitally usable templates on the basis of previously received and agreed specifications in text form.
2.5 Unless expressly included in the scope of services offered, the Contractor shall not be responsible for supervising the printing process or for acceptance of the print; furthermore, the Contractor shall not be responsible for the logistics and monitoring of the printed matter unless expressly included in the scope of services offered.
2.6 In the event that the services referred to in clause 2.5 above or even the delivery of the printed matter are included to the services offered and owed by the Contractor, the Client shall ensure that an employee of the Contractor or his Client authorized to make a decision accompanies the print acceptance on a date to be determined by the Contractor in text form 3 days in advance. If the Client does not provide a person authorized to make a decision on the approval of the print, notices of defects shall be refused due to deviations of the printed matter from the originals.
2.7 The Client is responsible for the fulfilment of legal requirements for the respective printed matter, its content and the services and products offered/performed as well as its conceptual preparation. In this respect, the Contractor owes neither legal advice nor research.
3 Special regulations for photo and film productions
3.1 For the execution of film and photo productions (hereinafter collectively referred to as "Production") by the Contractor, the following provisions shall apply in addition:
3.2 For the purpose of calculating the binding offer, the Client shall already provide the Contractor with a concept proposal showing the planned number of motifs or scenes and, in the case of film productions, the number and length of the respective films, the location of the shots, the number of actors or photographic models involved, styling requirements and additional equipment as well as the intended use of the production(s). Items marked as "cost estimate" in the offer are not binding, as they are not yet based on an exact briefing of the Client, such as locations, styling and/or number of motifs have not yet been conclusively determined.
3.3 The Client shall ensure that on a date to be determined by the Contractor in text form at least 3 days in advance, an employee of the Client or his costumer authorized to make a decision accompanies the acceptance of the set as well as the production. If the Client does not provide an employee authorized to make the decision for acceptance, notices of defects are denied due to deviations of the set as well as the production from the concept, treatment and/or storyboard.
3.4 Changes to the concept, the treatment, the storyboard or to essential parameters of the production set by the Client or compulsory, weather-related or due to force majeure, other natural phenomena or strike caused postponements of the production entitle the Contractor to recalculation and additional remuneration. In such a case, a correspondingly modified, binding offer will be prepared by the Contractor at short notice and submitted to the Client for release at short notice. If this offer is rejected by the Client, the Contractor remains entitled, at his own discretion, either to complete the production as originally commissioned or to terminate the production contract without notice.
3.5 The Client shall bear the weather risk. In the event of failure due to unsuitable weather conditions, 50% of the photographer's fee and 100% of all other third-party costs that have already been incurred up to this point in time, plus agency provision and mark-up (hereinafter jointly referred to as "AP") shall be incurred in accordance with the offer.
3.6 In the event of cancellation or postponement of the order by the Client up to 7 working days before the agreed start of production, 50% of the photographer's fee and 100% of all other third-party costs already incurred up to this point in time shall accrue, plus AP. Thereafter, 100% of the photographer's fee as well as 100% of all other third-party costs already incurred up to the time of cancellation or postponement by the Client, plus AP, are due for payment.
3.7 Cancellation of Shoot summary
If a confirmed shoot is cancelled or postponed for reasons outside the control of Photographer
(including unsuitable weather / light), Photographer reserves the right to charge a cancellation fee at the following rates together with all incurred expenses:
3.7.1 cancellation on 2 days notice - 100% of Fee + all expenses;
3.7.2 on 3 to 6 days notice - 75% of Fee + all expenses;
3.7.3 on 7 days notice and over - 50% of Fee + all expenses.
3.8 The Client or his costumer is responsible for the fulfilment of legal requirements for the respective production, its content and the services and products offered/performed thereon as well as their conceptual preparation. The Contractor owes neither legal advice nor research in this respect. If the Contractor implements a layout submitted to him by the Client in accordance with the order in such a way that it represents a plagiarism, the Client shall indemnify the Contractor against all claims and demands of affected third parties. Furthermore, the Client shall bear any losses and other costs incurred by the Contractor. This shall also include the costs of reasonable legal defense.
4 ACCEPTANCE & DELIVERY
4.1 Following completion of the shoot Photographer will deliver the Material to Commissioner in a
reasonable time frame and in the agreed format to enable Commissioner to select the Licensed Photographs.
4.2 Unless expressly agreed in writing between the parties Commissioner shall not be entitled to reject the
Material on the basis of style or composition.
4.3 If Commissioner elects to reject the Material on any other basis he shall be liable to pay to Photographer
100% of the Fee + expenses in respect of the Assignment or the Base Use Rate per day stated in the
Estimate + expenses incurred, whichever is greater.
5 STORAGE OF MATERIAL
5.1 Commissioner shall ensure that he takes appropriate steps to keep safe a high-resolution digital
copy of all Material for the duration of the Usage License. For the avoidance of doubt CD/DVD archives
are not deemed safe storage media. Neither artist nor Agent will archive any Material unless by prior
written agreement.
5.2 Save for the purposes of the Usage Licence the Material may not be stored in any electronic medium nor
transmitted to any third party, including for the avoidance of doubt any associated or branch office
of Commission, without the written permission of the artist.
5.3 Upon publication of the Licensed photographs or any of them and on the artists request Commissioner
shall supply to the artist free of charge a high-resolution digital file, PDF format file or good quality hard copy
of the Licensed Photograph in the context in which it is published.
6 Special conditions for consulting and agency services
6.1 We provide consulting and agency services exclusively on the basis of the information provided by the Client. Insofar as third parties are used for consulting services and the collection of necessary data (such as scouting, casting, market research measures or expert or legal opinions), these third parties shall be used in the name and on behalf of the Client or the costumer represented by him, unless otherwise agreed.
6.2 We owe a professional execution of the consulting and agency services taking into account the requirements specified in the context of the assignment, but not a specific consulting or service result of the assigned third party, since such a determination is not purposeful due to the scope of assessment typical for consulting and mediation. Service contract law applies exclusively to consulting and agency services.
7 Third parties
7.1 We may, at our dutiful discretion, call in third parties for the provision of services. Our responsibility for the contractual obligations incumbent upon us shall remain unaffected thereby.
7.2 If third parties are included in the service on behalf of or at the request of the Client (external services), or if we expressly offer their services as external services in the offer, we shall not be liable for these third parties or their services. We shall only be responsible for the selection or monitoring of external services or their service debtors if this has been expressly agreed and is remunerated separately. We can demand advance payment for any remuneration (third-party costs) paid by us to such third parties and postpone an order until payment has been received.
7.3 We render our services for the Client and his customers. We do not assume any liability towards third parties. The passing on or transfer of the results of our services to third parties or a use in their favor requires our prior consent in text form.
8 Obligation to cooperate
8.1 The Client and his costumer shall provide us with all information essential for the respective order and shall inform us in good time of any problems or change requirements. Instructions must be given in good time so that a reasonable period of time remains for their implementation.
8.2 The Client must provide the conditions specified by us for our contractual performance in good time and in the required manner.
8.3 The Client or his costumer shall only hand over to us such templates and materials whose use and processing in accordance with the order does not infringe any rights of third parties. In this respect, the Client shall indemnify us against all claims and rights of third parties as well as damages, expenses and costs.
8.4 The Client must check the contractual conformity of the deliveries and services as well as of the preliminary and intermediate products handed over to him immediately upon receipt and give acceptance without delay. We shall be entitled to demand interim acceptance for the completion of individual work sections. Acceptance of a service shall be deemed to have been granted if it is not refused by the Client within 7 days with meaningful justification or if the Client uses the work result. Complaints made thereafter shall be deemed to be subsequent requests for changes. Acceptances may not be refused for creative-artistic reasons unless there is a deviation from a design result agreed in writing.
9 Dates
9.1 The delivery or service date or the delivery or service period shall be agreed in accordance with the expected capacity of the Contractor and shall be non-binding and subject to unforeseen circumstances and obstacles, in particular force majeure, government measures, non-granting of official permits, industrial disputes of any kind, sabotage or non-delivery, incorrect delivery or late delivery for which we are not responsible. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred.
9.2 If our expenditure increases and if the cause lies within the area of responsibility of the Client, we may demand reasonable remuneration for the additional expenditure actually incurred.
10 Copyright & usage licences
10.1 Illustrations, final artwork, photographs, films or other results of the Contractor and/or artists represented by the Contractor may not be altered neither in the original nor in the reproduction without our consent. Imitations are not permitted. All rights to drafts, proposals, tender documents, etc. shall remain with us unless expressly agreed otherwise in writing. We only owe the provision of editable, high-resolution files ("open files") if this has been expressly agreed. The same applies to the provision of source texts (source codes).
10.2 We shall grant the Client the rights of use to the result (final result) required for the respective intended use, which are generally defined within the scope of our offer. In the absence of such a definition, the remuneration shall cover the granting of simple, non-exclusive rights of use for the intended purpose, form of use and period of use in accordance with the original briefing. Any further use, in particular in or on media not expressly covered, in a deviating geographical area, in processed form (insofar as the processing is not necessary for the agreed use) and/or in a deviating period requires an express additional granting of rights. Transfer of rights of use and sublicensing require our express consent in text form. All rights to drafts and intermediate results shall remain with us unless otherwise agreed in writing.
10.3 Insofar as we are commissioned by the Client to participate in a competition or to prepare a study, such orders shall serve only to develop solution fields and variants as well as the subsequent selection of a draft for realization. Unless otherwise agreed in writing, we expressly do not grant the Client and its costumers any rights of use to the results which we produce within the framework of competitions and/or studies.
10.4 In the event of unauthorized use, the Client shall be obliged to pay for this use, whereby our further claims and rights shall remain unaffected. The minimum remuneration shall be three times the remuneration or remuneration to be paid for use in accordance with the Contractor's standard rates at the time of use. – If such remuneration is not provided for – the standard remuneration in accordance with the collective remuneration agreement or fee table applicable to the respective work result, whereby for photographs the picture fees of the Mittelstandsgemeinschaft Foto-Marketing and for creative services otherwise the collective remuneration agreement Design of the "Alliance of German Designers" (agd e.V.) in its currently valid version shall apply for the period of unauthorized use, the appropriateness of which the Client acknowledges. Our right to claim higher damages in the event of a concrete calculation of damages shall remain unaffected by the above provisions.
10.5 All grants of rights shall be subject to the condition precedent of full payment of the remuneration owed for the entire service. No partial rights shall be granted in the case of partial payment. Use prior to full payment is unjustified and inadmissible.
10.6 Insofar as we provide third-party material for the Client (e.g. photos whose rights are held by third parties), the Client must observe the applicable restrictions on the right of use. As a rule, materials provided for Internet pages may not be used in the context of other Internet pages or other media. Our liability for exceeding the right of use by the Client is excluded.
10.7 In addition to the artists represented by us in the specific contractual relationship – even if exclusive rights of use are granted – we are entitled to use the performance results after their publication by the Client and their drafts within the framework of our own advertising as well as for participation in competitions, in particular also on the Internet, in particular also as a reference, naming the Client. The artists represented by us shall also be entitled to use them in the context of exhibitions, book publications and the production and sale of hand-signed prints.
11 Reservation of title
In the case of deliveries of physical items, we reserve title to the delivery item until receipt of all
payments under the delivery contract. In the event of conduct on the part of the Client in breach of contract,
in particular default in payment, we shall be entitled to take back the object of sale. The taking back of the
object of sale by us is at the same time a withdrawal from the contract. After taking back the delivery item,
we shall be entitled to sell it; the proceeds of such sale shall be set off against the Client's liabilities –
less reasonable selling costs.
12 CREDITS
12.1 In respect of all editorial uses and otherwise as additionally stated in the Estimate Commissioner shall procure
that artist’s name is printed on or in reasonable proximity to all published reproductions of the Licensed material.
13 Invoicing
13.1 When placing the order and during the performance of the service, we shall be entitled to demand reasonable advance payments, in particular in the case of interim acceptance interim invoices for the part of the service accepted. If the Client defaults on payment of an invoice despite a reminder or if we become aware of circumstances which give rise to considerable doubts as to the Client's ability to pay (e.g. application for the opening of insolvency proceedings or negative assessment of creditworthiness by a recognized business information company), we shall be entitled to invoice all services rendered up to that point and to suspend our performance until all claims arising from the business relationship have been satisfied in full. We are entitled to make the continuation of the performance dependent on an appropriate advance payment for our expected remuneration as well as the expected expenses.
13.2 In case of doubt, the amounts stated by us shall be exclusive of the statutory value added tax. Our invoices are due and payable without deduction within 14 working days of receipt. Invoices shall be deemed accepted if the Client does not object to them in writing within 30 days of receipt of the invoice, stating factual and verifiable reasons. The due date remains unaffected by this. Unless otherwise agreed, monthly fees shall be invoiced at the beginning of each calendar month for the current month.
13.3 If an order cannot be carried out or cannot be carried out completely for reasons for which we are not responsible (in particular in the event of termination by the Client in accordance with §649 BGB), the Client shall owe us a compensation for the loss of performance amounting to 50% of the remuneration to be paid for the respective loss of performance and 100% of all other third-party costs which have already arisen up to this point in time, plus AP. Saved expenses shall be credited against this if the expenditure is expressly part of the service and actually saved (e.g. travel expenses). Higher saved expenses must be proven by the Client.
13.4 Offsetting is only possible with claims recognized by us or legally established. A right of retention may only be exercised to the extent that the counterclaim is based on the same contractual relationship.
13.5 The Client is responsible for any fees or contributions to collecting societies as well as for any contributions to the artists' social security fund (“Künstlersozialkasse”) and must bear these costs.
13.6 As far as the contract includes the granting of temporally, spatially and/or factually unlimited rights of use to copyrighted works in the agency's own name, the Client shall indemnify the agency placing the order from possible claims and demands of the author which the latter raises from his right to appropriate remuneration vis-à-vis the agency placing the order in connection with the contractual works. This shall also include the costs of reasonable legal defense incurred by the contracting agency.
14 Liability for defects
14.1 After release by the Client or his costumer, we shall be released from any responsibility for the correctness of templates created. Irrespective of the stage of performance or development concerned in the respective project, we shall not be liable for errors overlooked by the Client or his costumer.
14.2 Deviations from samples, samples, correction printouts or other templates in color, size and shape from the final production, which are unavoidable, material-related and process-related and which cannot be avoided by applying the care customary in the trade, shall not be deemed a defect.
14.3 We shall not be liable for the admissibility or registrability of performance results under competition and trademark law, nor for their suitability for obtaining industrial or other property rights.
14.4 The Contractor shall not be liable for the fact that performance results produced by the Contractor or artists represented by the Contractor and in particular their use in the business area of the Client or its costumers do not infringe any industrial property rights of third parties. We expressly do not owe a collision search for conflicting industrial property rights or any other legal searches or releases.
15 FORCE MAJEURE
15.1 Neither Photographer or Agent shall be liable for any failure or delay in the performance of any of such partyʼs obligations under these Terms caused by any circumstances beyond such partyʼs reasonable control.
16 CORONAVIRUS
a.(i) Key personnel including but not limited to the Photographer, director of photography and cast contracted for the production (by the advertiser or the production company) may contract the disease or have to be quarantined due to their exposure to a person with Coronavirus or required to self-isolate through the Government’s Track and Trace process and be unable to perform their duties on the production as a result.
(ii) Advice from a Government or other competent authority, such as the Health and Safety Executive or the World Health Organisation may prevent personnel or key production facilities or equipment from travelling to a shoot or in any studio or location
being closed.
(iii) Any Coronavirus related cause that reasonably and necessarily prevents the production company fulfilling its obligations under
the contract as scheduled (after discussion with the agency producer).
b. In the event of a postponement or the relocation of a production as set out in paragraph 23.a, above, the Production Company shall be entitled to recover from the Advertiser, after providing the Advertiser with the Production Company’s invoice supported by
substantiating documentation, such unavoidable, additional costs incurred by the Production Company which are directly
attributable to such relocation or postponement, provided that the Production Company is unable to avoid or otherwise mitigate such costs.
c. In the event of a cancellation of the production as set out in paragraph 23 a, above, the Production Company shall be entitled to
recover from the Advertiser, after providing all film deliverables (if any) and its invoice supported by substantiating documentation (in accordance with the Budget), an amount in respect of work performed by the Production Company up to the date of the notice of cancellation, together with any unavoidable costs actually and already incurred by the Production Company, including an amount in respect of the Director’s fee and the Producer’s Fee to which the Production Company is committed and unable to avoid or otherwise mitigate.
17 Other liabilities
We shall be liable for intent and gross negligence in accordance with the statutory provisions. Otherwise,
we shall only be liable to the Client in the event of breach of a material contractual obligation
(cardinal obligation) as well as in the event of damage resulting from injury to life, limb or health and
for any guarantees assumed. Essential contractual obligations are those whose fulfilment is necessary
to achieve the objective of the contract as well as those whose fulfilment the Client as contractual partner
may regularly rely on. In the event of a slightly negligent breach of cardinal obligations, our liability
shall be limited to the foreseeable damage typical of the contract, but no more than twice the amount of
the total remuneration for the order on the basis of which the reason for the liability exists. Liability for
loss of profit is excluded. The aforementioned limitations of liability shall also apply in favor of our
employees, vicarious agents, organs, artists represented by us and legal representatives as well
as correspondingly for claims for reimbursement of expenses.
18 Confidentiality
We undertake to maintain secrecy with regard to business and trade secrets as well as all information of the
Client and his costumers designated as confidential which becomes known to us in connection with the
execution of the contract. The obligation to maintain confidentiality loses its validity 12 (twelve) months
after completion of the project work unless otherwise agreed.
19 Final provisions
19.1 The law of the Federal Republic of Germany shall apply.
19.2 If individual provisions of these General Terms and Conditions are invalid, this shall not affect the validity of the remaining provisions.
19.3 The place of performance and jurisdiction for merchants, legal entities under public law and Clients without a
general place of jurisdiction in Germany shall be Berlin.
Status: June 2022
Note: The German language version of these T&C shall be the version used in the event any dispute arises hereunder. The English translation of these T&C is for convenience only and shall not be used by the parties or any court when interpreting or construing these.