General Terms and Conditions
of CineCars Fahraufnahmen GmbH
§ 1 General – Scope of Application
1. These General Terms and Conditions (GT&C) apply to all present and future supplies and services provided to the Customer by CineCars Fahraufnahmen GmbH, owner: Cecilia Chávez Falter, Eschenweg 9a, 83043 Bad Aibling (hereafter referred as „CineCars“). These Business conditions also apply to all future supplemental or consequential orders to the extent that they are similar or alike order objects.
2. Contradicting, deviating or amending general terms and conditions, which the customer may use, will not become part of the contract, even if Glamlevel S.L. has knowledge thereof, unless their applicability is expressly approved in writing.
3. These GT&C shall apply only to relations with customers who are merchants within the meaning of Sec. 310 (1) BGB (German Civil Code), legal persons under public law, or public law funds within the meaning defined under §§14.310 Para. 1 of the German Civil Code (BGB).
§ 2 Subject Matter and Conclusion of Contract
1.At the formation of the contract, the contracting parties hereto agree to cooperate in the field of driving scenes for film and video productions. CineCars therefore provides specially trained staff as well as all associated equipment.
2. A contract is deemed to be concluded by signing a written agreement or upon receipt of the written confirmation of a CineCars order quotation, at the latest, however, with the beginning of the order execution. The order confirmation to CineCars can be evidenced by post, fax or email.
3. The type and the scope of the services owed by CineCars are – unless separately agreed in written form – exclusively determined by the content of the concluded agreement, i.e. the order confirmation and the therein defined production periods.
4. Warranty claims made on the basis of information provided in brochures, marketing material or on web sites, also those of CineCars, written or verbal statements and that have not been included in the contract do not represent the receipt of a warranty or a procurement risk and shall not be accepted.
§ 3 Deliveries and Services
1. CineCars expressly reserves the right to deliver and invoice for reasonable partial or substitution shipments and services and apply subject to timely and properly self-deliveries.
2. If circumstances arise that allows CineCars only partial deliveries or the promised products or services are unavailable, CineCars shall immediately advise the contracting party about the achievement obstacle and the partial or complete non-availability. In such a case, CineCars may rescind from the contract in whole or in part against reimbursement of any potential compensation, up to the extent of effected advanced payments for unavailable parts of deliveries or impossibility of performance.
3. The delivery periods and dates given by CineCars are noncommittal, unless expressly agreed in written by CineCars and declared as binding, i.e. a commercial fixed date. Delivery dates are determined in accordance to the predicted performance capability of CineCars and are subject to timely availability by CineCars own cooperation partners and suppliers as well as unforeseen conditions and obstacles. This applies irrespective of whether they occur at CineCars or at the Suppliers’ side and implicates hindrances, in particular “Force Majeure”, state actions, the non-granting of official permits, software errors for which it is not responsible as well as industrial disputes and similar items, acts of sabotage, non-culpable delayed material deliveries, etc. if no other written agreement has been reached between the parties to the contract.
4. An individually agreed and binding delivery time is appropriately extended in the case of unexpected and hindering circumstances for which CineCars, their staff and agents or on behalf of whom this disclaimer is issued, shall have no liability or responsibility, is hindered at the fulfillment of its punctual delivery at no own fault. The Contractor’s compliance with the delivery dates and deadlines shall be contingent upon the Customer previously providing to the Contractor all the documents, drawings, patterns, plans, licenses, approvals and permits, the observance of agreed terms of payment as well as the provision of information, materials and equipment which enables CineCars to provide its services successfully and completely. Should the contractual partner or CineCars fail to meet this obligation, delivery may delay by the duration of such an interference and a reasonable start-up-period.
5. If shipment is delayed for a reason which is caused or wished by the Customer, CineCars is entitled to demand compensation for losses incurred, including additional expenses . The customer is free to furnish proof of minor damage in this case as well.
6. If CineCars assumes a contractual obligation for the execution of works, once, the work is completed a formal acceptance is required from the customer. The customer hall not be entitled to refuse the acceptance of the goods due to insignificant defects. It shall be considered tantamount to acceptance if the Customer fails to carry out the final inspection within the period of 12 days, after a written notification of CineCars or one of his partners or suppliers, although it would have been obligated to do so.
§ 4 Remuneration and Terms of Payment
1. The services and deliveries performed shall be billed in accordance with the correspondingly applicable price per day of CineCars confirmed in an individual order or determined in a quotation, respectively. All agreed prices are payable to CineCars net. (plus value added tax, depending on the country of delivery. )
2. The daily charges determined with CineCars refer to a working day made up of 10 hours. A surcharge on our wage rates will be due to compensate any exceeding daily limit, as follows: 25% for the first two hours (11th and 12th), 50% for the 13th hour and for any further overtime hour starting hour 14 an overtime premium of 100% on our wages will be charged. Furthermore, will be due for payment a night work bonus of 25% between 22:00 and 06.00 o’clock as well as 50% for sunday and holiday work.
3. Travel days will be invoiced separately. Therefore, a surcharge on our wage rates are charged as follows: 50% for up to 6 hours; 60% for up to 8 hrs.; 70% for up to 10 hrs.; 80% up to 12 hours. Everything exceeding the 12 hours will be charged with the normal price per day.
4. CineCars is entitled to make the provision of services dependent on advance payment equaling one 100% of the agreed order value – in particular, in the case of new customers – and in so far as not otherwise expressly agreed in writing. In the event that the customer defaults vis-à-vis CineCars, CineCars shall be entitled at this option either to demand that the customer pays within an appropriate extension period, to be specified by the CineCars the requested advance payment or to ask for a security deposit in the amount for the entire agreed price. After vain expiration of such an extended deadline, CineCars may withdraw from the contract and is entitled to compensation claims.
5. Unless otherwise agreed within CineCars’ quotation, the amount of invoice is payable 14 days after date of invoice and billing and is due net and immediately without any discount. In terms of accounting, transmittance by fax or Email shall be sufficient. Any discount deductions shall always require a separate written agreement and are subject to the content of the respective offer quotation. Receipt in the CineCars account given in the invoice shall be decisive for determining punctual payment and discount.
6. CineCars may reserve itself the right to assign its claims in the course of factoring and to transmit the associated customer data to the factor respectively. The same applies with a possible creditworthiness assessment conducted by the factor before the commencement of the contract.
§ 5 Warranty and Liability of CineCars
1. Should parts of the provided equipment appear to be non-functional on behave of CineCars, so CineCars shall get the opportunity for improvement by rectifying the defect or providing another congenial equipment. The Customer in this respect shall be obliged to notify CineCars about any default immediately otherwise he forfeits his rights. Furthermore §536 shall not apply to the contractual relationship. §536a BGB shall apply solely in the case of willful or grossly negligent culpability on the part of CineCars or in the event of injury and health hazards or in the case of the loss of life of the customer.
2. The extent of CineCars liability for nonfunctional equipment is limited to typically foreseeable damage and shall be exempted from its liability in whole, unless if it is caused by intentional or gross negligent breach of duty on behalf of CineCars. Furthermore shall be excluded a liability for gross negligence on the part of simple vicarious agents of CineCars for direct or indirect damage, normal wear and tear and insignificant defects. An insignificant defect exists in particular, if the suitability for the contractually agreed use is limited to a negligible degree only or if the Customer himself with insignificant effort can remove the defect.
3. The aforementioned exclusions to liability shall not apply in the event of being a matter of infringement of a contractual obligation in or damages arising from injury to life, physical injury or damage to health.
§ 6 Customer´s Duties and Liability
1. Prior to initial operation of the equipment, the Customer is obliged to take knowledge of the entire contents of all documentation provided for the possible use of equipment and to observe precisely all instructions and legal standards, safety requirements and operating instructions. Subletting or granting of permission to use the premises to third parties is expressly prohibited. Any infringement of the above obligations shall entail to hold the user liable for all damage caused.
2. The Customer is committed for appropriate operation of the equipment and affirms that the contractual item has been checked for impeccable contractual condition at the time of takeover. In the event of an accident, the Customer is always liable for any damage incurred at the equipment itself, consequential damages of the same and loss of business profit.
3. Board and lodging shall be incurred by the customer to the full extent.
4. In the event of dispute between the parties concerning the question who, on the facts is responsible for deterioration or destruction of our delivered goods, the customer bears the burden of proof. The customer is free to furnish proof of minor damage or non-negligence in this case as well.
5. Shootings in public space are mandatory to filming permits with the reference to driving shots.
§ 7 Property
1. CineCars remains sole and unrestricted owner for any material or part of the equipment provided.
2. Resale, pledge, mortgaging by way of security or any other types of encumbrance of our goods is not permitted and will be ineffective, unless prior express and written consent by CineCars.
3. In the case of pledging, confiscations or other claims or seizures to the equipment by third parties, the Customer has to point out our ownership thereof, notify CineCars in writing hereof without undue delay to enable CineCars to enforce its property rights by taking the necessary measures for third party actions against execution. To the extent the third party is not able to reimburse CineCars for the judicial and extra-judicial costs incurred by CineCars in connection with the enforcement of its property rights, the Customer shall be liable for the loss incurred by CineCars in case of an infringement of aforementioned obligation of notification.
4. Should our ownership be dissolved for statutory reasons due to combination, commingling or processing, then the Customer shall be liable for payment of compensation to the amount of the replacement value.
§ 8 Early Termination and Compensation
1. The Customer shall be entitled to rescind the order or to withdraw from contract within a 14 days’ deadline before project launch and free of charge. If a rescission is made up to three days before the beginning of the project, he shall be obliged to pay damage compensation to CineCars to the amount of 30 % of the agreed fee. If cancellation is placed up to 24 hours or less before project launch, The Customer shall be obliged to pay 90% of the agreed fee.
2. In this case as well, the Customer is free to proof a minor damage.
§ 9 Right of Retention and Offsetting Ban
1. The Customers’ right to offset against counterclaims is excluded, unless these have been validated by a court decision or are undeniable or have been accepted by CineCars.
2. The Customers’ execution of a right of retention is only permissible if the counterclaims are undeniable, contractually committed claims ready for decision or established by final enforceable judgment.
§ 10 Data Protection
1. The Customer is aware and he consents in the fact that it’s, for the order and order handling necessary data are stored on data media by CineCars. The customer expressly agrees to the inquiry, processing and utilization of personal data. It’s taken for granted that all personal data stored will be treated confidentially. The inquiry, processing and use of personal data will be applicated according the instructions of the Federal Data Protection Act (Bundesdatenschutzgesetz BDSG) and of the German Telemedia Act (TMG).
2. The Customer shall have the right to withdraw the consent at any time with future effect. In that case, CineCars shall be obliged to delete all personal information of the Customer immediately. At ongoing order processes, the deletion will happen only after the completion of the order process.
§ 11 Final Dispositions
1. The law of the Federal Republic of Germany shall apply.
2. If the Customer is a merchant, a legal entity under public law, or public-law special funds, the legal venue for any disputes under this contract shall be the seat of business of CineCars, unless a statutory common venue exists. The same shall apply, if the customer does not have a general place of jurisdiction in Germany or if its residence or permanent address is not known at the time litigation is initiated.
3. There are no subsidiary arrangements made concerning this contract. Amendments or supplements to this contract shall be subject to written agreement to be legally effective. This also applies to any amendment to or modification of this written form requirement.
4. If individual provisions of the contract between CineCars and the Customer, including these General Terms and Conditions, are declared to be or become partly or fully void, the validity or feasibility of the remaining provisions of this agreement or these General Terms and Conditions remain unaffected thereby. The entire or partially invalid provision shall then be replaced by an effective term which represents the closest approximation to the actual business success and presumed intention of the parties to the contract.