Berlin Terms & Conditions of Business (English)
Berlin Terms & Conditions of Business (English)
The Mill Berlin GmbH
Terms & Conditions of Business
GENERAL
1.1 The following General Terms and Conditions (“GTC”) apply to all contracts between The Mill Berlin GmbH, Rosa-Luxemburg Strasse 14, 10178 Berlin, Deutschland (“The Mill”) and the Client, unless the Client is a consumer in the sense of § 13 BGB (Bürgerliches Gesetzbuch – German Civil Code). Deviating general terms and conditions of the Client shall not apply unless The Mill has expressly agreed to their validity in text form.
1.2 In these GTC, the following terms shall have the following meanings:
“Agreement” means the Quote, these GTC and any Contract for Services.
‘Client’ means the person, firm, company or other entity who has instructed The Mill to carry out the Services (as defined below) as set out in the Agreement
“Client Materials” means any goods, products and materials in whatever form (including all Intellectual Property Rights in the same) provided or made available by the Client to The Mill for use in connection with the Agreement, and including any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media.
‘Confidential Information’ means such information as The Mill may from time to time provide to the Client (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) relating to the Agreement and the Works, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by The Mill to the Client whether in existence prior to the parties entering into the Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever.
‘Contract for Services’ means any subsequent contract for the provision of Services entered into between the Mill and the Client pursuant to these Terms.
‘Intellectual Property Rights’ means copyright (including rights in computer software), database rights, design rights, moral rights, patents, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, and typography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition.
‘Quote’ means an offer presented by The Mill in respect of Services to be provided to the Client.
‘Services’ means the services to be provided by The Mill for the Client pursuant to the Agreement, and includes the Works (as defined below) arising out of the Services.
‘The Mill Intellectual Property’ means all rights, including Intellectual Property Rights, in and to (i) The Mill’s proprietary underlying software, libraries, engines, subroutines and development tools and utilities (in source code and object code form), including underlying models, rigging, animation data and all pre-existing intellectual property rights therein, which in each case are of general use or applicability in VFX and which were in existence prior to the parties entering into the Agreement or developed independently of the Agreement; and (ii) any other materials, in whatever form (including documents, information, data and software), which were in existence prior to the parties entering into the Agreement or developed independently of the Agreement.
‘Value Added Tax’ means value added tax as provided for in the Umsatzsteuergesetz (UStG) and in any tax similar or equivalent to value added tax imposed by any country other than the Federal Republic of Germany and any similar or turnover tax replacing or introduced in addition to any of the same.
‘Works’ means the products and materials created, developed and produced by The Mill for the Client pursuant to the Agreement.
1.3 Headings used in these Terms are purely for ease of reference and do not form any part of or affect the interpretation of these Terms.
1.4 Any reference to a statute or statutory provision is a reference to its respective current version.
FORMATION OF CONTRACT
2.1 The Services will be carried out in accordance with these Terms, any Quote, and any subsequent Contract for Services to the exclusion of any other terms and conditions the Client seeks to impose whether orally or in writing, unless agreed otherwise in writing by the parties.
2.2 These GTC supplement the Quotes and Service Contracts. In the event of contradictions, the Service Contracts shall take precedence over the provisions of these GTC.
PRICES AND TERMS OF PAYMENT
3.1 The Mill will invoice the Client for the prices quoted in respect of Services to be provided at the times set out in the relevant Quote or Contract for Services.
3.2 The Mill shall be entitled to make an adjustment to any quoted prices in the event that additional costs are incurred, or likely to be incurred, by reason of:
3.2.1 the Client Materials (or any part thereof) being, in the reasonable opinion of The Mill, significantly defective, e.g. in an unsuitable format (or a different format to that which The Mill may reasonably expect to receive the same) or of unsuitable quality for customary processing;
3.2.2 any information supplied by the Client or any third party, which the Client uses in connection with the fulfilment of the Agreement, in connection with the Agreement and the Services being inaccurate or incomplete, or failing to give The Mill a full and accurate indication of the work involved and/or time and resources required; or
3.2.3 not insignificant posterior changes by the Client or any third party in its requirements for the Services or Works.
3.3 Subject to clause 3.4 and unless otherwise agreed by The Mill in writing, all invoices rendered by The Mill are payable within 28 days of the date of invoice and any interim invoices are payable within 7 days of the date of invoice.
3.4 The Mill expressly reserves the right, at its sole option, to require payment by instalments during the performance of the Agreement and/or to require payment of all amounts due to The Mill in respect of Works to be provided prior to delivery of such Works.
3.5 The Client shall pay all amounts owing to The Mill in full and shall be entitled to exercise any rights of set off or counterclaim only against invoices which The Mill has accepted in writing or which have been legally estabished.
3.6 Payment of all amounts shall only be made in the currency in which they are invoiced and shall not be subject to any deductions or charges whatsoever.
3.7 In the event of default in payment by the Client under the Agreement, The Mill shall be entitled, without prejudice to any of its other rights or remedies, to suspend any further performance of the Services without notice and to charge interest on any amount outstanding at the rate of 9% above the Base Rate.
3.8 All sums payable under this Agreement are exclusive of Value Added Tax and any other duty or tax, which shall (if and to the extent applicable) be payable by the Client at the rate and in the manner from time to time prescribed by law.
3.9 The Client shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by the Client to The Mill pursuant to the Agreement. Should the Client be required to pay any such withholding or make such deduction on account of tax, the Client shall pay such additional amount as will ensure that The Mill receives, free and clear of any tax or other deduction or withholding, the full amount which it would have received had no such withholding or deduction been required. The Client shall indemnify The Mill against all costs, claims, expenses (including reasonable legal expenses) and/or proceedings arising out of or in connection with such payments. The Client and The Mill shall cooperate in good faith to respond to any query from the applicable tax authorities in connection with withholding tax or other similar taxes and shall each make available to the other any information or documents and all relevant approvals or authorisations which the applicable tax authorities may reasonably require.
PERFORMANCE AND DELIVERY
4.1 Unless otherwise agreed in writing between the parties, all times specified in a Quote or Contract for Services for performance of the Services and delivery of the Works are given in good faith but are not guaranteed by The Mill.
4.2 Notwithstanding that The Mill and the Client may have agreed that time is of the essence in respect of specified Services or Works, the time for performance of the Services or delivery of the Works shall in every case be dependent upon prompt receipt of all necessary information, materials (including Client Materials), final instructions and/or approvals from the Client. The Client acknowledges and agrees that any changes to its requirements and/or the occurrence of any of the circumstances in clause 3.2 may result in delay in performance or delivery, for which The Mill shall not be liable, unless The Mill was responsible for those changes.
4.3 Where the Works are to be delivered electronically, the Client acknowledges and agrees that:
4.3.1 electronic delivery is not a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete the Works to be delivered electronically; and
4.3.2 electronic delivery may involve reliance upon third party providers and data carriers, over which The Mill has no control.
4.4 To the exception of a respective responsibility on behalf of The Mill, The Mill shall have no liability to the Client or any third party for:
4.4.2 any delay in delivery or any non-receipt of any Works delivered electronically;
4.4.3 any loss or damage (including loss of data) that results from any person gaining unauthorised access to any Works delivered electronically;
4.4.4 use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorised access to any Works delivered electronically; and
4.4.5 any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Works delivered electronically.
INTELLECTUAL PROPERTY
5.1 The Client acknowledges that The Mill (or its third party licensors) owns, and shall retain ownership of, The Mill Intellectual Property, and The Mill shall not at any time be required to deliver to the Client any of The Mill Intellectual Property whatsoever.
5.2 The Client acknowledges and agrees that if in the course of performing the Services (including any processing or production of materials on behalf of the Client) The Mill discovers or devises any techniques or know-how, all rights of every kind in and to such techniques and know-how shall belong to and vest in The Mill and shall be deemed to be The Mill Intellectual Property for the purposes of the Agreement.
5.3 The Mill shall retain ownership and possession of, and all rights (including all Intellectual Property Rights) in and to, any original character design, ideas or concepts presented or created by The Mill in relation to the Agreement, unless otherwise agreed in writing by the parties. Where the Client requires a licence to use any such original character design, ideas or concepts, for whatever purpose, the terms of such licence shall be agreed by the parties in writing pursuant to a Quote and/or any subsequent Contract for Services.
5.4 Subject to clauses 5.1 to 5.3 above and any other terms agreed pursuant to a Quote or Contract for Services, all title and Intellectual Property Rights in and to the Works (excluding The Mill Intellectual Property), shall pass to the Client only upon the Client paying to The Mill all sums due and payable under the Agreement. To the extent required, the parties may agree on terms for the licence of The Mill’s Intellectual Property (or any part of it) incorporated into the Works, to enable the Client to receive the benefit of the Works.
5.5 The Client hereby grants to The Mill a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use the Client Materials to the extent necessary for The Mill and/or its suppliers to provide the Services and the Works.
5.6 The Client acknowledges and agrees that Intellectual Property Rights in and to underlying materials processed by The Mill in the performance of the Services and/or embodied in the Works may be owned by third parties and that the use by the Client of the Works shall be subject always to the Client obtaining any and all necessary licences and consents from the relevant underlying rights’ owner(s).
CONFIDENTIALITY
6.1 Where Confidential Information has been disclosed to the Client, the Client acknowledges that such Confidential Information has been disclosed in confidence, may have considerable value and is of significant importance to The Mill.
6.2 The Client further acknowledges that The Mill makes no representation with respect to the accuracy or completeness of any Confidential Information, except to the extent agreed by The Mill in writing.
6.3 The Client agrees to keep the Confidential Information, including The Mill Specific IP and The Mill Background IP provided to the Client pursuant to clause 5, in complete confidence and not to disclose it to any third party. Save as expressly permitted under the Agreement, the Client shall not use, copy in whole or in part, modify or adapt the Confidential Information in any way without The Mill’s prior written consent, which may be given or withheld in its absolute discretion.
6.4 The Client may use the Confidential Information only for the purposes contemplated by the Agreement and for no other purpose. The Client may disclose the Confidential Information to such of its officers, employees and agents to whom disclosure is necessary for the performance of its obligations under the Agreement provided the Client shall ensure such officers, employees and agents observe the obligations of confidentiality imposed by this clause 6 and the Client shall be liable for any failure by them to do so.
6.5 The Client shall not be in breach of this clause 6 if it discloses Confidential Information where such disclosure is required by law, regulation or order of a competent authority provided that The Mill is given, where possible, reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
6.6 The Client acknowledges that any breach of its confidentiality obligations under this clause 6 would cause The Mill irreparable and unquatifiable damage and that The Mill shall be entitled to apply for and obtain (without prejudice to any other rights or remedies available to The Mill in contract or at law) interlocutory and/or final injunctive relief against or in respect of any actual or threatened breach of this clause 6 by the Client.
6.7 On receipt of a written demand, the Client shall return to The Mill, or destroy at The Mill’s option, any and all written documents or materials containing Confidential Information, together with all copies thereof, and if The Mill should so require the Client shall, when returning documents or materials, provide to The Mill a statutory declaration duly executed by an officer of the Client confirming that, to the best of the declarant’s knowledge, information and belief, the Client has complied with all of its obligations under this clause 6.
6.8 The Client’s obligation to keep the Confidential Information confidential and secure shall survive termination of the Agreement.
CANCELLATION AND VARIATION
7.1 Except where otherwise stated in a Quote or Contract for Services, this Agreement will expire on completion of the Services to be provided pursuant to it.
7.2 The Agreement (and any Services to be provided under it) may only be cancelled with the written consent of The Mill and in accordance with these Terms (and if applicable, the terms of any subsequent Contract for Services). The giving of consent shall not in any way prejudice The Mill’s right to recover from the Client full compensation for any loss or expense arising from such cancellation of the Agreement.
7.3 Notwithstanding clause 7.2 and without prejudice to any other rights or remedies available to The Mill, the Client may give The Mill written notice of cancellation of the Agreement (and any Services to be provided thereunder), provided that where such notice is received by The Mill:
7.3.1 less than 24 hours prior to the date for performance or the commencement of performance of the relevant Services (the “Target Date”), The Mill shall be entitled to charge the Client the full price specified in the Quote or the relevant Contract for Services or, if none is stated, the applicable amount chargeable to the Client based on The Mill’s rate card current at the Target Date; and
7.3.2 less than five working days but more than 24 hours prior to the applicable Target Date, The Mill shall be entitled to charge the Client one half of the full price specified in the Quote or the relevant Contract for Services or, if none is stated, one half of the applicable amount that chargeable to the Client based on The Mill’s rate card current at the Target Date, in each case reflecting the fact that The Mill is unlikely to be able to secure an order for the Services and/or to reallocate the resources allocated to the Client’s order within the specified timeframes; this does not apply if the Client provides proof that The Mill has not incurred damage in the amount claimed.
7.4 The right of each party to extraordinary termination for cause remains unaffected. An important reason for The Mill exists in particular if the customer (i) is at least thirty days in arrears with the payment of a not inconsiderable amount despite a reminder or (ii) falls into financial collapse. Moreover, § 314 BGB shall apply.
7.5 Any provisions of the Agreement which by their nature are intended to survive cancellation or expiry (including clause 6 (Confidentiality) and clause 8 (Liability and Indemnity) shall remain in full force and effect notwithstanding any cancellation or expiry of the Agreement.
LIABILITY AND INDEMNITY
8.1 The Mill shall only be liable for damages, irrespective of the legal basis, if the Clients asserts claims for damages based on intent or gross negligence on the part of The Mill or its vicarious agents or representatives. This does not apply to liability for warranted characteristics and for the violation of essential contractual obligations (cardinal obligations). Insofar as The Mill is not guilty of an intentional or grossly negligent breach of contract in the event of a breach of cardinal obligations, the liability for damages shall be limited to the foreseeable, typically occurring damage; this shall also apply insofar as the Client demands compensation for useless expenses instead of compensation for damages instead of performance. The Mill is not liable for indirect damages, consequential damages or loss of profit, unless The Mill has acted intentionally. All the above limitations of liability shall not apply in the event of personal injury or within the scope of mandatory liability under the Product Liability Act.
8.2 Any recommendations or suggestions by The Mill relating to the use of the Works are given to the best of The Mill’s knowledge but it is for the Client to satisfy itself of the suitability of the Works for its own particular purpose. Accordingly, unless otherwise agreed, The Mill gives no warranty as to the fitness of the Works for any particular purpose, even though that purpose may be specified in the Quote, and any implied warranty or condition (statutory or otherwise) to that effect is excluded.
INSURANCE
9 The Client shall maintain and keep effective at all times insurance policies with reputable insurers as are sufficient to protect the Client against any loss or liability which it may incur or suffer arising out of the Agreement, including insurance which covers the Client for any damage or loss for which The Mill is not liable pursuant to the these Terms, and which protects the Client against any accidental loss, damage or destruction to any Client Materials or any other materials of any kind supplied by the Client to The Mill whilst in the possession or control of The Mill. The Mill may, in case of justified interest, at any time request the Client to provide copies or certificates of insurance or other evidence to prove compliance with this clause.
STORAGE OF CLIENT MATERIALS
10.1 The Client shall be responsible for having backup copies of all Client materials provided to The Mill. Liability for loss of or damage to Client materials in The Mill’s possession is governed by Section 8.1.
10.2 In accordance with clause 9 above, the Client shall insure all Client Materials to their full value against all risks.
10.3 The Client shall provide details to The Mill for the return of the Client Materials within two months from the date of confirmation of a Quote or Contract for Services, as applicable. If the Client does not provide The Mill with details for the return of the Client Materials, The Mill shall send the Client Materials to its archive upon completion of the Services and The Mill shall be entitled to charge the Client reasonable storage charges for doing so.
10.4 Where Client Materials are supplied or specific instructions are given by the Client, The Mill accepts no liability for any reduction in the quality of the Services caused by defects or errors in or the unsuitability of such Client Materials or by The Mill’s use of the Client Materials or adherence to any of the Client’s specific instructions.
CUSTOMER INPUT AND ACCESS TO/USE OF THE MILL’S PREMISES AND EQUIPMENT
11.1 The Client shall be solely responsible for ensuring that all information, advice and recommendations given to The Mill either directly or indirectly by the Client or by the Client’s employees, freelancers or agents are accurate, correct and suitable. Acceptance of or use by The Mill of such information, advice or recommendations shall in no way limit the Client’s responsibility hereunder, unless The Mill agrees to accept responsibility.
11.2 The Client hereby undertakes to The Mill to ensure that all of its personnel (including its employees, freelanders and agents) who at any time have access to any premises occupied by The Mill or at which any of The Mill’s equipment shall be kept, shall at all times:
11.2.1 observe all rules, policies and regulations in force at the applicable premises, including all health and safety regulations and any rules governing the use of equipment and/or facilities at the applicable premises;
11.2.2 keep confidential and not divulge or communicate or make any use of any Confidential Information which the applicable person shall become aware of as a result of being present at the applicable premises.
PUBLIC RELATIONS
12.1 The Mill may publicise, advertise and market the Works on its website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as The Mill may in its sole discretion decide, without the prior written consent of the Client.
12.2 The Client hereby grants to The Mill a perpetual and royalty-free licence to use the Works throughout the world for the purposes of clause 12.1 above and in order for The Mill to promote its business by whatever means it sees fit.
DATA PROTECTION
Both parties will comply with the data protection requirements applicable to them. Details regarding data processing by The Mill are available here Site Policy.
BRIBERY AND MONEY LAUNDERING
14 The Client shall, and shall ensure its officers, employees, freelancers and agents, comply with all laws relating to anti-bribery, anti-corruption and anti-money laundering in all matters relating to conclusion and execution of the Agreement
15 (intentionally left blank)
FORCE MAJEURE
16 In the event of the Services being prevented, delayed, or in any way interfered with by any act of government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond their respective control (Force Majeure), each party may suspend performance of or cancel the Agreement
SUB-CONTRACTORS
17 The Mill shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under the Agreement.
GENERAL
18.1 Variation: No variation of the Agreement (including any of the Services or Works to be provided hereunder) shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
18.2 Waiver: A waiver of any right or remedy under the Agreement is effective only if it is in text form and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
18.3 Severance: If. any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the vailidity and enforceability of the othe provisions of the Agreement shall not be affected.
18.4 Relationship: No partnership or joint venture is intended or created by the Agreement and neither party shall have authority to act as agent for, to bind, the other party.
18.5 Notices: Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by email or by letter to Rosa-Luxemburg Strasse 14, 10178 Berlin, Deutschland.
GOVERNING LAW AND JURISDICTION
19 The Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws of the Federal republic of Germany. Exclusive venue shall be Berlin.
20 In the event of any inconsistency or dispute as to interpretation between the English and German versions of these GTC the English version of these GTC shall prevail.
ADDITIONAL TERMS FOR THE BLACKBIRD™ RIG (the “Rig”)
RENTAL OF THE RIG
- Scope: Where The Mill and Client have entered into a separate contract for Services under which the Rig will be used to capture footage (“Live Action Agreement”) then the provisions set out below shall apply.
- Intellectual Property: The Mill shall retain ownership and possession of, and all rights (including all Intellectual Property Rights) in and to any data captured by the Rig which shall include but not be limited to telemetry, 3D modelling and animation data when operated under the Live Action Agreement unless otherwise agreed by the parties. Where the Client requires a license to use any such data for whatever purpose, the terms of such license shall be agreed by the parties in writing pursuant to a Quote and additional terms of use.
- Performance and delivery: Liability for the use of the Rig shall be governed by Section 8.1 of the GTC.