General Terms and Conditions (T&C) of Nutshell Films GmbH

(Updated: 23. November 2020)

§ 1 Scope of application

  1. The following general termsand conditions (hereinafter referred to as T&C) apply to all orders,offers, deliveries and services carried out by Nutshell Films GmbH (hereinafterreferred to as "Nutshell Films"). The following General Terms andConditions shall also apply to all future business relations, even if NutshellFilms does not expressly refer to them in the future. In general, only the Germanversion is legally valid.
  2. Any deviating provisionsshall only apply if they have been expressly agreed in writing between NutshellFilms and the customer. Deviating terms and conditions of the customer whichNutshell Films does not expressly accept in writing are not binding, even ifNutshell Films does not expressly object to them in writing or orally.
  3. If the customer wishes toobject to the terms and conditions, this must be done in writing within threebusiness days. Deviating terms and conditions of the customer are herebyobjected to. Deviating terms and conditions of the customer will not be validunless Nutshell Films accepts them in writing.
  4. The customer acknowledgesthat in case of force majeure, industrial disputes, riots, governmental measuresor other unforeseeable, unavoidable and serious events, Nutshell Films will bereleased from its performance obligations for the duration of the disturbanceand to the extent of its effect.

§ 2 Conclusion of contract and scope of the order

  1. The contract between the customer and Nutshell Films is formed by agreement (acceptance of the offer/quote) or informally by the use of the services.
  2. Offers by Nutshell Films to potential customers are binding for a period of two weeks from receipt of the offer. The information provided to Nutshell Films (service description, briefings) is part of the order confirmation.
  3. The scope of the services to be provided by Nutshell Films is determined by the order placed (including service description, briefings) and these terms and conditions.
  4. Nutshell Films is entitled to accept and execute any changes to the order made verbally by the customer. The indicative offers are always based on the state of the art at the time of submission of the cost estimate. Due to technological and/or regulatory changes (e.g. technical changes or changes in the terms of use of third party suppliers), deadlines may be postponed and additional work may be required. This additional expenditure shall be borne by the customer. If these changes make it impossible to implement agreed solutions, Nutshell Films will endeavor to provide the customer with alternative solutions. The customer will be invoiced for the work done up to that point.

§ 3 Services of Nutshell Films

  1. Nutshell Films provides services which are performed to the best of its ability with due care. Nutshell Films' performance is generally based upon the content of the offer/quote.
  2. If the expenditure incurred exceeds the content of the offer, additional compensation may be claimed by the customer. In this case Nutshell Films must inform the customer in advance.
  3. Nutshell Films has the right at any time to change the nature, scope, price, conditions and channels of supply of the services it provides and to refuse to provide its services in full in the event of late payment or other breaches of duty.
  4. The prices quoted in the offer are to be understood as guide prices (in CHF and excluding VAT). However, the actual expenditure in each case is decisive. If additional costs arise, these are to be borne by the customer to the extent of up to 10%. If it is foreseeable that the actual costs will exceed the costs estimated by Nutshell Films in the quotation by more than 10%, Nutshell Films will advise the customer of this fact as soon as possible. Unless the customer objects within three days of Nutshell Films' notification, the additional costs will be deemed to be accepted by the customer.

§ 4 Duties of the customer

  1. The customer is obliged to cooperate to the extent necessary for the proper execution of the order. In particular, the customer must provide Nutshell Films, without being requested to do so, with all documents necessary for the execution of the contract in full and in a timely manner (e.g. images, sound, graphics, text, videos, address data, software and trademarks) so that Nutshell Films has a reasonable amount of time to process the order. The customer is obliged to make and keep a backup copy of the data provided to Nutshell Films. Nutshell Films cannot be held liable for any lost data.
  2. The customer must maintain clear and efficient project management and ensure that communication is bundled. Project delays and additional costs resulting from a breach of this obligation or other failures on the part of the customer will be borne entirely by the customer.
  3. The customer is obliged to take note of all written and oral communications from Nutshell Films and to consult with Nutshell Films in case of doubt.
  4. If the customer fails to cooperate or is in default of acceptance of the service offered by Nutshell Films, Nutshell Films is entitled to set a reasonable deadline with the declaration that it will refuse to continue the contract after the deadline has expired. Upon unsuccessful expiration of the period, Nutshell Films may terminate the agreement without notice. Nutshell Films' right to claim compensation for any additional expenses incurred as a result of the customer's default or failure to cooperate as well as for any damages caused will remain unaffected even if Nutshell Films does not exercise its right of termination.
  5. If an order is not executed for reasons for whichNutshell Films is not responsible, Nutshell Films may, without proof of damageby Nutshell Films being required, charge compensation for loss in the amount of 50% of the agreed offer.
  6. If an order which has been commenced is not completeddue to circumstances beyond Nutshell Films' control, Nutshell Films is entitledto the full fee. An order is deemed to have been commenced when Nutshell Films'performance owed under the contract has commenced.

§ 5 Participation and performance of third parties

  1. Nutshell Films is entitled to use the services of its employees, professional third parties and subcontractors to execute the order.
  2. Nuthsell Films has the right to provide employees, third party contractors or subcontractors with the information necessary to complete the order and also to provide customer materials. The customer acknowledges this and agrees to it in full.
  3. The customer must comply with the agreements and license terms of third parties, including but not limited to image and copyright, buy-outs, license terms. Nutshell Films will inform the customer in writing about the agreements with third parties. The customer himself is responsible for compliance with the agreements.

§ 6 Third party rights

  1. The customer assures that the materials and contents he has contributed within the scope of the contract are free of third-party industrial property rights and that, to his knowledge, there are no other rights that restrict or exclude use in accordance with the contract. In the event that any third party should have any claims of any kind arising from the aforementioned materials or content, the customer assumes unlimited liability and is obliged to indemnify Nutshell Films from any claims of third parties. Nutshell Films is entitled to demand information from the customer about the precautions taken by him.
  2. If a service provided by Nutshell Films infringes the rights of third parties, Nutshell Films will at its own discretion and at its own expense either procure the right to use the service for the customer or make the service free of industrial property rights or take back the service at the invoice price (less an appropriate compensation for use). The customer is only entitled to a claim against Nutshell Films if the contractual services are used as agreed and the claims are not caused by a change made by the customer himself or by a third party.
  3. In accordance with the above provisions Nutshell Filmsis entitled to prohibit the customer from using the services if claims underindustrial property rights are asserted against Nutshell Films.
  4. The customer is also responsible for obtainingthe release for publication from the persons depicted on the film and graphicalmaterial produced by Nutshell Films (assignment of rights), insofar as this islegally necessary and is not part of the services agreed in writing by Nutshell Films.
  5. The customer alone is responsible for anyinfringement of rights resulting from the publication of film material,pictorial material and/or their connection with the published text, inparticular general personal rights, art copyrights, trademark rights and/orproperty rights as well as invasions of privacy. In such cases the customeralone is liable to pay damages to the injured party and indemnifies Nutshell Films from all claims for damages asserted against Nutshell Films.

§ 7 Transfer of rights and intellectual property rights

  1. Nutshell Films grants the customer thenon-exclusive right to use the product for the contractually stipulatedpurpose. All other rights of use remain with Nutshell Films. All rights of useremain with Nutshell Films until full payment has been received.
  2. The contents of its services provided byNuthsell Films are protected by copyright. The customer's use and payment forthe services does not result in the transfer of any intellectual propertyrights. All rights to the resulting visual and audio material remain withNutshell Films. The resulting end product may be used by the customer withinthe scope of the purpose agreed in the offer. However, the customer has noright to resell or modify the end product or any part thereof without NutshellFilms' prior express consent. Nutshell Films has the right to place copyright noticeson products.
  3. Simple rights of use may only be transferred bythe customer to third parties with the express written consent of NutshellFilms. In the event of unauthorized exploitation, reproduction or adaptation bythe customer or third parties a penalty of 300% of the order amount is payableto Nutshell Films. The basis of assessment will be Nutshell Films' offer madeto the customer.
  4. All unedited content in word, image and sound isconsidered raw material (hereinafter raw material). The rights to raw materialremain with Nutshell Films.
  5. In the event of failure to complete an order orcancellation of an order by the customer, all ideas and design proposalssubmitted to the customer will remain with Nutshell Films, whether presented bytelephone, in writing, in person, graphically, as photographic works, films orin any other form. They are subject to copyright and are considered protectedintellectual property. Nutshell Films is authorized to release these ideas andconcept proposals by written statement and against appropriate compensation.
  6. Nutshell Films is under no obligation to storecustomer-related project data and raw data on its premises until further noticeunless expressly agreed and specified accordingly in the offer.
  7. Nutshell Films is under no obligation to storecustomer-related project data and raw data on its premises until further noticeunless expressly agreed and specified accordingly in the offer.

§ 8 Terms of payment

  1. All contracts and invoices are based on theprices from the respective offers of Nutshell Films.
  2. For offers with a total value of more than 4'000 CHFand unless otherwise agreed, the following payments on account by the customerare generally to be made
    a. 20% of the offer sum upon placing of the order
    b. 30% of the bid amount after the shooting
    c. 50% of the offer sum after completion of the production
  3. The customer undertakes to pay the amount owedwithin 30 days of the date of issue of the invoice at the latest If thecustomer does not meet his payment obligation within the payment period, hewill be in default without reminder upon expiration of this period. The defaultinterest is 5%. If the customer is in default of payment for more than fiveweeks, Nutshell Films may suspend the performance of its services and/orterminate all current contracts.
  4. If an order is withdrawn by the customer afterthe order has already been placed for reasons for which Nutshell Films is notresponsible, Nutshell Films is entitled to charge the customer one third of thetotal amount of the offer as financial compensation.
  5. If an order is withdrawn by the customer afterthe order has already been placed for reasons for which Nutshell Films is notresponsible, Nutshell Films is entitled to charge the customer one third of thetotal amount of the offer as financial compensation.
  6. If an order is withdrawn by the customer afterthe order has already been placed for reasons for which Nutshell Films is notresponsible, Nutshell Films is entitled to charge the customer one third of thetotal amount of the offer as financial compensation.

§ 9 Liability

  1. Nutshell Films strives to provide a high levelof professional services. Nutshell Films makes no warranties as to theachievement of a service. It warrants only that the services promised will beprovided in accordance with the standard of care customary in the industry.
  2. Damages of the customer (hereinafter referred toas "claims for damages"), irrespective of the legal basis, inparticular due to breach of duties arising from a contractual obligation andfrom tort, are excluded. In particular, Nutshell Films is not liable for lossof profit or other financial losses of the contractual partner.
  3. However, the claim for damages for breach ofmaterial contractual obligations is limited to reasonably foreseeable damagestypical for the contract, provided that there is no gross negligence orliability for injury to life, body or health.
  4. Nutshell Films' liability for negligent and/orculpable loss or damage of raw material is limited exclusively to new deliveryof the same amount.
  5. The customer's contractual claims for damagesagainst Nutshell Films become time-barred after one year from the date theclaim arises, unless shorter statutory limitation periods apply.
  6. Insofar as Nutshell Films' liability is excludedor limited, this also applies to the personal liability of its employees.

§ 10 Production release

  1. After completion of the production an acceptance test takes place. Within the scope of this acceptance, any change requests of the customer will be recorded. These changes will be made by Nutshell Films free of charge within the agreed number of rounds of inspection, unless they were already apparent from the previously accepted intermediate stages or are contrary to the services agreed in the order confirmation.
  2. For changes caused by the customer, e.g.subsequent changes to the text, the customer will be additionally charged thecosts incurred.
  3. Technical notices of defects and complaints mustbe made in writing without delay, but at the latest within 14 days afteracceptance of production. In case of timely and metrologically justifiednotices of defects Nutshell Films is only obliged to remedy the defects to theextent that this is technically possible for Nutshell Films in the course ofits operations. If the remedy fails, the customer has the right to a reductionof the compensation.

§ 11 Delivery Dates

  1. Nutshell Films will always endeavor to meet the delivery times or dates communicated to the customer to the best of its ability. These are not legally binding fixed dates, unless they have been so agreed in writing and exclusively declared as such. Time periods stated in the order confirmation do not constitute a sufficient declaration.
  2. In cases of force majeure, non-delivery bysuppliers, operational or traffic disruptions, strikes or lockouts or withheldinformation relevant to the production, agreed dates and delivery times shallbe postponed or extended proportionately. If the cause is within the customer'ssphere of responsibility and the production effort increases as a result,Nutshell Films may demand compensation for this additional effort.

§ 12 Termination of the Agreement

  1. The contract shall end by fulfilment of theagreed services, by expiry of the agreed term or by termination. The contractdoes not end by death, by the occurrence of the legal incapacity of thecustomer or in the case of a company by its dissolution.
  2. In the event of termination of the agreement byNutshell Films, in order to avoid loss of rights by the customer, those actionswhich are reasonable and cannot be postponed must be taken in any event.

§ 13 Retention of work results and documents

  1. Nutshell Films may refuse to release the workresults until all fees and expenses have been paid by Nutshell Films. Thisshall not apply if the retention would be contrary to good faith under thecircumstances, in particular if the amounts owed are relatively insignificant.
  2. The customer is entitled to retain a reasonablepart of the remuneration until the defects claimed by the customer in due timehave been remedied.

§ 14 Other agreements

  1. Nutshell Films is entitled to keep the customeron its customer list and give it as a reference, unless the customer hasrefused to give his consent.
  2. Changes, additions and collateral agreements tothese general terms and conditions as well as to the individual contract mustbe in writing to be effective.
  3. If the General Terms and Conditions of Businessprove to be invalid, the contracting parties shall endeavour to replace theinvalid provision with a provision which comes closest to the intentions of thecontracting parties at the time of conclusion of the contract in economicterms. The invalidity of any one provision shall not affect the validity of theremaining provisions of the Agreement and all other legally enforceable partsof the Agreement shall remain in full force and effect.

§ 15 Applicable law and place of performance

  1. Only Swiss law shall apply to the order, itsexecution and the claims arising therefrom.
  2. Place of performance is the location of thebranch office of Nutshell Films, unless otherwise agreed.

§ 16 Place of jurisdiction

  1. The place of jurisdiction is Zurich.