TERMS AND CONDITIONS
Picture Colada GmbH
General terms and conditions
1. Scope, form
1.1. These terms and conditions apply to all contractual relationships between Picture Colada GmbH (in
hereinafter “Picture Colada”) and the client. With the placement of the order, but at the latest with
Acceptance of deliveries or services in knowledge of these terms and conditions is recognized by
Client agrees to the validity of these terms and conditions in any case.
1.2. These terms and conditions apply exclusively. Divergent, conflicting or supplementary
The client's terms and conditions only become part of the contract if and to the extent that picture
Colada has expressly agreed to its validity. This consent requirement applies in any case, including
when Picture Colada is aware of the client's general terms and conditions
provides him with deliveries or services without reservation.
1.3. Individual agreements made with the client in individual cases have priority over the client
Terms and conditions.
1.4. Legally relevant declarations and notifications from the client regarding the contract (e.g.
deadline, notification of defects, withdrawal or reduction) are in written or text form (e.g. letter, e-mail)
surrender. Statutory formal requirements and further evidence, in particular in case of doubt about
The legitimacy of the declarant remains unaffected.
2. Conclusion of contract, assignment of rights
2.1. Offers from Picture Colada are, unless they are expressly subject to change or non-binding
are marked, binding and may be specified by the client within the terms specified in the offer
Acceptance period will be accepted. If an offer does not specify an acceptance period, the
Client accept the offer within 14 days of receipt.
2.2. Acceptance should be made in writing or text form. If this is done verbally, the client will
Request that Picture Colada accept it in writing or text form within two working days
confirm.
2.3. The contract is concluded in German. Is the contract document also available in other languages
completed, in case of discrepancies, the German version shall prevail.
2.4. The assignment of rights or transfer of obligations arising from the contractual relationship by
Clients without the prior written consent of Picture Colada are excluded.
3. Provision of services, freedom of design
3.1. Only the offer prepared by Picture Colada is decisive for the scope of the contract.
3.2. If the client wishes to make changes and/or additions to the content of the service, Picture Colada will
review the change requests and inform the client within a reasonable period of time whether the changes
It is possible to implement whether this results in additional costs and/or a possibly necessary change to
results in the schedule. Only when a binding additional agreement is concluded
The desired changes become the subject of the order placed. Until then, Picture Colada will be the
Continue performance in accordance with the order originally placed.
3.3. The services to be provided by Picture Colada are generally carried out in the following contract phases:
conception phase, layout phase, production phase, change phase, with, depending on the order, individual
Order phases can also be completely omitted. The work result of each phase of the order must be
Client is expressly approved and becomes legally binding through approval
Basis for further service provision by Picture Colada. Changes or additions already
Approved results can only be claimed against separate remuneration.
3.4. Picture Colada is entitled to subcontractors as vicarious agents to provide services
to use.
3.5. When providing services, Picture Colada comes within the framework of the agreement with the client
Requirements for technical and artistic freedom of design, insofar as this is provided by the client
does not contradict the notified purpose of use and the service owed.
4. Client's obligations to cooperate, provision of material
4.1. The client is obliged to provide all services in accordance with the contract by Picture Colada
carry out the necessary cooperation completely and in a timely manner at your own expense.
4.2. In particular, the client is obliged to carefully check all documents and files submitted by Picture Colada for coordination and to approve or amend them immediately upon receipt
or to submit additional requests in writing or text form. The documents or files are considered approved if the client does not request changes or additions within three working days
communicates in writing or text form upon receipt. With the approval, the client assumes the legal
Responsibility for the factual accuracy and legal admissibility of the content.
4.3. The client has Picture Colada all raw materials required for the provision of services
(e.g. corporate and product information, image, sound and film material, graphics) with the granting of
to provide appropriate rights of use free of charge. The client assures
that the starting materials made available by him are free from third-party property rights that
Exclude required use in whole or in part. He presents Picture Colada in this respect
free from any claims made by third parties.
4.4. If the client wishes to use his own production material, he has it available to Picture Colada at
Granting of the necessary rights of use appropriate time before the start of recording in a
to provide a common and usable format free of charge. The client assures
that the production material made available by him is free from third-party property rights that
Use required to fulfill the order, in particular the processing of production material by
Picture colada, exclude completely or partially. In this respect, he represents Picture Colada from everyone
Free use of third parties.
4.5. If material provided by the client must be adjusted by Picture Colada, the
Client the costs incurred for this. Picture Colada will report this to the client in advance
and send a non-binding cost estimate for this. If the client does not accept this
Within two weeks of submitting the cost estimate, he must state whether the material
is adapted by other third parties on behalf of the client or its use is waived.
4.6. Picture Colada does not particularly secure material provided by the client. For
The client must ensure adequate data backups. Picture Colada assumes no liability for
loss or damage to the material provided by the client.
4.7. If the client wishes to use a specific music track, he guarantees that it is
is exclusively GEMA-free material or that he has all rights to used GEMA-free material
owns material or procures it in good time.
4.8. If it is necessary to use the client's premises to carry out the order, the
Client Picture Colada, its employees and other vicarious agents access to these rooms
to grant.
4.9. Does recordings made by the client in external companies result in
Picture Colada assumes no liability for this. The client provides Picture Colada
In this respect, free from any claim.
5. Compensation, termination or postponement of recordings
5.1. All prices given by Picture Colada are in euros plus the legal
sales tax.
5.2. Picture Colada will prepare a cost estimate with a flat rate of 1,000.00 euros net
calculated. If an order is placed with Picture Colada, this amount will be paid by the client
offset the remuneration owed. Picture Colada does not guarantee the accuracy of
Cost estimate.
5.3. Has Picture Colada prepared a cost estimate or the expected remuneration in the offer
Calculated, an overrun of up to 10% is considered to be in accordance with the contract. To go beyond
Picture Colada will provide the client with deviations, specifying the expected additional costs
point out. The additional costs are considered approved if the client does not sign the contract within
Terminates two weeks after receipt of the notice in writing or text form. If this information is omitted,
Picture Colada for compensation only in case of intent or gross negligence.
5.4. The agreed price or the remuneration calculated by Picture Colada applies to the offer
listed scope of delivery and services. All services not expressly mentioned in the offer
are, are charged separately (in accordance with the remuneration provided for comparable services in the offer). This applies in particular to additional and special services (e.g. due to changes
or additional requests from the client), but also for ancillary services (e.g. reproductions, foreign language versions, subtitles, text changes). Also due to not or not on time or not
additional costs arising from duly fulfilled cooperation obligations by the client (including
additional costs arising from Picture Colada) will be charged separately.
5.5. Expenses made by Picture Colada on behalf of the client or necessary in the client's interest
may keep (e.g. costs for packaging, postage and freight, travel expenses, costs for data carriers, fees for
music rights, license costs), the client will also be charged separately. At the
Travel by car is charged 0.50 euros per kilometer driven.
5.6. If it is necessary to cancel the recordings in progress or postpone the recordings,
The parties agree on an alternative date and adjust any subsequent dates.
Is it necessary to cancel the recordings in progress or postpone the recordings without
This is represented by Picture Colada, Picture Colada can take the following
Require additional remuneration:
a) in the amount of 30% of the agreed daily rate for the canceled or postponed admission date for
cancellation or postponement, if this is done in days 8-14 before the appointment
b) in the amount of 50% of the agreed daily rate for the canceled or postponed admission date for
cancellation or postponement, if this is done in days 4 - 7 before the appointment,
c) in the amount of 100% of the agreed daily rate for the canceled or postponed admission date for
Cancellation or postponement, if this is in the last three days before the appointment or on the date of admission
takes place;
There is a “need” to cancel or postpone the recordings even if the
Client requests cancellation and/or postponement, e.g. due to the announced or
current weather.
If no daily rate has been agreed, that of Picture Colada in the total remuneration/
Flat-rate remuneration based on the percentage of remuneration included, the calculated for the aborted/
postponed recording date was set.
Evidence of higher damage caused by Picture Colada remains unaffected. The client is left with
Evidence allows Picture Colada to have no damage at all or only significantly less
was created.
5.7 Section 5.6 applies mutatis mutandis if the cancellation/postponement does not affect a whole day.
6. Payment terms
6.1. Picture Colada is entitled at any time to provide outstanding deliveries and services only against
to provide an appropriate advance payment or security.
6.2. For orders with a calculated remuneration of more than 5,000.00 euros net, Picture Colada will
After the order has been placed by the client, an advance of 50% of the calculated remuneration
request. For orders with a calculated remuneration of more than 10,000.00 euros net, Picture will
Colada request two advances of one third of the calculated remuneration. The advances
are provided within a reasonable period of time before the start of recording.
6.3. Picture Colada may demand advance payments for completed parts of an order.
Does the client comply with his obligations to cooperate even after being asked by Picture Colada within
If Picture Colada fails to comply with a reasonable period of time set by Picture Colada, Picture Colada is entitled to pay all until
to bill for deliveries and services provided there.
6.4. After complete order fulfillment, Picture Colada prepares a final invoice, in which all deliveries and services, costs and expenses as well as the advance payments already paid by the client
and advance payments are shown.
6.5. Invoice amounts are due upon invoicing and are due within 14 days of receipt
to pay the client's invoice without deduction.
6.6. With the expiry of the above payment period, the client is in default without
Reminder required. During the period of delay, the outstanding amount is subject to the applicable statutory provisions
Interest rate on arrears; the assertion of further damage caused by default remains
reserved. The right to interest on remuneration under Section 641 (4) BGB remains unaffected.
6.7. Offsetting against counterclaims by the client and withholding payments
Because of such claims are only admissible if the counterclaims are undisputed or legally binding
are established.
7. Date of performance, deadlines
7.1. Picture Colada may (without prejudice to rights resulting from default on the part of the client) an extension of
Delivery and performance deadlines or a postponement of delivery and performance dates by
Require a period of time during which the client fails to comply with its obligations to cooperate.
7.2. In the event of late payment by the client, Picture Colada is entitled to make all deliveries and
Discontinue services until all outstanding invoices have been paid in full.
7.3. Picture Colada is not liable for the impossibility of deliveries or services or for
Delivery delays, insofar as these are due to force majeure or otherwise, at the time the contract is concluded
unforeseeable events (e.g. operational disruptions of all kinds, difficulties with materials or
energy procurement, transportation delays, strikes, lawful lockouts, lack of
workers, energy or raw materials, difficulties in obtaining necessary regulatory approvals, regulatory measures, or the lack of, incorrect or timely
supply by suppliers, unforeseeable effects of pandemics),
Which Picture Colada is not responsible for. Insofar as such events are essential for deliveries or services
complicate or make impossible and the disability is not only of temporary duration, is
Picture Colada is entitled to withdraw from the contract. Extend if there are temporary obstacles
Do the delivery and performance deadlines change or are the delivery and service dates postponed by
period of disability plus a reasonable start-up period. If the client as a result of
If the acceptance of the delivery or service cannot be expected to be delayed, he may immediately, in
Written or textual declaration to Picture Colada to withdraw from the contract.
7.4. Is Picture Colada in arrears with deliveries or services or will Picture Colada deliveries
or services, for whatever reason, impossible, is Picture Colada's liability for
Compensation limited in accordance with Section 10 of these terms and conditions.
8. acceptance
8.1. The finished product is available to the client in digital form immediately after completion
done.
8.2. The client is obliged to accept if the finished product is defined in the offer
meets performance characteristics and quality requirements. Even as far as the finished product of these
Performance characteristics or quality requirements differ, but the deviations are based on the wishes of
Clients are based on or have been approved by them, or they are only minor, is
Client obliged to accept.
8.3. The client has the acceptance within five working days after the finished product has been made available
explain the product in written or text form. At the end of this period, the finished product is considered to be
accepted, unless the client has Picture Colada a defect in written or text form
displayed, which makes it impossible or essential to use the finished product in accordance with the contract
impaired. Minor defects do not entitle the client to refuse acceptance.
8.4. The finished product is considered accepted even if the client approves the acceptance by
explains conclusive behavior, in particular by starting to use the finished product that
Put the finished product online, for example, or has it posted.
9. Guarantee
9.1. The client's rights in the event of material and legal defects are subject to the statutory provisions,
unless otherwise specified below.
9.2. technical and artistic aspects (e.g. colouring, variations in brightness,
contrast fluctuations, volume differences), insofar as they occur as part of the agreement with the client
comply with agreed requirements, does not represent a defect. For reasons of personal taste
The client is therefore unable to assert any warranty rights.
9.3. Picture Colada is not liable for the factual accuracy and legal admissibility of the product content. Die
legal, in particular competition law, inadmissibility of the finished product justified accordingly
no defect. In this respect, the client releases Picture Colada from any claims made by third parties.
9.4. The client has Picture Colada obvious defects immediately, at the latest within five
working days after the finished product has been made available, other defects within the same period from
View discovery in writing or text. Picture Colada's liability for no or not
Defects reported in good time or improperly are excluded.
9.5. If a complaint is justified, Picture Colada must be made within a reasonable period of time
Choice first to remedy the defect by removing the defect (repair) or by manufacturing
obligates and entitles a new product (new production). The right of picture colada that
Refusing subsequent performance under legal requirements remains unaffected.
9.6. Picture Colada is entitled to make the subsequent payment owed dependent on the fact that the
Client pays the remuneration due. However, the client is entitled to obtain one in relation to
Withhold an appropriate portion of the remuneration.
9.7. The client has Picture Colada the time required for the subsequent performance and
To give an opportunity. The client has the defective product immediately after it has been made available
delete the repaired or newly manufactured product and delete Picture Colada
confirm.
9.8. The expenses required for the purpose of inspection and subsequent performance (in particular transport,
travel, labor and material costs) does Picture Colada bear or reimburse in accordance with the statutory
Regulation when there is actually a defect. Otherwise, Picture Colada from the client can
claim reimbursement of costs incurred by the unjustified complaint (in particular the expenses incurred in examining the defectiveness), unless the lack of defect was not apparent to the client.
9.9. The client's right to remedy the defect himself and to replace Picture Colada
Requiring necessary expenses is excluded.
9.10. In the event of a failure, i.e. after the unsuccessful second attempt, the impossibility
Unreasonableness, refusal or unreasonable delay in rectification may
Client rescind the contract or reduce the remuneration owed appropriately. With a
However, there is no right of withdrawal for minor deficiencies.
9.11. Claims by the client for compensation or reimbursement of futile expenses exist
Even in the event of defects, only in accordance with Section 10 of these terms and conditions and are otherwise
excluded.
9.12. All warranty rights are waived if the client without prior written notice
Approval of Picture Colada changes to the finished product (e.g. corrective work,
makes changes to the files received from Picture Colada) or has them made by third parties and
This makes it impossible or unreasonably difficult to rectify the defect. In any case, he has
Client to bear the additional costs of remedying the defects resulting from the changes.
9.13. The warranty period is one year from acceptance or, insofar as acceptance is not required,
from delivery. This deadline does not apply
- for compensation claims by the client arising from injury to life, limb or
Health or as a result of intentional or grossly negligent breaches of duty by Picture Colada or its
vicarious agents, which expire in accordance with legal regulations;
- for compensation claims by the client arising from the breach of an essential contractual obligation, i.e.
an obligation whose fulfilment is the proper execution of the contract in the first place
enables and whose compliance the client regularly trusts and may rely on. One
An essential contractual obligation is, for example, the obligation of Picture Colada to
create and let the client use it.
- in case of defects that are subject to a warranty issued by Picture Colada.
10. Liability for compensation
10.1. For compensation, irrespective of the legal basis, in particular due to impossibility, delay,
defective performance, breach of contract, breach of obligations during contract negotiations and
tort, Picture Colada is liable, insofar as fault is involved, in the event of intent and
gross negligence.
10.2. In the event of simple negligence, Picture Colada is liable (subject to legal limitations of liability)
only
a) for damage resulting from injury to life, limb or health, and
b) for damage resulting from the breach of an essential contractual obligation, i.e. an obligation, its fulfilment
makes the proper execution of the contract possible in the first place and requires compliance with it
Client regularly trusts and may trust; in this case, however, Picture Colada's liability is
limited to compensation for foreseeable, typically occurring damage. An essential
Contractual obligation is, for example, Picture Colada's obligation to produce the agreed product and to
to let the client use it.
10.3. The above limitations of liability also apply vis-à-vis third parties and to
Breaches of duty by persons (including in their favor) whose fault Picture Colada is
is responsible for legal regulations. They do not apply if a defect is fraudulently concealed or
a guarantee has been given for the quality of the work.
10.4. Insofar as Picture Colada provides technical information or provides advice and this information or
advice is not part of the contractually agreed scope of services owed by Picture Colada,
This is done free of charge and to the exclusion of any liability.
11. Termination, Withdrawal, Compensation
11.1. Does the client comply with his obligations to cooperate even after being asked by Picture Colada
If not within a reasonable period of time set by Picture Colada, Picture Colada is entitled
to cancel the contract and/or claim appropriate compensation. The assertion
We reserve the right to make further claims.
11.2. Due to a breach of duty that does not consist of a defect, the client can only
resign or resign if Picture Colada is responsible for the breach of duty. A free
The client's right of termination (in particular from Section 648 BGB) is excluded.
12. Copyright rights of use, self-promotion
12.1. The finished product manufactured by Picture Colada is protected by copyright. Picture Colada clears
With full payment of the remuneration owed, the exclusive
Use rights to the finished product for an unlimited period of time and location. The client is entitled to
Utilization of the finished product to create reproductions and simple rights of use for third parties
to concede. Modification of the finished product is only possible with the prior written consent of
Picture colada allowed. Removing references to Picture Colada as a producer is prohibited.
12.2. The client grants Picture Colada the right, unlimited in time and space, to complete the finished
Product (including excerpts) for self-promotion (e.g. during presentations to customers, at trade fairs and
corporate events, on the company website, in particular in a showreel, on advertising posters
and LED advertising space as well as in social media accounts) free of charge.
12.3. In the case of transfer of rights to images or pieces of music obtained from third parties
From the time of transfer, only the client is liable for any
infringements of rights of use. In this respect, the client provides Picture Colada with any claim
free.
13. Raw material, storage obligation, trade secrets
13.1. The raw material produced during the production of the finished product (in particular visual, audio and
film material) and the intermediate products produced from them as well as all from Picture Colada in
Documents and files created in connection with the order (e.g. concepts, treatments, screenplays,
storyboards, 3D models, graphics) are protected by copyright and remain the property of Picture
Colada.
13.2. The client may use the objects mentioned in Section 13.1 without prior written consent
Do not make Picture Colada available to third parties either as such or in terms of content, disclose it yourself
or use or reproduce by third parties.
13.3. At the request of Picture Colada, the client has the items specified in Section 13.1.
return (including any copies made) in full to Picture Colada at your own expense
or to destroy or delete them if they are no longer used by him in the ordinary course of business
are required or when negotiations have not led to the conclusion of a contract.
13.4. Insofar as the client wishes raw material to be handed over, a
an appropriate buyout can be agreed. The costs of transferring the data and the data carrier are borne
the client.
13.5. All documents, files and other documents created by Picture Colada in connection with the order
In principle, data is processed until the order has been completed and the finished product is accepted by
stores the client. After expiry of this period or in the event of premature termination of the contract, it is
Picture Colada is free to transfer the documents, files and other data (in particular the finished product)
destroy or delete. Picture Colada is obliged to destroy or delete
But not.
13.6. Picture Colada is excluded from liability for loss of data during storage.
13.7 The client will provide all confidential information (including trade secrets) that Picture
Colada and which the client has learned in connection with the contract negotiations
and during the performance of the contract, does not disclose to third parties, not accessible to third parties
do and/or use it yourself without authorization. The same applies to the pre-contractual
Communication about confidential information made available about future activity.
Confidential information is information that is marked as confidential or whose
Confidentiality results from the circumstances, regardless of whether it is written, electronic,
have been reported in embodied or oral form. This includes in particular the
Cost estimates, offers, order confirmations and change offers from Picture Colada.
Confidential information in the foregoing sense is information that
- were obvious upon transmission or become so retrospectively,
- were known to the client at the time of transmission,
- have been made available to the client by third parties without breach of law, or
- the client developed it himself without using confidential information.
The confidentiality obligation then does not apply
- when § 5 GeschGehG applies, and/or
- insofar as the client is legally or on the basis of existing or legally binding authorities or
court decision is required to disclose confidential information. In this case, the
Inform client Picture Colada immediately of the obligation to disclose. In addition
In the course of disclosure, the client will make it clear that, if this is the case, these are trade secrets or confidential information and work to ensure that the conditions of Sections 16 et seq. of the GeschGehG are used.
14. Contractual penalty for copyright infringement
Does the client use the finished product or anything else from Picture Colada in connection with the
Documents or files created on the order without being entitled to do so and if this is done culpably, the
Client for each case of infringement or, in the event of a permanent infringement, per initiated
Week an appropriate contractual penalty, to be determined at Picture Colada's reasonable discretion
Picture colada to pay. The assertion of a further claim for damages remains
reserved.
15. Applicable Law, Place of Fulfilment, Jurisdiction
15.1. For these terms and conditions and the contractual relationship between Picture Colada and
The client is exclusively subject to the law of the Federal Republic of Germany.
15.2. Unless otherwise agreed in writing or text form, Picture Colada has the owed
to provide services at its offices in Koblenz.
15.3. Is the client a merchant, a legal entity under public law or a
special fund under public law or does it not have a general fund in the Federal Republic of Germany
Jurisdiction, is the exclusive (including international) place of jurisdiction for all parties arising from the contractual relationship
disputes arising directly or indirectly at the registered office of Picture Colada in Koblenz.
Mandatory statutory provisions, in particular regarding exclusive places of jurisdiction, remain unaffected.