General Terms and Conditions (GTC) of Nutshell Films GmbH

(as of Nov. 23, 2020)

§ 1 Scope

The following General Terms and Conditions (hereinafter referred to as GTC) apply to all orders, offers, deliveries and services performed by Nutshell Films GmbH (hereinafter referred to as "Nutshell Films"). The following GTC shall also apply to all future business relations, even if Nutshell Films does not expressly refer to them in the future.
Deviating provisions shall only apply if expressly agreed in writing between Nutshell Films and the customer. Deviating terms and conditions of the customer that Nutshell Films does not expressly acknowledge in writing shall not be binding, even if Nutshell Films does not expressly object to them in writing or orally.
If the customer wishes to object to the GTC, this must be declared in writing within three working days. Any deviating terms and conditions of the customer are hereby objected to. Deviating terms and conditions of the customer shall not be valid unless Nutshell Films accepts them in writing.
The customer acknowledges that in the event of force majeure, labor disputes, riots, official measures or other unforeseeable, unavoidable and serious events, Nutshell Films shall be released from its performance obligations for the duration of the disruption and to the extent of its effect.

§ 2 Conclusion of the contract and scope of the order

The contract between the customer and Nutshell Films is concluded by agreement (acceptance of the offer/quotation) or informally by using the services.
Offers made by Nutshell Films to potential customers are binding for a period of two weeks from the date of receipt of the offer. The information communicated to Nutshell Films (service description, briefings) is part of the order confirmation.
The scope of services to be provided by Nutshell Films shall be governed by the order placed (incl. service description, briefings), as well as these GTC.
Nutshell Films is entitled to accept and execute changes to the order given verbally by the customer. Indicative quotes are always based on the state of the art at the time the quote is submitted. As a result of 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 expenses may be incurred. This additional expense 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 work performed up to that point will be invoiced to the customer.

§ 3 Services of Nutshell Films

Nutshell Films provides services that are performed diligently to the best of its ability. The services provided by Nutshell Films basically result from the content of the offer/quotation.
If the expenses incurred exceed the content of the offer, the customer may be required to pay additional compensation. In this case, Nutshell Films shall inform the customer in advance.
Nutshell Films shall have the right at any time to change the nature, scope, price, subscription terms, and subscription channels of the services it provides and to refuse its services entirely in the event of late payment or other breach of duty.
The price quotations in the offer are to be understood as guide prices (in CHF and excluding VAT). However, the actual expenditure in each case is decisive. In the event that additional costs are incurred, these shall 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 offer by more than 10%, Nutshell Films will inform the customer of this circumstance as early as possible. If the customer does not object to this within three days of being informed by Nutshell Films, the additional costs will be deemed to have been approved by the customer.

§ 4 Obligations of the customer

The customer is obligated to cooperate to the extent necessary for the proper completion of the order. In particular, he shall provide Nutshell Films, without being requested to do so, with all documents necessary for the execution of the contract in a complete and timely manner (e.g., images, sound, graphics, texts, videos, address data, software and trademarks) such that Nutshell Films has a reasonable processing time. 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.
The customer shall maintain clear and efficient project management and ensure communication in a bundled form. Project delays and additional costs which are attributable to a breach of this duty or to other failures on the part of the customer shall be borne in full by the customer.
The customer is obliged to take note of all written and verbal communications from Nutshell Films and to consult with Nutshell Films in case of doubt.
If the customer fails to cooperate as required or defaults in accepting 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. After unsuccessful expiration of the deadline, Nutshell Films may terminate the contract without notice. Nutshell Films' claim for compensation of additional expenses incurred due to the customer's default or failure to cooperate, as well as the damage caused, shall remain unaffected, even if Nutshell Films does not exercise the right of termination.
If an order is not executed for reasons beyond the control of Nutshell Films, Nutshell Films may charge a compensation for loss in the amount of 50% of the agreed offer without the need for proof of loss by Nutshell Film.
If an order that has been started is not completed due to circumstances for which Nutshell Films is not responsible, Nutshell Films shall be entitled to the full fee. An order is considered to have been started when Nutshell Films has begun with the contractually owed service.

§ 5 Cooperation and performance of third parties

Nutshell Films is entitled to use employees, expert third parties and subcontractors to execute the order.
Nuthsell Films is entitled to forward to employees, the assigned third parties or the subcontractors the necessary information for the fulfillment of the order and also to provide material of the Customer. The Customer acknowledges this and fully agrees to it.
The customer shall comply with third party agreements and licensing terms including, but not limited to, image rights, copyrights, buy-outs, licensing terms. Nutshell Films shall inform the customer in writing about the agreements with third parties. The customer is responsible for compliance with the agreements.

§ 6 Third party rights

The customer assures that the materials and content provided by him within the scope of the contract are free of third party property rights and that, to his knowledge, no other rights exist that restrict or exclude use in accordance with the contract. If third parties should be entitled to claims of any kind arising from the aforementioned materials or content, the customer assumes unlimited liability for this and is obligated to hold Nutshell Films harmless from the claims of third parties. Nutshell Films is entitled to demand information from the customer about the precautions taken by him.
If third party rights are infringed by a service provided by Nutshell Films, Nutshell Films shall, at its own discretion and at its own expense, procure for the customer the right to use the service or render the service free of property rights or take back the service at the invoice price (less reasonable compensation for use). The customer shall only be 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.
Nutshell Films is entitled, in accordance with the above provisions, to prohibit the customer from using the service if claims under intellectual property law are asserted against Nutshell Films.
The customer is also responsible for obtaining release for publication from the persons depicted on the film and image material created by Nutshell Films (assignment of rights), insofar as this is required by law and is not part of the services agreed upon in writing by Nutshell Films.
The customer alone is responsible for any infringement of rights resulting from the publication of film material, image material and/or their connection with the published text, in particular of general personal rights, art copyrights, trademark rights and/or property rights as well as invasions of privacy. In such cases, he alone shall be liable for damages to the infringed party and shall indemnify Nutshell Films against all claims for damages asserted against Nutshell Films.

§ 7 Transfer of Rights and Intellectual Property Rights

Nutshell Films grants the customer the simple right to use the product for the contractually required purpose. All other rights of use remain with Nutshell Films. All rights of use shall remain with Nutshell Films until full payment has been made.
The contents of its services provided by Nuthsell Films are protected by copyright. The use and payment of the services by the Customer does not result in the transfer of any intellectual property rights. All rights to the resulting visual and audio material remain in principle with Nutshell Films. The resulting final product may be used by the customer within the scope of the purpose agreed upon in the offer. However, the customer has no right to resell or modify the final product or any part thereof without first obtaining the express consent of Nutshell Films. Nutshell Films has the right to place indications of its authorship on products.
Simple rights of use may only be transferred by the customer to third parties with the express written consent of Nutshell Films. In the event of unauthorized exploitation, reproduction or adaptation by the customer or by third parties, a contractual penalty of 300% of the order amount shall be payable to Nutshell Films. The basis of assessment shall be the offer made by Nutshell Films to the customer.
All unedited content in word, image and sound is considered raw material (hereinafter referred to as Raw Material). The rights for raw material remain with Nutshell Films.
In the event of failure to complete an order or in the event of order cancellation by the client, all ideas and conceptual proposals submitted to the client remain with Nutshell Films, regardless of whether they were presented by telephone, in writing, in person, graphically, as works of photography, films or in any other form. They are subject to copyright and are considered protected intellectual property. Nutshell Films is authorized to release such ideas and conceptual proposals by written statement and for appropriate compensation.
Nutshell Films is not obligated to store customer-related project data and raw data on its premises until further notice, unless this has been expressly agreed and regulated accordingly in the offer.
Nutshell Films has the right to use finished productions, set photos, sketches, storyboards and raw footage for marketing purposes without the express consent of the customer.

§ 8 Terms of payment

All contracts and invoices are based on the prices from the respective offers of Nutshell Films.
For offers with a total value of more than 4,000 CHF and unless otherwise agreed, the following payments on account are to be made by the customer:
- 20% of the offer amount when the order is placed
- 30% of the offer amount after the shooting
- 50% of the offer amount after completion of the production
The customer undertakes to pay the amount due within 30 days of the date of issue of the invoice at the latest. If the customer does not meet his payment obligation within the payment period, he shall be in default upon expiry of this period without a reminder. The interest on arrears is 5%. If the customer is more than five weeks in arrears with his payment, Nutshell Films may suspend the execution of its services and/or terminate all current contracts.
If an order is withdrawn by the customer after it has already been placed for reasons beyond Nutshell Films' control, Nutshell Films is entitled to charge the customer one-third of the total offer amount as financial compensation.
If a required payment on account is not paid, Nutshell Films may, after prior notice, cease further activity for the customer until the payment on account is received. Nutshell Films is obligated to notify the customer in a timely manner of its intention to discontinue the activity if the customer may suffer disadvantages from discontinuing the activity.
In the event of significant breaches of contract for which a written warning has been issued, default in payment, significant deterioration of assets, cessation of payments, or initiation of bankruptcy or composition proceedings by the customer, Nutshell Films is entitled to immediately withdraw from all existing contracts with the customer. The customer is entitled to the same right.

§ 9 Liability

Nutshell Films strives to provide a high level of professional service. Nutshell Films makes no warranties as to the achievable goal of any service. It only guarantees the provision of the promised services in accordance with the standard of care customary in the industry.
Damages of the customer (hereinafter referred to as "claims for damages"), irrespective of the legal basis, in particular due to breach of duties arising from a contractual obligation and from tort, are excluded. Nutshell Films shall in particular not be liable for loss of profit or other financial losses of the contractual partner.
However, the claim for damages for breach of material contractual obligations shall be limited to the reasonably foreseeable damage typical for the contract, unless there is gross negligence or liability for injury to life, body or health.
The liability of Nutshell Films in case of negligent and/or culpable loss or damage of raw material is limited exclusively to new delivery to the same extent.
Contractual claims for damages by the customer against Nutshell Films shall become statute-barred after one year from the date on which the claim arose, unless shorter statutory periods of limitation exist.
To the extent that the liability of Nutshell Films is excluded or limited, this shall also apply to the personal liability of its employees.

§ 10 Production release

After completion of the production, an acceptance test takes place. In the course of this acceptance, any changes requested by the customer will be recorded. These changes will be carried out by Nutshell Films free of charge within the agreed number of revision rounds, as long as they were not already evident from the previously accepted intermediate stages, or are contrary to the services agreed upon in the order confirmation.
For changes that are the fault of the customer, such as subsequent text changes, the costs incurred will be charged additionally to the customer.
Technical notices of defects and complaints must be made in writing without delay, but no later than 14 days after acceptance of the production. In the case of timely and metrologically justified notices of defects, Nutshell Films is only obliged to remedy the defects to the extent that this is technically possible for Nutshell Films within the scope of its operations. If the rectification fails, the customer has the right to a reduction in compensation.

§ 11 Delivery dates

Nutshell Films shall always endeavor to comply with 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 designations listed in the order confirmation do not constitute a sufficient declaration.
In cases of force majeure, non-delivery by suppliers, operational or traffic disruptions, strikes or lockouts, or withheld information relevant to production, agreed deadlines and delivery times shall be postponed or extended proportionately. If the cause lies within the customer's area of responsibility and the production effort is increased as a result, Nutshell Films may demand compensation for this additional effort.

§ 12 Termination of the contract

The contract ends by fulfillment of the agreed services, by expiry of the agreed term or by termination. The contract does not end by death, by the occurrence of the legal incapacity of the customer or, in the case of a company, by its dissolution.
In the event of termination of the contract by Nutshell Films, in order to avoid legal losses on the part of the customer, those actions must still be taken in any case that are reasonable and do not tolerate any delay.

§ 13 Retention of work results and documents

Nutshell Films may refuse to release the work results until Nutshell Films has been reimbursed for all fees and expenses. This shall not apply insofar as the withholding would be contrary to good faith under the circumstances, in particular due to the relative insignificance of the amounts owed.
Until defects asserted by the customer in due time have been remedied, the customer shall be entitled to withhold an appropriate part of the remuneration.

§ 14 Other agreements

Nutshell Films is entitled to include the customer in its list of customers and to list the customer as a reference, provided that the customer has not refused its consent to do so.
Amendments, supplements and ancillary agreements to these General Terms and Conditions and to the individual contract must be made in writing to be effective.
Should any of the General Terms and Conditions prove to be invalid, the contracting parties shall endeavor to replace the invalidated provision with one that most closely approximates the intentions of the contracting parties in economic terms when the contract was concluded. All other provisions of the contract shall not be affected by the invalidity of any individual provision and the contract shall therefore remain in force in all its other legally enforceable parts.

§ 15 Applicable law and place of performance

Only Swiss law shall apply to the order, its execution and the claims arising therefrom.
The place of performance is the location of Nutshell Films' branch office, unless otherwise agreed.

§ 16 Jurisdiction

The place of jurisdiction is Zurich.