1. Scope of Application, Conclusion of Contract
1.1 These Terms and Conditions apply to all contractual relationships between Soda Zitron Media FlexCo (Soda Zitron Media) and its contractual partners (the Client). All deliveries and services provided by Soda Zitron Media to the Client within these contractual relationships, including in particular the production of a cinematographic work within the meaning of the Austrian Copyright Act (UrhG), are collectively referred to in these Terms and Conditions as Services or Commissioned Work. If Soda Zitron Media and the Client maintain an ongoing business relationship, or if the Client places follow up orders, these Terms and Conditions also apply even if no explicit reference is made to them.
1.2 Any deviating or supplementary written provisions contained in a binding offer, an order confirmation issued by Soda Zitron Media, or separately negotiated contracts shall prevail over these Terms and Conditions. The Client’s general terms and conditions or standard forms shall under no circumstances become part of the contract, regardless of whether Soda Zitron Media was aware of them, and regardless of whether Soda Zitron Media expressly objected to them.
1.3 All communications by Soda Zitron Media, including responses to inquiries, as well as offers, are non binding and without obligation unless expressly stated otherwise. This also applies if prices, dates, technical information, or proposed solutions are provided. A contract is concluded only upon receipt of a written order confirmation from Soda Zitron Media, or upon performance of the Service if no written order confirmation is issued. Orders, order confirmations, delivery confirmations, or other declarations of the Client have no legal effect, even if Soda Zitron Media does not object to them.
1.4 Agreements, side agreements, or any other statements made by employees of Soda Zitron Media require the express written confirmation of Soda Zitron Media to be legally valid.
1.5 If the order confirmation issued by Soda Zitron Media deviates from the Client’s order, the deviation is deemed approved unless the Client objects in writing within three business days of receipt, or at the latest upon performance of the Service.
2. Subject Matter and Scope of the Order
2.1 The subject matter and scope of the Services to be provided by Soda Zitron Media for the specific order are determined by the provisions of the written order confirmation and these Terms and Conditions. Minor, objectively justified changes in performance that are reasonable for the Client are deemed approved in advance.
2.2 Information about works and services that are the subject of the contract contained in catalogs, brochures, drawings, illustrations, other representations, advertisements, promotional mailings, newsletters, the internet (website, social networks, etc.), or other information or advertising materials, regardless of whether originating from Soda Zitron Media or third parties, shall be deemed agreed only if expressly declared part of the contract in the written order confirmation. If the Client bases its decision on such materials, the Client shall disclose this to Soda Zitron Media so that Soda Zitron Media can comment on their accuracy.
2.3 Unless otherwise agreed in writing, an order generally includes the production of the commissioned work (film work) including a master file (digital or on DVD) as well as the granting of rights in accordance with Section 10.
2.4 If Soda Zitron Media is obliged to produce a concept or screenplay, the agreed price is payable even if the Client does not proceed with production. If the parties have not agreed separately on remuneration for the concept or screenplay, Section 7 applies.
2.5 Soda Zitron Media does not assume any costs (neither fees for services rendered, nor expenses of any kind) for the participation of persons not directly commissioned by Soda Zitron Media, or of persons involved at the Client’s request or initiative. The Client bears all costs and expenses for such participation.
2.6 If the Client requests changes to the already produced commissioned work (including parts or preliminary work such as concept or screenplay) or scheduling changes, the Client must notify Soda Zitron Media in writing in due time. Soda Zitron Media alone is entitled to implement changes. All costs related to such changes shall be borne by the Client.
3. Client’s Cooperation Obligations
3.1 The Client is obliged to provide all cooperation necessary and reasonable for the successful performance of the order (for example timely provision of information, documents, and materials in a suitable form, compliance with schedules by persons whose participation the Client requests, etc.), and to take all other measures and provide support that is necessary or useful for the fulfilment of the Services to be provided by Soda Zitron Media.
3.2 Soda Zitron Media is entitled to invoice separately any effort arising from insufficient or delayed cooperation by the Client, and to terminate the collaboration in accordance with Section 18.
3.3 The Client has no entitlement to remuneration for fulfilling its cooperation obligations.
4. Performance, Deadlines, Partial Services
4.1 The location and procedure of filming are agreed with the Client, with artistic and technical design remaining solely with Soda Zitron Media.
4.2 Unless otherwise agreed in writing, Soda Zitron Media is not obliged to begin preparatory work prior to conclusion of the contract. Performance dates and deadlines stated by Soda Zitron Media commence only upon receipt of the order confirmation and are binding only if Soda Zitron Media expressly confirms their binding nature in the written order confirmation. In case of binding dates and deadlines, Soda Zitron Media is in default only if it fails to perform by the end of an additional reasonable grace period set by the Client in writing, which must be at least one week.
4.3 Performance deadlines are suspended by the following circumstances and continue only after such circumstances cease:
4.3.1 breach of cooperation, payment, or other contractual obligations by the Client
4.3.2 weather related delays (weather risk)
4.3.3 suspension, interruption, or delay by a supplier or subcontractor regarding services to be provided to Soda Zitron Media
4.3.4 illness or death of key persons on the Soda Zitron Media side involved in the work (in particular, but not exclusively, Mr Mag. Christian Gstöttner)
4.3.5 unforeseeable technical problems (for example data loss, malfunction, loss, damage, or destruction of cameras or other equipment, including through burglary or theft)
4.3.6 other causes not attributable to Soda Zitron Media that Soda Zitron Media cannot influence with economically reasonable effort, and all cases of force majeure. Force majeure includes strike, lockout, and other circumstances that substantially hinder or make performance impossible, regardless of whether they occur at Soda Zitron Media, a supplier, or a subcontractor.
4.4 In the cases listed in Section 4.3, Soda Zitron Media is not subject to default consequences. Contractual performance dates change accordingly. In the event of contractual breaches by the Client, Soda Zitron Media may also have rights of withdrawal, see Section 18.
4.5 If production or timely completion of the commissioned work becomes impossible without fault of either Soda Zitron Media or the Client, the Client is entitled only to withdraw from the contract. However, Services already rendered, as well as incurred costs and expenses, will be invoiced.
4.6 Soda Zitron Media is entitled to provide partial services and issue partial invoices, see also Section 8.
5. Place of Performance, Transfer of Risk, Dispatch
The place of performance is the registered office of Soda Zitron Media or the branch specified in the order confirmation. This applies even if Soda Zitron Media contractually undertakes dispatch. Soda Zitron Media is not responsible for fault of third parties entrusted with dispatch. Risk passes to the Client at the time the product is made available at the place of performance for collection, dispatch, or download.
6. Cost Estimates
6.1 Soda Zitron Media warrants the accuracy of cost estimates only if their binding nature is expressly confirmed.
6.2 If an overrun of more than 10 percent is unavoidable, Soda Zitron Media will inform the Client. In this case, the Client is entitled to withdraw from the contract, subject to payment for Services already rendered by Soda Zitron Media. Overruns up to 10 percent are deemed accepted by the Client.
6.3 Cost estimates issued by Soda Zitron Media are subject to a fee unless expressly agreed otherwise. If the order is placed based on the cost estimate, Soda Zitron Media will credit the fee charged for the cost estimate to the Client.
7. Prices
7.1 Price indications are generally not to be understood as lump sum prices unless a price is expressly designated as a lump sum price. An agreed total price is also not a lump sum price. All prices are exclusive of VAT unless expressly stated otherwise. VAT will be added in accordance with the applicable statutory rate.
7.2 If no price has been agreed in advance for a Service, Soda Zitron Media is entitled to invoice the actual material and time expenditure. For Services rendered during normal working hours, the hourly and daily rates stated in the applicable price lists apply. Time based Services are recorded in 15 minute units. Travel time is considered working time and is invoiced at 50 percent.
7.3 If bad weather causes delays to filming, Soda Zitron Media is entitled to invoice the resulting additional costs separately.
7.4 All prices are stated ex works, place of performance pursuant to Section 5.
8. Payment Terms
8.1 Soda Zitron Media is entitled to invoice its Services immediately after completion of (partial) performance.
8.2 If a total price is agreed in advance, Soda Zitron Media is entitled to invoice after completion of each project phase. The remuneration for each phase is determined by the number of phases. If three phases are agreed, Soda Zitron Media may invoice one third after each phase. If four phases are agreed, Soda Zitron Media may invoice one quarter after each phase, etc. Unless otherwise agreed, a project is divided into three phases: phase 1, filming; phase 2, rough cut; phase 3, finalisation.
8.3 If Soda Zitron Media creates a concept or screenplay and this is part of an agreed total price, creation of the concept or screenplay constitutes a separate project phase, see Section 8.2.
8.4 Sections 8.2 and 8.3 apply, unless otherwise agreed, also if the parties agreed a lump sum price.
8.5 If insolvency proceedings are opened over the Client’s assets, the insolvency estate is obliged to make advance payment for all Services to be provided by Soda Zitron Media. Soda Zitron Media is entitled to suspend all Services until full payment is received. If the advance payment invoice is not paid despite a written grace period of at least two weeks, Soda Zitron Media is entitled to terminate the contract in writing without observing a notice period.
8.6 If no substantiated written objections are raised against an invoice issued by Soda Zitron Media within four weeks, the invoice is deemed approved.
8.7 Invoices issued by Soda Zitron Media are payable within 15 days from the invoice date without deduction by transfer to the account stated on the invoice. Payment is deemed timely only if the amount is received by the due date or credited to Soda Zitron Media’s bank account, and Soda Zitron Media can dispose of the credit without restriction. Payments to representatives, couriers, or other third parties, or to other bank accounts, do not release the Client from its payment obligation.
8.8 In case of late payment, the Client is obliged to pay default interest pursuant to Section 456 UGB, or, if that provision is amended or repealed, at 12 percent per annum. In addition, the Client must compensate all other damages and expenses caused by default, including costs of extrajudicial and judicial collection measures (for example lawyers, collection agencies, credit protection associations, etc.), insofar as such costs are necessary for appropriate enforcement. Soda Zitron Media is also entitled to suspend Services or seek termination of the contract, see Section 18.
8.9 The Client is not entitled to set off payment obligations against other claims, or to withhold payment for any reason. This does not apply if the right of set off or retention has been determined by a court, or expressly acknowledged in writing by Soda Zitron Media, or if Soda Zitron Media has expressly consented in writing.
9. Expenses
9.1 Expenses are not included in prices, even if not shown separately, and are invoiced separately. This applies even if a lump sum price is agreed. All expenses are borne by the Client. Expenses include:
9.1.1 travel costs for the required number of Soda Zitron Media staff (train and flight class as agreed, official kilometre allowance when using a car) and transport costs for necessary equipment (in particular for air travel). Staff may choose between train travel and use of a car. For distances of four hours or more by car, staff may travel by plane
9.1.2 accommodation and catering costs
9.1.3 special expenses required or useful for performance (for example admission fees, fees to collecting societies, etc.), and generally all costs, ancillary costs, fees, and taxes incurred by Soda Zitron Media in connection with contract performance, execution, or performance.
9.2 Expenses may be invoiced at any time, including in advance, and are due immediately. If invoiced expenses are not paid on time, Soda Zitron Media has the right to invoice all Services and expenses incurred to date immediately. After an unsuccessful reminder, Soda Zitron Media has the right to terminate the collaboration, while the order fee becomes due or is retained.
9.3 The Client bears costs resulting from the temporary or complete failure (for example due to illness) of persons engaged by the Client or engaged at the Client’s request.
9.4 Costs for acquiring or procuring standard technical equipment usually required for production (cameras, lighting, microphones, tripod, cables, and accessories such as lenses or batteries) are not considered expenses borne by the Client. Costs for equipment exceeding the usual standard (for example rental of special equipment such as specialty cameras) are borne by the Client if the Client requested their use or consented to it.
10. Intellectual Property
10.1 The Client grants and transfers to Soda Zitron Media, to the extent legally possible, all rights of use, exploitation, reproduction, and performance, as well as remuneration claims related to the commissioned work under the UrhG (in particular Sections 38 et seq.) or other legal provisions. Furthermore, intellectual property and all other rights to works or results created by Soda Zitron Media, its employees, and or third parties involved, as well as know how and documents contributed to projects, treatments, concepts, screenplays, etc. (collectively, raw material), remain exclusively with Soda Zitron Media. The Client has no rights to the raw material, even if the Client contributed.
10.2 The parties agree individually the scope (including territorial and temporal scope) in which Soda Zitron Media grants the Client rights of use to the finished commissioned work. This includes that the Client may use the commissioned work only in the media (internet, television, etc.) for which Soda Zitron Media has granted consent.
10.3 The Client is not entitled, without separate written consent, to edit, alter, reproduce, or otherwise modify the commissioned work, including references to Soda Zitron Media or other rights holders, or to pass it on, in particular to other production companies.
10.4 Soda Zitron Media is entitled to display its company name and identifiers (for example logo) at the beginning and end of the commissioned work, and on packaging or directly on the data carrier, and to reference other rights holders and their participation in a legally compliant manner. Soda Zitron Media also has the right to use the commissioned work in whole or in part for competitions and festivals and for self promotion in any form.
10.5 If the Client provides materials and documents (for example screenplay, film, trademarks, etc.) or permits their use, and third parties assert rights with respect to such materials, Soda Zitron Media is entitled to suspend its Services until third party rights are clarified and to claim reimbursement of necessary and appropriate costs incurred to date, as well as reasonable advances. For liability, see Section 15.5.
11. Retention of Title
11.1 All Services and works, and rights derived therefrom, remain the property of Soda Zitron Media until full payment is received. In addition, Soda Zitron Media retains ownership of its Services, works, and derived rights until all claims arising from the business relationship have been paid, even if partial payments have been made. Claims include expenses pursuant to Section 9. The Client is entitled to use the commissioned work within the agreed scope only after full payment of remuneration and all costs (including expenses).
12. Archiving
After acceptance of the commissioned work, Soda Zitron Media is not obliged to archive the commissioned work or raw material unless expressly agreed in writing.
13. Delivery and Acceptance
Unless otherwise agreed, Soda Zitron Media provides the commissioned work as a master file via a digital download link. The work is deemed delivered and accepted upon the Client’s first download. For partial services, Soda Zitron Media is entitled to partial acceptance.
14. Warranty
14.1 If the Client proves the existence of defects covered by warranty, Soda Zitron Media is entitled within a reasonable period to remedy the defect by replacement or repair, with any period shorter than 14 days being unreasonably short. If replacement or repair is impossible or involves disproportionate effort, the Client may only claim a price reduction. Rescission of the contract is excluded. Soda Zitron Media is entitled to at least two attempts at remedy.
14.2 Warranty performance takes place at the place of performance pursuant to Section 5. If the Client requests remedy at another location, the Client bears the additional costs.
14.3 The Client must inspect the work immediately after acceptance and notify Soda Zitron Media of any defects in writing within three business days, otherwise claims are forfeited. The notice must include a description of the defect.
14.4 Artistic discrepancies do not constitute a defect.
14.5 If the work has been produced in accordance with the accepted concept or screenplay and the Client’s specifications, and in compliance with the previously known quality requirements, the Client is obliged to accept it.
14.6 The length and scope of the work result from the individual agreement. Runtime is deemed complied with if the cut differs by no more than 10 percent from the agreed length.
14.7 Defects in partial services do not entitle the Client to refuse unaffected or future partial services, or services from other contracts.
14.8 Warranty, and also liability, see Section 15.4, is excluded for defects and or damages arising from non performance, defective performance, or delay that are attributable in particular to one or more reasons listed in Section 4.3.
15. Liability and Damages
15.1 Soda Zitron Media is liable to the Client for damages due to breach of contractual or statutory obligations only if Soda Zitron Media acted with intent or gross negligence, and if the legal requirements for attribution are met.
15.2 Recourse claims by the Client against Soda Zitron Media, in particular pursuant to Section 933b ABGB, are excluded to the extent legally permissible.
15.3 The limitations of liability also apply to damages arising from pre contractual duties, positive breach of contract, tort, or any other legal basis, and to consequential damages.
15.4 If the Client breaches its inspection and notice obligations under Section 14.3, damage claims lapse. Liability is also excluded for damages based on circumstances listed in Section 14.8 or Section 4.3, and for indirect damages, loss of profit, unrealised savings, loss of interest, loss of use or production, resulting costs, consequential damages, and similar.
15.5 If the Client provides materials and documents or permits their use, and third parties assert rights, the Client shall fully indemnify and hold Soda Zitron Media harmless from any claims asserted by third parties against Soda Zitron Media, including legal representation costs, court costs, and any other effort or expense arising. This also applies to third party claims arising from the Client’s transfer of the commissioned work.
16. Additional Provisions for Warranty and Liability
16.1 The Client bears the burden of proof for all prerequisites for warranty, damages, and other claims against Soda Zitron Media, including proof of gross negligence or intent.
16.2 Warranty and limitation periods are 15 months. The Client forfeits all claims if not asserted in court within the warranty and limitation period.
16.3 Soda Zitron Media may assert warranty and damages claims against third parties (for example suppliers or subcontractors) itself, or assign such claims to the Client. The Client hereby consents to such assignment.
16.4 Soda Zitron Media’s liability for any damages, regardless of legal basis, is limited per order to twice the order fee.
17. Insurance
Soda Zitron Media is not obliged to obtain insurance. If the Client requests specific insurance, or intends to obtain insurance itself, the Client must inform Soda Zitron Media before conclusion of the contract and bears the costs. Soda Zitron Media may obtain insurance only after receiving the required costs from the Client. Soda Zitron Media may postpone commencement of work until any waiting period has expired. If the Client waives insurance and Soda Zitron Media is not proven to have acted with gross negligence or intent, the entire production risk lies solely with the Client.
18. Withdrawal and Termination
18.1 Either party may terminate the contract early without notice by registered letter if:
a) the other party fails to properly fulfil essential contractual obligations (for example the Client’s cooperation obligations, see Section 3, or payment obligations, see Section 8) despite a reasonable grace period of at least two weeks set by registered letter
b) insolvency proceedings are dismissed for lack of assets, liquidation is applied for, enforcement measures are taken against all or part of the other party’s assets, similar events occur, or the other party’s economic situation deteriorates
c) other contractual withdrawal rights exist.
18.2 If the Client cancels without a reason under Section 18.1, or if Soda Zitron Media withdraws pursuant to Section 18.1, Soda Zitron Media is entitled to a lump sum compensation for effort plus VAT without proof of actual damage, as follows:
18.2.1 cancellation 10 days or earlier before the start of the commissioned work: 20 percent of the agreed total fee (or, for time based billing, 20 percent of the expected total fee)
18.2.2 cancellation between 10 and 4 days before the start: 40 percent
18.2.3 cancellation later than 4 days before the start: 70 percent.
In addition, the Client must bear all costs, expenses, and outlays incurred up to the time of cancellation. The right to claim damages exceeding the lump sum compensation remains unaffected.
18.3 If the Client withdraws after commencement without a reason under Section 18.1, or if Soda Zitron Media withdraws pursuant to Section 18.1, Soda Zitron Media is entitled to invoice all costs, expenses, and outlays incurred up to the cancellation. In addition, Soda Zitron Media is entitled to lump sum compensation of 70 percent of the agreed total fee (or, for time based billing, 70 percent of the expected total fee) plus VAT, without proof of actual damage.
19. Governing Law and Jurisdiction
19.1 Austrian law applies exclusively.
19.2 The competent court in Vienna is agreed as the international and local place of jurisdiction.
20. Severability
If individual provisions are invalid, the remaining content of the contract remains unaffected. If gaps arise due to invalidity or otherwise, the parties undertake to cooperate in establishing a provision that comes as close as possible to the economic purpose of the invalid provision.
21. Written Form
21.1 Amendments, supplements, additions, side agreements, and similar require written form to be legally valid. Any waiver of this requirement also requires written form.
22. Miscellaneous
22.1 Soda Zitron Media is entitled to assign its orders in whole or in part to third parties. This does not change the contractual relationship between Soda Zitron Media and the Client.
22.2 Assignment of the Client’s claims other than monetary claims requires Soda Zitron Media’s express written consent. Soda Zitron Media may assign its receivables to third parties for financing purposes.
22.3 Written notices to the other party are deemed effective if sent to the last address provided.
Company information: Soda Zitron Media FlexCo, company register number FN 665696s, VAT ID ATU78053124, Theobaldgasse 16/2, 1060 Vienna, Austria, www.so-zi.net, hi@so-zi.net, phone +43 670 40 02 46 2.
