Terms & Conditions
I. Applicability and Scope of the Terms and Conditions:
1.1 The following GTC come into effect if the photographer is a contractor in the sense of § 1 KSchG as a contracting party.
1.2. The Photographer provides its services solely on the basis of the following terms and conditions. By placing the order, the client recognizes their applicability. These will also apply to any future business relationship, unless expressly referred to by the photographer, unless otherwise specified by the photographer. Any general terms and conditions of the contractor are not part of the contract.
1.3. Should individual provisions of these General Terms and Conditions be ineffective, this shall not affect the liability of the remaining provisions of the contracts concluded on their basis. An ineffective provision must be replaced by an effective one which comes closest to its purpose.
1.4. Offers by the photographer are non-binding.
2.1 All copyrights and ancillary copyrights of the photographic manufacturer (§§1, 2 para. 2, 73ff UrhG) are the responsibility of the photographer. Permits of use (rights of publication, etc.) are only granted if expressly agreed. The contracting party acquires in this case a simple (non-exclusive and non-exclusive), non-transferable (assignable) license for the expressly agreed purpose and within the agreed limits (number of copies, temporal and local restrictions, etc.); in case of doubt, the scope of use stated in the invoice or in the delivery note is authoritative. In any case, the contracting party acquires only as many rights as it corresponds to the disclosed purpose of the contract (granted order). Unless otherwise agreed, the license to use is only valid for a single publication (in one edition), only for the expressly designated medium of the client and not for advertising purposes as granted.
2.2 The contracting party is obligated with each use (duplication, spreading, consignment etc.), the manufacturer name (attribution) or the copyright remark in the sense of the WURA (Universal Copyright Convention) clearly and legibly (visibly), in particular not fallen and in Normallettern, directly to attach to the photograph and this clearly assignable as follows: Photo: (c) .. name / company / artist name of the photographer; Place and, if published, date of first publication. In any case, this provision applies as an attachment of the manufacturer’s name in the sense of § 74 Abs 3rd UrhG. If the photograph is signed on the front (in the picture), the publication of this signature does not replace the manufacturer’s note described above.
2.3 Any change of the photograph requires the written consent of the photographer. This does not apply if the change is required by the purpose of the contract known to the photographer.
2.4 The authorization to use is valid only in case of complete payment of the agreed admission and usage fee and only as granted, if a proper manufacturer name / attribution (point 2.2 above) takes place. 2.5 In the case of a publication, two free voucher copies are to be sent. With expensive products (art books, videocassettes), the number of voucher copies is reduced to one piece. When publishing on the Internet, the photographer must be informed of the web address.
III. Footage Ownership – Archiving:
3.1.1 Analog Photography: The ownership of the exposed footage (negatives, slides, etc.): is the photographer’s right. The latter grants the contracting party, against agreed and reasonable remuneration, ownership of the recordings required for the agreed use. Until the full payment of the purchase price, the delivered photographs remain the property of the photographer. Slides (negatives only in case of written agreement) shall only be made available to the contracting party on loan against provision after use at the risk and expense of the contracting party, unless otherwise agreed in writing.
3.1.2 Digital Photography The ownership of the image files belongs to the photographer. A right to transfer digital image files exists only after expressly written agreement and concerns – if there is no other agreement – only a selection and not all, by the photographer made image files. In any case, the license to use is only valid in the scope of point 2.1.
3.2 Duplication or distribution of photographs in online databases, in electronic archives, on the Internet or in intranets, which are not intended solely for the internal use of the client, on floppy disk, CD-ROM, or similar data media is subject to a special agreement between allowed to the photographer and the client. The right to a backup remains unaffected.
3.3 The photographer will archive the recording without legal obligation for a period of one year. In case of loss or damage, the contracting party is not entitled to any claims.
4.1 The photographer is entitled to label the photographs as well as the digital image files in any suitable manner (also on the front) with his manufacturer’s name. The contractual partner is obliged to ensure the integrity of the manufacturer’s name, in particular in the case of a permitted transfer to third parties (printers, etc.). If necessary, the manufacturer’s name must be affixed or renewed. This also applies in particular to all means of reproduction created during the production or to the making of copies of digital image files.
4.2 The contracting party is obliged to store digital photographs in such a way that the manufacturer’s name remains electronically linked with the pictures, so that it remains intact for every type of data transmission and the photographer as the author of the pictures is clearly and unambiguously identifiable.
V. Secondary Duties:
5.1 The contracting party must ensure the collection of any necessary third-party work use authorizations and consent to the representation of persons. In this regard, he indemnifies and holds the photographer harmless, in particular with regard to claims arising from the right to his own image. § 78 UrhG as well as with regard to use claims gem. § 1041 ABGB. The photographer guarantees the consent of the authorized persons only in the case of express written consent for the contractual purposes (point 2.1).
5.2 Should the photographer be commissioned by the contracting party to process third-party photographs electronically, the client shall ensure that he is entitled to do so and release the photographer from all claims of third parties based on a breach of this obligation. 5.3 The contracting party agrees to pick up any objects immediately after taking them back. If these objects are not picked up after two working days at the latest, the photographer is entitled to charge storage costs or to store the objects at the expense of the client. Transport and storage costs are borne by the client.
VI. Loss and Damage:
6.1 In the event of loss or damage of recordings made on order (transparencies, negative material, digital image files), the photographer – from whatever legal title – is liable only for intent and gross negligence. The liability is limited to own negligence and that of its employees; for third parties (laboratories, etc.), the photographer is liable only for intent and gross negligence in the selection. Any liability is limited to the material costs and the free repetition of the recordings (if and as far as possible). Further claims are not entitled to the client; In particular, the photographer is not liable for any travel and subsistence expenses as well as third-party costs (models, assistants, make-up artists and other reception personnel) or for lost profit, consequential and immaterial damages. Claims for damages exist only if gross negligence is proven by the injured party. Claims for compensation become statute-barred after 3 months from knowledge of damage and damaging party, but in any case within 10 years after provision of the service or delivery.
6.2 Item 6.1 shall apply mutatis mutandis in the event of loss or damage to submitted originals (films, layouts, display pieces, other originals, etc.) and delivered products and props. More valuable items are to be insured by the contracting party.
VII. Early Dissolution:
The photographer is entitled to terminate the contract with immediate effect for good cause. An important reason can be assumed in particular if bankruptcy or equalization proceedings are initiated over the assets of the contracting party or if an application for the opening of such proceedings is dismissed for lack of cost-covering assets or if the customer ceases payments, or legitimate concerns regarding the creditworthiness of the contracting party and the latter, upon request of the photographer, neither makes any advance payments nor suitable security, or if the execution of the service is further delayed for reasons for which the contracting party is responsible, or despite a 14-day grace period, or the contracting party despite a written warning continued with a grace period of 14 days against material obligations under the contract, such as the payment of a partial amount or obligation to cooperate, violates.
VIII. Performance and Warranty:
8.1 The photographer will carry out the order given carefully. He may also have the contract carried out – in whole or in part – by third parties. If the contractual partner does not make any written orders, the photographer is free with regard to the manner in which the order is carried out. This applies in particular to the composition of the picture, the selection of the photo models, the location of the photograph and the photographic means used. Deviations from earlier deliveries do not constitute a defect as such.
8.2 For defects that are due to incorrect or inaccurate instructions of the contractor, is not liable (§ 1168a ABGB). In any case, the photographer is liable only for intent and gross negligence.
8.3 The contractor bears the risk for all circumstances that are not the responsibility of the photographer, such as outdoor weather conditions, timely provision of products and props, loss of models, travel restrictions, etc.
8.4 Shipments travel at the expense and risk of the contracting party.
8.5 The photographer reserves the right to fulfill the warranty claim of his choice by improvement, replacement or price reduction, except in cases in which the contracting party is entitled by law to the right of conversion. The contracting party must always prove in this regard that the defect was already present at the time of transfer. The goods must be inspected immediately after delivery. Any defects found must be reported to the photographer in writing as well as immediately, but no later than within 8 days of delivery, stating the nature and extent of the defect. Hidden defects must be reported immediately after their discovery. If a complaint is not made or not collected in time, the goods are considered as approved. The assertion of warranty or claims for damages, including consequential damage as well as the right to contest the defect due to defects, are excluded in these cases. The warranty period is 3 months.
8.6 For insignificant defects is not liable. Color differences when reordering are not considered a significant defect. Point 6.1 applies accordingly.
8.7 Fixed order dates are only liable if expressly agreed in writing. In case of any delays in delivery 6.1 shall apply accordingly.
8.8 Minor delivery time overruns are in any case to be accepted without the contracting party being entitled to a claim for damages or a right of withdrawal.
8.9 Any use by the photographer does not include the public performance of any piece of music in any media.
IX Work Wages / Fee:
9.1 In the absence of express written agreement, the photographer is entitled to a commission (fee) according to his valid price lists, otherwise a reasonable fee.
9.2 The fee is also valid for layout or presentation admissions as well as when a utilization is omitted or depends on the decision of third parties. The admission fee will not be reduced in this case.
9.3 All material and other costs (props, products, models, travel expenses, resident expenses, make-up artists etc.), even if they are procured by the photographer, must be paid separately.
9.4 In the course of carrying out the work desired by the contractor changes are at his expense.
9.5 Conceptual services (advice, layout, other graphic services, etc.) are not included in the admission fee. The same applies to an above-average organizational effort or such a meeting effort.
9.6 If the contractual partner refrains from carrying out the order given in its sphere, the photographer shall be entitled to the agreed fee in the absence of any other agreement. In the case of necessarily required changes in dates (eg due to weather conditions), a fee corresponding to the time spent or reserved in vain and all ancillary costs must be paid.
9.7 The net fee is plus value added tax at the applicable statutory rate.
9.8 The contracting party waives the possibility of offsetting.
X. License fee:
Unless expressly agreed otherwise in writing, the photographer is separately entitled to use the works use fee in the agreed or appropriate amount in the event of the granting of a license for use.
11.1 In the absence of other express written agreements, an advance payment amounting to 50% of the expected invoice amount must be made when placing the order. Unless expressly agreed otherwise in writing, the residual fee – if it is determinable for the contracting party – is due for immediate payment after completion of the work, otherwise after the invoice has been settled. The invoices are payable without deduction and free of charge. In the transfer case, the payment is only with notification of the photographer from the receipt of payment as effected.
11.2 For orders involving several units, the photographer is entitled to invoice each individual service after delivery.
11.3 In the event of default of payment by the contracting party, the photographer is entitled – without prejudice to excessive claims for damages – to charge default interest at a rate of 5 percent above the base lending rate annually.
11.4 Insofar as delivered pictures become the property of the contracting party, this will only be done with full payment of the admission fee including ancillary costs. The assertion of the retention of title does not constitute a withdrawal from the contract unless expressly stated.
XII. Data Protection:
The contracting party acknowledges and confirms that the photographer has fulfilled the information obligations that apply to him, provided he has not received a further notification:
The photographer as responsible processes the personal data of the contracting party as follows:
1. Purpose of the data processing:
The photographer processes the personal data mentioned in point 2 for the execution of the contract and / or the orders requested by the contractor or for the use of portraits for advertising purposes of the photographer, in addition the further disclosed personal data for the photographer’s own advertising purposes.
2. Processed data categories and legal bases of processing:
The photographer processes the personal data, namely name, address, telephone and telefax number, e-mail addresses, bank details and image data, in order to achieve the purposes mentioned under 1. above.
3. Transmission of the personal data of the contracting party:
For the above-mentioned purposes, the personal data of the contracting party, if this is the content of the contract, at the request of the contracting party to be named recipients to be named, namely in particular to the closed contract related parties, if this is part of the contract, media, should in this regard an agreement with the contracting party and, if necessary, third parties involved in the execution of the contract.
4. Storage duration:
The personal data of the contracting party shall be kept by the photographer only as long as reasonably considered necessary in order to achieve the purposes mentioned in point 1 and as permitted under applicable law. The personal data of the contracting party will be stored as long as statutory retention requirements exist or limitation periods of potential legal claims have not yet expired.
5. The rights of the contractor in connection with personal data:
Under current law, the contracting party is entitled, among other things:
– to check if and which personal data the photographer has stored in order to obtain copies of this data, with the exception of the photographs themselves
– to request the correction, addition or deletion of personal data that is incorrect or incorrectly processed
– to require the photographer to restrict the processing of personal data, provided that the legal requirements apply
– in certain circumstances, to object to the processing of his personal data or to withdraw the prior consent for processing
– demand data portability
– know the identity of third parties to whom the personal data are transmitted, and
– lodge a complaint with the competent authority if the legal requirements apply
6. Contact details of the responsible person:
Should the contracting party have questions and concerns concerning the processing of his personal data, he may turn to the photographer, who knows him by name and by letter.
XIII. Use of Photographs for Promotional Purposes by the Photographer:
Unless otherwise agreed in writing, the photographer is entitled to use photographs produced by him to promote his activities. The contracting party gives its explicit and irrevocable consent to the publication for advertising purposes of the photographer and waives the assertion of any claims, in particular from the right to the own image acc. § 78 UrhG as well as usage claims acc. § 1041 ABGB.
The contracting party also gives its consent, taking into account the applicable data protection provisions, that its personal data and in particular the photographs produced are processed in the sense of a publication for advertising purposes by the photographer.
XIV. Final Provisions:
14.1 Place of performance and jurisdiction is the registered office of the photographer. In the case of transfer of the registered office, actions may be brought at the old and new headquarters.
14.2 Any recourse claim, the contracting parties or third parties from the title of product liability in the sense of the PHG directed against the photographer, are excluded, unless the person entitled to recourse proves that the mistake in the sphere of the photographer and at least caused gross negligence. For the rest, Austrian substantive law is applicable. The applicability of the UN Sales Convention is excluded. The contract language is German.
14.3 These General Terms and Conditions apply mutatis mutandis to cinematographic or motion pictures produced by photographers, regardless of the method used and the technique used (film, video, etc.).