Terms and Conditions

I. Applicability and Scope of the General Terms and Conditions of Business

1.1 The following General Terms and Conditions shall apply if the Photographer’s contractual partner is an entrepreneur within the meaning of Section 1 of the Austrian Consumer Protection Act (KSchG).

1.2 The Photographer shall provide his services exclusively on the basis of the following General Terms and Conditions. By placing the order, the Client acknowledges their applicability. Unless amended by the Photographer, they shall also apply to all future business relations, even if no express reference is made to them. Any general terms and conditions of the contractual partner shall not become part of the contract.

1.3 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions of the contracts concluded on the basis thereof. An invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and purpose.

1.4 Offers made by the Photographer are subject to confirmation and are non-binding.

II. Copyright provisions

2.1 The Photographer shall be entitled to all copyrights and ancillary copyrights of the Photographer (§§1, 2 para. 2, 73ff UrhG). Permission to use (publication rights, etc.) shall only be deemed granted if expressly agreed. In this case, the contractual partner shall acquire a simple (non-exclusive and non-exclusive), non-transferable (assignable) authorization of use for the expressly agreed purpose and within the agreed limits (circulation figure, time and place restrictions, etc.); in case of doubt, the scope of use stated in the invoice or delivery bill shall be decisive. In any case, the contractual partner shall only acquire as many rights as correspond to the disclosed purpose of the contract (order placed). In the absence of any other agreement, the authorization of use shall be deemed granted only for a single publication (in one edition), only for the expressly designated medium of the client and not for advertising purposes.

2.2 The contracting party shall be obligated for each use (reproduction, dissemination, broadcast, etc.) to affix the manufacturer’s designation (naming) or the copyright notice within the meaning of the WURA (World Copyright Treaty) clearly and legibly (visibly), in particular not in abbreviated form and in normal type, directly next to the photograph and clearly assignable to it as follows:Photograph: (c) … name/company/artist name of photographer; place and, if published, year of first publication.In any case, this provision shall be deemed to be the affixing of the manufacturer’s designation within the meaning of Section 74 (3) UrhG.If the photograph is signed on the front side (in the picture), the publication of this signature does not replace the manufacturer’s note described above.

2.3 Any alteration of the Photograph shall require the Photographer’s written consent.This shall only not apply if the change is required in accordance with the purpose of the contract known to the Photographer.

2.4 The permission to use the Photograph shall only be deemed to have been granted in the event of full payment of the agreed shooting and usage fee and only if a proper manufacturer’s designation / naming (Item 2.2 above) is provided.

2.5 In the event of publication, two free specimen copies shall be sent. In the case of expensive products (art books, video cassettes), the number of specimen copies shall be reduced to one. In the case of publication on the Internet, the photographer must be informed of the web address.

III. ownership of the footage – archiving

3.1.1 Analog photography
The Photographer shall be entitled to the ownership of the exposed film material (negatives, slides, etc.). The Photographer shall transfer ownership of the Photographs required for the agreed use to the Contractual Partner in return for an agreed and reasonable fee. The Photographs supplied shall remain the Photographer’s property until the purchase price has been paid in full. Slides (negatives only in the case of a written agreement) shall only be made available to the Photographer on loan against return after use at the risk and expense of the Photographer, unless otherwise agreed in writing.

3.1.2 Digital photographyThe Photographer shall be entitled to ownership of the image files.The right to transfer digital image files shall exist only upon express written agreement and – in the absence of any agreement to the contrary – shall relate only to a selection and not to all of the image files produced by the Photographer.
In any event, the permission to use shall be deemed granted only to the extent set forth in Section 2.1.

3.2 Reproduction or dissemination of Photographs in online databases, in electronic archives, on the Internet or in intranets which are not intended solely for the Client’s internal use, on diskette, CD-ROM or similar data carriers shall only be permitted on the basis of a special agreement between the Photographer and the Client. The right to a backup copy shall remain unaffected.

3.3 The Photographer shall archive the Photograph without legal obligation for a period of one year. In the event of loss or damage, the contractual partner shall not be entitled to any claims.

IV. Marking

4.1 The Photographer shall be entitled to mark the Photographs as well as the digital image files with its manufacturer’s designation in any manner it deems suitable (including on the front).The contractual partner shall be obliged to ensure the integrity of the manufacturer’s designation, in particular in the case of permitted transfer to third parties (printer, etc.). If necessary, the manufacturer’s designation shall be affixed or renewed. This shall also apply in particular to all means of reproduction created during production or when making copies of digital image files.

4.2 The contractual partner shall be obliged to store digital photographs in such a way that the manufacturer’s designation remains electronically linked to the images so that it is preserved in any type of data transfer and the photographer can be clearly and unambiguously identified as the originator of the images.

V. Ancillary obligations

5.1 The contracting party shall be responsible for obtaining any necessary permits for use of the work by third parties and consent to the depiction of persons.He shall indemnify and hold the Photographer harmless in this respect, in particular with regard to claims arising from the right to one’s own image pursuant to Section 78 of the Austrian Copyright Act (UrhG) and with regard to claims for use pursuant to Section 1041 of the Austrian Civil Code (ABGB). The Photographer guarantees the consent of authorized persons only in the event of express written consent for the contractual purposes of use (Item 2.1).

5.2 If the Photographer is commissioned by the Contractual Partner to electronically process third party Photographs, the Client warrants that it is entitled to do so and shall indemnify the Photographer against all third party claims based on a breach of this obligation.

5.3 The contractual partner undertakes to collect any objects to be photographed immediately after the photograph has been taken. If these objects are not collected no later than two working days after request, the Photographer shall be entitled to charge storage costs or to store the objects at the Client’s expense. Transport and storage costs shall be borne by the client.

VI. Loss and damage

6.1 In the event of loss of or damage to photographs produced on commission (slides, negative material, digital image files), the Photographer shall be liable – under whatever legal title – only for intent and gross negligence. The liability is limited to his own fault and that of his employees; for third parties (laboratories etc.) the photographer is only liable for intent and gross negligence in the selection. Any liability shall be limited to the cost of materials and the free repetition
of the photographs (if and insofar as this is possible). The client shall not be entitled to any further claims; in particular, the photographer shall not be liable for any travel and accommodation expenses or third-party costs (models, assistants, make-up artists and other shooting personnel) or for loss of profit, consequential and immaterial damages. Claims for damages exist only if gross negligence is proven by the injured party. Claims for compensation shall become statute-barred 3 months after knowledge of the damage and the damaging party, but in any case 10 years after the service or delivery has been provided.

6.2 Item 6.1 shall apply mutatis mutandis in the event of loss of or damage to handed-over artwork (films, layouts, display pieces, other artwork, etc.) and handed-over products and props.More valuable items are to be insured by the contractual partner.

VII. Premature dissolution

In particular, good cause shall be deemed to exist if bankruptcy or composition proceedings are instituted against the contractual partner’s assets or if an application for the institution of such proceedings is rejected for lack of assets to cover costs, or if the customer ceases to make payments; orthere are justified doubts as to the contractual partner’s creditworthiness and the contractual partner fails to make advance payments or provide suitable security after being requested to do so by the photographer; or if performance of the service becomes impossible for reasons for which the contractual partner is responsible or is further delayed despite being granted a 14-day grace period; or if the contractual partner continues to breach material obligations under the contract, such as payment of a due partial amount or duties to cooperate, despite being given a written warning with a grace period of 14 days.

VIII. Performance and warranty

8.1 Der Fotograf wird den erteilten Auftrag sorgfältig ausführen. Er kann den Auftrag auch – zur Gänze oder zum Teil – durch Dritte ausführen lassen. Sofern der Vertragspartner keine schriftlichen Anordnungen trifft, ist der Fotograf hinsichtlich der Art der Durchführung des Auftrags frei. Dies gilt insbesonders für die Bildgestaltung, die Auswahl der Fotomodelle, des Aufnahmeortes und der angewendeten fotografischen Mittel. Abweichungen von früheren Lieferungen stellen als solche keinen Mangel dar.

8.2 The Photographer shall not be liable for defects caused by incorrect or inaccurate instructions of the Contractual Partner (§ 1168a ABGB). In any case, the Photographer shall only be liable for intent and gross negligence.

8.3 The contractual partner shall bear the risk for all circumstances that are not in the person of the photographer, such as weather conditions for outdoor shoots, timely provision of products and props, failure of models, travel hindrances, etc..

8.4 Shipments travel at the expense and risk of the contractual partner.

8.5 The Photographer reserves the right – apart from those cases in which the contracting party is legally entitled to rescission – to fulfill the warranty claim at its discretion by improvement, replacement or price reduction. In this respect, the contractual partner must always prove that the defect was already present at the time of delivery. The goods are to be inspected immediately after delivery. Any defects discovered in the course of such inspection must also be notified to the Photographer in writing without delay, but no later than 8 days after delivery, stating the nature and extent of the defect. Hidden defects must be notified immediately upon their discovery. If a complaint is not made or not made in good time, the goods shall be deemed to have been approved. The assertion of warranty or damage claims, including consequential damages, as well as the right to contest errors due to defects, are excluded in these cases. The warranty period is 3 months.

8.6 No liability shall be assumed for minor defects.Color differences in the case of repeat orders shall not be deemed a significant defect.Point 6.1 shall apply accordingly.

8.7 Liability for fixed order dates shall only be assumed if expressly agreed in writing.In the event of any delays in delivery, 6.1 shall apply accordingly.

8.8 Minor delays in delivery shall be accepted in any case without the contracting party being entitled to claim damages or to withdraw from the contract.

8.9 Any authorization of use by the Photographer does not include the public performance of sound works in any media.

IX. Wages for work / fee

9.1 In the absence of an express written agreement, the Photographer shall be entitled to a remuneration for work and services (fee) in accordance with his price lists as amended from time to time, otherwise an appropriate fee.

9.2 The fee shall also be due for layout or presentation shots and if utilization is omitted or depends on the decision of third parties. In this case, no price reductions shall be granted on the recording fee.

9.3 All material and other costs (props, products, models, travel expenses, subsistence expenses, make-up artists, etc.), even if procured by the Photographer, shall be paid separately.

9.4 Any changes requested by the contracting party in the course of the work shall be at the contracting party’s expense.

9.5 Conceptual services (consulting, layout, other graphic services, etc.) are not included in the recording fee.The same shall apply to above-average organizational expenses or such meeting expenses.

9.6 In the event that the Client refrains from executing the order placed for reasons within the Client’s sphere of influence, the Photographer shall be entitled to the agreed fee in the absence of any other agreement. In the event of absolutely necessary changes of dates (e.g. due to weather conditions), a fee corresponding to the time spent in vain or reserved and all ancillary costs shall be payable.

9.7 The net fee is exclusive of value-added tax at the respective statutory rate.

9.8 The contractual partner waives the possibility of offsetting.

X. License fee

Unless otherwise expressly agreed in writing, the Photographer shall be separately entitled to a work usage fee in the agreed or reasonable amount in the event that a usage permit is granted.

XI. Payment

11.1 In the absence of other express written agreements, a payment on account in the amount of 50% of the anticipated invoice total shall be made upon placement of the order. Unless otherwise expressly agreed in writing, the remaining fee – if determinable for the contractual partner – shall be due for payment in cash immediately after completion of the work, otherwise immediately after invoicing. The invoices are payable without any deductions and free of charges. In the event of payment by bank transfer, payment shall not be deemed to have been made until the Photographer has been notified of receipt of payment.

11.2 In the case of orders comprising several units, the Photographer shall be entitled to invoice each individual service after delivery.

11.3 In the event of default in payment on the part of the Client, the Photographer shall be entitled to charge interest on arrears in the amount of 5 percent above the prime rate per annum, without prejudice to any other claims for damages.

11.4 Insofar as delivered images become the property of the contractual partner, this shall only occur upon full payment of the shooting fee including ancillary costs.The assertion of the retention of title shall not constitute a withdrawal from the contract, unless this is expressly declared.

XII. Data protection

The contracting party acknowledges the following data protection notice, unless the contracting party has received further notification, and confirms that the photographer has thereby fulfilled the information obligations incumbent upon it:

The Photographer as the responsible party processes the personal data of the Contractual Partner as follows:

1. Purpose of data processing
   The Photographer processes the personal data mentioned in point 2. for the execution of the concluded contract and / or the orders requested by the Contractual Partner or for the use of the Photographs for the Photographer’s advertising purposes, furthermore the further disclosed personal data for the Photographer’s own advertising purposes.

2. Categories of data processed and legal basis for processing
   The Photographer processes the personal data, namely name, address, telephone and fax numbers, e-mail addresses, bank details and image data, in order to achieve the purposes stated under point 1.

3. Transmission of the personal data of the contracting party

4. Storage duration:
   The personal data of the contractual partner shall only be stored by the photographer for as long as this is reasonably deemed necessary to achieve the purposes stated under point 1. and as permitted by applicable law. The Contractual Partner’s personal data shall be stored for as long as statutory retention obligations exist or the limitation periods of potential legal claims have not yet expired.

5. The rights of the Contractual Partner in connection with personal data
   According to applicable law, the Contractual Partner is entitled to, among other things

   • to verify whether and which personal data the photographer has stored, in order to obtain copies of such data, excluding the photographs themselves;

   • request the rectification, integration or deletion of his/her personal data that is incorrect or processed in a way that does not comply with the law;

   • demand from the photographer to restrict the processing of the personal data – provided that the legal requirements are met;

   • object, under certain circumstances, to the processing of his or her personal data or revoke the consent previously given for such processing;

   • Request data portability;

   • know the identity of third parties to whom the personal data are transmitted; and

   • to lodge a complaint with the competent authority if the legal requirements are met.

6. Contact details of the responsible person
   Should the Contractual Partner have any questions or concerns regarding the processing of his personal data, he may contact the Photographer known to him by name and address.

XIII. Use of images for advertising purposes of the photographer:

The Photographer shall be entitled – unless there is an express written agreement to the contrary – to use Photographs produced by him/her to advertise his/her activities. The contracting party gives its express 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 one’s own image pursuant to § 78 UrhG (Copyright Act) as well as claims for use pursuant to § 1041 ABGB (General Civil Code). The Contractual Partner also gives its consent, taking into account the applicable data protection provisions, for its personal data and in particular the Photographs produced to be processed for the purpose of publication for the Photographer’s advertising purposes.

XIV. Final Provisions

14.1 The place of performance and jurisdiction shall be the Photographer’s registered office. In the event that the registered office is relocated, actions may be brought at the old and at the new registered office.

14.2 Any recourse claims asserted against the Photographer by contractual partners or third parties on the grounds of product liability within the meaning of the Austrian Product Liability Act (PHG) shall be excluded unless the party entitled to recourse proves that the defect was caused within the Photographer’s sphere of responsibility and was at least due to gross negligence. In all other respects Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The language of the contract shall be German.

14.3 These General Terms and Conditions shall apply mutatis mutandis to cinematographic works or motion pictures produced by Photographers in accordance with the order, irrespective of the process and technology used (film, video, etc.).