General Terms and Conditions for Consumer and Entrepreneur Business
1. Applicability and scope of the general terms and conditions:
1.1 The following terms and conditions apply if the photographer is an entrepreneur or a consumer within the meaning of § 1 KSchG as a contractual partner.
1.2. The photographer provides his services exclusively on the basis of the following general terms and conditions. By placing the order, the customer acknowledges their applicability. Unless the photographer announces any changes, these also apply to all future business relationships, even if no express reference is made to them. Any general terms and conditions of the contractual partner will not become part of the contract.
1.3. Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions of the contracts concluded on their basis. An ineffective provision is to be replaced by an effective one that comes closest to its meaning and purpose.
1.4. Offers by the photographer are subject to change and non-binding.
2. Copyright regulations:
2.1 The photographer is entitled to all copyrights and ancillary copyrights of the photo producer (§§1, 2 Abs. 2, 73ff UrhG). Permissions to use (publication rights, etc.) are only granted if expressly agreed. In this case, the contractual partner acquires a simple (non-exclusive and non-exclusive), non-transferable (assignable) license for the expressly agreed purpose and within the agreed limits (circulation number, time and location restrictions, etc.); in case of doubt, the scope of use specified in the invoice or delivery note is decisive. In any case, the contractual partner only acquires as many rights as correspond to the disclosed purpose of the contract (placed order). In the absence of any other agreement, the license to use is only valid for a one-off publication (in one edition), only for the medium expressly designated by the client and not for advertising purposes.
2.2 The contractual partner is obligated for each use (reproduction, distribution, transmission, etc.) to clearly and legibly (visibly) the manufacturer's designation (naming) or the copyright notice within the meaning of the WURA (Universal Copyright Convention), in particular not inverted and in normal letters, immediately to be attached to the photograph and clearly assigned as follows: Photo: (c). Photographer's name/company/artist name; Place and, if published, year of first publication. In any case, this provision applies as the attachment of the manufacturer's designation within the meaning of Section 74 (3) 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 to the photo requires the written consent of the photographer. This does not apply if the change is necessary for the purpose of the contract known to the photographer.
2.4 The license to use is only granted once the agreed recording and usage fee has been paid in full and only if a proper manufacturer designation / naming (item 2.2 above) is made.
2.5 In the event of publication, two free specimen copies must be sent.
In the case of expensive products (art books, video cassettes), the number of specimen copies is reduced to one piece. In the case of publication on the Internet, the photographer must be informed of the web address.
3. Ownership of footage - archiving:
3.1.1 Analog photography:
The photographer is entitled to ownership of the exposed film material (negatives, slides, etc.). In return for an agreed and reasonable fee, the latter transfers ownership of the recordings required for the agreed use to the contractual partner.
The photographs remain the property of the photographer until the purchase price has been paid in full. Slides (negatives only in the case of a written agreement) are only made available to the contractual partner on loan against return after use at the risk and expense of the contractual partner, unless otherwise agreed in writing.
3.1.2 Digital photography:
The photographer is entitled to ownership of the image files. A right to the transfer of digital image files only exists after an express written agreement and – unless there is a different agreement – only applies to a selection and not all image files produced by the photographer. In any case, the permission to use is only granted to the extent of point 2.1.
3.2 Reproduction or distribution of photographs in online databases, in electronic archives, on the Internet or in intranets, which are not only intended for the internal use of the client, on diskettes, CD-ROMs or similar data carriers is only permitted on the basis of a special agreement between permitted to the photographer and the client. The right to a backup copy remains unaffected.
3.3 The photographer will archive the recording for a period of one year without any legal obligation. In the event of loss or damage, the contractual partner is not entitled to any claims.
4. Labelling:
4.1 The photographer is entitled to provide the photographs and the digital image files with his manufacturer's designation in any way he deems appropriate (also on the front). The contractual partner is obliged to ensure the integrity of the manufacturer's designation, in particular when it is permitted to pass it on to third parties (printers, etc.). If necessary, the manufacturer's designation must be attached or renewed. This also applies in particular to all means of reproduction created during production or when making copies of digital image files.
4.2 The contractual partner is obliged to store digital photographs in such a way that the manufacturer's designation remains electronically linked to the images, so that it is retained in any type of data transmission and the photographer can be clearly and unambiguously identified as the author of the images.
5. Secondary obligations:
5.1 The contractual partner is responsible for obtaining any necessary third-party permits for the use of work and approval for 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 picture in accordance with Section 78 UrhG and with regard to claims for use in accordance with Section 1041 ABGB. The photographer guarantees the consent of authorized persons only in the case of an express written consent for the contractual purposes (point 2.1).
5.2 If the photographer is commissioned by the contractual partner with the electronic processing of third-party photographs, the client assures that he is entitled to do so and indemnifies the photographer from all third-party claims based on a violation of this obligation.
5.3 The contractual partner undertakes to collect any objects to be recorded immediately after the recording. 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 customer.
6. Loss and damage:
6.1 In the event of loss of or damage to photographs made to order (slides, negative material, digital image files), the photographer is only liable – based on whatever legal title – for intent and gross negligence. Liability is limited to your own fault and that of your employees; for third parties (laboratories, etc.), the photographer is only liable for intent and gross negligence in the selection. Any liability is limited to the cost of materials and the free repetition of the recordings (if and to the extent that this is possible). The client is not entitled to any further claims; In particular, the photographer is not liable for any travel and subsistence expenses or for third-party costs (models, assistants, make-up artists and other recording staff) or for lost profits, consequential and immaterial damage.
Claims for damages only exist if gross negligence can be proven by the injured party. Claims for compensation expire after 3 months from knowledge of the damage and the damaging party, but in any case 10 years after the service or delivery has been rendered.
6.2 Item 6.1 applies accordingly in the event of loss or damage to submitted templates (films, layouts, display pieces, other templates, etc.) and submitted products and props. More valuable items are to be insured by the contractual partner.
7. Premature Dissolution:
The photographer is entitled to terminate the contract with immediate effect for important reasons. An important reason is to be assumed in particular if bankruptcy or composition proceedings are opened against the contractual partner's assets or an application for the opening of such proceedings is rejected for lack of assets to cover costs or if the customer stops making payments or there are legitimate concerns about the contractual partner's creditworthiness exist and the photographer does not make any advance payments or suitable security at the request of the photographer, or if the performance of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite setting a 14-day grace period, or the contractual partner despite a written warning with a grace period of 14 days, continues to violate essential obligations under the contract, such as the payment of a partial amount that has become due or obligations to cooperate.
8. Performance and warranty:
8.1 The photographer will carry out the order placed carefully. He can also have the order – in whole or in part – carried out by third parties. If the contractual partner does not issue any written instructions, the photographer is free to choose how the order is to be carried out. This applies in particular to the image design, the selection of the photo models, the location and the photographic means used. Deviations from earlier deliveries do not constitute a defect as such.
8.2 We are not liable for defects that can be traced back to incorrect or imprecise instructions from the contractual partner (§ 1168a ABGB). In any case, the photographer is only liable for intent and gross negligence.
8.3 The contractual partner bears the risk for all circumstances that are not related to the person of the photographer, such as weather conditions for outdoor shots, 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 contractual partner has the right to change the contract by law – to fulfill the warranty claim through improvement, exchange or price reduction at his own discretion. In this respect, the contractual partner must always prove that the defect already existed at the time of handover. The goods must be examined immediately after delivery. Any defects found must also be reported to the photographer in writing immediately, but no later than 8 days after delivery, stating the nature and extent of the defect.
Hidden defects must be reported immediately after their discovery. If a notice of defects is not raised or not raised in good time, the goods are deemed to have been approved. The assertion of warranty or claims for damages 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 is assumed for insignificant defects. Differences in color when reordering are not considered a major defect. Point 6.1 applies accordingly.
8.7 We are only liable for fixed order dates if they have been expressly agreed in writing. In the event of any delivery delays, 6.1 applies accordingly.
8.8 Minor overruns of the delivery period are to be accepted in any case, without the contractual partner being entitled to a claim for damages or a right of withdrawal.
8.9 Any permissions to use the photographer do not include the public performance of audio works in any media.
9 Wages / fee:
9.1 In the absence of an express written agreement, the photographer is entitled to a wage (fee) according to his currently valid price lists, otherwise an appropriate fee.
9.2 The fee is also due for layout or presentation recordings and if utilization does not take place or depends on the decision of a third party. In this case, no price reductions will be granted on the admission fee.
9.3 All material and other costs (props, products, models, travel expenses, subsistence expenses, make-up artists, etc.), even if they are procured by the photographer, must be paid for separately.
9.4 Changes requested by the contractual partner in the course of carrying out the work shall be at his expense.
9.5 Conceptual services (consulting, 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 placed for reasons within his or her sphere of responsibility, the photographer is entitled to the agreed fee unless otherwise agreed. If it is absolutely necessary to change the date (e.g. due to weather conditions), a fee corresponding to the time spent or reserved in vain and all additional costs must be paid.
9.7 The net fee is WITHOUT sales tax - sales tax-free within the meaning of § 6 (1) Z 27 UstG.
9.8 The contractual partner waives the possibility of offsetting.
10. License fee:
Unless otherwise expressly agreed in writing, the photographer is entitled to a separate fee for the use of the work in the agreed or appropriate amount if a license to use is granted.
11. Payment:
11.1 In the absence of other express written agreements, a down payment of 50% of the expected invoice amount is to be made when the order is placed. Unless otherwise expressly agreed in writing, the remaining fee - if it can be determined by the contractual partner - is due for payment in cash after completion of the work, otherwise immediately after invoicing.
The invoices are payable without any deduction and free of charges. In the case of bank transfer, the payment is only deemed to have been made when the photographer has been informed that the payment has been received.
11.2 For orders that include several units, the photographer is entitled to invoice each individual service after delivery.
11.3 If the contractual partner is in default of payment, the photographer is entitled – without prejudice to claims for damages that exceed this – to charge interest on arrears at a rate of 5 percent above the base interest rate annually.
11.4 Insofar as delivered images become the property of the contractual partner, this only happens when the recording fee including ancillary costs has been paid in full. The assertion of the retention of title does not constitute a withdrawal from the contract unless this is expressly declared.
12. Privacy:
The contractual partner expressly agrees that the photographer may automatically determine, store and process the data provided by him (name, address, e-mail, credit card data, data for account transfers, telephone number) for the purpose of fulfilling the contract and support as well as for his own advertising purposes. Furthermore, the contractual partner agrees that electronic mail will be sent to him for advertising purposes until further notice. The contractual partner takes note of the following data protection notification, unless he has received a further notification, and confirms that the photographer has thereby fulfilled his information obligations.
The photographer, as the person responsible, processes the personal data of the contractual partner as follows:
1. Purpose of data processing:
The photographer processes the personal data mentioned under point 2 to execute the concluded contract and/or the orders requested by the contractual partner or to use the images for the photographer's advertising purposes, as well as the further disclosed personal data for the photographer's own advertising purposes.
2. Categories of data processed and legal bases 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 mentioned under point 1.
3. Transmission of the personal data of the contractual partner:
For the above-mentioned purposes, the personal data of the contractual partner, if this is part of the contract, will be transmitted at the request of the contractual partner to recipients to be named, namely in particular third parties related to the concluded contract, if this is part of the contract, media, should an agreement be reached in this regard with the contractual partner and, if applicable, third parties involved in the execution of the contract.
4. Storage duration:
The personal data of the contractual partner will only be kept by the photographer for as long as is reasonably considered necessary to achieve the purposes set out in point 1. and as permitted by applicable law. The personal data of the contractual partner will be stored as long as there are statutory retention requirements or the statute of limitations for potential legal claims has not yet expired.
5. The rights of the contractual partner in connection with personal data:
According to applicable law, the contractual partner is entitled, among other things:
• to check whether and which personal data the photographer has stored in order to receive copies of this data - with the exception of the photographs themselves
• to request the correction, addition or deletion of his personal data that is incorrect or not processed in accordance with the law
• to request the photographer to restrict the processing of the personal data - provided that the legal requirements are met
• to object to the processing of his personal data in certain circumstances or to withdraw the consent previously given for the processing
• Require data portability
• to know the identity of third parties to whom the personal data is transmitted and
• lodge a complaint with the competent authority if the legal requirements are met
6. Contact details of the person responsible:
If the contractual partner has any questions or concerns about the processing of his personal data, he can contact the photographer known to him by name and address.
13. Use of images for advertising purposes by the photographer:
Unless there is an express written agreement to the contrary, the photographer is entitled to use photographs taken by him to advertise his work. The contractual partner gives the photographer his express and irrevocable consent to the publication for advertising purposes and waives the assertion of any claims, in particular from the right to his own picture in accordance with Section 78 UrhG and claims for use in accordance with Section 1041 ABGB.
The contractual partner also gives his consent, taking into account the applicable data protection regulations, that his personal data and in particular the photographs produced are processed in the sense of publication for the photographer's advertising purposes.
14. Final Provisions:
14.1 The place of performance and jurisdiction is the photographer's registered office. In the event of a change of registered office, lawsuits can be filed at the old and new company headquarters.
14.2 Any claims for recourse, which contractual partners or third parties direct against the photographer under the title of product liability within the meaning of the PHG, are excluded unless the person entitled to recourse proves that the error was caused in the sphere of the photographer and was at least the fault of gross negligence. Apart from that, Austrian substantive law shall apply. The applicability of the UN sales law is excluded. The contract language is German.
14.3 These General Terms and Conditions apply to film works or motion pictures commissioned by photographers, regardless of the process and technology used (film, video, etc.).
