The following General Terms and Conditions of delivery and business (hereinafter referred to as Terms) apply to all orders, estimates, offers, delivery and services carried out by the photographer.
They are deemed to have been agreed upon when the customer accepts the delivery or service described in the photographer’s offer, and at the latest upon acceptance of the image material for publication.
If the customer wishes to object to the Terms, this must be declared in writing within three working days.
Any other terms and conditions of the customer are not valid unless the photographer acknowledges them in writing.
The Terms apply to all future orders, estimates, offers, deliveries and services of the photographer within the framework of an ongoing business relationship, even without express inclusion, unless expressly agreed otherwise.
II. CONTRACT PRODUCTIONS
If the photographer creates cost estimates, these are non-binding. If costs increase during production, the photographer is only to report this if it becomes apparent that the originally estimated total costs will be exceeded by more than 15%. If the planned production time is exceeded for reasons for which the photographer is not responsible, additional remuneration based on the agreed time fee or in the form of an appropriate increase in the flat fee is to be paid.
The photographer is entitled to commission services from third parties that have to be purchased to carry out the production, in the name, with authorisation of and for the account of the customer.
Unless otherwise agreed, the photographs made available to the customer after production is complete
submitted for approval selected by the photographer.
If the photographer does not receive a written notice of defects within two weeks of delivery of the photos, the photos are deemed to have been accepted in accordance with the contract and free of defects.
If the client cancels a planned photo production, the photographer is entitled to charge a cancellation fee depending on the time of the cancellation. In the event of cancellation from 2 weeks to 24 hours before the start of the order, 50% of the basic fee will be charged. If canceled less than 24 hours before the start of the order, 100%. The non-cancellable services of any kind already provided at the time of cancellation (travel expenses, rental, subcontractors, etc.) can be billed 100% by the photographer.
III. PROVIDED IMAGES (ANALOG AND DIGITAL)
The Terms apply to any image material provided to the customer, regardless of the stage of completion or the technical form in which it is available. They also apply in particular to electronic or digitally transmitted image material.
The customer acknowledges that the photographic material provided by the photographer is copyrighted photographic work within the meaning of Section 2, Paragraph 1, Item 5 of the German Copyright Act.
Design proposals or concepts commissioned by the customer are independent services that are to be remunerated.
The photographic material provided remains the property of the photographer, even if damages are paid for it.
The customer must treat the image material with sensitivity and may only pass it on to third parties for internal business purposes of viewing, selection and technical processing.
Complaints relating to the content of the delivery or the content, quality or condition of the image material must be reported within two weeks of receipt. Otherwise, the image material is deemed to have been received properly, in accordance with the contract and as recorded.
IV. RIGHTS OF USE
In principle, the customer only acquires a basic right of use for one-time use. Publications on the Internet or placement in digital databases are, subject to other agreements, limited in time to the duration of the publication periods of the corresponding or comparable print object.
Exclusive rights of use, media-related or spatially-exclusive rights must be agreed separately and require a surcharge of at least 100% on the respective basic fee.
With the delivery, only the right of use is transferred for the one-time use of the image material for the purpose specified by the customer and in the publication and in the medium which the customer has specified or which arises from the circumstances of the placing of the order. In case of doubt, the purpose for which the image material was made available, as evidenced by the delivery note or the shipping address, is decisive.
Any use, exploitation, duplication, distribution or publication that goes beyond Section 3 is subject to a fee and requires the prior express consent of the photographer. This applies in particular to:
a secondary use or secondary publication, in particular in anthologies, product-related brochures, advertising measures or other reprints, any processing, modification or redesign of the image material,
the digitisation, storage or duplication of the image material on data carriers of all kinds (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, DVD, hard drives, RAM, microfilm, etc), insofar as this is not only for technical processing and management of the image material according to Section III 5. General Terms and Conditions,
any duplication or use of the image data on digital data carriers, any recording or reproduction of the image data on the Internet or in online databases or in other electronic archives (including the customer’s internal electronic archives),
the transfer of the digitised image material by way of long-distance data transmission or on data carriers that are suitable for public display on screens or for the production of hard copies.
Changes to the image material through photo composing, montage or electronic aids to create a new copyrighted work are only permitted with the prior written consent of the photographer and only if marked with [Z]. The image material may not be drawn, photographed or otherwise used as a motif.
The customer is not entitled to transfer the rights of use granted to them in whole or in part to third parties, not even to other group companies or subsidiaries. Any use, reproduction or forwarding of the image material is only permitted if the copyright notice provided by the photographer is attached in unequivocal assignment to the respective image.
The granting of the rights of use is subject to the condition precedent of the full payment of all payment claims of the photographer from the respective contractual relationship.
Even if the exclusive rights of use are transferred, the photographer remains entitled to use their photos for self-promotion purposes.
The photographer assumes no liability for the violation of the rights of depicted marks (brands, company designs), persons or objects, unless a correspondingly signed release form is attached. The acquisition of rights of use beyond the photographic copyright, e.g. for illustrated works of fine or applied art as well as obtaining publication permits from collections, museums etc. is the responsibility of the customer. The customer bears the responsibility for the captions as well as the contexts resulting from the concrete publication.
From the time the image material is properly delivered, the customer is responsible for its proper use.
The agreed fee applies. The fee does not include the applicable VAT/MWsT.
The agreed fee covers the one-off use of the image material for the agreed purpose in accordance with Section IV.3.
Costs and expenses incurred as a result of the order (e.g. material and film lab costs, model fees, costs for necessary props, travel expenses, necessary expenses, etc) are not included in the fee and are borne by the customer.
The fee claim is due upon delivery of the recording. If a production is delivered in parts, the corresponding partial fee is due with the respective delivery. In the case of production orders, the photographer is entitled to demand advance payments in accordance with the scope of services rendered.
The fee according to VI. 1. Terms must also be paid in full if the commissioned and delivered image material is not published. If the recordings are used as a work template for layout and presentation purposes, a fee of at least €75 per recording will be charged, unless otherwise agreed.
Offsetting or exercising the right of retention is only permitted with undisputed or legally established claims of the customer. It is also permissible to offset counterclaims that are disputed but are ready for a decision.
VII. RETURN OF IMAGES
Analogue image material must be returned in the form supplied without being asked immediately after publication or the agreed use, but no later than three months after the delivery date; two specimen copies must be enclosed. An extension of the three month period requires the written approval of the photographer.
Digital data must always be deleted or the data carrier destroyed after use has ended. The photographer is not liable for the existence and/or the possibility of a re-delivery of the data.
If, at the request of the customer or with the customer’s consent, the photographer provides image material solely for the purpose of checking whether use or publication is possible, the customer must return analogue image material within one month of receipt at the latest, unless a different period is stated on the delivery note. Digital data are to be deleted or the data carriers are to be destroyed or returned. An extension of this period is only effective if it has been confirmed in writing by the photographer.
The image material is returned by the customer at his own expense in packaging customary in the industry. The customer bears the risk of loss or damage during transport until it is received by the photographer.
VIII. PENALTY, DAMAGES
In the event of any unauthorised (without the consent of the photographer) use, application, reproduction or transmission of the image material, a contractual penalty of 500% of the usage fee must be paid for each individual case, subject to further claims for damages.
If the copyright notice is omitted, incomplete, incorrectly placed or cannot be assigned, a surcharge of 100% of the agreed or usual usage fee is to be paid.
The law of the Federal Republic of Germany applies as agreed, including for deliveries abroad.
Ancillary agreements to the contract or to these Terms must be in writing to be effective.
Any nullity or ineffectiveness of one or more provisions of these General Terms and Conditions does not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a meaningful, effective provision that comes as close as possible to the desired regulation from an economic and legal point of view.