I. Applicability and scope of the general terms and conditions:
1.1. The photographer performs his services exclusively on the basis of the following general terms and conditions. By placing the order, the client acknowledges their applicability. Unless the photographer announces a change, 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 do not become part of the contract.
1.2. 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 the basis of them. An ineffective provision must be replaced by an effective one that comes closest to its meaning and purpose.
1.3. Offers by the photographer are subject to change and non-binding.
II. Copyright provisions:
2.1The photographer is entitled to all copyrights and ancillary rights of the photo manufacturer (§§1, 2 Abs. 2, 73ff UrhG). Permits for use (publication rights, etc.) are only deemed to have been granted if expressly agreed. In this case, the contractual partner acquires a simple (non-exclusive and non-exclusive), non-transferable (assignable) use license for the expressly agreed purpose and within the agreed limits (circulation number, time and place restrictions, etc.); in case of doubt, the scope of use specified in the invoice or delivery note is decisive. In any case, the contracting party acquires only as many rights as it corresponds to the disclosed purpose of the contract (placed order).
2.2 The contractual partner is obliged to use the product name (attribution) or the copyright notice in the sense of the WURA (world copyright agreement) clearly and easily readable (visible), in particular not overturned and in normal letters, with each use (reproduction, distribution, broadcast etc.) to be attached to the photo and clearly assignable as follows:
Photo: © Mathias Brabetz Photography | www.mathiasbrabetz.com
In any case, this provision applies as affixing the manufacturer’s designation within the meaning of Section 74 (3) UrhG. If the photo 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 photograph requires the written consent of the photographer. This does not apply only if the change is necessary according to the contractual purpose known to the photographer.
2.4 The usage license is only valid if the agreed admission and usage fee has been paid in full and is only granted if the manufacturer’s name / name is correct (point 2.2 above).
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. When publishing on the Internet, the photographer must be informed of the web address.
III. Ownership of footage – archiving:
3.1.1 Analog photography: The photographer is entitled to the ownership of the exposed film material (negatives, slides, etc.). In return for agreed and reasonable remuneration, the contracting party leaves the recordings necessary for the agreed use to the property. The delivered photos 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 provision 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 the image files. The right to transfer digital image files only exists after an express written agreement and – if there is no deviating agreement – concerns only a selection and not all image files produced by the photographer. In any case, the license to use is only granted in the scope of point 2.1.
3.2 Reproduction or distribution of photos 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 floppy disks, CD-Roms or similar data carriers is only possible 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 picture without legal obligation for a period of one year. In the event of loss or damage, the contractual partner is not entitled to any claims.
4.1 The photographer is entitled to provide the photographs as well as the digital image files with his manufacturer’s name in any way that appears suitable to him (also on the front). The contractual partner / customer is obliged to ensure the integrity of the manufacturer’s designation, especially if it is allowed to be passed on 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 when making copies of digital image files.
4.2 The contractual partner / customer is obliged to store digital photographs in such a way that the manufacturer’s name remains electronically linked to the pictures, so that it is retained with every type of data transfer and the photographer as the author of the pictures can be clearly and uniquely identified.
V. Secondary duties:
5.1 The contractual partner must ensure that any necessary third-party work permits are obtained and that consent is given to depict people. He holds the photographer harmless and complain in this regard, in particular with regard to claims arising from the right to one’s own image in accordance with. § 78 UrhG and with regard to usage claims acc. § 1041 ABGB. The photographer guarantees the consent of authorized persons only in the case of express written consent for the contractual purposes (point 2.1).
5.2 If the contractual partner commissions the photographer to process third-party photographs electronically, the client assures that he is entitled to do so and releases the photographer from all third-party claims based on a violation of this obligation.
5.3 The contractual partner undertakes to pick up any objects to be taken immediately after they have been taken. If these objects are not picked up after two business days at the latest, the photographer is entitled to charge storage costs or to store the objects at the customer’s expense. Transport and storage costs are borne by the customer.
VI. Loss and damage:
6.1In the event of loss or damage to recordings made via order (slides, negative material, digital image files), the photographer is liable – for whatever legal title – only for intent and gross negligence. Liability is limited to one’s own fault and that of its 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 material costs and the free repetition of the recordings (if and as far as this is possible). The client is not entitled to any further claims; in particular, the photographer is not liable for any travel and accommodation expenses as well as for third-party costs (models, assistants, make-up artists and other reception staff) or for lost profits, consequential and immaterial damage.
6.2 Point 6.1 applies accordingly in the event of loss or damage to handed over templates (films, layouts, display pieces, other templates etc.) and handed over products and props. The contractual partner must insure more valuable items.
VII. Premature dissolution:
The photographer is entitled to terminate the contract with immediate effect for important reasons. An important reason can be assumed, in particular, if bankruptcy or compensation proceedings are opened over the assets of the contractual partner or if an application to open such a procedure is rejected due to a lack of cost-covering assets or if the customer ceases to make payments or if there are legitimate concerns about the creditworthiness of the contractual partner exist and this does not provide 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
VIII. Performance and warranty:
8.1 The photographer will carry out the order carefully. He can also have the order executed – in whole or in part – by third parties. If the contractual partner does not make any written arrangements, the photographer is free with regard to the type of execution of the order. This applies in particular to the image design, the selection of the photo models, the location and the photographic means used. As such, deviations from previous deliveries do not constitute a defect.
8.2 No liability is accepted for defects that can be traced back to incorrect or inaccurate 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 in the person of the photographer, such as weather conditions for outdoor shots, timely provision of products and props, failure of models, travel disabilities etc.
8.4 Shipments travel at the expense and risk of the contractual partner.
8.5Apart from those cases in which the contractual partner is legally entitled to change, the photographer reserves the right to fulfill the warranty claim by means of improvement, exchange or price reduction. The contractual partner must always prove in this regard that the defect already existed at the time of delivery. The goods must be examined immediately after delivery. Defects found in this way must also be reported to the photographer in writing immediately, but at the latest within 8 days of delivery, stating the type and extent of the defect. Hidden defects are to be reported immediately after their discovery. If a notice of defects is not raised or not made in good time, the goods are considered 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 accepted for minor defects. Color differences when reordering are not considered a significant defect. Point 6.1 applies accordingly.
8.7 For fixed order dates, liability is only accepted if expressly agreed in writing. In the event of any delays in delivery, 6.1 shall apply accordingly.
8.8 Any license to use the photographer does not include the public performance of sound works in any media.
IX. Right of withdrawal:
You are obligated to be advised that a consumer can withdraw from his contract application or contract under $ 3 KSchG (Consumer Protection Act) or $ 11 FAGG (Distance and Foreign Trade Act) within 14 days.
This right of withdrawal does not exist
in the case of contracts for services, if the entrepreneur has started to perform the service before the end of the withdrawal period and the service has then been rendered in full ($ 18 (1) 1 FAGG),
for goods that are manufactured according to customer specifications or are clearly tailored to personal needs ($ 18 Paragraph 1 No. 3 FAGG); such as
for contracts that are subject to the Distant and Away Business Act ($ 3 paragraph 1 Z4 KschG).
An admissible withdrawal according to these laws must be declared within 14 calendar days from the conclusion of the contract and must be in writing to be legally effective.
In fulfilling the information obligation under $ 4 Paragraph 1 No. 11 FAGG, you are hereby advised that, due to the above-mentioned exceptions, the consumer loses his right of withdrawal from contracts concluded with the photographer, since these are exclusively services and goods for the manufacture of which one individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.
X. Work wages / fees:
10.1 In the absence of an express written agreement, the photographer is entitled to a work wage (fee) according to his respectively valid price lists, otherwise an appropriate fee.
10.2 The fee is also due for layout or presentation recordings, as well as if it is not used or depends on the decision of a third party. In this case, no price reductions will be granted on the admission fee.
10.3 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 separately.
10.4 Any changes requested by the contractual partner in the course of carrying out the work are at his expense.
10.5 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.
10.6 If the contract partner refrains from carrying out the order for reasons that lie in his sphere, the photographer is entitled to the agreed fee in the absence of any other agreement. In the event of absolutely necessary changes to 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.
10.7 If the client withdraws from the contract before the agreed date, a default fee according to the following sentences applies:
10.7.1 for wedding photography orders:
- up to 6 months before the booking date 20% of the order amount
- 3 months before the booking date 50% of the order amount
- 1 month before the booking date 75% of the order amount
- 2 weeks before the booking date 100% of the order amount
10.7.2 for other photo orders: 30% of the order amount
Statutory rights of withdrawal remain unaffected by this regulation. Deposits already paid will not be refunded if the contract is canceled or the deadline is not met.
10.8 The contractual partner waives the option of offsetting. However, this does not apply in the event of the photographer’s insolvency or for counterclaims that are legally related to the claims of the photographer, have been judicially determined or recognized by the photographer.
XI. License fee:
Unless otherwise expressly agreed in writing, the photographer is entitled to a fee for the use of the work in the agreed or appropriate amount in the event that a license is granted.
12.1 In the absence of other express written agreements, an account payment in the amount of 50% of the expected invoice amount is to be made when the order is placed. With this down payment, the appointment is fixed by the photographer. Unless otherwise expressly agreed in writing, the remaining fee – if it can be determined for the contractual partner – is due for payment immediately after completion of the work, otherwise immediately after invoicing. The invoices are payable without any deductions and free of charges. In the case of a transfer, the payment is only deemed to have been made when the photographer has been informed of the receipt of payment.
12.2 In the case of orders spanning several units, the photographer is entitled to invoice for each individual service after delivery.
12.3 If the contractual partner defaults on payment, the photographer is entitled – without prejudice to claims for damages exceeding this – to charge default interest at a rate of 5 percent above the base rate annually.
12.4 Insofar as delivered images become the property of the contractual partner, this will only take place with full payment of the admission fee including additional costs. There is no withdrawal from the contract in the assertion of the retention of title, unless this is expressly stated.
XIII. Data protection:
The contractual partner expressly agrees that the photographer automatically determines, stores and processes the data provided by him (name, address, email, credit card data, data for account transfers, telephone number) for the purposes 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.
XIV. 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 he has made to promote his work. The contractual partner grants the photographer his express and irrevocable consent for publication for advertising purposes and waives the assertion of any claims, in particular from the right to one’s own image in accordance with. Section 78 UrhG and claims for use acc. § 1041 ABGB.
XV. Final provisions:
15.1 For all actions brought against a contractual partner of the photographer who is domiciled, ordinarily resident or place of employment, one of those courts is responsible, in whose district the consumer has his domicile, ordinarily domicile or place of employment. The legal jurisdiction applies to consumers who are not resident in Austria at the time the contract is concluded.
15.2Any recourse claims that the contractual partners or third parties have against the photographer from 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 photographer’s sphere and was at least grossly negligent. Otherwise Austrian substantive law is applicable. The applicability of the UN sales law is excluded. The contract language is German. If the requirements of Article 5 Para. 2 of the European Convention on Debt Agreements (EVÜ) are met, but not a case of Article 5 Paragraph 4 in conjunction with Paragraph 5 of the EVÜ, the choice of law does not result in the contracting party being affected by the mandatory provisions protection deprived of the law of the state in which he is habitually resident.
15.3 These general terms and conditions apply mutatis mutandis to film works or motion pictures produced by photographers, regardless of the process and technology used (film, video, etc.).