General Terms and Conditions
General Terms and Conditions of the Photographer’s Trade (Federal Gazette No. 88 dated 15 May 2002 – Page 10.436)
I. General Information
1. The terms and conditions outlined in the following apply to any and all orders placed with/contracts awarded to the photographer. They shall be deemed as agreed unless immediately contradicted.
2. The term “photograph” in the sense of the general terms and conditions at hand refers to any and all products created by the photographer, irrespective of their technical form or the medium utilized for their creation resp. on which they are available (negative, slide, paper photo, still videos, electronic stills in digitized form, videos etc.).
1. The photographer is entitled to the copyright for the photographs in accordance with the Copyright Law.
2. The photographs produced by the photographer are generally intended for use by the client only.
3. If the photographer transfers the user rights for his products, only the ‘simple user right’ shall be transferred – unless otherwise expressly agreed. The transfer of user rights to third parties requires a separate agreement.
4. The user rights shall be transferred only after full payment of the photographer’s fees.
5. The client ordering a photograph in the sense of § 60 UrhG (Copyright Law) has no right whatsoever to duplicate and/or distribute the photograph unless the respective user rights have been transferred. § 60 UrhG (Copyright Law) is expressly waived.
6. Whenever the photographs are exploited the photographer is entitled to request being mentioned as the originator of the photograph unless otherwise agreed. The photographer shall be entitled to compensation for damages if this right is infringed.
7. The negatives shall remain with the photographer. The negatives shall be handed over to the client only if separately agreed upon.
III. Remuneration, Reservation of Title
1. A fee is calculated for the production of the photographs based on hourly or daily wages or a lump sum payment agreed upon plus the statutory value-added tax (VAT). Ancillary expenses (travel expenses, model fees, expenses, properties, lab and material costs, studio leases etc.) shall be borne by the client. The photographer shall display the end prices incl. VAT vis-à-vis end users.
2. Invoices due shall be paid within a period of 14 days without any deductions. The client shall be in arrears whenever invoices due are not paid at the latest within a period of 30 days (in words: thirty) after reception of the invoice or a similar request for payment. The right of the photographer to implement arrears at an earlier point in time by issuing a reminder delivered after the due date is reserved.
3. The photographs delivered shall remain entirely the property of the photographer until the full purchase price has been paid.
4. If the client has not provided any explicit instructions regarding the design / layout of the photographs to the photographer, complaints regarding the image concept of the photographs and/or the artistic-technical design shall be excluded. If the client requests modifications either during or after the photo production, he shall have to bear the additional costs incurred. The photographer shall retain the remuneration right for work already started.
1. The photographer shall be liable for breach of duties not directly connected to fundamental contractual obligations for himself and his vicarious agents only in case of intent and gross negligence. He shall furthermore be liable for damages resulting from injuries to the life, body or health and from breach of fundamental contractual obligations caused by himself or his vicarious agents as a result of culpable breach. The photographer shall be liable for damages caused to photo objects, templates, films, displays, layouts, negatives or data – unless otherwise agreed – only in case of intent and gross negligence.
2. The photographer shall carefully store the negatives. He is entitled but not required to destroy the negatives in his custody three years after termination of the contract. He shall inform the client prior to their destruction and offer the negatives to the client to be purchased.
3. The photographer shall be liable for resistance to light and durability of the photographs only in the context of the warranty provided by the manufacturer of the photo material.
4. The dispatch and sending back of films, photos and templates shall be at the client’s costs and risk. The client is entitled to determine how and by whom the sending back shall be effected.
V. Ancillary Obligations
1. The client ensures that he possesses the duplication and distribution right as well as, in case of images of people, the approval of the person photographed for any and all of the templates ceded to the photographer. Claims for compensation of third parties on account of breach of the above obligation shall be borne by the client.
2. The client undertakes to make available the photo objects in due time and immediately pick them up after the photograph has been taken. If the client fails to pick up the photo objects after having been requested to do so at the latest after two working days, the photographer shall be entitled to charge storage costs, if applicable, or to evacuate the objects at the expense of the client if his studio is blocked. Charges for transport and storage shall be at the expense of the client.
VI. Default, Cancellation Fee
1. If the photographer cedes several photos to the client for him to choose, the client shall send back the photos not selected within a period of one week after reception – unless a longer period was agreed upon – at his own costs and risk. The photographer is entitled to demand payment for photos lost or damaged, provided that he is not responsible for the loss or damage.
2. If the photographer cedes photos from his archive to the client, the client shall send back the photos not selected within a period of one month after reception, those selected within a period of one month after utilization. If the client is in arrears with the return of the photos, the photographer is entitled to charge a “blocking fee” of 1 (in words: one) Euro per day and photo unless the client is capable of proving that no damages have been incurred or that the damage is lower than the liquidated damage. The photographer is entitled to a compensation for damages in case of loss or damage that renders any further utilization of the photos impossible. The compensation for damages shall be a minimum of 1,000 (in words: one-thousand) Euros for each original photo and 200 (in words: two-hundred) Euros for each duplicate, unless the client is capable of proving that no damages have been incurred or that the damage is lower than the liquidated damage. The photographer reserves the right to assertion of higher damages.
3. If the time scheduled for completion of a project is essentially exceeded for reasons for which the photographer is not responsible, the fee of the photographer shall increase accordingly if a lump sum fee was agreed upon. If a time-related fee was agreed, the photographer shall receive the hourly or daily fee agreed upon also for the waiting period unless the client is capable of proving that the photographer has not incurred any damages. The photographer is entitled to also enforce claims for damages in case of intent or negligence on the side of the client.
4. Delivery dates for photos are binding only if explicitly confirmed by the photographer. The photographer shall be liable for exceeding a deadline only in case of intent or gross negligence.
VII. Data Protection
The photographer is entitled to store personal data of the client that are required for business transactions. The photographer undertakes to treat as confidential any and all information disclosed in the context of the contract.
VIII. Digital Photography
1. Digitization, storage and reproduction of the photographer’s photographs on any kind of data carrier whatsoever requires the previous written approval of the photographer.
2. The transfer of user rights does not include the right of storage and reproduction unless this right was expressly transferred as well.
IX. Image Processing
1. The processing of the photographer’s photographs and their reproduction and distribution, be it in analog or digital format, requires the previous written approval of the photographer. If a new work is created either by photo composing, photomontage or other forms of electronic manipulation, this shall be marked with an [M]. The originator of the works utilized as well as the originator of the new work are co-originators in the sense of § 8 UrhG (Copyright Law).
2. The client is obliged to digitally store and copy photographs of the photographer in such a way that the name of the photographer is electronically linked to the image data.
3. The client is obliged to realize this electronic link in such a way that it will remain intact with any kind of data transmission, reproduction on screen, any kind of projection, particularly in case of any public reproduction, and that the photographer may clearly and unambiguously be identified as the originator of the photographs.
4. The client ensures that he is entitled to commission the photographer with the electronic processing of third-party photographs if he places such an order. He shall indemnify the photographer from any and all claims of third parties that result from a breach of such obligation.
X. Utilization and Distribution
1. The distribution of the photographer’s photographs on the Web and on intranets, in online databases, in electronic archives not intended for internal use by the client, on disc, CD-ROM or similar data carriers will be permissible only by special agreement between the photographer and the client.
2. The passing on of digitized photographs on the Web, on intranets, and on data carriers and devices suitable for public reproduction on screen or the production of soft- and hardcopies require the previous written approval of the photographer.
3. Reproduction and distribution of processed objects, which the photographer has created by electronic means, require the previous written approval of the photographer.
4. The photographer is not obliged to release data carriers, files and data to the client unless this has been expressly agreed upon.
5. If the client desires the making available of data carriers, files and data by the photographer this will have to be agreed upon and remunerated separately.
6. If the photographer has ceded data carriers, files and data to the client, these may be altered only with the previous written approval of the photographer.
7. Risks and costs of the transport of data carriers, files and data online and offline shall rest with the client; the type and mode of transmission may be determined by the contractor.
XI. Concluding Provisions
Place of performance for any and all obligations and duties that result from the contractual relationship shall be the corporate seat of the photographer, provided that the contractual partner is not consumer. If both contracting parties are merchants, legal entities under public right or special assets under public law, the corporate seat of the photographer is agreed to be the place of jurisdiction.