I. Applicability and scope of the general terms and conditions:
1.1 The following terms and conditions shall apply if the photographer is a consumer within the meaning of § 1 KSchG as a contractual partner.
1.2 The photographer provides her services exclusively based on the following general terms and conditions. These are valid – if the photographer announces no change – also for all future business relations, even if no express reference is made to them.
1.3 Should individual provisions of these terms and conditions be invalid; this shall not affect the binding nature of the remaining provisions of the contracts concluded based on these terms and conditions. An invalid provision shall be replaced by a valid provision which comes closest to its meaning and purpose.
1.4 The Photographer’s offers are subject to change and non-binding.
II. Copyright provisions:
2.1 The photographer is entitled to all copyrights and ancillary copyrights of the photographer (§§1, 2 para. 2, 73ff UrhG). Permission of use (publication rights, etc.) shall only be deemed to have been granted if expressly agreed. In this case, the contractual partner shall acquire a simple (non-exclusive and non-exclusive) and non-transferable (assignable) licence. The license is for 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 note shall be decisive. In any case, the contractual partner only acquire as many rights corresponding to the disclosed purpose of the contract (placed order). In the absence of any other agreement, the permission of use shall be deemed to have been granted only for a single publication (in one edition), only for the expressly designated medium of the customer and not for advertising purposes.
2.2 The contractual partner is obliged for each use (reproduction, distribution, broadcasting, etc.) to attach the manufacturer’s name (mention of the name) or the copyright notice in the sense of the WURA (World Copyright Agreement) clearly and legibly (visible), in particular not toppled and in regular letters. The name should be directly next to the photograph and clearly assignable to it as follows Photo: (c) Kirstin Tödtling; place and, if published, year of first publication. In any event, this provision shall be deemed to be 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 mark described above.2.3 any change to the photograph requires the photographer’s written consent. This only does not apply if the change is necessary for the contract known to the Photographer. 2.4 the permission of use shall only be deemed to have been granted upon full payment of the agreed photographing and usage fee and only if a proper manufacturer’s name/name (point 2.2 above) is given.
III. Ownership of the film material – archiving:
3.1.2 in Digital Photography, the photographer is entitled to ownership of the image files. A right to transfer digital image files exists only after an explicit written agreement and concerns – if no other agreement exists – only a selection and not all image files produced by the photographer.
3.2 A duplication or distribution of photographs in online databases, in electronic archives, on the Internet or in intranets, which are not only for the internal use of the client, on USB-stick or similar data carriers is solely permitted based on an exclusive agreement between the photographer and the client. The right to a backup copy remains unaffected.
3.3 The photographer shall archive the photograph without legal obligation for one year. In the event of loss or damage, the contractual partner is not entitled to any claims.
IV. Marking:
4.1 The photographer is entitled to mark the photographs as well as the digital image files with her manufacturer’s designation in any way she deems appropriate (including the front). The contractual partner is obliged to ensure the integrity of the manufacturer’s designation, especially in the case of permitted transfer to third parties (printers, etc.). If necessary, the manufacturer’s designation shall be affixed or renewed. This applies in particular to all means of reproduction created in the course of 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 is electronically linked to the photographs. So that it is retained in all types of data transmission and the photographer can be clearly and unambiguously identified as the author of the pictures.
V. Secondary Obligations:
5.1 The contractual partner shall be responsible for obtaining any necessary permits for the use of works from third parties and for obtaining consent for the depiction of persons. In this respect, the contractual partner shall indemnify and hold the photographer harmless, in particular about claims arising from the right to one’s image pursuant to § 78 UrhG (Copyright Act) and concerning claims for use pursuant to § 1041 ABGB (Austrian Civil Code). The Photographer guarantees the consent of entitled persons only in the case of an express written consent for contractual purposes (point 2.1).
5.2 If the contractual partner commissions the Photographer to electronically process third-party photographs, the Client warrants that he/she is entitled to do so and shall indemnify the Photographer against all third-party claims based on a breach of this obligation.
VI. Loss and damage:
6.1 In the event of loss or damage to photographs (digital image files) produced on commission, the photographer shall only be liable – regardless of the legal title – for intent and gross negligence. The liability is limited to her own fault and that of her 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 photographs (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 or third-party costs (models, assistants, make-up artists and other recording personnel) or for loss of profit, consequential and immaterial damages. Claims for damages in cases of slight negligence are excluded.
6.2 Point 6.1 shall apply 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. More valuable items are to be insured by the contractual partner.
VII. Early Termination:
The photographer is entitled to terminate the contract with immediate effect for important reasons. Good cause shall be deemed to exist in particular if bankruptcy or composition proceedings are instituted against the assets of the contractual partner, or if an application for the institution of such proceedings is rejected due to a lack of assets to cover costs, or if the customer suspends payments, or if there are justified concerns regarding the creditworthiness of the contractual partner and the contractual partner fails to make advance payments or provide suitable security upon the photographer’s request, or if the performance of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite the granting of a 14-day grace period, or if the contractual partner continues to breach material obligations under the contract, such as the payment of a due partial amount or cooperation obligations, despite a written warning with a 14-day grace period.
VIII. Performance and warranty:
8.1 The photographer shall execute the order carefully. He may also have the order – in whole or in part – executed by third parties. Unless the contractual partner gives written instructions, the Photographer shall be free to decide how the order is to be carried out. This applies in particular to the composition of the picture, the choice of models, the location and the photographic means used. Deviations from earlier deliveries do not constitute a defect as such.
8.2 No liability shall be assumed for defects which are due to incorrect or inaccurate instructions of the contractual partner (§ 1168a ABGB). In any case, Photographer is only liable for intent and gross negligence.
8.3 The contractual partner shall bear the risk for all circumstances that do not lie in the person of the photographer, such as weather conditions during outdoor shoots, timely provision of products and props, failure of models, travel disruptions, etc.
8.4 Shipments travel at the expense and risk of the contractual partner.
8.5 No liability shall be assumed for minor defects. Colour differences in repeat orders shall not be considered a significant defect. Point 6.1 shall apply accordingly.
8.6 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.
8.7 any permission for use granted by the photographer shall not include the public performance of sound works in any media.
IX Wage / fee:
9.1 In the absence of an express written agreement, the Photographer shall be entitled to a fee in accordance with her/his current price list, otherwise an appropriate fee.
9.2 The fee shall also be due for layout or presentation shots as well as if no utilisation is made or depends on the decision of third parties. In this case, no price reductions are 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 they are procured by the Photographer, shall be paid separately.
9.4 Any changes requested by the contractual partner in the course of the execution of the work shall be borne by the contractual partner.
9.5 Conceptual services (consulting, layout, other graphic services etc.) are not included in the admission fee. The same applies to above-average organisational effort or such meeting expenses.
9.6 If the contractual partner refrains from carrying out the order for reasons within his sphere of responsibility, the Photographer shall be entitled to the agreed fee, unless otherwise agreed. In the case of absolutely necessary changes to the appointment (e.g. due to weather conditions), a fee corresponding to the time spent in vain or reserved and all additional costs must be paid.
9.7 The net fee is understood to be exclusive of value added tax at its respective statutory rate.
9.8 The contractual partner waives the possibility of offsetting. This does not apply, however, in the event of the Photographer’s insolvency, or for counterclaims that are legally related to the Photographer’s claims, have been established by a court of law or have been acknowledged by the Photographer.
X. License fee:
Unless otherwise expressly agreed in writing, the photographer is entitled to a work usage fee in the agreed or appropriate amount separately in the case of the granting of a license.
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 amount is to be made upon placement of the order. Unless otherwise expressly agreed in writing, the remaining fee – if it can be determined by the contractual partner – is due after completion of the work, otherwise after invoicing. The invoices are payable without any deduction and free of charges. In the case of bank transfer, payment shall not be deemed to have been made until the photographer has been notified of the 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 of payment by the contractual partner, the Photographer shall be entitled to charge interest on arrears at an annual rate of 5 per cent above the base interest rate, without prejudice to any claims for damages in excess thereof.
11.4 Insofar as delivered images become the property of the contractual partner, this shall only take place upon full payment of the photographer’s fee including incidental costs. The assertion of the retention of title does not constitute a withdrawal from the contract, unless this is expressly declared.
XII. Data Protection:
The contractual partner expressly agrees that the photographer may automatically determine, store and process the data provided by him/her (name, address, e-mail, credit card data, data for account transfers, telephone number) for the purposes of contract fulfilment and support as well as for his/her own advertising purposes. Furthermore, the contractual partner agrees that electronic mail may be sent to him for advertising purposes until revoked. The contractual partner takes note of the following data protection notice, unless the contractual partner has received a further notice, and confirms that the photographer has thus fulfilled the information obligations that apply to him/her:The photographer as the person responsible processes the personal data of the contractual partner as follows:
1. Purpose of the data processing:
The photographer processes the personal data mentioned under point 2 for the execution of the concluded contract and / or the orders requested by the contractual partner or for the use of the images for advertising purposes of the photographer, in addition to the personal data disclosed for the photographer’s own advertising purposes.
2. Categories of data processed and legal basis of the processing:
The photographer processes the personal data, namely name, address, telephone and fax number, e-mail addresses, bank details and image data, in order to achieve the purposes mentioned in point 1.
3. Transmission of the contractual partner’s personal data:
For the above-mentioned purposes, the personal data of the contractual partner, if this is the content of the contract, will be transmitted upon request of the contractual partner to recipients to be named, namely in particular third parties related to the concluded contract, if this is the content of the contract, media, should there be an agreement with the contractual partner in this regard 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 stored by the photographer for as long as it is reasonably considered necessary to achieve the purposes mentioned under point 1. and as permitted by applicable law. The personal data of the contractual partner will be stored as long as there are legal obligations to store the data or as long as the statute of limitations of potential legal claims has not expired.
5. The rights of the contracting party in connection with personal data:
According to the applicable law, the contractual partner is entitled, among other things, to check whether and which personal data the photographer has stored in order to obtain copies of these data – with the exception of the photographs themselves – to demand the correction, completion or deletion of his personal data that is incorrect or not processed in accordance with the law-to require the photographer to limit the processing of her personal data – if the legal requirements are met- to object to the processing of her personal data under certain circumstances or to revoke the consent previously given for the processing- to require data transferability- to know the identity of third parties to whom the personal data is transferred and- to file a complaint with the competent authority if the legal requirements are met
6. Contact details of the person responsible:
Should the contractual partner have questions or concerns regarding the processing of his personal data, he may contact the photographer known to him by name and address. (Kirstin Toedtling)
XIII. Use of portraits for advertising purposes of the photographer:
The photographer is – unless there is an explicit written agreement to the contrary – entitled to use photographs produced by him/her to advertise his/her activity. The contractual partner grants his/her 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 the photographer’s own image in accordance with § 78 UrhG (Copyright Act) and claims for use in accordance with § 1041 ABGB (Austrian Civil Code).
The contractual partner also gives his consent, also taking into account the applicable data protection regulations, that his personal data and in particular the photographs produced may be processed for the purpose of publication for the photographer’s advertising purposes.
XIV Final Provisions:
14.1 For all actions brought against a contractual partner of the Photographer who has his residence, habitual abode or place of employment in Germany, one of the courts in whose district the consumer has his residence, habitual abode or place of employment shall have jurisdiction. For consumers, who do not have a residence in Austria at the time of the conclusion of the contract, the legal jurisdictions apply.
14.2 Any recourse claims against the Photographer by contractual partners or third parties based on product liability within the meaning of the Austrian Product Liability Act (PHG) are excluded, unless the party entitled to recourse proves that the defect was caused in the sphere of the Photographer and was caused at least by gross negligence. For the rest, Austrian substantive law shall apply. The applicability of the UN Sales Convention is excluded. The contract language is German. If the conditions of Article 5 Para 2 of the European Convention on Contracts for the Obligation of a Party to a Contract (EVÜ) are met, but not a case of Article 5 Para.4 in conjunction with Para. 5 EVÜ, the choice of law does not result in the contractual partner being deprived of the protection afforded by the mandatory provisions of the law of the state in which he/she has his/her habitual residence.
14.3 These General Terms and Conditions of Business shall apply mutatis mutandis to film works or motion pictures produced by Photographers in accordance with their orders, irrespective of the process and technology used (film, video, etc.).