GENERAL TERMS AND CONDITIONS OF DELIVERY AND BUSINESS (GCB)
These Terms and Conditions are only an orientation. In general, the German version of our Terms and Conditions apply.
1. The following General Terms and Conditions of Delivery and Business (hereinafter referred to as “GTC”) shall apply to all orders, offers, deliveries and services performed by the photographer.
2. They shall be deemed to have been agreed upon the customer’s acceptance of the photographer’s delivery or service or offer, but no later than upon the photographer’s acceptance of the photographic material for publication.
3. If the customer wishes to object to the general terms and conditions, this must be declared in writing within three working days. Any deviating terms and conditions of the customer are hereby rejected. Deviating terms and conditions of the customer shall not be valid unless the photographer accepts them in writing. 4.
4. The general terms and conditions shall also apply to all of the photographer’s future orders, offers, deliveries and services within the framework of an ongoing business relationship, even if they are not expressly included, unless expressly agreed otherwise.
II. COMMISSIONED PRODUCTIONS
1. Any cost estimates provided by the photographer shall be non-binding.If costs are increased during production, the photographer shall only notify the client of such increases if it becomes apparent that the originally estimated total costs are likely to be exceeded by more than 15 % as a result. If the scheduled production time is exceeded for reasons for which the photographer is not responsible, additional remuneration shall be paid on the basis of the agreed time fee or in the form of a reasonable increase in the flat-rate fee.
2. The photographer shall be entitled to commission services from third parties which have to be purchased in order to carry out the production in the name of and with the authority of and for the account of the client.
3. Unless otherwise agreed, the photographs to be submitted to the client for acceptance after completion of the production shall be selected by the photographer.
4. If the photographer has not received any written notification of defects within two weeks of delivery of the photographs, the photographs shall be deemed to have been accepted in accordance with the contract and free of defects.
III. PHOTOGRAPHIC MATERIAL PROVIDED
1. The GTC shall apply to all photographic material provided to the client, irrespective of its creative stage or technical form. They shall also apply in particular to electronic or digitally transmitted photographic material.
2. The customer acknowledges that the photographic material supplied by the photographer is a copyright-protected photographic work within the meaning of Section 2 (1) (5) of the German Copyright Act.
3. Design proposals or concepts commissioned by the customer shall be deemed to be independent services which shall be remunerated.
4. The photographic material provided shall remain the photographer’s property, even in the event that compensation is paid for it.
5. The customer shall treat the photographic material with care and may only pass it on to third parties for the photographer’s internal business purposes of viewing, selection and technical processing.
6. Complaints concerning the content of the delivered consignment or the content, quality or condition of the photographic material shall be notified within two weeks of receipt. Otherwise, the photographic material shall be deemed to have been received properly, in accordance with the contract and as recorded.
IV. RIGHTS OF USE
1. The customer shall in principle only acquire a simple right of use for one-time use. Unless otherwise agreed, publication on the Internet or inclusion in digital databases shall be limited in time to the duration of the publication period of the corresponding or comparable print object.
2. Exclusive rights of use, media-related or spatial exclusive rights or blocking periods must be agreed separately and require a surcharge of at least 100% on the respective basic fee.
3. Upon delivery, only the right of use shall be transferred for the one-time use of the photographic material for the purpose specified by the client and in the publication and in the medium or data carrier which the client has specified or which results from the circumstances of the placing of the order. In case of doubt, the purpose for which the photographic material was made available as shown on the delivery note or the shipping address shall be decisive.
4. Any use, exploitation, reproduction, dissemination or publication going beyond Section 3 shall be subject to a fee and shall require the Photographer’s prior express consent. This applies in particular to:
– a secondary use or secondary publication, in particular in anthologies, brochures accompanying products, in advertising measures or in other reprints, any editing, alteration or redesign of the photographic material,
– the digitalisation, storage or duplication of the photographic material on data carriers of any kind (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, DVD, hard disks, RAM, microfilm, etc.), insofar as this is not solely for the technical processing and administration of the photographic material pursuant to section III 5. of the 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 (also insofar as these are internal electronic archives of the customer), – the transfer of the digitised photographic material by means of remote data transmission or on data carriers suitable for public reproduction on screens or for the production of hard copies.
5. Changes to the photographic material by means of photo composing, montage or by electronic means to create a new copyrighted work are only permitted with the prior written consent of the photographer and only if marked with [M]. The photographic material may also not be copied, photographed after the fact or otherwise used as a motif.
6. The customer is not entitled to transfer the rights of use granted to him/her in whole or in part to third parties, including other group companies or subsidiaries.
7. Any use, reproduction or disclosure of the photographic material shall only be permitted on condition that the copyright notice specified by the photographer is affixed to the respective image without any doubt.
8. The granting of the rights of use is subject to the condition precedent of full payment of all of the photographer’s claims for payment arising from the contractual relationship in question.
1. The liability of the photographer and his vicarious agents and assistants for breaches of contractual obligations and for tort shall be limited to intent and gross negligence. This shall not apply in the event of injury to the life, body or health of the client or persons to be photographed, claims for breach of cardinal obligations, i.e. obligations arising from the nature of the contract and the breach of which jeopardises the achievement of the purpose of the contract, and compensation for damage caused by default (Section 286 of the German Civil Code). In this respect, the photographer shall be liable for any degree of fault. However, liability in the event of delay in delivery shall be limited to 0.5% of the agreed remuneration for the works to be delivered for each full week of delay within the framework of a lump-sum compensation for delay, up to a maximum of 5% of the agreed remuneration. Liability in the event of a breach of material contractual obligations shall be limited to the regularly foreseeable damage.
2. The photographer assumes no liability for the infringement of rights of depicted persons or objects, unless a correspondingly signed release form is enclosed. The acquisition of rights of use beyond the photographic copyright, e.g. for pictured works of fine or applied art, as well as the obtaining of publication permits from collections, museums, etc., shall be the responsibility of the customer. The customer shall be responsible for the text and the context resulting from the specific publication.
3. From the time of proper delivery of the photographic material, the client shall be responsible for its proper use.
1. The agreed fee shall apply. If no fee has been agreed, it shall be determined in accordance with the current picture fee schedule of the Mittelstandsgemeinschaft Foto- Marketing (MFM). The fee shall be subject to the applicable rate of value added tax.
2. The agreed fee shall cover the one-time use of the photographic material for the agreed purpose in accordance with clause IV.3.
3. Costs and expenses incurred as a result of the assignment (e.g. material and laboratory costs, model fees, costs for necessary props, travel costs, necessary expenses, etc.) are not included in the fee and shall be borne by the client.
4. The fee claim is due upon delivery of the recording. If a production is delivered in parts, the corresponding partial fee shall be due with the respective delivery. In the case of production orders, the photographer shall be entitled to demand payment on account in accordance with the scope of services rendered in each case.
5. The fee pursuant to VI. 1. of the General Terms and Conditions shall be paid in full even if the photographic material commissioned and supplied is not published. If the photographs are used as a working model for layout and presentation purposes, a fee of at least EURO 90.00 per photograph shall be payable, subject to any agreement to the contrary.
6. Offsetting or exercising the right of retention is only permissible with undisputed or legally established claims of the customer. In addition, offsetting against disputed counterclaims that are ready for decision is also permissible.
VII. RETURN OF THE PHOTOGRAPHIC MATERIAL
1. Analogue photographic material shall be returned in the form in which it was supplied, without being requested to do so, immediately after publication or the agreed use, but no later than 3 months after the date of delivery; two specimen copies shall be enclosed. An extension of the 3-month period shall require the photographer’s written consent.
2. Digital data must always be deleted or the data carriers destroyed after use. The photographer shall not be liable for the existence and/or the possibility of a renewed delivery of the data.
3. If the photographer provides photographic material at the customer’s request or with the customer’s consent solely for the purpose of checking whether it is suitable for use or publication, the customer shall return analogue photographic material within one month of receipt at the latest, unless a different deadline is stated on the delivery note. Digital data shall be deleted or the data carriers shall be destroyed or returned. An extension of this deadline shall only be effective if it has been confirmed in writing by the photographer.
4. The photographic material shall be returned by the customer at the customer’s expense in packaging customary in the industry. The customer shall bear the risk of loss or damage during transport until the photographic material is received by the photographer.
VIII. DEFAULT, CONTRACTUAL PENALTY, DAMAGES
1. Schedules and delivery dates shall only be binding if they have been expressly confirmed as binding by the photographer.
2. In the event of any unauthorized use, application, reproduction or disclosure of the photographic material (without the photographer’s consent), a contractual penalty amounting to five times the fee for use shall be payable for each individual case, subject to any further claims for damages.
3. If the copyright notice is omitted, incomplete, incorrectly placed or not assignable, a surcharge of 100% of the agreed or customary usage fee shall be payable.
IX. DATA PROTECTION
1. The client’s data communicated to the photographer shall be stored electronically insofar as this is necessary for the proper handling of the business relationship. The Photographer undertakes to treat all information disclosed to him/her in connection with the order as confidential.
1. The law of the Federal Republic of Germany shall be deemed to be agreed, even in the case of deliveries abroad.
2. Subsidiary agreements to the contract or to these General Terms and Conditions must be made in writing in order to be valid.
3. The possible invalidity or ineffectiveness of one or more provisions of these General Terms and Conditions shall not affect the effectiveness of the remaining provisions. The parties undertake to replace the invalid provision by a valid provision which comes closest to the intended provision in economic and legal terms.
4. If the customer is a registered trader, the place of performance and jurisdiction shall be the photographer’s place of residence.