General Terms and Conditions

For Consumer Transactions

1. Applicability and Scope of the General Terms and Conditions

1.1. These General Terms and Conditions apply exclusively to contracts with consumers. A consumer within the meaning of § 1 of the Consumer Protection Act (KSchG) is any natural person who concludes a legal transaction for purposes that cannot be attributed to their commercial or independent professional activities. For contracts with entrepreneurs, the General Terms and Conditions for Business Transactions apply.

1.2. The photographer concludes contracts – unless explicitly agreed otherwise – exclusively on the basis of these General Terms and Conditions.

1.3. The inclusion of opposing or supplementary terms and conditions of the contracting party is expressly contradicted. These are only valid if and to the extent that they are agreed upon in writing in individual cases. In particular, acts of contract fulfillment by the photographer do not imply consent to terms and conditions deviating from these General Terms and Conditions.

1.4. Should individual provisions of the contract, including these regulations, be or become wholly or partially invalid, or should the contract contain a gap, the validity of the remaining provisions or parts of such provisions shall remain unaffected. This does not apply if the invalid provision governs one of the main performance obligations. The respective statutory regulations shall replace the invalid or missing provisions. The fact that the photographer does not exercise individual or all of his rights cannot be construed as a waiver of these rights.

 

2. Offer, Conclusion of Contract

2.1. The photographer's offers are – unless expressly stated as binding – non-binding and without obligation. This also applies to all information in price lists, brochures, etc.

2.2. Placing an order with the photographer can be done in writing (by letter, email, fax, etc.), orally, or by phone. The contract is concluded only when the photographer confirms the order in writing or actually starts to execute the order. Confirmation of receipt of an order does not constitute acceptance of the order.

2.3. Changes or additions to the order require written confirmation from the photographer to be effective.

 

3. Prices

3.1. All prices are in Euros unless otherwise stated. The prices apply from the business location of the photographer, including the applicable statutory value-added tax but excluding packaging, transport, postage, and any other shipping costs. These costs will be charged separately.

3.2. The shipping of goods is at the risk of the photographer, meaning the risk of loss or damage to the goods is transferred to the contracting party only when the goods are delivered to them or a designated third party other than the carrier.

3.3. Delivery/performance dates and deadlines mentioned by the photographer are approximate and non-binding unless they have been expressly confirmed in writing as binding. No claims can be made against the photographer for failure to meet non-binding delivery/performance dates and deadlines. However, the photographer must perform the service within 30 days of the contract conclusion.

3.4. If binding delivery dates or deadlines are agreed upon, the contracting party can – unless it is a fixed-date transaction as defined in point 3.5 – withdraw from the contract after setting a reasonable grace period in the event of delivery delay. The withdrawal from the contract does not affect the claim for compensation for damages caused by the failure to fulfill obligations.

3.5. If performance at a specific time or within a specific period is stipulated as a condition for withdrawal, and the photographer is in default, the contract is considered dissolved without further action unless the contracting party promptly informs the photographer that they insist on contract fulfillment. Possible claims for damages remain unaffected.

3.6. By acquiring a copyright-protected work, whether in paper or digital form, the contracting party acquires a simple (non-exclusive and non-transferable) right of use for the expressly agreed purpose and within the agreed limits (edition number, time, and geographical 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 correspond to the disclosed purpose of the contract (placed order). Unless otherwise agreed, the right of use is granted only for a one-time publication (in one edition), only for the explicitly specified medium of the contracting party, and not for advertising purposes. Additionally, the contracting party is entitled, under § 42 of the Copyright Act (UrhG), to produce individual copies for personal and private use.

3.7. The right of use is granted only after full payment of the agreed recording and work usage fee (see point 6.2) and provided the proper manufacturer designation/name credit according to point 4.3 is made.

 

4. Copyright Provisions

4.1. Photographs and Films are Copyrighted Works, Photographs and films are protected under copyright law according to §§ 1, 3, 4 UrhG (German Copyright Act). All copyright and related rights of the creator (§§ 14ff, 73ff UrhG) exclusively belong to the photographer. Except for the rights regulated in § 42 UrhG, the photographer holds the exclusive exploitation rights, meaning the exclusive rights to reproduce, distribute, publicly present through optical devices, broadcast, and make available to the public the photograph. Any use is permissible only in accordance with a usage permit granted by the photographer (see point 3.6). § 75 UrhG does not apply.

4.2. Reproduction or Distribution of Photographs/Films, Reproduction or distribution of photographs/films in online databases, electronic archives, the internet, or intranets, which are not solely intended for the internal use of the contracting party, on diskette, CD-ROM, or similar media, is permitted only based on a specific written agreement between the photographer and the contracting party. The right to create a backup copy remains unaffected by this provision.

4.3. Attribution Requirement, The contracting party is obligated to clearly and legibly display the manufacturer's designation (attribution) or copyright notice in accordance with the WURA (World Copyright Treaty) when using the photograph (reproduction, distribution, broadcast, etc.), particularly ensuring it is not rotated and is in normal letters, directly adjacent to and clearly identifiable with the photograph, as follows: Photo: © ... Name/Company/Artist Name of the photographer, location, and – if published – year of first publication. This requirement applies even if the photograph does not bear a manufacturer's designation. In any case, this provision is considered the display of the manufacturer's designation under § 74 para. 3 UrhG. If the photograph is signed on the front (in the image), the publication of this signature does not replace the manufacturer's notice described above.

4.4. Alterations to the Photograph, Any alteration to the photograph requires the photographer's written consent, except when the alterations are necessary for the purpose known to the photographer.

4.5. Publication Obligations, In case of publication, two free specimen copies must be provided. For expensive products (art books, video cassettes), the number of specimen copies is reduced to one. When published on the internet, the photographer must be informed of the web address.

4.6. Violation of Copyright and Related Rights, In case of infringement of copyright and/or related rights, the photographer is entitled to civil law claims for injunction, removal, damages, publication of judgment, etc., according to §§ 81ff UrhG. These claims are available to the photographer regardless of fault. In case of violation of the obligation to provide attribution, an immaterial damage (§ 87 para. 2 UrhG), in addition to any economic loss (§ 87 para. 1 UrhG), entitles the photographer to at least an amount equivalent to a reasonable fee (§ 86 UrhG).

 

5. Ownership of Film Material and Image Files, Marking, Archiving

5.1. Analogue Photography: The ownership rights to the exposed film material (negatives, transparencies, etc.) belong to the photographer. The photographer transfers ownership of the images required for the agreed-upon use to the contracting party against agreed and appropriate compensation. Transparencies are provided to the contracting party on a loan basis only, subject to return after use at the contracting party's risk and expense, for use within the scope of the authorization specified in Section 3.6, unless otherwise agreed upon in writing.

 

5.2. Digital Photography: Ownership of the image files belongs to the photographer. The right to transfer digital image files and to use them within the scope of the authorization specified in Section 3.6 is granted only upon explicit written agreement and, in the absence of any other express agreement to the contrary, applies only to a selection of the created image files to be mutually determined between the photographer and the contracting party.

5.3. The photographer is entitled to mark the photographs and digital image files in any manner he deems appropriate (including on the front). The contracting party is obligated to ensure the integrity of the photographer's marking, especially when authorized for distribution to third parties (printers, etc.). If necessary, the photographer's marking must be applied or renewed. This applies in particular to all reproduction materials created during production (lithographs, plates, etc.) or when making copies of digital image files.

5.4. The contracting party is obliged to store digital photographs in such a way that the photographer's marking remains electronically linked to the images during any data transmission, ensuring that the photographer is clearly and unequivocally identifiable as the author of the images.

5.5. The photographer will archive the photographs for a period of one year without legal obligation. In case of loss or damage, the contracting party has no claims.

 

6. Remuneration (Fee, Honorarium)

6.1. In the absence of a different written agreement, the photographer is entitled to a fee (honorarium) for their services according to their currently valid price lists.

6.2. The photographer is entitled to a shooting fee, which also applies to layout or presentation shots, as well as situations where exploitation is omitted or dependent on decisions by third parties. No price reductions apply to the shooting fee in this case. Additionally, the photographer is entitled to a sales fee for the sale of photographs/films, and separately, a usage fee (license fee) for granting a usage authorization beyond § 42 UrhG [German Copyright Act] in an agreed amount.

6.3. Conceptual services (consultation, layout, other graphic services, etc.), as well as material costs and other expenses for props, models, travel expenses, accommodation allowances, makeup artists, etc., are not included in the shooting fee and will be invoiced separately. The same applies to above-average organizational or meeting-related expenses.

6.4. Prices are quoted in euros and are "ex works," plus value-added tax at the applicable statutory rate. In the case of shipping, an additional shipping and handling fee of € [amount] will apply.

6.5. Changes to the order requested by the contracting party during execution of the contract will be at their expense and invoiced separately.

6.6. We are not bound to adhere to previous prices for subsequent orders.

6.7. No guarantee is provided for the accuracy of cost estimates.

 

7. Payment

7.1. Unless otherwise expressly agreed in writing, the fee is due for immediate payment upon invoicing. If a payment deadline has been agreed upon, invoices must be settled in full and without deductions within 8 working days of invoicing, received by the photographer.

7.2. The photographer is entitled to request a partial payment from the client before commencing work, and to issue partial invoices for divisible services.

7.3. The photographer is authorized to allocate payments irrespective of their designation to settle the oldest due debt, including accrued default interest and costs, in the following order: costs, interest, principal claim.

7.4. In case of late payment, default interest of 4% per annum as well as statutory default interest on interest will be charged, regardless of fault. Furthermore, in the event of culpable late payment, the contracting party is obligated to reimburse the photographer for all costs incurred for the appropriate recovery of the claim, such as attorney fees and costs of collection agencies, and to compensate for any further damages, especially those resulting from higher interest rates on any credit accounts due to non-payment.

7.5. The contracting party is only entitled to set-off against their own claim against the photographer if the photographer is insolvent and the contracting party's claim is legally related to their liability, or the claim has been determined by a court or acknowledged by the photographer.

7.6. The contracting party may only exercise a right of retention to the extent that it concerns claims arising from the same contractual relationship.

 

8. Statutory Right of Withdrawal

8.1. Pursuant to § 11 FAGG, the consumer may withdraw from a distance contract or a contract concluded outside business premises within 14 days without stating reasons. Further details on the exercise of the right of withdrawal and the consequences of withdrawal can be found in the separately published cancellation policy for goods deliveries or the cancellation policy for service contracts.

8.2. The right of withdrawal is excluded in the following cases: • for contracts for services, if the trader has begun performance of the service before the end of the fourteen-day withdrawal period based on the consumer's explicit request and confirmation of the consumer's awareness of losing the right of withdrawal upon complete performance of the contract;

• for contracts for goods made to the consumer's specifications or clearly personalized;

• for contracts for goods which, after delivery, due to their nature, are inseparably mixed with other goods;

• for contracts for sound or video recordings or computer software delivered in a sealed package, if the sealing has been removed after delivery;

• for contracts for the supply of digital content not supplied on a tangible medium, if the trader – with the consumer's explicit consent and the consumer's acknowledgment of losing the right of withdrawal due to the commencement of performance of the contract before the end of the withdrawal/revocation period, and after providing a copy or confirmation pursuant to § 5 para 2 or § 7 para 3 – has started supplying the content before the end of the withdrawal/revocation period.

 

9. Duties of the Contracting Party

9.1. The contracting party is obligated, if necessary, to cooperate in the fulfillment of the order and to support the photographer to the best of their abilities. The contracting party must ensure the procurement of any necessary rights of use from third parties concerning depicted objects (e.g., works of visual art, patterns and models, trademarks, photo templates, etc.) and obtain consent for the depiction of persons (e.g., models). The photographer guarantees the consent of rights holders, especially models, only upon explicit written confirmation for contractual purposes (Clause 3.6).

9.2. Indemnity: The contracting party undertakes to indemnify the photographer completely against claims by third parties, if the photographer is civilly or criminally prosecuted or sued, or judicially or extrajudicially held liable, due to violations of legal regulations or the conduct of the contracting party.

9.3. In the event of commissioning the photographer with the electronic editing of third-party photographs, the contracting party assures that they possess the necessary rights for this purpose and indemnifies the photographer from all claims by third parties resulting from a breach of this obligation.

9.4. The contracting party undertakes to promptly retrieve provided objects after the shoot. If these objects are not collected within two working days after being requested by the photographer, the photographer is entitled to store the items at the expense of the contracting party.

 

10. Default of Acceptance, Withdrawal by the Contracting Party

10.1 If the contracting party does not accept the performance at the agreed time and place or if the photographer's performance is delayed or made impossible, the contracting party is in default of acceptance. In this case, the photographer is entitled, after setting a reasonable grace period of 14 days, to withdraw from the contract or to insist on contract performance. The photographer is also entitled to withdraw from the contract if the contracting party continues to violate essential obligations under the contract (e.g., obligations to cooperate, payment of deposits or installments) despite written warning and a 14-day grace period. In any case, the contracting party must compensate the photographer for any damage caused by their fault.

10.2 In case of default of acceptance, the contracting party shall bear any storage costs as well as the costs for the unsuccessful delivery and return. If the contracting party is at fault for the default of acceptance, they shall also compensate the photographer for any damage caused by the delay. The contracting party also bears the risk of storage.

10.3 In the event of absolutely necessary changes to the agreed date (e.g., due to weather conditions), a fee corresponding to the time expenditure unsuccessfully provided or reserved and all incidental expenses must be paid.

 

11. Retention of Title

11.1. Until full payment of the fee, the goods remain the property of the photographer. The contracting party bears all risks associated with the reserved goods, especially the risk of destruction, loss, or deterioration.

11.2. Pledging or transferring security of the reserved goods is prohibited for the contracting party.

11.3. The contracting party agrees to inform the photographer before filing for insolvency proceedings so that the photographer can take possession of the goods delivered under retention of title and owned by the photographer.

11.4. If the contracting party defaults on payment, in whole or in part, the photographer is entitled to demand return of the goods until full satisfaction. Term-based claims become due immediately.

11.5. It is agreed that asserting the retention of title does not constitute withdrawal from the contract, unless the photographer declares withdrawal from the contract in writing.

 

12. Warranty

12.1. A defect triggering the contractual partner's warranty claims exists only if the photographer deviates from the contractually owed performance. Warranty claims can only be asserted for defects that already existed at the time of transfer. Furthermore, the photographer does not assume any additional warranty obligations. The photographer is not liable for performance based on incorrect or inaccurate instructions from the contractual partner, or for damages resulting from unsuitable or improper use or handling, regardless.

12.2. Statutory warranty provisions apply. The limitation period for warranty claims is two years from the transfer of the goods to the contractual partner. If the photographer is at fault for the defect, the contractual partner may, pursuant to § 933a of the Austrian Civil Code (ABGB), demand compensation instead of asserting warranty claims within three years from the knowledge of damage and the person responsible.

12.3. If subsequent performance is provided by replacement delivery, the contractual partner is obligated to return the originally delivered goods to the photographer at the photographer's expense within 14 days. The return of defective goods must comply with statutory provisions.

12.4. Assignment of warranty claims by the contractual partner is excluded.

 

13. Liability for Damages The photographer is liable for damages caused by him/her intentionally or negligently according to statutory provisions. Compensation claims for property damage are excluded in cases of mere slight negligence. This does not apply to damages to items taken over by the contractual partner for processing, as well as damages resulting from a breach of the contractual main obligations.

 

14. Assignment

The contractual partner may only transfer or pledge their rights under this contract to third parties, in whole or in part, with the prior written consent of the photographer.

 

15. Data Protection

The photographer collects, stores, and processes personal data provided by the contracting party (name, address, email address, credit card details, bank transfer details, phone number, etc.) as well as data related to the business relationship (such as order date, ordered or delivered products or services, quantity, price, delivery dates, payment and reminder data, etc.) in accordance with the provisions of the applicable data protection law for the purpose of fulfilling the contract. The photographer uses the personal data provided by the contracting party exclusively for the execution of the contract and for responding to inquiries without the separate explicit consent of the contracting party, unless the contracting party has expressly consented to further use of their data, particularly for advertising purposes. In the absence of consent for the use of data for advertising purposes, the data will be blocked for further use after complete fulfillment of the contract and full payment of the purchase price, and deleted after the expiration of tax and commercial retention periods. If consent is given, the data will be stored for advertising purposes. The contracting party can revoke consent given for the collection, processing, and use of personal data at any time.

 

16. Use of Images for Advertising Purposes of the Photographer

The photographer is - unless there is an express written agreement to the contrary - entitled to use the photographs he has taken to promote his activities. The contracting party gives their express and irrevocable consent for the publication of these images for the photographer's advertising purposes and waives any claims, particularly those arising from the right to one's own image according to § 78 of the Copyright Act (UrhG) and usage claims according to § 1041 of the General Civil Code (ABGB).

 

17. Applicable Law, Jurisdiction, Contract Language

17.1. For all disputes between the photographer and the contracting party arising from the contractual relationship, including disputes regarding the formation and/or validity of the contract, Austrian law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of international private law. However, this choice of law applies only to the extent that the protection granted by mandatory provisions of the law of the state in which the contracting party has their habitual residence is not withdrawn.

17.2. For all lawsuits brought against a contracting party of the photographer who has their residence, habitual residence, or place of employment within the country, the courts in the jurisdiction where the consumer has their residence, habitual residence, or place of employment shall have jurisdiction.

17.3. The contract language is exclusively German.