General Terms and Conditions of Delivery and Business (Photography)

General Terms and Conditions of Delivery and Business (Photography)

I. Validity

  1. The following general terms and conditions (hereinafter referred to as GTC) apply to all orders, offers, deliveries and services carried out by the photographer.
  2. They shall be deemed to have been agreed upon when the customer accepts the photographers delivery or service or offer, but no later than when the photographic material is accepted 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. Deviating terms and conditions of the customer are hereby objected to. Deviating terms and conditions of the customer shall not be valid unless the photographer accepts them in writing.
  4. The terms and conditions apply in the context of an ongoing business relationship even without express inclusion for all future orders, offers, deliveries and services of the photographer, unless otherwise expressly agreed.

II. Commissioned Productions

  1. If the photographer provides cost estimates, these are not binding. If cost increases occur during production, the Photographer shall not be required to notify until it becomes apparent that the total costs originally estimated will be exceeded by more than 15%. If the scheduled production time is exceeded for reasons beyond the photographers control, additional compensation shall be paid on the basis of the agreed time fee or in the form of an appropriate increase in the flat-rate fee.
  2. The photographer is entitled to order services from third parties, which must be purchased to carry out the production, in the name and with authorization and for the account of the customer.
  3. Unless otherwise agreed, the photographs that are presented to the customer for acceptance after completion of the production are selected by the photographer.
  4. If the photographer doesn’t receive complaints in writing within two weeks after delivery of the images, the images are deemed to be in accordance with the contract and accepted free of defects.

III. Provided Image Material (analog and digital)

  1. The GTC shall apply to all photographic material made available to the customer, regardless of the stage of creation or technical form of the material They also apply in particular to electronic or digitally transmitted photographic material.
  2. The customer acknowledges that the photographic material supplied by the photographer is protected by copyright within the meaning of § 2 (1) no. 5 of the German Copyright Act.
  3. Design proposals or concepts commissioned by the customer are independent services that are to be paid for.
  4. The photographic material made available shall remain the property of the photographer, even in the event that damages are paid for it.
  5. The customer shall treat the photographic material with due care and attention and may only pass it on to third parties for 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 acquires in principle only a simple right of use for single use. Unless otherwise agreed, publications on the Internet or the placement in digital databases are limited to the duration of the publication periods of the corresponding or a 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. Only the right of use for the one-time use of the photographic material for the purpose specified by the customer and in the publication and in the medium or data carrier which the customer has specified or which results from the circumstances of the order shall be transferred with the delivery. In case of doubt, the purpose of use for which the photographic material has been made available as evidenced by the delivery note or shipping address shall be decisive.
    4. Any use, exploitation, reproduction, distribution or publication beyond the scope of Section 3 above shall be subject to a fee and shall require the photographer’s prior express consent. This applies in particular to:
      – any secondary use or secondary publication, in particular in anthologies, product-accompanying brochures, in advertising measures or other reprints, any editing, alteration or redesign of the photographic material,
      – the digitalisation, storage or duplication of the photographic material on data carriers of all kinds (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, DVD, hard disks, main memory, microfilm etc.), provided that this does not only serve the technical processing and administration of the photographic material in accordance with Section III 5 GTC,
      – 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 passing on of the digitalised picture material by means of remote data transmission or on data carriers which are suitable for public reproduction on screens or for the production of hard copies.

      1. Alterations to the photographic material by means of photo-composing, mounting or electronic equipment for the production of a new copyright work shall only be permitted with the photographers prior written consent and only if marked with [M]. Nor may the photographic material be copied, re-photographed or otherwise used as a motif.
      2. The customer is not entitled to transfer the rights of use granted to him in whole or in part to third parties, including other Group companies or subsidiaries. Any use, reproduction or transfer of the photographic material shall only be permitted provided that the copyright notice specified by the photographer is affixed in such a way that it can be clearly allocated to the respective picture.
      3. The granting of the rights of use is subject to the condition precedent of full payment of all of the photographers payment claims arising from the respective contractual relationship.
      4. The photographer may use the images for self-promotion, unless otherwise agreed in writing.

V. Liability

      1. The photographer assumes no liability for the violation of rights of depicted persons or objects, unless an appropriately signed release form is enclosed. The acquisition of rights of use beyond the photographic copyright, e.g. for depicted works of fine or applied arts as well as the obtaining of publication permissions from collections, museums etc. is the responsibility of the customer. The customer shall be responsible for the text and the contexts resulting from the specific publication.
      2. The customer is responsible for the proper use of the photographic material from the time of its proper delivery.

VI. Fees

      1. The agreed fee applies. If no fee has been agreed, it shall be determined according to the current picture fee overview of the Mittelstandsgemeinschaft Foto-Marketing (MFM). The fee is understood to be exclusive of the respectively valid value added tax.
      2. The agreed fee shall cover the one-time use of the photographic material for the agreed purpose in accordance with Item IV. 3.
      3. Costs and expenses incurred by the order (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 customer
      4. The fee is due upon delivery of the work result. If a production is delivered in parts, the corresponding partial fee is due with the respective delivery. The photographer is entitled to demand down payment for production orders in accordance with the scope of services provided.
      5. The fee according to VI. 1 GTC shall be paid in full even if the commissioned and delivered photographic material is not published. Unless otherwise agreed, a fee of at least €75.00 per photograph shall be payable if the photographs are used as a working model for layout and presentation purposes.
      6. A set-off or the exercise of the right of retention is only permissible with undisputed or legally established claims of the customer. Furthermore, the offsetting of disputed but decision-ready counterclaims is also permitted.

VII. Return of the photographic material

      1. Analogue picture material shall be returned in the form in which it was supplied without being asked 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 be deleted or the data carriers destroyed after the end of the use. The photographer is not liable for the existence and/or the possibility of a renewed delivery of the data.
      3. If the photographer provides photographic material at the customers request or with the customers consent solely for the purpose of examining whether it is suitable for use or publication, the customer shall return analog photographic material within one month of receipt at the latest, unless a different period is stated on the delivery note. Digital data shall be deleted or the data carriers destroyed or returned. An extension of this period shall only be effective if confirmed in writing by the Photographer.
      4. The customer shall return the photographic material at its own expense in packaging customary in the industry. The customer shall bear the risk of loss or damage during transport until the photographic material reaches the photographer.

VIII. Contractual penalty, compensation

      1. In the event of any unauthorised use, utilisation, reproduction or transfer of the photographic material (without the photographers consent), a contractual penalty amounting to five times the usage fee shall be payable for each individual case, subject to further claims for damages.
      2. 100% of the agreed or customary usage fee shall be payable in the event of omitted, incomplete, incorrectly placed or unassignable copyright notices. In the case of a copyright notice attributed to a party not being the copyright holder the surcharge increases to 200%.

IX. General terms

      1. The law of the Federal Republic of Germany shall apply as agreed, even in the case of deliveries abroad.
      2. Collateral agreements to the contract or to these GTC must be in writing to be effective.
      3. The possible invalidity or ineffectiveness of one or more provisions of these GTC shall not affect the effectiveness of the remaining provisions. The parties commit to replace the invalid provision with a valid provision that corresponds to the meaning of the invalid provision and which comes as close as possible to the intended provision in economic and legal terms.
      4. Place of performance and jurisdiction is, if the customer is a registered trader, the residence of the photographer.

Status: January 1, 2020