Conditions
Conditions
Terms of Service
§ 1. General
All offers, deliveries, orders and the granting of rights of use are based on the general terms and conditions of the photographer in the version valid at the time of the order. Other terms of use must be agreed separately.
These terms and conditions apply exclusively. General terms and conditions of the customer that deviate from these general terms and conditions are not valid unless they are expressly agreed to. Otherwise the image material may not be used.
§ 2 Order processing
When ordering, but at the latest before the start of use, the type and scope of use must be specified. In the case of advertising, the product must also be specified.
If the actual use does not match the stated use, a right of use is deemed not to have been granted.
If cost estimates are submitted, they are generally non-binding. If a cost estimate is exceeded by more than 15%, this will be communicated as soon as it is foreseeable.
Delivery dates are only binding if they are expressly confirmed by the photographer. We are only liable for exceeding a deadline in the case of intent and gross negligence.
If third-party services are required, the photographer is entitled to purchase these for the customer.
§ 3 Copyright
The customer recognizes the authorship of the photographer.
Any use, reproduction or forwarding of the image material is only permitted provided that the copyright notice is attached in unequivocal assignment to the respective image. This also expressly applies to advertising, insertions in television programs and films or other media.
Delivered analogue image material always remains the property of the photographer. It is only made available temporarily and for the acquisition of usage rights. The same applies to digital image material.
§ 4 Right of Use
In principle, the photographer only transfers a simple right of use for one-time use. Subject to other agreements, use of the Internet is also limited in time.
Any use by third parties requires the express consent of the photographer and is to be remunerated separately.
The granting of exclusive rights of use that are unrestricted in terms of time, space or content requires the express consent of the photographer and is to be remunerated separately.
Storage or duplication on data carriers requires the express consent of the photographer and is to be remunerated separately. Something else only applies if this is necessary for technical processing and administration within the scope of the granted use.
In the event of termination, the photographer is entitled to demand the agreed remuneration; however, he must offset what he saves in expenses as a result of the cancellation of the contract or earns or maliciously fails to earn by using his labor elsewhere. The photographer is free to claim a lump sum of 15% of the agreed total fee, unless the customer can prove that the amount due to the photographer is significantly lower than the lump sum. Irrespective of this, the customer must reimburse all incidental costs incurred.
The person ordering an image within the meaning of § 60 UrhG has no right to reproduce and distribute the photograph if the corresponding rights of use have not been transferred. § 60 UrhG is expressly waived.
Any processing, modification or redesign of the image material is prohibited without the consent of the photographer.
The photographer is not obliged to hand over data carriers, files and data to the customer if this has not been expressly agreed in writing. The photographer is not liable for the existence and/or the possibility of a re-delivery of the data.
If exclusive rights of use are granted, the photographer remains entitled to use the images or have them used for self-promotion.
§ 5 Fee
Any use of the image material is subject to a fee.
The customer does not acquire any rights of use until the fee and any expenses have been paid in full.
The agreed fee applies. The fee depends on the type and scope of use. If no fee has been agreed, the usual fee of the photographer is due. Alternatively, the fee is determined according to the table of the Mittelstandsgemeinschaft Foto-Marketing. The fee does not include the applicable value-added tax and any taxes.
If the planned production time is exceeded through no fault of the photographer, the agreed fee for a flat-rate fee is to be increased appropriately. If a time fee has been agreed, the photographer will also receive the agreed hourly or daily rate for the waiting time, unless the customer can prove that the photographer has not suffered any damage.
Ancillary costs (travel expenses, model fees, expenses, props, laboratory and material costs, studio rentals, etc.) are to be borne by the customer.
If the customer wishes changes during or after the recording production, he has to bear the additional costs. The photographer retains the right to remuneration for work that has already begun.
If the customer requests design proposals or concepts, these are to be remunerated separately as independent services.
The fee is due upon delivery of the images. If a production is delivered in parts, the corresponding partial fee is due with the respective delivery.
In the case of production orders, the photographer is entitled to demand advance payments in accordance with the scope of services rendered.
Invoices are to be paid within 14 days without deduction. The customer is in default after 30 days at the latest.
§ 6 Participation
If the customer is in default of acceptance or culpably violates other obligations to cooperate, the photographer is entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved.
The customer undertakes to make the objects to be recorded available in good time and to collect them again immediately after the recording. If the customer does not pick up the objects to be photographed after two working days at the latest, the photographer is entitled to charge storage costs if necessary or, if his studio space is blocked, to relocate the objects at the customer's expense.
Interest is to be paid on the fee during the delay. The default interest rate is five percentage points above the base rate per year. For legal transactions between entrepreneurs, the interest rate is eight percentage points above the base rate.
For his part, the customer reserves the right to prove that damage of the requested amount did not occur or at least was significantly lower.
The customer assures that he has the right to reproduce and distribute all templates handed over to the photographer and, in the case of portraits of people, the consent of the people depicted to publication, reproduction and distribution. Claims for compensation by third parties based on the violation of this obligation shall be borne by the customer.
§ 7 Warranty
If the customer has not given the photographer any explicit instructions regarding the design of the images, complaints regarding the image design and the artistic and technical design are excluded.
In principle, the works are selected for acceptance by the photographer. If the photographer gives the customer several works to choose from, the customer must destroy the unselected works immediately.
Complaints must be made within 2 weeks after delivery. Otherwise the services are deemed to be in accordance with the contract.
If the customer wishes the photographer to provide him with data carriers, files and data, this must be agreed and paid for separately. If the photographer has made data carriers, files and data available to the customer, these may only be changed with the prior consent of the photographer. The customer bears the risk and costs of transporting data carriers, files and data online and offline.
§ 8 Limitation of Liability
The photographer is fully liable for any legal reason in the event of intent or gross negligence, in the event of intentional or negligent injury to life, limb or health, on the basis of a guarantee promise and, unless otherwise regulated in this regard, on the basis of mandatory liability, such as under the Product Liability Act.
If the photographer negligently violates an essential contractual obligation, liability is limited to the contractually typical, foreseeable damage, unless liability is unlimited in accordance with the above paragraph. Essential contractual obligations are obligations which the contract imposes on the photographer according to its content in order to achieve the purpose of the contract, the fulfillment of which enables the proper execution of contract 1 in the first place and on the observance of which the customer may regularly rely.
Apart from that, liability of the photographer is excluded.
The above liability regulations also apply with regard to the liability of the photographer for his vicarious agents and legal representatives.
The photographer assumes no liability for violations of the general right of personality of the persons depicted. Something else only applies if a correspondingly signed release form is attached. The customer is also responsible for acquiring further rights of use, such as for works of art shown, and obtaining publication permits. The customer is responsible for the caption. The same applies to the context of meaning resulting from the specific publication.
§ 9 Penalty, Compensation
In the event of unauthorized use, distortion, disclosure of the image material or duplication and in the event that the customer has failed to delete data, a minimum fee of five times the agreed, usual rate or the rate based on the applicable rates will be charged, subject to the assertion of further claims for damages The usage fee to be determined by the Mittelstandsgemeinschaft FotoMarketing is due.
If the copyright notice is omitted, incompletely reproduced or incorrectly applied, unless the right to name has been waived in exceptional cases, a surcharge of 100% of the agreed or usual usage fee is to be paid.
§ 10 data protection
The customer's personal data will be treated confidentially and in accordance with the statutory data protection regulations. The data will not be passed on without express consent or only in the context of the necessary processing of the contract, for example to the companies entrusted with the implementation of the contract.
§ 11 Applicable Law, Place of Jurisdiction
The law of the Federal Republic of Germany is applicable, to the exclusion of the UN Sales Convention, insofar as this choice of law does not result in a consumer being deprived of mandatory consumer protection standards.
If the customer is a merchant, the court at the photographer's registered office is responsible, unless an exclusive place of jurisdiction is justified for the dispute. This also applies if the customer is not resident within the European Union.
§ 12 Final Provisions
If any provision of this contract is or becomes invalid or unenforceable, the remaining provisions of this contract shall remain unaffected.