Terms of Service
§ 1. General
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. 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, these 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. Liability for exceeding the deadline is only accepted in the event of willful intent and gross negligence.
If services from third parties are required, the photographer is entitled to acquire them for the customer.
§ 3 Copyright
The customer recognizes the authorship of the photographer.
Any use, reproduction or distribution of the image material is only permitted provided that the copyright notice is affixed in an unequivocal assignment to the respective image. This also applies expressly to advertising, displays in television programs and films or other media.
Analogue picture material supplied 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 single right of use for one-time use. Subject to other agreements, uses on the Internet are also limited in time.
Use by third parties always requires the express consent of the photographer and is to be paid for separately.
The granting of exclusive, temporally, spatially or content-unrestricted rights of use requires the express consent of the photographer and is to be paid for separately.
4. Storage or reproduction on data carriers requires the express consent of the photographer and is to be paid for separately. Something different only applies if this is necessary for technical processing and administration within the scope of the granted use.
The customer of a picture within the meaning of § 60 UrhG has no right to reproduce and distribute the picture if the corresponding rights of use have not been transferred. § 60 UrhG is expressly excluded.
Editing, changing or redesigning 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 unless this has been expressly agreed in writing. The photographer is not liable for the existence and / or the possibility of a renewed delivery of the data.
If exclusive rights of use are granted, the photographer remains entitled to use the images for self-promotion or to have them used.
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 photographer's usual fee is owed. Alternatively, the fee is determined according to the table of the Mittelstandsgemeinschaft Foto-Marketing. The fee is exclusive of the applicable VAT and any duties.
If the planned production time is exceeded through no fault of the photographer, the agreed remuneration is to be increased appropriately with a flat fee. 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.
Additional costs (travel costs, model fees, expenses, props, laboratory and material costs, studio rent, 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 started.
If the customer requests design suggestions or concepts, these are to be paid for separately as independent services.
In the event of termination, the photographer is entitled to demand the agreed remuneration; he must, however, allow for what he saves in expenses as a result of the termination of the contract or which he acquires through other use of his labor or maliciously neglects to acquire. The photographer is free to claim a flat rate of 15% of the agreed total fee, unless the customer can prove that the amount due to the photographer is significantly lower than the flat rate. Regardless of this, the customer has to reimburse all incidental costs.
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. The photographer is entitled to Production orders to demand installment payments in accordance with the scope of services provided.
10. Invoices are to be paid within 14 days without deduction. The customer is in default after 30 days at the latest.
If the customer is in default of acceptance or if he culpably breaches other obligations to cooperate, the photographer is entitled to demand compensation for the damage incurred as a result, including any additional expenses. We reserve the right to make further claims.
The customer undertakes to make the objects available in good time and to pick them up again immediately after they have been taken. If the customer does not collect the objects to be photographed after two working days at the latest, the photographer is entitled to charge storage costs or, if his studio space is blocked, to outsource 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 per annum above the base rate. In 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 the damage did not occur in the requested amount, or at least significantly less.
The customer assures that he has the right of reproduction and distribution for all templates given to the photographer and, in the case of portraits of persons, the consent of the persons depicted for publication, reproduction and distribution. Compensation claims by third parties based on the breach of this obligation are borne by the customer.
§ 7 Warranty
If the customer has not given the photographer any express instructions regarding the design of the images, complaints regarding the image interpretation and the artistic-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 are to 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 is responsible for the risk and cost 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 willful intent or gross negligence, in the event of willful 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 breaches an essential contractual obligation, liability is limited to the foreseeable damage typical for the contract, unless there is unlimited liability in accordance with the preceding paragraph. Essential contractual obligations are obligations that 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 and on which the customer can regularly rely.
Otherwise, liability on the part 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 the violation of the general personal rights of the persons depicted. Something else only applies if an appropriately signed release form is attached. The customer is also responsible for acquiring further rights of use, such as for the works of art shown and obtaining publication permits. The customer is responsible for the text. The same applies to the contexts of meaning resulting from the specific publication.
§ 9 Contractual Penalty, Compensation for Damages
In the event of unauthorized use, distortion, forwarding of the image material or reproduction and in the event that the customer has failed to delete data, a minimum fee of five times the agreed, customary or based on the currently 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% on the agreed or customary usage fee must be paid.
§ 10 data protection
The customer's personal data will be treated confidentially and in accordance with the statutory data protection regulations. A transfer of the data without express consent does not take place or only in the context of the necessary processing of the contract, for example to the companies entrusted with the implementation of the contract.
§ 1 1 Applicable law, place of jurisdiction
The law of the Federal Republic of Germany is applicable to the exclusion of the UN Sales Convention, provided that 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 does not have a place of residence 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 remain unaffected.