General Terms and Conditions (GTC) for Services Related to Photography and Video as of October 1, 2013
§1 General Provisions and Applicability
All contracts concluded by us are based on our GTC as amended from time to time unless specifically stipulated otherwise in individual cases. These General Terms and Conditions take precedence over possible terms of business stipulated by the principal or an intermediary. For the purposes of this contract, videos are treated as equal to images.
§2 Contractual Object and Conclusion of Contract
The contract shall take effect once an order form has been signed or an order has been sent through e-mail by the customer and countersigned or confirmed by the agent. This confirmation may be sent in writing, via fax or e-mail.
§3 General Information Concerning Supply/Delivery
(1) The photographic works (hereunder called images) will be generally supplied on electronic medium (DVD or Blu-ray) in the current and technically feasible resolution by the photographer.
(2) It is possible to agree on supplying the image material via online data transfer; in this case, the images are deemed delivered as soon as access data have been supplied.
(3) By supplying access data for the online system, responsibility for the images and individual rights related to these (e.g. right to the personal image) are transferred to the principal.
(4) The order is deemed fulfilled upon provision of data and entitles us to initiate billing procedures.
§4 Copyright Provisions
(1) The agent retains all rights of the photographer provided through the Copyright and Ancillary Copyright Law for Photographers (§§ 1, 2 par. 2, 73ff UrhG). The principal shall receive upon payment the exclusive and non-transferable right of use of all images supplied.
(2) The agent is entitled to alter the images and modify them according to his own needs.
(3) The transfer of images against payment is only permitted subject to special provisions in the contract or written consent. The free transfer (especially in the private sphere such as family occasions, weddings, etc.) is generally permitted.
(4) In case of publication, the photographer is entitled to demand the inclusion of clearly legible and attributable credits (name) and copyright details with and close to the image.
(5) Unless otherwise stipulated, the photographer has the right of unlimited use of all images for the purposes of his own advertising. This right covers all currently known types of use, including copying, distribution, digitisation, exhibition, presentation, transmission/screening, making publicly available and public playback of images/sound/storage medium. The data may thus be used both in digital and analogue form in all suitable media (e.g. online use of any kind, use in all kinds of print media, TV, cinema, theatre, videograms/CD/DVD/etc., interactive and multi-media applications); they may also be stored in data bases including publicly accessible online data bases. In observance of personal rights, the images may also be edited and altered (e.g. through photomontage, combinations with images, text or graphic elements, photo-technical transformation, colouration).
§5 Property Rights and Archiving
(1) All property rights of photographic material (negatives, slides, etc.) are reserved by the photographer. The right of unlimited use generally granted in accordance with §2 (1) shall remain unaffected by this provision.
(2) The agent shall archive the image(s) without being legally obliged to do so. The contracting partner has no legal claim in case of loss or damage.
§6 Claims by Third Parties
(1) The contracting partner is responsible to secure any approval necessary for the depiction of objects (e.g. works of fine arts, samples or models, brands, artwork, etc.) or persons (e.g. models). He shall indemnify and hold harmless the agent with regard to all claims arising in such cases, especially claims in connection with §§ 78 UhrG, 1041 ABGB.
(2) The agent shall only guarantee the consent of right holders (originators, persons depicted, etc.), especially of models, in cases of explicit written consent to the usage stipulated by contract.
§7 Loss or Damage
(1) In cases of loss or damage of images produced subject to contract, the agent shall regardless of any legal title only be liable in cases of intent and gross negligence.
(2) Any liability is limited to personal negligence or that of direct employees. Regarding third parties (photo laboratories, etc.) the agent shall only be liable in cases of intent and gross negligence with relation to choice. Any liability is restricted to the cost of material and a free repeat of the photo shoot (if this is feasible).
(3) The principal shall not be entitled to any further claims; in particular, the agent shall not be liable to any travel and subsistence expenses or third party expenses (models, assistants, make-up artists and other recording staff), loss of profit or consequential losses.
§8 Services and Warranty
(1) The agent shall carry out orders with the greatest care. He is also entitled to pass orders on to third parties (laboratories, external service providers, etc.) in its entirety or in part.
(2) The agent is free to choose his own way of executing the order unless otherwise stipulated by the principal. This applies particularly with respect to approach to the image setup, choice of models, location and applied optical and technical (photographic) measures. Deviations from former consignments do not represent a defect in this respect.
(3) The agent shall not be liable for any defects attributable to incorrect or inaccurate information provided by the contracting partner (§ 1168a ABGB). In any case, the photographer shall only be liable for intent and gross negligence.
(4) The contracting partner shall bear the risk for any circumstances which are unconnected to the person of the agent, such as weather conditions in the case of exterior shots, timely provision of products and props, cancellation of models, impediments to travel, etc.
(5) Any objections must be made in writing within 7 days of delivery and providing all relevant documentation. After expiry of this time limit the service is deemed fulfilled. The warranty period is three months.
(6) In the case of defects, the contracting partner is only entitled to improvement by the agent. If such an improvement is not possible or if the principal refuses this option, he is entitled to a reduction in price. There shall be no liability for insignificant defects.
(7) Should the contracting partner, for whatever reason, abstain from the execution of the order previously placed, the photographer is entitled to receive half of his fee plus all actually incurred additional expenses. In case of unavoidable changes of schedule (e.g. for reasons of bad weather) a fee will be payable relating to the time services rendered in vain, time reserved and all additional expenses.
(8) Should the agent be unable to keep an appointment for good cause (illness, etc.), he is entitled to engage a third party to represent him in accordance with §6 par. 2. If the order cannot be fulfilled at the stipulated date, the agent shall inform the principal immediately after the reason has become known. Damages for such cases are excluded; the agent shall propose an alternative date to the principal. If the nature of the order makes it impossible to fulfil it at a later date, the principal is entitled to a lump sum compensation to the maximum of 25 per cent of the agreed overall fee. Should the agent inform the principal more than or up to 7 days before the date of the impending non-fulfilment, any compensation is generally excluded. The principal has no further claim; the agent shall especially not be liable for any travel and subsistence costs or third party expenses (models, assistants, make-up artists and other recording staff), loss of profit or consequential losses.
§9 Fees and Payment
(1) In the absence of a separate agreement made on the basis of an offer and its acceptance, the agent is entitled to reasonable compensation for his services.
(2) The agent is entitled to issue an invoice for a down-payment immediately after receipt of the order.
(3) For orders which are carried out in several units, the agent is entitled to issue an invoice after completion of each individual unit.
(4) Unless otherwise specified in writing, the (remaining) fee shall be payable within 14 days of invoicing. After this date, the agent is entitled to charge reminder fees.
(5) In the case of late payment, interest and compound interest at a rate of 5 per cent above the usual bank rate shall be deemed agreed from the due date on.
§10 Final Provisions
(1) Place of fulfilment and place of jurisdiction shall be the place of business of the agent. If the place of business should change, legal action may be brought both at the old or the new place of business.
(2) The product liability law (PHG) is not applicable; in any case, any liability for damages other than personal injury is excluded if the contracting partner is an entrepreneur. Otherwise, Austrian law is applicable and takes priority over international law concerning the sale of goods (CISG).
(3) Indemnity shall also include any costs related to out-of-court legal defence.
(4) These General Terms and Conditions shall be applicable unless other mandatory provisions stipulated by the Consumer Protection Law (KSchG) are precluded. Partial invalidity of individual provisions (in the contract) does not affect the validity of the remaining provisions.
§11 Special Provisions Concerning the Use of Music in Videos
We grant the contracting party the non-exclusive right via Austro Mechana to copy and distribute recordings of musical works, with or without lyrics. This permission to use a copy-righted work is explicitly granted for reports about family-related events, such as weddings, birthday parties and similar events, as well as events which are primarily not for profit, such as fire brigade festivals, football games, costume parades, and similar events. The permission covers video presentations and all audio-visual systems. According to this contract, any production includes permission to produce a maximum of 30 copies for all systems. The publication on the internet and social media is strictly prohibited (even in cases where an online access code is provided) and any violation shall be prosecuted in accordance with the law. For videos where no copy-righted musical works are used, the provisions as set out in these General Terms and Conditions shall apply.
According to standard procedure the German version of our General Terms and Conditions is the original version and takes precedence over the English translation.