Conditions

Photographer Terms and Conditions
Published by the Federal Guild of Photographers and the RSV

1. Applicability of the General Terms and Conditions

The Austrian professional photographers only enter into agreements based on these general terms and conditions. By placing the order, the customer acknowledges their applicability. Deviating agreements can only be made legally effective in writing. These general terms and conditions take precedence over any terms and conditions of the client or the agent.

2. Copyright Provisions

2.1. The photographer is entitled to all copyrights and ancillary copyrights of the photo manufacturer (§§ 1, 2 Para. 2, 73ff UrhG). Permissions to use (publication rights, etc.) are only granted if expressly agreed. In this case, the contractual partner acquires a simple (non-exclusive and non-exclusive), non-transferable (assignable) license for the expressly agreed purpose and within the agreed limits (circulation number, time and location restrictions, etc.); in case of doubt, the scope of use specified in the invoice or delivery note is decisive. In any case, the contractual partner only acquires as many rights as correspond to the disclosed purpose of the contract (placed order). In the absence of any other agreement, the license to use is only valid for a one-off publication (in one edition), only for the medium expressly designated by the client and not for advertising purposes.

2.2. For each use (reproduction, distribution, transmission, etc.), the contractual partner is obliged to clearly and legibly (visibly) the manufacturer's designation (naming) or the copyright notice within the meaning of the WURA (Universal Copyright Convention), in particular not inverted and in normal letters, directly at the Attach a photograph and clearly assign it to it as follows:
Photo: © … name/company/artist name of the photographer; Place and, if published, year of first publication.
This also applies if the photo does not have a manufacturer's designation. In any case, this provision applies as the attachment of the manufacturer's designation within the meaning of Section 74 (3) UrhG. If the photograph is signed on the front (in the picture), the publication of this signature does not replace the manufacturer's note described above.
2.3. Any change to the photograph requires the photographer's written consent. This does not apply if the changes are necessary for the purpose of the contract known to the photographer.
2.4. The license to use is only valid in the event of full payment of the agreed recording and usage fee and only as granted if a proper manufacturer designation / naming (item 2.2. above) is given.
2.5. Instead of § 75 UrhG, the general provision of § 42 UrhG applies.
2.6. In the case of publication, two free specimen copies are to be sent. In the case of expensive products (art books, video cassettes), the number of specimen copies is reduced to one piece.

3. Footage Ownership - Archival

3.1. The photographer is entitled to ownership of the exposed film material (negatives, slides, etc.). In return for an agreed and appropriate fee, the latter transfers ownership of the supervisory images required for the agreed use to the contractual partner; Slides (negatives only in the case of a written agreement) are only made available to the contractual partner on loan against return after use at the risk and expense of the contractual partner, unless otherwise agreed in writing. If this is the case, the license to use also only applies to the extent of point 2.1. as granted.

3.2. The photographer is entitled to provide the photographs with his manufacturer's designation in any way he deems appropriate (also on the front). The contractual partner is obliged to ensure the integrity of the manufacturer's designation, in particular when it is permitted to pass it on to third parties (printers, etc.). If necessary, the manufacturer's designation must be attached or renewed. This also applies in particular to all reproduction media (lithographs, plates, etc.) created during production.
3.3. The photographer will archive the recording without any legal obligation. In the event of loss or damage, the contractual partner is not entitled to any claims.

4. Third Party Claims
The contractual partner is responsible for obtaining any approval that may be required for depicted objects (e.g. works of fine art, samples and models, trademarks, photographs, etc.) or persons (e.g. models). He shall indemnify and hold the photographer harmless in this regard, in particular with regard to claims under §§ 78 UhrG, 1041 ABGB. The photographer guarantees the consent of authorized persons (authors, persons depicted, etc.), in particular models, only in the case of an express written consent for the contractual purposes (point 2.1.).

5. Loss and Damage
5.1. In the event of loss of or damage to photographs (slides, negative material) made to order, the photographer is only liable – based on whatever legal title – for intent and gross negligence. Liability is limited to your own fault and that of your employees; for third parties (laboratories, etc.), the photographer is only liable for intent and gross negligence in the selection. Any liability is limited to the cost of materials and the free repetition of the recordings (if and to the extent that this is possible). The client is not entitled to any further claims; In particular, the photographer is not liable for any travel and accommodation expenses or for third-party costs (models, assistants, make-up artists and other recording staff) or for lost profits and consequential damages.
5.2. Point 5.1. applies accordingly in the event of loss or damage to submitted templates (films, layouts, display pieces, other templates, etc.) and submitted products and props. More valuable items are to be insured by the contractual partner.
5.3. Valorisation of the stated amounts remains reserved.

6. Performance and Warranty
6.1. The photographer will carefully carry out the order placed. He can also have the order – in whole or in part – carried out by third parties (laboratories, etc.). If the contractual partner does not issue any written instructions, the photographer is free to choose how the order is to be carried out. This applies in particular to the image composition, the selection of the photo model, the location and the optical-technical (photographic) means used. Deviations from earlier deliveries do not constitute a defect as such.
6.2. No liability is assumed for defects that can be traced back to incorrect or imprecise instructions from the contractual partner (§ 1168a ABGB). In any case, the photographer is only liable for intent and gross negligence.
6.3. The contractual partner bears the risk for all circumstances that are not related to the person of the photographer, such as weather conditions for outdoor shots, timely provision of products and props, failure of models, travel restrictions, etc.
6.4. Consignments travel at the expense and risk of the contractual partner.
6.5. All complaints must be made in writing within 8 days of delivery at the latest, and all documents must be submitted. After this period has expired, the service is deemed to have been rendered in accordance with the order. The warranty period is three months.
6.6. In the case of defectiveness, the contractual partner is only entitled to a claim for improvement by the photographer. If an improvement is impossible or if the photographer rejects it, the contractual partner is entitled to a price reduction. No liability is assumed for insignificant defects. Color differences in repeat orders are not considered a significant defect. Point 5.1. Shall apply accordingly.
6.7. Fixed transactions only exist if expressly agreed in writing. In the event of any delivery delays, item 5.1 applies. accordingly.
6.8. The fee and license fee claims are independent of whether the material is (still) protected by copyright and/or ancillary copyright.

7. wages
7.1. In the absence of an express written agreement, the photographer is entitled to a wage (fee) according to his currently valid price lists, otherwise an appropriate fee.
7.2. The fee is also due for layout or presentation recordings and if there is no use or depends on the decision of a third party. In this case, no price reductions will be granted on the admission fee.
7.3. All material and other costs (props, products, models, travel expenses, subsistence expenses, make-up artists, etc.), even if they are procured by the photographer, must be paid for separately.
7.4. Any changes requested by the contractual partner in the course of carrying out the work shall be at his expense.
7.5. Conceptual services (consulting, layout, other graphic services, etc.) are not included in the admission fee. The same applies to an above-average organizational effort or such a meeting effort.
7.6. If the contractual partner refrains from carrying out the order placed for whatever reason, the photographer is entitled to half of the fee plus all incidental costs actually incurred, unless otherwise agreed. If it is absolutely necessary to change the date (e.g. due to weather conditions), a fee corresponding to the time spent or reserved in vain and all additional costs must be paid.
7.7. The fee does not include sales tax at the statutory rate.

8. License Fee
8.1. Unless otherwise expressly agreed in writing, the photographer is entitled to a separate publication fee in the agreed or appropriate amount if a license to use is granted.
8.2. The publication fee does not include sales tax at the statutory rate.
8.3. Irrespective of all legal claims under §§ 81ff and 91ff UrhG, the following applies in the event of an infringement of copyright and/or ancillary copyrights to the contractual recordings: Claims under § 87 UrhG are independent of fault. In the event of an infringement of the right to a manufacturer's designation, the immaterial damage (Section 87 (2) UrhG), subject to additional financial loss (Section 87 (1) UrhG), is at least equivalent to the reasonable remuneration (Section 86 UrhG). The right to information according to § 87a Abs. 1 UrhG also applies to the right to removal.

9. Payment
9.1. Unless otherwise expressly agreed in writing, a payment on account of 50% of the expected invoice amount must be made when the order is placed. Unless otherwise expressly agreed in writing, the remaining fee is due for payment in cash immediately after invoicing. If a term of payment has been agreed, the invoices are due for payment within 8 days of invoicing at the latest. The invoices are payable without any deduction and free of charges. In the case of sending (postal order, bank or postal savings bank transfer, etc.), payment is only deemed to have been made when the photographer has been informed of the receipt of payment. The risk of judicial submissions (lawsuits, enforcement motions) being sent by post shall be borne by the contractual partner. If the contractual partner (client) refuses acceptance due to defective performance or asserts warranty claims, the fee is nevertheless due for payment.
9.2. For orders that include several units, the photographer is entitled to invoice each individual service after delivery.
9.3. In the event of default, interest and compound interest in the amount of 5% above the respective bank rate from the due date shall be deemed to have been agreed - without prejudice to excess claims for damages. For the purpose of calculating interest, the bank rate determined on January 2 of the relevant year is decisive for the entire calendar year.
9.4. Dunning fees and the costs - including out-of-court - legal intervention are at the expense of the contractual partner.
9.5. Insofar as delivered images become the property of the contractual partner, this only happens once the recording fee including ancillary costs has been paid in full.

10. Cancellation Policy
10.1. If an appointment that has already been fixed has to be canceled by the customer, different cancellation fees have to be paid depending on the time of cancellation.
10.2. Unless otherwise agreed in writing, the following scales apply.
For cancellations up to 3 weeks before the respective date, no fees are to be paid. If the appointment has to be canceled 3 to 2 weeks in advance, a cancellation fee of 25% of the agreed fee must be paid.
For cancellations up to one week before the shooting date, 50% of the agreed fee is due. If the appointment is canceled up to 3 days in advance, 75% of the fee must be paid.
In the case of short-term cancellations within three days, the entire agreed fee is due.

11. Final Provisions
11.1. The place of performance and jurisdiction is the photographer's place of business. In the event of a change of registered office, lawsuits can be filed at the old and at the new place of business.
11.2. The Product Liability Act (PHG) is not applicable; In any case, liability for damage other than personal injury is excluded if the contractual partner is an entrepreneur. For the rest, Austrian law is applicable, which also takes precedence over international sales law.
11.3. Indemnifications and indemnities also include the costs of out-of-court legal defence.
11.4. These general terms and conditions do not apply insofar as mandatory provisions of the KSchG conflict. Partial invalidity of individual provisions (of the contract) does not affect the validity of the remaining contractual provisions.
11.5. These general terms and conditions apply to film works or moving images produced by photographers according to the order, regardless of the process and technology used (narrow film, video, DAT, etc.).