ANDREAS NIEDERWIESER

Photographer x Vienna

Standard Business Terms


I. Applicability and scope of application of the standard business terms

1.1 The following SBT shall come into effect, provided that the photographer is a contractual partner within the meaning of § 1 Employment Protection Act.

1.2. The photographer performs his services exclusively on the basis of the following standard business terms. By placing the order, the client acknowledges their applicability. As long as no changes are made by the photographer, these terms shall also apply to all future business relations, even if they are not expressly referred to. Any standard business terms of the contracting party shall not be binding.

1.3. If any of the conditions of these standard business terms should become void, this shall not affect the binding nature of the other provisions of the contracts concluded under its application. An ineffective provision shall be replaced by a valid one that is closer to its meaning and purpose.

1.4. The photographer's offers are without engagement and nonbinding.

II. Copyright terms

2.1 The photographer is entitled to all copyrights and rights of the photographer (§§1, 2 para. 2, 73 et seqq. German Copyright Act). Usage permissions (laws of publication, etc.) shall only be deemed to have been granted if expressly agreed. In this case, the contractual partner acquires a simple (non-exclusive and non-precluding), non-transferable (assignable) usage permit for the expressly agreed purpose and within the agreed limits (circulation number, temporal and local limitation, etc.); when in doubt, the scope of use stated in the invoice or in the delivery note is decisive. In any event, the contracting party acquires only as many rights as the purpose of the contract (order granted). In the absence of any other agreement, the usage permission is only valid for a one-time publication (in one edition), only for the expressly indicated medium by the client and not for advertising purposes.

2.2 The contracting party is required in every use (duplication, distribution, consignment, etc.) to use the manufacturer's designation (credit) or the copyright mark within the meaning of UCC (Universal Copyright Convention), clearly and legibly (visible), in particular, not upside down and in normal letters, directly on the photo and clearly placed as follows: Photo: (C) name / company / nom de plume of the photographer; location and published so far, the year of first publication. In any event, this provision shall be deemed to be the affixing of the manufacturer designation within the meaning of section 74 (3). German Copyright Act. If the photograph is signed on the front (in the picture), the publication of this signature will not be replaced if the changes are necessary according to the purpose of the contract known by the photographer.

2.3 Any alteration of the photo requires the written consent of the photographer. This shall not apply if the change is necessary according to the purpose of the contract known by the photographer.

2.4 The usage permission is valid only in the case of full payment of the photo and usage fee and only if there is the proper manufacturer designation / credit (2.2 above).

2.5 In the event of publication, two free copies are to be sent. For expensive products (art books, videocassettes), the number of copies is reduced to one piece. The web address must be communicated to the photographer when publishing on the internet.

III. Ownership of film material – Archiving

3.1.1 Analog photography: The property right of the exposed footage (negatives, slides, etc.): belongs to the photographer. This shall leave the contractual partner the property necessary for the agreed use in return for an agreed and appropriate remuneration. Until the complete payment of the purchase price, the delivered photos remain the property of the photographer. Diapositives (negatives only in the case of a written agreement) shall be made available to the contract partner only on a loan basis, at the risk and expense of the contract partner, unless otherwise agreed in writing.

3.1.2 Digital photography: The property of the photo files belongs to the photographer. A right to transfer digital image files exists only after explicitly written agreement and - if no other agreement exists - only a selection and not all image files produced by the photographer. In any case, the usage permission is only granted in the scope of point 2.1.

3.2 Any duplication or distribution of images on online databases, in electronic archives, on the internet or in intranets, which are not intended solely for the internal use of the client, on a floppy disk, CD, or similar data media, is only possible on the basis of a special agreement between the photographer and the client. The right to a backup copy remains unaffected.

3.3 The photographer will archive the photos without legal obligation for a period of one year. In case of loss or damage, the contractual partner is not entitled to any claims.

IV. Labeling

4.1 The photographer is entitled to provide the photos as well as the digital image files with his manufacturer's designation in any suitable way (also on the front side). The contractual partner is obligated to ensure the integrity of the manufacturer's designation, especially if the data are passed on to third parties (printers, etc.). If necessary, the manufacturer's designation shall be affixed or replaced. This also applies, in particular, to all reproducing agents produced during the production process or to the production of copies of digital image files.

4.2 The contractual partner is obliged to store digital photos in such a way that the manufacturer's designation is electronically linked with the images, so that it is retained in all types of data transmission and the photographer is clearly and unequivocally identifiable as the author of the images.

V. Secondary Obligation

5.1 The contracting party shall ensure the collection of the necessary usage authorizations of third parties and the consent for reproduction of persons. The contracting party shall indemnify and hold the photographer harmless, in particular regarding claims arising from the right to their own image according to § 78 German Copyright Act as well as with regard to usage claims according to § 1041 General Civil Code. The photographer guarantees the consent of the entitled parties only in the case of an expressed written commitment for contractual purposes (point 2.1).

5.2 If the photographer is commissioned by the contracting party to handle the electronic processing of third-party images, the client assures him that he is entitled to do so, and releases the photographer from all claims of third parties that are based on a breach of this obligation.

5.3 The contracting party is obliged to collect the potential photography objects immediately after the shoot. If these objects are not picked up at the latest after two working days, the photographer is entitled to charge storage costs or to store the items at the expense of the customer. Transport and storage costs shall be borne by the customer.

VI. Loss and damage

6.1 In the case of loss or damage to the photos produced by order (slides, negative material, digital images), the photographer is liable - for whatever legal title - only for intent and gross negligence. The liability is limited to his own fault and that of his staff; for third parties (laboratories, etc.) the photographer is only liable for intent and gross negligence in the selection. All liability is limited to the material costs and the no cost replication of the photo shoot (if and to the extent possible). The client shall not be entitled to any further claims; the photographer is not liable in particular for any travel and accommodation expenses, as well as for third-party costs (models, assistants, make-up artists and other photography staff) or for lost profits, consequential and non-material damages. Claims for damages only exist if gross negligence is proved by the injured party. Compensation claims expire after 3 months from the knowledge of damage and damaging party, but in any case, in 10 years after the service or delivery.

6.2 Point 6.1 applies correspondingly in the case of loss or damage of delivered originals (films, layouts, display pieces, other templates, etc.) and delivered products and props. Valuable items must be insured by the contractual partner.

VII. Premature resolution

7.1 The photographer is entitled to terminate the contract with immediate effect for important reasons. An important reason is, in particular, to be assumed if bankruptcy or compensation proceedings are opened over the assets of the contracting party, or if an application for the initiation of such proceedings is refused for lack of sufficient assets or when the customer ceases payments or justified concerns regarding the creditworthiness of the contracting party and if the latter does not make advance payments or a suitable security at the request of the photographer or if the performance of the service is delayed for reasons beyond the responsibility of the contractual partner, or despite the setting of a 14-day additional deadline, warning with a suspension of 14 days continues to violate essential obligations arising from the contract, such as the payment of a partial amount due or obligations to cooperate.

VIII. Provision and guarantee

8.1 The photographer will execute the order thoroughly. The photographer may also have the order executed by third parties, either wholly or in part. If the contractor does not indicate any written instructions, the photographer is free with regard to the nature of the execution of the order. This applies in particular to the image design, the selection of the photographic models, the location and the applied photographic medium. Deviations from previous deliveries do not represent a defect.

8.2 No liability shall be assumed for defects resulting from incorrect or imprecise instructions from the contracting party (§ 11 68a General Civil Code). In any case, the photographer is only liable for intent and gross negligence.

8.3 The contractor bears the risk for all circumstances that are not at fault of the photographer, such as the weather situation in the case of outdoor photography, the timely provision of products and props, cancellation by models, travel delays, etc.

8.4 Shipments shall be at the expense and risk of the contracting party.

8.5 The photographer reserves the right to change the warranty claim at his discretion by improving, exchanging, or reducing the price - apart from those cases in which the contractual partner is legally entitled to a conversion. The contractor must always prove that the defect already existed at the time of handover. The goods shall be inspected immediately after delivery. Any defects found shall also be notified to the photographer in writing without delay, but at the latest within 8 days after delivery, with notification of the nature and extent of the defect. Hidden defects must be reported immediately after their discovery. If a defect notification is not filed or is not collected in time, the goods shall be deemed to have been approved. The assertion of warranty or claims for damages, including the consequences of a defect, as well as the right to an error in the event of a defect, are excluded in these cases. The warranty period is 3 months.

8.6 Negligible defects are not liable. Color differences during reordering are not considered a significant deficiency. Point 6.1 applies accordingly.

8.7 Minor delays in delivery are to be accepted in any case, without the contractual partner being entitled to a claim for damages or a right of withdrawal.

IX. Wage / Remuneration

9.1 In the absence of an expressly written agreement, the photographer is entitled to a work wage (fee) according to his respectively valid price list, or an otherwise appropriate fee.

9.2 The fee is also applicable for layout recording or presentation recordings as well as when utilization is not fulfilled or depends on the decision of third parties. No price reductions will be granted in this case.

9.3 All material costs and other costs (props, products, models, travel expenses, lodging, make-up artists, etc.), even if their procurement is made by the photographer, must be paid separately.

9.4 Over the course of carrying out the work of the contractual party, any desired changes are at the contractual party's expense.

9.5 Conceptual services (consulting, layout, other graphic services, etc.) are not included in the shooting fee. This also applies to an above-average organizational effort or meeting expense.

9.6 Failure to carry out the agreed engagement for reasons which lie within the sphere of the contractor, the photographer is to be paid at the agreed remuneration, unless otherwise agreed. In case of absolutely necessary change of dates (i.e. for weather reasons) a fee corresponding to cost of the reserved time and all additional costs shall be paid.

9.7 The net fee is exclusive of value added tax in its respective statutory amount.

9.8 The contractor waives the possibility of offsetting.

X. License Fee

10.1 Unless explicitly agreed otherwise in writing, in the event of the granting of a usage permission, the user is entitled to a separate usage charge in an agreed or appropriate amount.

10.2 The publication fee is subject to value-added tax in its respective statutory amount.

10.3 Without prejudice to all legal claims pursuant to sections 81 et seqq. and 91 et seqq. German Copyright Act, the following shall apply in the event of a breach of the copyrights and / or copyrights to the contractual images: The claims according to § 87 German Copyright Act are independent of a fault. In the event of an infringement of the right to the manufacturer's designation, an amount equal to the appropriate fee (86 German Copyright Act) is at least an amount which is deemed to be an intangible loss (§ 87 (2) German Copyright Act), subject to an additional loss of property / § 82 (1) German Copyright Act. The claim according to Article 87a (1) German Copyright Act also applies to the claim for elimination.

XI. Payment

11.1 The invoices are payable without any deduction and free of charge. In the case of transfer, the payment is deemed to have been made only after the photographer has been informed of the payment.

11.2 In the case of orders comprising of more than one unit, the photographer shall be entitled to take account of the delivery of each individual performance.

11.3 In the event of default of payment by the contracting party, the photographer is entitled to charge default interest at the rate of 9.2% above the basic interest rate annually, without prejudice to any claims for damages.

11.4 Insofar as delivered pictures are the property of the contracting party, this is only done with the complete payment of the recording fee plus incidental costs. In the assertion of the retention of title there is no withdrawal from the contract, unless this is explicitly stated.

XII. Data protection

12.1 The contracting party expressly agrees that the photographer shall collect, store and process his/her data (name, address, e-mail, credit card data, account transfers, telephone number) for the purposes of completing the contract and support as well as for his own advertising purposes. Furthermore, the contractual partner agrees that electronic mail will be sent to him for advertising purposes until his / her revocation.

XIII. Use of images for the advertising of the photographer

13.1 Unless otherwise expressly agreed in writing, the photographer shall be entitled to use photographs shot by him, to advertise his services. The contractor grants his explicit and irrevocable consent for publication by the photographer and waives the assertion of all claims, in particular from the right to his own image according to the law. § 78 German Copyright Act as well as on claims for use according to § 1041 General Civil Code.

XIV. Final provisions

14.1 Place of performance and jurisdiction is the headquarters of the photographer. In the case of the transfer of headquarters, complaints may be brought before the former and the new corporate headquarters.

14.2 Any claim for reimbursement by contractual partners or third parties from the title of product liability in the sense of the PHG against the photographer shall be excluded, unless the person entitled to recourse proves that the defect was caused in the sphere of the photographer and was at least grossly negligently indebted. Austrian substantive law is also applicable. The applicability of the UN purchase law is excluded. The contract language is German.

14.3 These standard business terms shall apply mutatis mutandis to film works or motion pictures produced by photographers according to the application, irrespective of the method and the applied technology (film, video, etc.).

14.4 Damage and non-compliance also include the costs of extrajudicial legal defense.