I. Applicability and scope of the general terms and conditions:

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1.1 The following terms and conditions apply if the photographer is a consumer within the meaning of § 1 KSchG as a contractual partner.

 

1.2. The photographer provides his services exclusively on the basis of the following general terms and conditions. Unless the photographer announces any changes, these also apply to all future business relationships, even if no express reference is made to them.

 

1.3. Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions of the contracts concluded on their basis. An ineffective provision is to be replaced by an effective one that comes closest to its meaning and purpose.

 

1.4. Offers by the photographer are subject to change and non-binding.

 

 

II. 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 The contractual partner is obligated for each use (reproduction, distribution, transmission, etc.) to provide the manufacturer's designation (naming) or the copyright notice within the meaning of the WURA (Universal Copyright Convention) clearly and legibly (visibly), in particular not inverted and in normal letters, directly To be attached to the photo and clearly assigned as follows: Photo: (c) Primus Photography or by marking the Instagram account @primusphotography when posting on Instagram. 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 photo requires the written consent of the photographer. This does not apply if the change is necessary for the purpose of the contract known to the photographer.

2.4 The license to use is only granted once the agreed recording and usage fee has been paid in full and only if a proper manufacturer designation / naming (item 2.2 above) is made.

2.5 In the event of publication, two free specimen copies must be sent. In the case of expensive products (art books, video cassettes), the number of specimen copies is reduced to one piece. In the case of publication on the Internet, the photographer must be informed of the web address.

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2.6. Unless there is an express written agreement to the contrary, Primus Photography is entitled to use photographs produced by it to advertise its activities. The contractual partner gives the photographer his express and irrevocable consent to the publication for advertising purposes and waives the assertion of any claims, in particular from the right to his own picture in accordance with Section 78 UrhG and claims for use in accordance with Section 1041 ABGB. The contractual partner also gives his consent, taking into account the applicable data protection regulations, that his personal data and in particular the photographs produced are processed in the sense of publication for advertising purposes by the photographer on his own website and on social media platforms (in particular Facebook, TikTok and Instagram ) for reference purposes. The customer's consent is a prerequisite for booking.

 

III. Ownership of footage - archiving:

3.1.1 Analog photography:

The photographer is entitled to ownership of the exposed film material (negatives, slides, etc.). In return for an agreed and reasonable fee, the latter transfers ownership of the recordings required for the agreed use to the contractual partner.

The photographs remain the property of the photographer until the purchase price has been paid in full.

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.

 

3.1.2 Digital Photography

The photographer is entitled to ownership of the image files. A right to the transfer of digital image files only exists after an express written agreement and – unless there is a different agreement – only applies to a selection and not all image files produced by the photographer.

 

In any case, the permission to use is only granted to the extent of point 2.1.

 

3.2 Reproduction or distribution of photographs in online databases, in electronic archives, on the Internet or in intranets, which are not only intended for the internal use of the client, on diskettes, CD-ROMs or similar data carriers is only permitted on the basis of a special agreement between permitted to the photographer and the client. The right to a backup copy remains unaffected.

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

 

 

IV. Marking:

4.1 The photographer is entitled to provide the photographs and the digital image files 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 means of reproduction created during production or when making copies of digital image files.

 

4.2 The contractual partner is obliged to store digital photographs in such a way that the manufacturer's designation remains electronically linked to the images, so that it is retained in any type of data transmission and the photographer can be clearly and unambiguously identified as the author of the images.

 

 

V. Secondary obligations:

5.1 The contractual partner is responsible for obtaining any necessary third-party permits for the use of work and approval for the depiction of persons. He shall indemnify and hold the photographer harmless in this respect, in particular with regard to claims arising from the right to one's own picture in accordance with Section 78 UrhG and with regard to claims for use in accordance with Section 1041 ABGB. The photographer guarantees the consent of authorized persons only in the case of an express written consent for the contractual purposes (point 2.1).

 

5.2 If the photographer is commissioned by the contractual partner with the electronic processing of third-party photographs, the customer assures that he is entitled to do so and indemnifies the photographer from all third-party claims based on a violation of this obligation.

 

5.3 The contractual partner undertakes to collect any objects to be recorded immediately after the recording. If these objects are not picked up after two working days at the latest, the photographer is entitled to charge storage costs or to store the objects at the expense of the client. Transport and storage costs are borne by the customer.

 

 

VI. Loss and damage:

6.1 In the event of loss of or damage to photographs made to order (slides, negative material, digital image files), 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, consequential and immaterial damage. Claims for damages in cases of slight negligence are excluded.

 

6.2 Item 6.1 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.

 

 

VII. Premature Dissolution:

The photographer is entitled to terminate the contract with immediate effect for important reasons. An important reason is to be assumed in particular if bankruptcy or composition proceedings are opened against the contractual partner's assets or an application for the opening of such proceedings is rejected for lack of assets to cover costs or if the customer stops making payments or there are legitimate concerns about the contractual partner's creditworthiness exist and the photographer does not make any advance payments or suitable security at the request of the photographer, or if the performance of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite setting a 14-day grace period, or the contractual partner despite a written warning with a grace period of 14 days, continues to violate essential obligations under the contract, such as the payment of a partial amount that has become due or obligations to cooperate.

 

VIII. Performance and Warranty:

8.1 The photographer will carry out the order placed carefully. He can also have the order - in whole or in part - carried out by third parties. 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 design, the selection of the photo models, the location and the photographic means used. Deviations from earlier deliveries do not constitute a defect as such.

8.2 We are not liable 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.

8.3 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 hindrances, etc.

8.4 Shipments travel at the expense and risk of the contractual partner.

 

8.5 No liability is assumed for insignificant defects. Differences in color when reordering are not considered a major defect. Point 6.1 applies accordingly.

 

8.6 We are only liable for fixed order dates if they have been expressly agreed in writing. In the event of any delivery delays, 6.1 applies accordingly.

 

8.7 Any permissions to use the photographer do not include the public performance of audio works in any media.

 

 

IX wages / fees:

9.1 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.

 
9.2 The fee is also due for layout or presentation recordings and if utilization does not take place or depends on the decision of a third party. In this case, no price reductions will be granted on the admission fee.

 

9.3 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.

9.4 Changes requested by the contractual partner in the course of carrying out the work shall be at his expense.

 
9.5 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.

9.6 If the contractual partner refrains from carrying out the order placed for reasons within his or her sphere of responsibility, the photographer is entitled to the agreed fee 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.

 

9.7 The net fee does not include sales tax at the statutory rate.

 

9.8 The contractual partner waives the possibility of offsetting. However, this does not apply in the event of the photographer's insolvency or for counterclaims that are legally related to the photographer's claims, determined by a court or recognized by the photographer.

 

 

X. License fee:

Unless otherwise expressly agreed in writing, the photographer is entitled to a separate fee for the use of the work in the agreed or appropriate amount if a license to use is granted.

 

 

XI. Payment:

11.1 In the absence of other express written agreements, a down payment of 50% of the expected invoice amount is to be made when the order is placed. Unless expressly agreed otherwise in writing, the remaining fee is - if it can be determined by the contractual partner - after completion of the work, otherwise due for payment in cash immediately after invoicing. The invoices are payable without any deduction and free of charges. In the case of bank transfer, the payment is only deemed to have been made when the photographer has been informed that the payment has been received.

 

11.2 For orders that include several units, the photographer is entitled to invoice each individual service after delivery.

 

11.3 If the contractual partner is in default of payment, the photographer is entitled - without prejudice to claims for damages that exceed this - to charge interest on arrears at the rate of 5 percent above the base interest rate annually.

 

11.4 Insofar as delivered images become the property of the contractual partner, this only happens when the recording fee including ancillary costs has been paid in full. The assertion of the retention of title does not constitute a withdrawal from the contract unless this is expressly declared.