GENERAL TERMS AND CONDITIONS OF BUSINESS
1 Validity of the terms and conditions
The production of photos, films and videos (hereinafter referred to as “recordings”) and the granting of licenses to existing recordings takes place exclusively on the basis of the following terms and conditions. These terms and conditions also apply to all future production and licensing agreements, unless different provisions are expressly agreed. These General Terms and Conditions apply from January 1, 2024. All previous General Terms and Conditions will no longer be valid from this point onwards.
1.2. Third party terms and conditions
The client’s terms and conditions that deviate from the following conditions will not be recognized. Such different terms and conditions do not become part of the contract even if the service provider does not expressly object to them.
2 Production orders
Production orders include the production of recordings by the service provider on behalf of the client.
Offers from the service provider are non-binding. The service provider only needs to report cost increases if the originally estimated total costs are expected to be exceeded by more than 15%.
2.2 Authorization to commission third parties
If the service of a third party has to be used to process the order or if another contract has to be concluded with a third party, the service provider is authorized to undertake the corresponding obligations in the name and for the account of the client.
The client’s briefing forms the basis for the recordings and calculations to be created by the service provider. The client must provide the briefing to the service provider completely, conclusively and in writing (e.g. as a written protocol of a meeting, by email, etc.). In the event that the client does not give the service provider a written briefing, the pre-production meeting (PPM), the previous email correspondence between the client and the service provider as well as the memory protocols for the PPM and telephone notes prepared by the service provider form the basis for making the recordings.
2.4 Artistic scope
When making the recordings, the service provider has artistic freedom, although the client’s binding specifications from the briefing, PPM and/or oral or telephone instructions must be observed. Complaints and/or notices of defects regarding the artistic scope exercised by the service provider are excluded. Subsequent requests for changes from the client require a separate agreement and must be paid for separately.
2.5 Notifications of defects
If the client himself or someone authorized by him is present during the production of the recordings, he must examine the recordings on set and immediately report any defects to the service provider so that the service provider can correct the defect and create new recordings. If the defect is not reported, the recordings are deemed to have been approved and accepted. If neither the client nor an authorized representative of the client is present during the production of the recordings, the service provider will send the recordings to the client after they have been created. This person must immediately examine the transmitted recordings for any defects. If the client believes the recordings are defective, the client must report the defect in writing to the service provider immediately, but no later than the 14th day after receipt of the recordings, and name at least one defect. In this case, the client can refuse acceptance. After this period has expired, the recordings are deemed to have been accepted by the client (§ 640 Para. 2 BGB).
If the client or an authorized representative is not present during the production of the recordings, the client must ensure that he or an authorized representative is at least available by telephone and via electronic communication media (e.g. e-mail, SMS, etc.). The service provider is constantly available for short-term coordination and decisions.
2.7 The client’s obligation to cooperate
Insofar as the client has to deliver information, objects (e.g. products, goods, etc.), releases, etc. necessary for the production of the recordings or takes on other tasks relevant to the production of the recordings themselves (e.g. booking photo models, Locations or catering etc.), the client must ensure that delivery, provision, access to locations, arrival of photo models etc. takes place on time so that production of the recordings can begin on time on the agreed date. As soon as the client becomes aware that timely delivery, provision, access to the location, the arrival of photo models, etc. is not possible, he must immediately notify the service provider of this. If this results in a delay in the recording production, and the cause of this delay lies within the client’s sphere, the client must cover the costs incurred as a result of the delay (e.g. additionally necessary hotel overnight stays, location days, bookings of photo models, stylists, Make-up artists, assistants, rebookings etc.).
2.8 Obtaining Releases
Unless otherwise agreed in an individual contract, the client is obliged to obtain the consent of the people depicted and the rights holders required for the production and use of the recordings in the case of photographs of people and of objects in which third-party copyrights, property rights or other rights exist in accordance with. the Art Copyright Act (KUG), the General Data Protection Regulation (GDPR) and, if necessary, other legal provisions. In this case, the client must indemnify the service provider from third-party claims for compensation that result from the breach of this obligation. The obligation to indemnify does not apply if the client proves that he is not at fault. The above regulation also applies if the service provider selects the people or objects to be recorded himself, provided that he informs the client of the selection made in good time so that the client can obtain the necessary declarations of consent or select and make available other suitable people or objects for the recording work can provide.
2.9 Items Delivered
The service provider may proceed as follows with the items delivered by the client for production: If the items delivered by the client are perishable goods (e.g. food), they will be disposed of by the service provider after production has ended. If the items delivered by the client are non-perishable items (e.g. clothing, etc.), they will be returned to the client at the client’s expense after production has ended.
2.10 Image selection
The service provider selects the recordings that he presents to the client for acceptance upon completion of production. Subject to full payment, rights of use are only granted to the recordings that the client accepts as being in accordance with the contract.
3 Termination/production fee/additional costs/invoicing
Both parties may terminate the order in accordance with the law.
If the time planned for the recording work is significantly exceeded for reasons for which the service provider is not responsible, an agreed flat rate fee must be increased accordingly. If a time fee has been agreed, the service provider will also receive the agreed hourly or daily rate for the period by which the recording work is extended.
3.3 Additional services and additional work
Additional services and work that goes beyond the contractually agreed scope, in particular the production of recordings beyond the scope specified at the start of the contract, must be paid for separately based on the time spent.
3.4 Additional costs
In addition to the fee owed, the client must reimburse the additional costs incurred by the service provider in connection with the execution of the order (e.g. for digital image editing, photo models, make-up artists, stylists, travel, etc.).
3.5 Due date of the fee/advance costs
The production fee is due upon delivery of the recordings. If a production is delivered in parts, the corresponding partial fee is due when each part is delivered. If the execution of an order extends over a longer period of time, the service provider can demand advance payments based on the amount of work performed. The additional costs must be reimbursed as soon as they are incurred by the service provider. In addition, the service provider is entitled to request cost advances of an appropriate amount.
3.7 Electronic Invoicing
The service provider is entitled to issue its invoice in electronic form and send it to the client (Section 14 UStG). The client agrees to electronic invoicing and electronic invoice sending.
3.8. Failure to meet the agreed production date
If the previously set production date cannot be met due to circumstances for which the service provider is not responsible, compensation will be due. No compensation payment is required if the failure to meet the production date is communicated to the service provider no later than 11 days before the planned production date. If the production date is not met and notification is received between 11 days and 24 hours before the original production date, 50% of the agreed offer price must be paid as compensation. In the event of non-compliance with the production date and notification within 24 hours of the start of production, 100% of the offer price will be payable as compensation.
4 Archive material
Archive material is recordings that are located in the service provider’s archive and for which the service provider grants the client usage licenses to an individually agreed extent.
4.1 Viewing material
Recordings that the client requests from the service provider’s archive will only be made available for viewing and selection. No rights of use are transferred when the recordings are made available for viewing and selection. Any use requires the service provider’s prior written consent. The use of the recordings as work templates for sketches or for layout purposes, as well as presentation to customers, already constitutes paid use.
4.2 License fee
The contractually agreed usage license fee must be paid in order to grant usage rights to the recordings from the service provider’s archive. Unless a usage license fee has been expressly agreed upon contractually, the usage license fee to be paid by the client is determined according to the current image fees of the Mittelstandsgemeinschaft Fotomarketing (MFM).
5 Rights of use
5.1 Individual granting of usage rights/self-promotion
The client only acquires usage rights to the recordings to the extent specified in the contract. Ownership rights are not transferred. Regardless of the scope of the usage rights granted in individual cases, the service provider remains entitled to use the recordings as part of its own advertising.
5.2 No further transfer to third parties
The transfer and/or granting of the usage rights acquired by the client to third parties, even if these are companies affiliated with the group, subsidiaries, sales partners of the client or other editorial teams of a publisher, requires the prior written consent of the service provider. The service provider is entitled to make the granting of consent to the planned third-party use dependent on the payment of an appropriate license fee.
5.3 No Editing
Use of the recordings is generally only permitted in the original version. Any change or redesign (e.g. montage, photographic alteration, coloring) and any change in the reproduction of the recordings (e.g. publication of excerpts) requires the prior consent of the service provider. The only exception to this is the elimination of unwanted blurring or color weaknesses using digital retouching.
5.4 Author attribution
Every time the recordings are published, the service provider must be named as the author. The name must be given when recording or in the adjacent description. For social media posts, the service provider must also be tagged in the recording itself.
6 Image data/digital image processing
6.1 Data transfer/data format
The service provider hands over the selected recordings as well as the associated data, files and data carriers (recording material) to the client after the order has been completed. The parties determine the data format by mutual agreement. If no determination is made, the service provider can determine a suitable data format and select a suitable data carrier. The service provider is not obliged to archive the contractual recordings on its own data carriers and assumes no liability for keeping the recording material available after the recording material has been handed over to the client.
6.2 Digital Sharing
The distribution of digital recordings by means of remote data transmission or on data carriers is only permitted if the exercise of the granted rights of use requires this form of reproduction and distribution.
The recordings may only be archived digitally for the client’s own purposes and only for the duration of the right of use. The storage of the recordings in online databases or other digital archives that are accessible to third parties requires a separate agreement between the service provider and the client.
6.4 Image data
The EXIF, IPTC and/or XMP data contained in the recording files may not be changed or removed by the client. The client must use suitable technical means to ensure that this data is retained with every data transmission, with every transfer of the image data to other data carriers, with every display on a screen and with every public display.
7 Liability and compensation
7.1 Scope of liability
The service provider is only liable for damage that he or his vicarious agents cause intentionally or through gross negligence. Excluded from this are damages resulting from the violation of a contractual obligation that is essential for achieving the purpose of the contract (cardinal obligation), as well as damages resulting from injury to life, body or health, for which the service provider is liable even in the event of slight negligence.
7.2 Disclaimer of liability for third party services
If the service provider concludes a contract with third parties on the basis of a corresponding power of attorney in the name and for the account of the client, he is not liable for the services and work results of the commissioned persons and companies.
7.3 Disclaimer of liability for use of the recordings
The service provider assumes no liability for the type of use of its recordings. In particular, he is not liable for the permissibility of use under competition and trademark law.
7.4 Limitation period
Claims by the client that arise from a breach of duty by the service provider or its vicarious agents expire one year after the start of the statutory limitation period. Excluded from this are claims for damages that are based on an intentional or grossly negligent breach of duty by the service provider or his vicarious agents, and claims for damages due to injury to life, body or health, even if they are based on a slightly negligent breach of duty by the service provider or his vicarious agents; The statutory limitation periods apply to these claims for damages.
7.5 Contractual penalty for violation of usage rights
In the event of unauthorized use, unauthorized exceeding of usage rights, unauthorized modification or redesign or passing on of a recording to third parties by the client, the service provider is entitled to impose a contractual penalty of 200% of the agreed or – in the absence of agreement – the usual usage fee, but at least €500 per recording and to request on a case-by-case basis. The assertion of any further claim for damages remains unaffected.
7.6 Contractual penalty in the event of missing/inadequate naming of the author
If the service provider is not named when the recording is published (Section 5.4), or if the name of the service provider is not permanently linked to the digital recording (Section 6.3), the client is liable to pay a contractual penalty of 100% of the agreed amount Agreement to pay the usual usage fee, but at least €200 per recording and individual case. The service provider also reserves the right to assert a further claim for damages.
8 Sales tax, artists‘ social security contribution
In addition to the fees, charges and costs to be paid by the client, the sales tax and artist’s social security contribution, which the service provider may incur for third-party services, are added at the respective statutory rate.
9 Statute and place of jurisdiction
The law of the Federal Republic of Germany. In the event that the client does not have a general place of jurisdiction in the Federal Republic of Germany or moves its registered office or habitual residence abroad after conclusion of the contract, the place of residence of the service provider is agreed as the place of jurisdiction.
Translated with Google Translate. Translation errors possible.
Effective: January 1, 2024