Imprint
Duty to inform according to §5 E-Commerce Act, §14 Company Code, §63 Industrial Code and duty of disclosure according to §25 Media Act.
Address:
Lukas M. Gross
Wohlfahrts 1
3830 Waidhofen an der Thaya
AUSTRIA
VAT: ATU72543704
GLN: 9110025280460
Tel.: +43 660 57 99 840
E-Mail: hi@lukasdergrosse.at
Instagram: luukas.ltd
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General Terms and Conditions
I. APPLICABILITY AND SCOPE OF THE GENERAL TERMS AND CONDITIONS:
1.1 The following General Terms and Conditions shall apply if the photographer is dealing with an entrepreneur within the meaning of Section 1 of the Austrian Consumer Protection Act (KSchG) as a contractual partner.
1.2 The photographer provides his services exclusively on the basis of the following general terms and conditions. By placing an order, the client acknowledges their applicability. These shall also apply to all future business relationships, even if no express reference is made to them, unless the photographer announces a change. Any general terms and conditions of the contractual partner shall not become part of the contract.
1.3 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions of the contracts concluded on the basis thereof. An invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and purpose.
1.4 Offers made 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 photographer (§§1, 2 para. 2, 73ff UrhG). Permission for use (publication rights etc.) shall only be deemed to have been granted if expressly agreed. In this case, the contractual partner shall acquire a simple (non-exclusive and non-exclusive), non-transferable (assignable) license for the expressly agreed purpose of use and within the agreed limits (number of copies, temporal and local restrictions, etc.); in case of doubt, the scope of use stated in the invoice or delivery bill shall be decisive. In any case, the contractual partner shall only acquire as many rights as correspond to the disclosed purpose of the contract (order placed). In the absence of any other agreement, the authorization of use shall be deemed to have been granted only for a single publication (in one edition), only for the client’s expressly designated medium and not for advertising purposes.
2.2 For each use (reproduction, distribution, broadcast, etc.), the contractual partner is obliged to affix the producer’s name (attribution) or the copyright notice within the meaning of the WURA (Universal Copyright Convention) clearly and legibly (visibly), in particular not in a broken line and in standard letters, directly next to the photograph and clearly assignable to it as follows: Photo: (c) Lukas Gross
In any case, this provision is deemed to be the affixing 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 producer’s note described above.
2.3 Any alteration of the photograph requires the written consent of the photographer. This shall only not apply if the change is necessary in accordance with the contractual purpose known to the photographer.
2.4 Permission for use shall only be deemed to have been granted once the agreed recording and usage fee has been paid in full and only if the producer is properly credited (point 2.2 above).
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 shall be reduced to one. In the case of publication on the Internet, the photographer must be informed of the web address.
III. OWNERSHIP OF THE FILM MATERIAL – ARCHIVING:
3.1.1 Analog photography: The photographer shall be entitled to ownership of the exposed film material (negatives, slides, etc.). The photographer shall transfer ownership of the photographs required for the agreed use to the contractual partner in return for an agreed and appropriate fee. The photographs supplied shall 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) shall only be 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 shall be entitled to ownership of the image files. A right to the transfer of digital image files shall only exist if expressly agreed in writing and, unless otherwise agreed, shall only apply to a selection and not to all image files produced by the photographer. In any case, the authorization of use shall only be deemed to have been 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 diskette, CD-ROM or similar data carriers is only permitted on the basis of a special agreement between the photographer and the client. The right to a backup copy remains unaffected by this.
3.3 The photographer shall archive the photograph without legal obligation for a period of one year. In the event of loss or damage, the contractual partner shall not be entitled to any claims.
IV. IDENTIFICATION:
4.1 The Photographer is entitled to mark the photographs and the digital image files in any way he deems appropriate (including on the front) with his manufacturer’s name. The contractual partner shall be obliged to ensure the integrity of the manufacturer’s designation, in particular in the case of authorized forwarding to third parties (printers, etc.). If necessary, the manufacturer’s designation must be affixed 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 photographs so that it is retained in any type of data transfer and the photographer can be clearly and unambiguously identified as the author of the photographs.
V. ANCILLARY OBLIGATIONS:
5.1 The contractual partner shall be responsible for obtaining any necessary work use authorizations from third parties and consent to 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 image pursuant to § 78 UrhG and with regard to claims for use pursuant to § 1041 ABGB. The photographer guarantees the consent of authorized persons only in the case of express written consent for the contractual purposes of use (point 2.1).
5.2 Should the photographer be commissioned by the contracting party to electronically process third-party photographs, the client assures that he is authorized to do so and indemnifies the photographer against all third-party claims based on a breach of this obligation.
5.3 The contractual partner undertakes to collect any photographic objects immediately after the photograph has been taken. If these objects are not collected within two working days of being requested to do so, the photographer shall be entitled to charge storage costs or to store the objects at the client’s expense. Transportation and storage costs shall be borne by the client.
VI. LOSS AND DAMAGE:
6.1 In the event of loss of or damage to photographs produced on commission (slides, negative material, digital image files), the Photographer shall only be liable – under whatever legal title – for intent and gross negligence. The liability is limited to his own fault and that of his 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 material costs and the free repetition of the photographs (if and insofar as this is possible).The Client shall not be entitled to any further claims; in particular, the Photographer shall not be liable for any travel and accommodation expenses or for third-party costs (models, assistants, make-up artists and other shooting personnel) or for loss of profit, consequential and immaterial damages. Claims for damages shall only exist if the injured party can prove gross negligence. Claims for compensation shall lapse 3 months after knowledge of the damage and the damaging party, but in any case 10 years after the service or delivery has been provided.
6.2 Point 6.1 shall apply accordingly in the event of loss of or damage to templates (films, layouts, display pieces, other templates, etc.) and products and props provided. More valuable items are to be insured by the contractual partner. VII Premature termination: The photographer is entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if bankruptcy or composition proceedings are opened against the assets of the contractual partner or if an application for the opening of such proceedings is rejected for lack of assets to cover the costs or if the customer suspends payments or if there are justified concerns regarding the creditworthiness of the contractual partner and the latter fails to make advance payments or provide suitable security at the request of the photographer, orif the performance of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite the setting of a 14-day grace period, or if the contractual partner continues to violate essential obligations under the contract, such as the payment of a due partial amount or obligations to cooperate, despite a written warning with a grace period of 14 days.
VIII. SERVICE AND WARRANTY:
8.1 The Photographer shall carry out the order carefully. He may also have the order carried out – in whole or in part – by third parties.If the contractual partner does not give any written instructions, the photographer is free with regard to the type of execution of the order. This applies in particular to the image design, the choice of models, the location and the photographic means used. Deviations from previous deliveries shall not constitute a defect as such.
8.2 No liability shall be accepted for defects attributable to incorrect or inaccurate instructions from the contractual partner (§ 1168a ABGB). In any case, the photographer shall only be liable for intent and gross negligence.
8.3 The contractual partner shall bear the risk for all circumstances that are not attributable to the photographer, such as weather conditions during outdoor shoots, timely provision of products and props, failure of models, travel hindrances, etc..
8.4 Shipments shall travel at the expense and risk of the contractual partner.
8.5 The photographer reserves the right – apart from those cases in which the contractual partner is entitled by law to rescind the contract – to fulfill the warranty claim at his discretion by improvement, replacement or price reduction. In this respect, the contractual partner must always prove that the defect already existed at the time of delivery. The goods must be inspected immediately after delivery. Any defects discovered shall also be notified to the photographer in writing without delay, but at the latest within 8 days of delivery, stating the nature and extent of the defect. Hidden defects must be reported immediately after their discovery.If a complaint is not made or not made in good time, the goods shall be deemed to have been approved. The assertion of warranty claims or claims for damages, including consequential damages, as well as the right to contest errors due to defects, are excluded in these cases. The warranty period is 3 months.
8.6 No liability is accepted for minor defects. Color differences in the case of repeat orders shall not be considered a significant defect. Point 6.1 shall apply accordingly.
8.6 No liability is accepted for minor defects. Color differences in the case of repeat orders shall not be considered a significant defect. Point 6.1 shall apply accordingly.
8.7 We shall only be liable for fixed order deadlines if this has been expressly agreed in writing. In the event of any delays in delivery, 6.1 shall apply accordingly.
8.8 Minor delays in delivery shall be accepted in any case without the contractual partner being entitled to a claim for damages or a right of withdrawal.
8.9 Any authorizations for use granted by the photographer do not include the public performance of sound works in any media.
IX REMUNERATION / FEE:
9.1 In the absence of an express written agreement, the photographer shall be entitled to a fee in accordance with his current price lists, otherwise a reasonable fee.
9.2 The fee shall also be due for layout or presentation photographs and if utilization is not made or depends on the decision of third parties. In this case, no price reductions shall be granted on the recording fee.
9.3 All material and other costs (props, products, models, travel expenses, accommodation expenses, make-up artists, etc.), even if they are procured by the photographer, shall be paid separately.
9.4 Any changes requested by the contractual partner in the course of the execution of the work shall be borne by the contractual partner.
9.5 Conceptual services (consulting, layout, other graphic services, etc.) are not included in the recording fee. The same applies to above-average organizational expenses or such meeting expenses.
9.6 If the contractual partner refrains from carrying out the order placed for reasons within his sphere of responsibility, the photographer shall be entitled to the agreed fee in the absence of any other agreement. In the event of absolutely necessary changes to the deadline (e.g. due to weather conditions), a fee corresponding to the time spent or reserved in vain and all ancillary costs shall be paid.
9.7 The net fee is subject to value added tax at the applicable statutory rate.
9.8 The contractual partner waives the possibility of offsetting.
X. LICENSE HONORARY:
Unless expressly agreed otherwise in writing, the photographer shall be entitled to a separate fee for the use of the work in the agreed or reasonable amount in the event that a license for use is granted.
XI. PAYMENT:
11.1 In the absence of any other express written agreement, a payment on account amounting to 50% of the anticipated invoice total shall be made when the order is placed. Unless expressly agreed otherwise in writing, the remaining fee – if it is determinable for the contractual partner – shall be due for payment in cash immediately after completion of the work, otherwise immediately after invoicing. Invoices are payable without any deductions and free of charges. In the event of payment by bank transfer, payment shall not be deemed to have been made until the photographer has been notified of receipt of payment.
11.2 In the case of orders comprising several units, the photographer shall be entitled to issue an invoice after delivery of each individual service.
11.3 In the event of late payment by the contracting party, the photographer shall be entitled to charge interest on arrears at an annual rate of 5 percent above the prime rate, without prejudice to any claims for damages in excess thereof.
11.4 Insofar as delivered images become the property of the contractual partner, this shall only take place upon full payment of the photography fee including ancillary costs. The assertion of the retention of title shall not constitute a withdrawal from the contract, unless this is expressly declared.
XII. DATA PROTECTION:
The contractual partner acknowledges the following data protection notice, unless he has received a further notice, and confirms that the photographer has thus fulfilled the information obligations incumbent on him: The Photographer, as the controller, processes the Contractual Partner’s personal data as follows:
1. Purpose of data processing: The photographer processes the personal data mentioned under point 2. for the execution of the concluded contract and / or the orders requested by the contractual partner or for the use of the images for advertising purposes of the photographer, in addition the further disclosed personal data for the photographer’s own advertising purposes.
2. Categories of data processed and legal basis for processing: The photographer processes the personal data, namely name, address, telephone and fax number, e-mail addresses, bank details and image data, in order to achieve the purposes mentioned under point 1.
3. Transmission of the contractual partner’s personal data: For the above-mentioned purposes, the contractual partner’s personal data will be transmitted, if this is part of the contract, to recipients to be named at the request of the contractual partner, namely in particular to third parties related to the contract concluded, if this is part of the contract, media, if there is an agreement with the contractual partner in this respect and, if applicable, third parties involved in the execution of the contract.
4. Storage period: The photographer shall only retain the contracting party’s personal data for as long as is reasonably deemed necessary to achieve the purposes set out in point 1 and as permitted by applicable law. The contractual partner’s personal data shall be stored for as long as statutory retention obligations exist or limitation periods for potential legal claims have not yet expired.
5. The rights of the contractual partner in connection with personal data: Under applicable law, the contracting party is entitled
– to check whether and which personal data the photographer has stored in order to obtain copies of this data – with the exception of the photographs themselves- to request the correction, completion or deletion of their personal data that is incorrect or is not processed in accordance with the law
– to request the photographer to restrict the processing of their personal data, provided that the legal requirements are met- under certain circumstances, to object to the processing of their personal data or to revoke the consent previously given for the processing
– to request data portability
– to know the identity of third parties to whom the personal data is transferred and
– to lodge a complaint with the competent authority if the legal requirements are met
6. Contact details of the controller: If the contractual partner has any questions or concerns regarding the processing of their personal data, they can contact the photographer known to them by name and address.
XIII. USE OF PHOTOGRAPHS FOR ADVERTISING PURPOSES OF THE PHOTOGRAPHER:
Unless expressly agreed otherwise in writing, the photographer shall be entitled to use photographs taken by him to advertise his work. The contractual partner gives his express and irrevocable consent to the publication for advertising purposes of the photographer and waives the assertion of any claims, in particular from the right to his own image in accordance with § 78 UrhG as well as claims for use in accordance with § 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 may be processed for the purpose of publication for the photographer’s advertising purposes.
XIV. FINAL PROVISIONS
13.1 The place of performance and jurisdiction shall be the photographer’s registered office. In the event of relocation of the registered office, legal action may be brought at both the old and the new registered office.13.2 Any recourse claims asserted against the photographer by contractual partners or third parties on the grounds of product liability within the meaning of the Austrian Product Liability Act shall be excluded, unless the party entitled to recourse proves that the defect was caused within the photographer’s sphere of responsibility and was the result of at least gross negligence. In all other respects, Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The contract language is German.
13.3 These General Terms and Conditions shall apply mutatis mutandis to film works or motion pictures produced by the photographer in accordance with the order, irrespective of the process and technology used (photo, film, video, etc.).