GTC

General Terms and Conditions

1. Validity

a) The following General Terms and Conditions of Delivery and Business (hereinafter referred to as GTC) shall apply to all orders, offers, deliveries and services carried out by the photographer.
b) They shall be deemed to have been agreed upon acceptance of the delivery or service or the photographer's offer by the customer, but at the latest upon acceptance of the photographic material for publication.
c) If the customer wishes to object to the GTC, this must be declared in writing within three working days. Any deviating terms and conditions of the customer are hereby rejected. Deviating terms and conditions of the customer shall not be valid unless the photographer recognizes them in writing.
d) The GTC always apply within the framework of an (ongoing) business relationship.

2. Commissioned productions

a) If the photographer prepares cost estimates, these are non-binding. If cost increases occur during production, the photographer shall only be notified if it becomes apparent that the originally estimated total costs are likely to be exceeded by more than 15 %. If the scheduled production time is exceeded for reasons for which the photographer is not responsible, additional remuneration shall be paid on the basis of the agreed time-based fee or in the form of a reasonable increase in the flat-rate fee.
b) The photographer shall be entitled to commission services from third parties which must be purchased in order to carry out the production in the name and with the authorization of and for the account of the customer. The customer is always informed of this in advance in the price calculation or, in the case of additional costs, asked and informed in advance.
c) Unless otherwise agreed, the Photographer shall select the photographs to be presented to the Client for acceptance after completion of the production.
d) If the photographer has not received any written notification of defects within 48 hours of delivery of the photographs, the photographs shall be deemed to have been accepted in accordance with the contract and free of defects.

3. Provided (image) material*

*(also includes other products provided, analog and digital)

a) The GTC shall apply to all photographic material provided to the customer, regardless of the creative stage or technical form in which it is available. They also apply in particular to electronic or digitally transmitted image material.
b) The customer acknowledges that the photographic material supplied by the photographer is a photographic work protected by copyright within the meaning of Section 2(1)(5) of the German Copyright Act.
c) Design proposals or concepts commissioned by the customer are independent services which are to be remunerated.
d) The photographic material provided shall remain the property of the photographer, even in the event that compensation is paid for it.
e) The customer shall treat the photographic material carefully and with due care and may only pass it on to third parties for internal business purposes of viewing, selection and technical processing.
f) Complaints concerning the content of the delivered consignment or the content, quality or condition of the photographic material must be notified within 48 hours of receipt. Otherwise the photographic material or the consignment shall be deemed to have been received properly, in accordance with the contract and as recorded. Material that does not contain any damage, defects or similar is excluded from exchange or complaint. An exchange or complaint can only be made after proper justification on the part of the customer.

4. Rights of use

a) The photographer's products are protected by copyright. The right to use photographic material shall not pass to the customer until the invoice has been paid in full.
b) Exclusive rights of use, media-related or spatial exclusive rights or blocking periods must be agreed separately and require a surcharge of at least 100 % on the respective basic fee.
c) With the delivery, only the right of use is transferred for the one-time use of the image material for the purpose specified by the customer and in the publication and in the medium or data carrier which the customer has specified or which results from the circumstances of the order placement. In case of doubt, the purpose of use for which the photographic material was made available as evidenced by the delivery bill or the shipping address shall be decisive.
d) Any use, exploitation, duplication, distribution or publication beyond the scope of clause 3. is subject to a fee and requires the prior express consent of the photographer. This applies in particular to:

• Secondary use or secondary publication, in particular in anthologies, product-accompanying brochures, advertising measures or other reprints, any editing, modification or redesign of the photographic material,
• the digitization, storage or duplication of the photographic material on data carriers of all kinds (e.g. magnetic, optical, magneto-optical or electronic carriers such as CD-ROM, DVD, hard disks, RAM, microfilm, USB sticks, etc.), unless this serves only the technical processing and management of the photographic material in accordance with Section 3.e of the GTC,
• Any duplication or use of the image data on digital data carriers, any recording or reproduction of the image data on the Internet or in online databases or in other electronic archives (even if these are internal electronic archives of the customer),
• the transfer of the digitized image material by means of remote data transmission or on data carriers that are suitable for public reproduction on screens or for the production of hard copies.

e) Changes to the photographic material by means of photo composing, montage or electronic aids to create a new copyright-protected work are only permitted with the prior written consent of the photographer and only if marked with [Montage]. The photographic material may also not be copied, photographed in a re-enacted form or otherwise used as a motif.
f) The customer is not entitled to transfer the rights of use granted to him in whole or in part to third parties, not even to other group companies or subsidiaries. Any use, reproduction or forwarding of the photographic material is only permitted on condition that the copyright notice specified by the photographer is affixed in unambiguous attribution to the respective image.
g) The granting of the rights of use is subject to the condition precedent of full payment of all payment claims of the photographer arising from the respective contractual relationship.
h) The copyright notice »Photo: Johannes Kiefer« must be included in an appropriate place in all publications.
i) In all other respects, the copyright and right of use shall remain with Johannes Kiefer. The photographer reserves the right to transfer the right of use to third parties, unless an exclusive right of use has been agreed in writing in accordance with Section 4.b
j) The photographer may also use the photographs taken on behalf of the customer for his own advertising, unless otherwise agreed in writing.

5. Liability

a) The photographer accepts no liability for damages resulting from a loss of data material during or after production for which he is not responsible. This includes in particular the loss of data during the transfer from the camera's data carrier to another storage medium.
b) The customer is obliged to select the motifs for a production within 14 days of the end of the shoot. After this period, no liability is accepted for any loss of data. The production fee must still be paid. Furthermore, the photographer generally accepts no liability for the loss of data from four weeks after the end of production. The customer himself is obliged to ensure proper archiving of his data.
c) The photographer assumes no liability for the infringement of the rights of persons or objects depicted, unless a signed release form is enclosed. The acquisition of rights of use beyond the photographic copyright, e.g. for depicted works of fine or applied art as well as the obtaining of publication permissions from collections, museums, etc. is the responsibility of the customer. The customer shall be responsible for the text and the context resulting from the specific publication.
d) If the photos show objects etc. to which third parties have copyrights, e.g. architects, designers, companies, etc., the customer must clarify the release for use of the image material directly with them.
e) From the time of proper delivery of the photographic material, the customer shall be responsible for its proper use.
 

6. Fees

a) The agreed fee shall apply. If no fee has been agreed, it shall be determined in accordance with the current image fee overview of the Mittelstandsgemeinschaft Foto- Marketing (MFM). The fee shall be subject to value added tax at the applicable rate or sales tax.
b) The agreed fee shall cover the one-off use of the photographic material for the agreed purpose in accordance with Clause 4.c.
c) Costs and expenses incurred as a result of the order (e.g. material and laboratory costs, model fees, costs for necessary props, travel costs, necessary expenses, etc.) are not included in the fee and shall be borne by the customer.
d) The fee claim is due upon delivery of the recording. If a production is delivered in parts, the corresponding partial fee shall be due with the respective delivery. The photographer is entitled to demand advance payments for production orders in accordance with the scope of services rendered.
e) The fee in accordance with 4.a of the GTC shall also be paid in full if the photographic material commissioned and supplied is not published. If the photographs are used as a template for layout and presentation purposes, a fee of at least EUR 150.00 per photograph shall be payable, unless otherwise agreed.
f) The fee must be paid within 14 days of invoicing at the latest, unless a different payment deadline is specified in the invoice. The client shall be in default even without a reminder. After default has occurred, interest of 10 % p.a. shall be charged on the fee. Offsetting or exercising the right of retention is only permitted with undisputed or legally established claims of the customer. Offsetting against disputed counterclaims that are ready for decision is also permitted. A processing fee of EUR 10.00 will be charged from the second payment reminder onwards. If the customer fails to pay after the second payment reminder, a third payment reminder will be sent to the customer. This will be sent additionally by registered mail and the customer will be charged for the costs incurred. In addition, legal dunning proceedings will be initiated from this third payment reminder.
g) If the client cancels an agreed appointment, the photographer may charge the client a pro rata fee or the full amount of the agreed fee as a cancellation fee. The cancellation fee shall be as follows: in the event of cancellation seven days in advance, 50% of the agreed fee and 100% of the ancillary costs shall be charged. In the event of cancellation three days in advance, 75% of the agreed fee and 100% of the ancillary costs shall be charged. If the appointment is canceled one day or more in advance, 100% of the agreed fee and 100% of the ancillary costs will be charged. If the agreed appointment does not take place without cancellation by the client, 100% of the agreed fee and 100% of the ancillary costs shall also be charged; in this case, the client shall also be charged a reminder fee of 10% of the agreed fee. The photographer is responsible for deciding how to calculate the cancellation fee. Explanation of incidental costs: If incidental costs have already been paid by the photographer for the appointment, the client is obliged to pay 100% of these in the event of a missed appointment, insofar as the incidental costs cannot be canceled.

7. Return of the photographic material

a) Analog photographic material must be returned in the delivered form immediately after publication or the agreed use, but no later than 3 months after the delivery date, without being requested to do so; two specimen copies must be enclosed. An extension of the 3-month period requires the written consent of the photographer.
b) Digital data must always be deleted or the data carriers destroyed after the end of use. The photographer is not liable for the existence and/or the possibility of a renewed delivery of the data.
c) If the photographer provides photographic material at the customer's request or with the customer's consent solely for the purpose of checking whether it is suitable for use or publication, the customer must return analog photographic material within one month of receipt at the latest, unless a different deadline is stated on the delivery bill. Digital data must be deleted or the data carriers must be destroyed or returned. An extension of this period shall only be effective if it has been confirmed in writing by the photographer.
d) The photographic material shall be returned by the customer at the customer's expense in packaging customary in the industry. The customer shall bear the risk of loss or damage during transportation until receipt by the photographer.
 

8. Contractual penalty, damages

a) In the event of any unauthorized use, utilization, reproduction or disclosure of the photographic material (without the photographer's consent), an appropriate contractual penalty shall be payable for each individual case, subject to further claims for damages. 
b) In the event of an omitted, incomplete, incorrectly placed or unattributable copyright notice, an appropriate surcharge shall be payable on the agreed or customary usage fee.

The amount of the contractual penalty must be limited both in the total amount and in relation to the individual day. As a guideline, contractual penalties of 0.2% of the order amount per working day of delay and a maximum of 5% of the order amount are effective.

9. General

a) The law of the Federal Republic of Germany shall apply, including for deliveries abroad.
b) Subsidiary agreements to the contract or to these GTC must be made in writing to be valid.
c) The possible invalidity or ineffectiveness of one or more provisions of these GTC shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a valid provision that comes as close as possible in economic and legal terms to the intended provision.
d) If the customer is a registered trader, the place of performance and jurisdiction shall be the photographer's place of residence.