General Terms and Conditions of Delivery and Business

I. Validity

1. The following General Terms and Conditions of Delivery and Business shall apply to all orders, offers, deliveries and services performed by the Photographer.

2. They shall be deemed to have been agreed upon the Customer's acceptance of the Photographer's delivery or service or offer, but no later than upon the Photographer's acceptance of the photographic material for publication.

3. If the Customer wishes to object to the General Terms and Conditions, this must be declared in writing within three working days. Any deviating terms and conditions of the Customer are hereby objected to. Deviating terms and conditions of the customer shall not be valid unless the Photographer accepts them in writing.

4. The General Terms and Conditions shall also apply to all future orders, offers, deliveries and services of the Photographer within the framework of an ongoing business relationship, even if they are not expressly included, unless expressly agreed otherwise.

II. Commissioned productions

1. Any cost estimates provided by the Photographer shall be non-binding. If cost increases occur during production, these shall only be notified by the Photographer if it becomes apparent that they are likely to cause the originally estimated total costs 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 fee or in the form of a reasonable increase in the flat fee. 2. 

2. The Photographer shall be entitled to commission services from third parties, which must be purchased for the execution of the Production, in the name of and with the authority and for the account of the Client.

3. Unless otherwise agreed, the Photographs to be submitted to the Client for acceptance after completion of the Production shall be selected by the Photographer.

4. If the photographer has not received any written notification of defects within two weeks of delivery of the photographs, the photographs shall be deemed to have been accepted in accordance with the contract and free of defects.

III. Surrendered photographic material (analog and digital)

1. The General Terms and Conditions shall apply to all photographic material provided to the customer, irrespective of the creative stage or technical form in which they are available. They shall also apply in particular to electronic or digitally transmitted photographic material.

2. The customer acknowledges that the photographic material supplied by the photographer constitutes copyright-protected photographic works within the meaning i.S.v. § 2 Abs. 1 Ziff. 5 of the German Copyright Act.

3. Design proposals or concepts commissioned by the customer shall constitute independent services for which remuneration shall be paid.

4. The photographic material provided shall remain the photographer's property, even if compensation is paid for it.

5. The customer shall treat the photographic material with care and may only pass it on to third parties for the photographer's internal business purposes of viewing, selection and technical processing.

6. Complaints concerning the content of the delivered consignment or the content, quality or condition of the photographic material shall be notified within two weeks of receipt. Otherwise, the photographic material shall be deemed to have been received properly, in accordance with the contract and as recorded.

IV. Rights of use

1. The customer acquires in principle only a simple right of use for one-time use. Unless otherwise agreed, publication on the Internet or inclusion in digital databases shall be limited in time to the duration of the publication period of the corresponding or comparable print object.

2. Exclusive rights of use, media-related or spatial exclusive rights or blocking periods must be agreed upon separately and require a surcharge of at least 100% on the respective basic fee.

3. Upon delivery, only the right of use shall be transferred for the one-time use of the photographic 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 placing of the order. In case of doubt, the purpose for which the photographic material was made available as shown on the delivery bill or the shipping address shall be decisive.

4. Any use, exploitation, reproduction, dissemination or publication beyond the scope of Item 3 above shall be subject to a fee and shall require the Photographer's prior express consent. This applies in particular to: 

- a secondary utilization or secondary publication, in particular in anthologies, brochures accompanying products, in advertising measures or in other reprints, any editing, modification or redesign of the photographic material,

- the digitalization, storage or duplication of the photographic material on data carriers of any kind (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, DVD, hard disks, RAM, microfilm, etc.), insofar as this is not solely for the technical processing and administration of the photographic material pursuant to Section III 5. of the General Terms and Conditions, 

- 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 (also insofar as 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 suitable for public reproduction on screens or for the production of hard copies.

5. Changes to the photographic material by photo composing, montage or by electronic means to create a new copyrighted work are only permitted with the prior written consent of the photographer and only if marked with [M]. Also, the photographic material may not be copied, re-photographed or otherwise used as a motif.

6. The customer shall not be entitled to transfer the rights of use granted to him in whole or in part to third parties, including other group companies or subsidiaries. Any use, reproduction or transfer of the photographic material shall only be permitted on condition that the copyright notice specified by the Photographer is affixed to the respective image in a manner that is beyond doubt.

7. The granting of the rights of use shall be subject to the condition precedent of full payment of all of the Photographer's claims for payment under the relevant contractual relationship.

8. The Photographer shall remain entitled to use his Photographs himself for self-promotional purposes even if the exclusive rights of use are transferred.

V. Liability

1. The photographer assumes no liability for the infringement of rights of depicted marks (trademarks, company designs) persons or objects, unless an appropriately 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 permits from collections, museums, etc. is the responsibility of the customer. The customer shall bear the responsibility for the text and the meaning resulting from the specific publication.

2. From the time of proper delivery of the photographic material, the customer is responsible for its proper use. 

VI. Fees

1. The agreed fee shall apply. If no fee has been agreed upon, it shall be determined according to the respective current picture fee overview of the Mittelstandsgemeinschaft Foto-Marketing (MFM). The fee is subject to the applicable value-added tax. 2.

2 The agreed fee shall cover the one-time use of the photographic material for the agreed purpose in accordance with Section IV. 3. 

3. 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.

4. The fee is due upon delivery of the recording. If a production is delivered in parts, the corresponding partial fee is due with the respective delivery. In the case of production orders, the Photographer shall be entitled to demand partial payments in accordance with the scope of services rendered in each case.

5. The fee pursuant to VI. 1. of the General Terms and Conditions shall be paid in full even if the photographic material commissioned and supplied is not published. If the photographs are used as a working model for layout and presentation purposes, a fee of at least Euro 75.00 per photograph shall be due, subject to any agreement to the contrary.

6. Offsetting or the exercise of the right of retention is only permissible with undisputed or legally established claims of the customer. In addition, offsetting with disputed but ready for decision counterclaims is permissible.

VII. Return of the photographic material

1. Analog photographic material shall be returned in the form in which it was supplied, without being requested to do so, immediately after publication or the agreed use, but no later than three months after the date of delivery; two specimen copies shall be enclosed. An extension of the three-month period requires the photographer's written consent.

2. Digital data must always be deleted or the data carriers destroyed after use. The Photographer shall not be liable for the existence and/or the possibility of a renewed delivery of the data. 

3. In the event that the photographer provides photographic material at the customer's request or with the customer's consent solely for the purpose of checking whether use or publication is possible, the customer shall return analog photographic material within one month of receipt at the latest, unless a different deadline is stated on the delivery bill. Digital data shall be deleted or the data carriers shall be destroyed or returned. An extension of this deadline shall only be effective if it has been confirmed in writing by the Photographer.

4. 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 transport until receipt by the Photographer.

VIII. Contractual penalty, damages

1. In the event of any unauthorized use, utilization, reproduction or disclosure of the photographic material (without the Photographer's consent), a contractual penalty in the amount of five times the utilization fee shall be payable for each individual case, subject to any further claims for damages.

2. If the copyright notice is omitted, incomplete, incorrectly placed or not assignable, a surcharge of 100 % of the agreed or customary usage fee shall be payable.

IX. General

1. The law of the Federal Republic of Germany shall be deemed to have been agreed, even in the case of deliveries abroad. 

2. Subsidiary agreements to the contract or to these General Terms and Conditions must be made in text form in order to be effective.

3. The possible invalidity or ineffectiveness of one or more provisions of these GTC shall not affect the effectiveness of the remaining provisions. The parties undertake to replace the invalid provision with a corresponding valid provision that comes closest to the intended provision in economic and legal terms.

4. If the customer is a registered trader, the place of performance and jurisdiction shall be the photographer's place of residence.

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FreeLens, 07/22/2020