Terms – kapounek.photo

GTC (General Terms and Conditions) of professional photographer Gerald Kapounek, as of 11 August 2022

Note on the translation: This is a convenience translation of the German General Terms and Conditions. In the event of any discrepancies, the German version is legally authoritative.

1. Applicability and scope of the General Terms and Conditions

These General Terms and Conditions apply exclusively to the conclusion of contracts with consumers. A consumer within the meaning of § 1 KSchG (Austrian Consumer Protection Act) is any natural person who concludes a legal transaction for a purpose that can be attributed neither to their commercial nor to their independent professional activity. For the conclusion of contracts with entrepreneurs, the General Terms and Conditions for business transactions apply.

The photographer concludes contracts – unless expressly agreed otherwise – exclusively on the basis of these General Terms and Conditions.

The inclusion of conflicting or supplementary terms and conditions of the contractual partner is expressly objected to. These are valid without exception only if and insofar as they have been agreed in writing in the individual case. In particular, acts of contractual performance by the photographer shall not be deemed consent to terms and conditions deviating from these General Terms and Conditions.

Should individual provisions of the contract, including these provisions, be or become wholly or partially invalid, or should the contract contain a gap, the validity of the remaining provisions or parts of such provisions shall remain unaffected. This does not apply if the invalid provision governs one of the main contractual obligations. The respective statutory provisions shall take the place of the invalid or missing provisions. An invalid provision shall be replaced by a valid one that comes closest to its meaning and purpose. From the fact that the photographer does not exercise individual or all of the rights to which they are entitled, no waiver of these rights can be derived.

These General Terms and Conditions apply mutatis mutandis to film works or moving images produced by photographers in accordance with the order, irrespective of the process and technique used (film, video, etc.).

2. Offer, conclusion of contract

The photographer’s offers are – unless they are expressly designated as binding – subject to change and non-binding. This also applies to all information in price lists, brochures, etc.

An order can be placed with the photographer both in writing (by letter, email, etc.) and orally (in person, by telephone). The photographer shall send the client a contract within a reasonable time after receipt of the order, or shall inform them of the rejection of the order. Through acceptance, a legally binding contract is concluded between the photographer and the client, triggering the mutual obligation to perform. (Optional in the case of the possibility of ordering photographs online.)

The client has the option of acquiring photographs and/or film works including the usage rights standardised in § 42 UrhG (Austrian Copyright Act). Usage rights going beyond this must be agreed separately with the photographer. The photographer’s offer is legally binding. The purchase contract is concluded upon receipt of the order by the photographer. After receipt of payment, the photographer makes the contractual products available either by sending them to the address provided by the contractual partner or as a download file.

3. Performance of services, usage permission

The photographer may have the order carried out – in whole or in part – also by third parties (labs, etc.). Unless the contractual partner issues written instructions, the photographer is free with regard to the manner of carrying out the order. This applies in particular to the conception of the image, the selection of the photo models, the location and the optical-technical (photographic) means used. Deviations from earlier deliveries do not as such constitute a defect.

Shipments travel at the cost and risk of the contractual partner.

Delivery/performance dates and deadlines stated by the photographer are only approximate values and non-binding, unless they have been expressly confirmed in writing as binding. No claims against the photographer can be derived from non-compliance with non-binding delivery/performance deadlines and dates.

Where binding delivery dates or delivery deadlines have been agreed, the contractual partner may – unless it is a fixed-date transaction – withdraw from the contract in the event of delay in delivery after setting a reasonable grace period. Withdrawal from the contract does not affect the claim for compensation for damage caused by culpable non-performance.

If performance is stipulated for a fixed time or within a fixed period subject to withdrawal, and the photographer is in default, the contract shall be deemed dissolved without further action, unless the contractual partner immediately notifies the photographer that they continue to insist on performance of the contract. Any claims for damages remain unaffected by this.

With the acquisition of a copyright-protected work, whether in paper form or digital, the contractual partner acquires a simple (non-exclusive and non-excluding), non-transferable (assignable) usage permission 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 contract is decisive. In any case, the contractual partner acquires only as many rights as correspond to the disclosed purpose of the contract (order placed). In the absence of any other agreement, the usage permission is deemed granted only for a single publication (in one edition), only for the expressly designated medium of the contractual partner, and not for advertising purposes. In addition, the contractual partner is in any case entitled, within the meaning of § 42 UrhG, to produce individual copies for their own and private use.

Any usage permissions of the photographer do not include the public performance of musical works in any media whatsoever.

The usage permission is deemed granted only upon full payment of the agreed photography and work-usage fee (cf. point 6.2.) and subject to a proper producer designation / attribution in accordance with the section “Copyright provisions”.

4. Copyright provisions

Photographs and film works are copyright-protected works within the meaning of §§ 1, 3, 4 UrhG. All copyright and ancillary copyright (related rights) of the producer (§§ 14ff, 73ff UrhG) belong without exception to the photographer. With the exception of the rights standardised in § 42 UrhG, the photographer has the exclusive exploitation right, i.e. the exclusive right to reproduce the photograph, to distribute it, to perform it publicly by means of optical devices, to broadcast it and to make it available to the public. In this case, use is only permitted in accordance with a usage permission granted by the photographer (cf. point 3.6.). § 75 UrhG does not apply.

Reproduction or distribution of photographs/films in online databases, in electronic archives, on the internet or on intranets which are not intended solely for the internal use of the contractual partner, on disk, CD-ROM or similar data carriers, is permitted only on the basis of a special written agreement between the photographer and the contractual partner. The right to make a backup copy remains unaffected by this.

With every use (reproduction, distribution, broadcasting, etc.) the contractual partner is obliged to affix the producer designation (attribution) or the copyright notice within the meaning of the UCC (Universal Copyright Convention) clearly and legibly (visibly), in particular not inverted and in normal letters, directly on the photograph and clearly attributable to it, as follows: Photo: (c) Gerald Kapounek, <year of first publication>. This also applies to posts on social media. Alternatively, the photographer’s profile (Instagram: @gerald.kapounek) is to be tagged in the image. This applies even if the photograph is not provided with a producer designation. In any case, this provision is deemed to constitute affixing of the producer designation within the meaning of § 74(3) UrhG. If the photograph is signed on the front (in the image), the publication of this signature does not replace the producer notice described above.

Any alteration of the photograph (e.g. cropping, filters, content-altering editing) requires the written consent of the photographer. This does not apply only where the changes are necessary in accordance with the purpose of the contract known to the photographer.

In the event of publication, two free specimen copies are to be sent. In the case of costly products (art books, Blu-rays, DVDs), the number of specimen copies is reduced to one. In the case of publication on the internet, the web address is to be communicated to the photographer.

In the event of infringement of the copyright and/or ancillary copyright, the photographer has civil-law claims under §§ 81ff UrhG for injunctive relief, removal, damages, publication of the judgment, etc. The claims are available to the photographer irrespective of fault. In the event of a breach of the obligation to provide the producer designation, at least an amount equal to the appropriate fee (§ 86 UrhG) is owed as non-material damage (§ 87(2) UrhG), without prejudice to any additional pecuniary damage (§ 87(1) UrhG).

5. Ownership of the film material and the image files, labelling, archiving

Analogue photography: The ownership right to the exposed film material (negatives, slides, etc.) belongs to the photographer. Against agreed and reasonable remuneration, the photographer transfers ownership of the images required for the agreed use to the contractual partner. Slides are – unless otherwise agreed in writing – made available to the contractual partner only on loan, subject to return after use, at the risk and cost of the contractual partner, for use within the scope of the usage permission in accordance with point 3.6.

Digital photography: Ownership of the image files belongs to the photographer. A right to the handover of digital image files and use within the scope of the usage permission in accordance with point 3.6. exists only after express written agreement and, in the absence of any deviating express agreement, concerns only a selection of the image files produced, to be determined by mutual agreement between the photographer and the contractual partner.

The photographer is entitled to provide the photographs as well as the digital image files in any manner deemed suitable (including on the front) with their producer designation. The contractual partner is obliged to ensure the integrity of the producer designation, in particular in the case of permitted transfer to third parties (printers, etc.). If necessary, the producer designation is to be affixed or renewed. This applies in particular also to all means of reproduction created during production (lithos, plates, etc.) or to the production of copies of digital image files.

The contractual partner is obliged to store digital photographs in such a way that the producer designation remains electronically linked to the images with every type of data transfer, so that the photographer can be clearly and unambiguously identified as the author of the images.

The photographer will archive the image, without any legal obligation to do so, for a period of at least one year. In the event of loss or damage, the contractual partner shall have no claims whatsoever.

6. Remuneration (fee, honorarium)

In the absence of any deviating written agreement, the photographer is entitled to a fee (honorarium) for their services in accordance with their respectively valid price lists.

On the one hand, the photographer is entitled to a photography fee, which is also owed for layout or presentation shots, as well as where exploitation does not take place or depends on a decision by third parties. In this case, no price reductions are granted on the photography fee. In addition, upon the sale of photographs/films, the photographer is entitled to a sales fee and, for granting a usage permission going beyond § 42 UrhG, separately to a work-usage fee (licence fee) in the agreed amount.

Conceptual services (consulting, layout, other graphic services, etc.) as well as material costs and other expenses for props, models, travel costs, accommodation expenses, make-up artists, etc. are not included in the photography fee and are charged separately. The same applies to above-average organisational or consultation effort.

If the contractual partner refrains from carrying out the order placed for reasons within their sphere, the photographer is entitled to the agreed remuneration in the absence of any other agreement.

Prices are stated in euros and are understood “ex works” as well as, in the case of shipment of the goods, plus a shipping and packaging flat rate.

Value added tax is not shown on account of the small-business regulation under § 6(1)(27) of the Austrian Value Added Tax Act.

Changes to the order requested by the contractual partner in the course of carrying out the order shall be at their expense and are charged separately.

The photographer is not bound to adhere to previous prices for follow-up orders.

No warranty is assumed for the accuracy of cost estimates.

7. Payment

Unless a payment deadline has expressly been agreed in writing, the fee is due for payment immediately after invoicing. Where a payment deadline has been agreed, the invoices issued are due for payment, free of charges and deductions, received by the photographer at the latest within 10 working days from invoicing.

The photographer is entitled to demand from the client an advance payment before the start of carrying out the order, as well as to issue partial invoices for orders involving divisible services.

The photographer is entitled to use payments, irrespective of their designation, to settle the oldest due debt as well as the default interest and costs accruing thereon, namely in the order: costs, interest, principal claim.

In the event of default in payment, default interest of 4% p.a. as well as compound interest at the statutory rate is charged, irrespective of fault. In addition, in the event of culpable default in payment, the contractual partner is obliged to reimburse the photographer for all expenses incurred that are necessary for the appropriate collection of the claim, such as lawyer’s fees and the costs of debt collection agencies, and to compensate for any further damage, in particular also the damage that arises from the fact that, as a result of non-payment, correspondingly higher interest is incurred on any credit accounts.

The contractual partner is entitled to offset a claim of their own against the photographer only if the latter is insolvent and the claim of the contractual partner is legally connected to its liability, or the claim has been finally established by a court or acknowledged by the photographer.

The contractual partner may exercise a right of retention only insofar as it concerns claims from the same contractual relationship.

8. Statutory right of withdrawal

Pursuant to § 11 FAGG (Austrian Distance and Off-Premises Transactions Act), the consumer may withdraw from a distance contract or a contract concluded off business premises within 14 days without giving reasons. Details on the exercise of the right of withdrawal and the consequences of withdrawal are set out in the separately published withdrawal instructions for deliveries of goods or in the withdrawal instructions for service orders.

In the following cases, the right of withdrawal is excluded:

in the case of contracts for services, where the entrepreneur – on the basis of an express request by the consumer as well as a confirmation by the consumer of their awareness of the loss of the right of withdrawal upon complete performance of the contract – had begun performing the service before the expiry of the fourteen-day withdrawal period, and the service was then fully provided;
in the case of contracts for goods which are made to the customer’s specifications or are clearly tailored to personal needs;
in the case of contracts for goods which, after their delivery, were inseparably mixed with other goods on account of their nature;
in the case of contracts for audio or video recordings or computer software supplied in a sealed package, where the seal was removed after delivery;
in the case of contracts for the supply of digital content not stored on a tangible data carrier, where the entrepreneur – with the express consent of the consumer, combined with their acknowledgement of the loss of the right of withdrawal upon premature commencement of performance of the contract, and after provision of a copy or confirmation pursuant to § 5(2) or § 7(3) – began the delivery before the expiry of the withdrawal/revocation period.

9. Obligations of the contractual partner

The contractual partner is obliged, where necessary, to cooperate in the performance of the order and to support the photographer to the best of their ability. The contractual partner is responsible for obtaining any necessary work-usage permissions of third parties with regard to depicted objects (e.g. works of fine art, designs and models, trademarks, photographic templates, etc.) and for obtaining consent to the depiction of persons (e.g. models). The photographer guarantees the consent of authorised persons, in particular of models, only in the case of an express written assurance for the contractual purposes of use (point 3.6.).

Indemnification: The contractual partner undertakes to fully indemnify and hold the photographer harmless against third-party claims should the photographer be prosecuted or held liable under civil or criminal law, or be claimed against in or out of court, on account of breaches of legal provisions or the conduct of the contractual partner. This applies in particular with regard to claims arising from the right to one’s own image under § 78 UrhG as well as with regard to claims for use under § 1041 ABGB.

In the event that the photographer is commissioned to electronically process third-party photographs, the contractual partner warrants that they possess the rights required for this and indemnifies the photographer against all third-party claims based on a breach of this obligation.

The contractual partner undertakes to collect provided photographic objects immediately after the shoot. If these objects are not collected at the latest within two working days after a request by the photographer, the photographer is entitled to store the items at the expense of the contractual partner. Transport and storage costs are borne by the contractual partner.

10. Default of acceptance, withdrawal by the contractual partner

If the service is not accepted by the contractual partner at the agreed time at the agreed place, or if the photographer’s performance is delayed or rendered impossible, the contractual partner is in default of acceptance. In this case, the photographer is entitled, after setting a reasonable grace period of 14 days, to withdraw from the contract or to insist on performance of the contract. The photographer is likewise entitled to withdraw from the contract if the contractual partner, despite a written warning and the setting of a grace period of 14 days, continues to breach essential obligations under the contract (duties to cooperate, payment of the deposit or partial payments). The contractual partner shall in any case compensate the photographer for the damage culpably caused by them (costs for studio rental, travel costs, special equipment, etc.).

In the event of default of acceptance, the contractual partner shall bear any storage costs as well as the costs of unsuccessful delivery and collection. If the contractual partner is at fault for the default of acceptance, they shall additionally compensate the photographer for the damage incurred by the delay. The contractual partner also bears the risk of storage.

In the event of absolutely necessary changes of appointment (e.g. massive impairment for reasons of weather such as storm, heavy rain, heavy snowfall), a fee corresponding to the time spent in vain or reserved, as well as all incidental costs, are to be paid. A new appointment is agreed by mutual consent 2 days before the original appointment.

11. Retention of title

Until full payment of the fee, the goods remain the property of the photographer. The contractual partner bears the entire risk for the goods subject to retention of title, in particular the risk of loss, destruction or deterioration.

Pledging or transfer by way of security of the goods subject to retention of title is prohibited for the contractual partner.

The contractual partner undertakes to notify the photographer before filing for insolvency proceedings, so that the latter can take back goods delivered under retention of title and owned by them.

If the contractual partner is wholly or partially in default with their payment, the photographer is entitled to demand the return of the goods until full satisfaction. Term-bound claims become immediately due.

It is agreed that the assertion of the retention of title does not constitute a withdrawal from the contract, unless the photographer declares the withdrawal from the contract in writing.

12. Warranty

A defect triggering warranty claims of the contractual partner exists only in the event of a deviation by the photographer from what is owed under the contract. The assertion of warranty claims is permissible only for defects that were already present at the time of handover. Guarantee promises going beyond this are not assumed by the photographer. For acts of performance by the photographer that are based on incorrect or imprecise instructions of the contractual partner, or for damage caused by unsuitable or improper use or handling, there are in any case no warranty claims.

The statutory warranty provisions apply. The limitation period for warranty claims is two years from handover of the goods to the contractual partner.

If the supplementary performance has taken place by way of a replacement delivery, the contractual partner is obliged to return the goods delivered first within 14 days to the photographer at the latter’s expense. The return of the defective goods must take place in accordance with the statutory provisions.

The assignment of the contractual partner’s claims for defects is excluded.

13. Liability for damages

The photographer is liable for damage culpably caused by them in accordance with the statutory provisions. Claims for damages for property damage are excluded in the case of merely slightly negligent causation. This does not apply to damage to items taken over from the contractual partner for processing, or to damage that has occurred through a breach of the main contractual performance obligations.

In the event of the loss or damage of recordings produced under order (slides, negative material, digital image files), the photographer is liable – on whatever legal grounds – only for intent and gross negligence. Liability is limited to the photographer’s own fault and that of their employees; for third parties (labs, etc.) the photographer is liable only for intent and gross negligence in the selection. Any liability is limited to the material costs and the free repetition of the shots (insofar as and to the extent that this is possible). The client is entitled to no further claims; in particular, the photographer is not liable for any travel and accommodation expenses, nor for third-party costs (models, assistants, make-up artists and other shooting personnel), nor for lost profit, consequential and non-material damage.

The last paragraph applies accordingly in the event of the loss or damage of handed-over templates (films, layouts, other templates, etc.) and handed-over products and props. More valuable items are to be insured by the contractual partner.

No liability is assumed for insignificant defects. Colour differences in the case of re-ordering are not deemed a significant defect.

The contractual partner bears the risk for all circumstances that do not lie within the person of the photographer, as well as in the case of external influence, force majeure or illness of the photographer, furthermore in the case of weather conditions for outdoor shots, timely provision of products and props, failure of models, travel impediments, etc.

14. Assignment

The contractual partner may transfer their rights under this contract to third parties, in whole or in part, or pledge them to third parties, only with the prior written consent of the photographer.

15. Data protection

Unless a more far-reaching notice has been provided to them, the contractual partner takes note of the following data protection notice and confirms that the photographer has thereby fulfilled the information obligations incumbent upon them: The photographer, as controller, processes the personal data of the contractual partner as follows:

Purpose of the data processing: The photographer processes personal data for the performance of the concluded contract and/or the orders requested by the contractual partner, or for the use of the portraits for the photographer’s advertising purposes, and in addition the further personal data provided for the photographer’s own advertising purposes.

Categories of data processed and legal bases of the processing: The photographer processes the following personal data: name, address, telephone and fax number, email addresses, bank details, credit card data and image data.

Transmission of the contractual partner’s personal data: For the purposes stated above, the personal data of the contractual partner, where this is the subject of the contract, is transmitted at the request of the contractual partner to recipients to be named, namely in particular to third parties close to the concluded contract, insofar as this is the subject of the contract, to media, should an agreement exist in this respect with the contractual partner, and, where applicable, to third parties involved in the execution of the contract.

Storage period: The personal data of the contractual partner is stored by the photographer only for as long as is reasonably deemed necessary in order to achieve the contractually agreed purposes and as is permissible under applicable law. The personal data of the contractual partner is stored for as long as statutory retention obligations exist or limitation periods of potential legal claims have not yet expired.

The rights of the contractual partner in connection with personal data: Under applicable law, the contractual partner is, among other things, entitled:

to verify 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 demand the correction, completion or deletion of their personal data that is incorrect or not processed in compliance with the law;
to demand that the photographer restrict the processing of the personal data – insofar as the statutory 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 demand data portability;
to know the identity of third parties to whom the personal data is transmitted; and
where the statutory requirements are met, to lodge a complaint with the competent authority.

Contact details of the controller: Should the contractual partner have questions and concerns regarding the processing of their personal data, they can contact the photographer who is known to them by name and in writing.

16. Use of portraits for the photographer’s advertising purposes

The photographer is – unless there is an express written agreement to the contrary – entitled to use photographs produced by them to promote their activity. The contractual partner grants their express and irrevocable consent to publication for the photographer’s advertising purposes and waives the assertion of any claims, in particular arising from the right to one’s own image under § 78 UrhG as well as claims for use under § 1041 ABGB. Taking into account the applicable data protection provisions, the contractual partner also gives their consent for their personal data, and in particular the photographs produced, to be processed within the meaning of a publication for the photographer’s advertising purposes.

17. Applicable law, place of jurisdiction, contract language

For all disputes between the photographer and the contractual partner arising from the contractual relationship, including disputes about the conclusion and/or the validity of the contract, Austrian law is agreed to apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and of the referral norms of private international law. However, this choice of law applies only insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the contractual partner has their habitual residence.

For all actions brought against a contractual partner of the photographer who has their domicile, habitual residence or place of employment in Austria, the competent court is one of those courts in whose district the consumer has their domicile, habitual residence or place of employment.

The contract language is exclusively German.

Note: these GTC were created on the basis of the document https://rsv-fotografen.at/wp-content/uploads/2020/11/AGB-f%C3%BCr-Verbrauchergesch%C3%A4fte.pdf of the Legal Protection Association of Austrian Photographers (Rechtsschutzverband der Fotografen Österreichs) (as of 6 February 2021) as well as on the basis of the model GTC of the document https://www.wko.at/service/agb/agb-fotografen-verbrauchergeschaefte.docx of the Austrian Federal Economic Chamber (as of 31 July 2022).