Terms of Service

by DigitalMinds Photography

Terms of Service




1General

  • 1.1

    These general terms and conditions apply to all legal transactions between the photographer and his business partners and customers. By placing the order, the customer acknowledges their applicability.

  • 1.2

    The version valid at the time the contract is concluded is decisive, including the changes and additions to it sent by the photographer.

  • 1.3

    These general terms and conditions also apply to all future contractual relationships, even if they are not expressly referred to in additional contracts, and also extend their effect to all affiliated companies.

  • 1.4

    Conflicting general terms and conditions of the customer or an intermediary are invalid, even if they remain unchallenged, unless they are expressly recognized in writing by the photographer.

  • 1.5

    These General Terms and Conditions are an integral part of all contracts and can also be accessed on the Internet under Terms of Service.

2Commissioned photography

  • 2.1
    Execution of orders
  • 2.1.1

    The photographer will carefully carry out each order placed. He can also have the order carried out in whole or in part by third parties, for example laboratories etc. If the contractual partner does not issue any written instructions, the photographer is free to choose how the order is to be carried out. This applies in particular to the image composition, the selection of the photo models, the location and the optical-technical and photographic means used. Deviations from earlier deliveries do not constitute a defect as such.

  • 2.1.2

    The photographer will archive the recording without any legal obligation. In the event of loss or damage, the contractual partner is not entitled to any claims.

  • 2.2
    Protection of concepts and ideas
  • 2.2

    If the potential customer has already invited the photographer in advance to create a concept, and if he accepts the invitation before the conclusion of the main contract, the following regulation applies:

  • 2.2.1

    The prospective customer and the photographer already enter into a contractual relationship with the invitation and the acceptance of the invitation by the photographer. This contract is also based on the General Terms and Conditions.

  • 2.2.2

    The potential customer acknowledges that the photographer already provides cost-intensive preliminary work when developing the concept, although he himself has not yet assumed any performance obligations.

  • 2.2.3

    The concept is subject to the protection of copyright law in its communicative, administrative and graphic parts, insofar as these reach work height. The potential customer is not permitted to use and edit these parts without the consent of the photographer, if only because of the copyright law.

  • 2.2.4

    The concept also contains advertising-relevant ideas that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its distinctive character are protected. Advertising keywords, advertising texts, graphics and illustrations, advertising material, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.

  • 2.2.5

    The potential customer undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by the photographer as part of the concept outside of the corrective of a main contract to be concluded later.

  • 2.2.6

    If the potential customer is of the opinion that the photographer presented him with ideas that he already had before the presentation, he must inform the photographer of this within 14 days of the day of the presentation by e-mail, citing evidence, which allow a chronological assignment to be announced.

  • 2.2.7

    In the opposite case, the contracting parties assume that the photographer has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the photographer was meritorious.

  • 2.2.8

    The prospective customer can release himself from his obligations under this point by paying reasonable compensation plus 20% sales tax. The exemption only occurs after the full payment of the compensation has been received by the photographer.

  • 2.3
    Rights to created works
  • 2.3.1

    The photographer is entitled to all copyrights and ancillary copyrights of the photo manufacturer (§§ 1, 2 Para. 2, 73ff UrhG). Permissions to use (publication rights, etc.) are only granted if expressly agreed. In this case, the contractual partner acquires a simple (non-exclusive and non-exclusive), non-transferable (assignable) license for the expressly agreed purpose and within the agreed limits (circulation number, time and location restrictions, etc.); in case of doubt, the scope of use specified in the invoice or delivery note is decisive. In any case, the contractual partner only acquires as many rights as correspond to the disclosed purpose of the contract within the framework of the order placed. In the absence of any other agreement, the license to use is only valid for a one-off publication (in one edition) and only for the medium expressly designated by the client and not for advertising purposes.

  • 2.3.2

    For each use (reproduction, distribution, transmission, etc.), the contractual partner is obliged to clearly and legibly (visibly) the manufacturer's designation (naming) or the copyright notice in the sense of the WURA (Universal Copyright Convention), in particular not inverted and in normal letters, directly at the Attach a photograph and clearly assign it to it as follows: Photo: © Name/company/artist name of the photographer; Place and, if published, year of first publication.

  • 2.3.3

    This also applies if the photo does not have a manufacturer's designation. In any case, this provision applies as the attachment 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 manufacturer's note described above.

  • 2.3.4

    Any change to the photograph requires the photographer's written consent. This does not apply if the changes are necessary for the purpose of the contract known to the photographer.

  • 2.3.5

    The license to use is only valid in the event of full payment of the agreed recording and usage fee and only then as granted if a proper manufacturer designation / naming (item 2.3. above) is given.

  • 2.3.6

    Instead of § 75 UrhG, the general provision of § 42 UrhG applies.

  • 2.3.7

    In the case of publication, two free specimen copies are to be sent. In the case of expensive products (art books, video cassettes), the number of specimen copies is reduced to one piece.

  • 2.3.8

    The photographer is entitled to ownership of the exposed film material (negatives, slides, etc.). In return for an agreed and appropriate fee, the latter transfers ownership of the supervisory images required for the agreed use to the contractual partner; Slides (negatives only in the case of a written agreement) are only 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. If this is the case, the license to use is also only deemed to have been granted to the extent of point 3.1.1.

  • 2.3.9

    The photographer is entitled to provide the photographs with his manufacturer's designation in any way he deems appropriate (also on the front). The contractual partner is obliged to ensure the integrity of the manufacturer's designation, in particular when it is permitted to pass it on to third parties (printers, etc.). If necessary, the manufacturer's designation must be attached or renewed. This also applies in particular to all reproduction media (lithographs, plates, etc.) created during production.

  • 2.3.10

    The contractual partner is responsible for obtaining any necessary approval for objects (e.g. works of fine art, samples and models, trademarks, photo templates, etc.) or persons (e.g. models). He shall indemnify and hold the photographer harmless in this regard, in particular with regard to claims under §§ 78 UhrG, 1041 ABGB. The photographer guarantees the consent of authorized persons (authors, persons depicted, etc.), in particular models, only in the case of an express written consent for the contractual purposes (point 2.1.).

  • 2.4
    Fee / Commission
  • 2.4.1

    All fee and license fee claims are due regardless of whether the material is (still) protected by copyright and/or ancillary copyright.

  • 2.4.2

    In the absence of an express written agreement, the photographer is entitled to a wage (fee) according to his currently valid price lists, otherwise an appropriate fee.

  • 2.4.3

    The fee is also due for layout or presentation recordings and if there is no use or depends on the decision of a third party. In this case, no price reductions will be granted on the admission fee.

  • 2.4.4

    All material and other costs (props, products, models, travel expenses, subsistence expenses, make-up artists, etc.), even if they are procured by the photographer, must be paid for separately.

  • 2.4.5

    Any changes requested by the contractual partner in the course of carrying out the work shall be at his expense.

  • 2.4.6

    Conceptual services (consulting, layout, other graphic services, etc.) are not included in the admission fee. The same applies to an above-average organizational effort or such a meeting effort.

  • 2.4.7

    If the contractual partner refrains from carrying out the order placed for whatever reason, the photographer is entitled to half of the fee plus all additional costs actually incurred, unless otherwise agreed. In the case of absolutely necessary changes to the date (e.g. due to weather conditions), a fee corresponding to the time spent or reserved in vain and all additional costs must be paid.

  • 2.4.8

    The fee does not include sales tax at the statutory rate.

  • 2.5
    License Fee
  • 2.5.1

    Unless otherwise expressly agreed in writing, the photographer is entitled to a separate publication fee in the agreed or appropriate amount if a license to use is granted.

  • 2.5.2

    The publication fee does not include sales tax at the statutory rate.

  • 2.5.3

    Irrespective of all legal claims under Sections 81ff and 91ff UrhG, the following applies in the event of an infringement of copyright and/or ancillary copyrights to the contractual recordings: Claims under Section 87 UrhG are independent of fault. In the event of an infringement of the right to a manufacturer's designation, the immaterial damage (Section 87 (2) UrhG), subject to additional financial loss (Section 87 (1) UrhG), is at least equivalent to the reasonable remuneration (Section 86 UrhG). The right to information according to § 87a Abs. 1 UrhG also applies to the right to removal.

  • 2.6
    Payments and Late Payments
  • 2.6.1

    In the event of default, without prejudice to further claims for damages, the statutory default interest and compound interest shall apply from the due date as agreed, but at least 5% above the respective bank rate.

  • 2.6.2

    Dunning fees and costs - including out-of-court - legal intervention are at the expense of the contractual partner.

  • 2.6.3

    Insofar as delivered images become the property of the contractual partner, this only happens once the recording fee including ancillary costs has been paid in full.

  • 2.6.4

    Unless otherwise expressly agreed in writing, a payment on account of 50% of the expected invoice amount must be made when the order is placed. Unless otherwise expressly agreed in writing, the remaining fee is due for payment in cash immediately after invoicing. If a term of payment has been agreed, the invoices are due for payment within 8 days of invoicing at the latest. The invoices are payable without any deduction and free of charges. In the case of sending (postal order, bank or postal savings bank transfer, etc.), payment is only deemed to have been made when the photographer has been informed of the receipt of payment. The risk of judicial submissions (lawsuits, enforcement motions) being sent by post shall be borne by the contractual partner. If the contractual partner (client) refuses acceptance due to defective performance or asserts warranty claims, the fee is nevertheless due for payment.

  • 2.6.5

    For orders that include several units, the photographer is entitled to invoice each individual service after delivery.

  • 2.6.6

    The object of purchase or the goods remain our property until the purchase price and all associated costs and expenses have been paid in full.

  • 2.6.7

    The assertion of the retention of title only constitutes a withdrawal from the contract if this is expressly declared.

  • 2.6.8

    In the event of even a partial default in payment, we are entitled to collect the goods in an appropriate manner at the buyer's expense, even without the buyer's consent. The costs incurred for a service can be charged to the contractual partner in the event of a partial default in payment.

  • 2.7
    Warranty, Liability
  • 2.7.1

    No liability is assumed for defects that can be traced back to incorrect or imprecise instructions from the contractual partner (§ 1168a ABGB). In any case, the photographer is only liable for intent and gross negligence.

  • 2.7.2

    The contractual partner bears the risk for all circumstances that are not related to the person of the photographer, such as weather conditions for outdoor shots, timely provision of products and props, failure of models, travel restrictions, etc.

  • 2.7.3

    Consignments travel at the expense and risk of the contractual partner.

  • 2.7.4

    All complaints must be made in writing within 8 days of delivery at the latest, and all documents must be submitted. After this period has expired, the service is deemed to have been rendered in accordance with the order. The warranty period is three months.

  • 2.7.5

    In the case of defectiveness, the contractual partner is only entitled to a claim for improvement by the photographer. If an improvement is impossible or if the photographer rejects it, the contractual partner is entitled to a price reduction. No liability is assumed for insignificant defects. Color differences in repeat orders are not considered a significant defect. Point 5.1. Shall apply accordingly.

  • 2.7.6

    Fixed transactions only exist if expressly agreed in writing. In the event of any delivery delays, item 2.7.7 applies accordingly.

  • 2.7.7

    In the event of loss of or damage to photographs (slides, negative material) made to order, the photographer is only liable – based on whatever legal title – for intent and gross negligence. Liability is limited to your own fault and that of your 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 cost of materials and the free repetition of the recordings (if and to the extent that this is possible). The client is not entitled to any further claims; In particular, the photographer is not liable for any travel and accommodation expenses or for third-party costs (models, assistants, make-up artists and other recording staff) or for lost profits and consequential damages.

  • 2.7.8

    This also applies accordingly in the event of loss or damage to submitted templates (films, layouts, display pieces, other templates, etc.) and submitted products and props. More valuable items are to be insured by the contractual partner. Valorisation of the templates mentioned remains reserved.

  • 2.8
    Vouchers, discount codes
  • 2.8.1

    The voucher can only be redeemed before completing the ordering process. Subsequent offsetting is not possible.

  • 2.8.2

    Only one voucher can be redeemed per order.

  • 2.8.3

    The value of the goods must at least correspond to the amount of the voucher. Any remaining credit will not be refunded.

  • 2.8.4

    Voucher credit is neither paid out in cash nor does it earn interest.

  • 2.8.5

    The voucher will not be refunded if the customer returns the goods paid for in whole or in part with the voucher within the scope of his statutory right of withdrawal.

  • 2.8.6

    The voucher is transferrable. The seller can make payments to the respective owner with discharging effect. This does not apply if the seller has knowledge or grossly negligent ignorance of the non-authorization, the legal incapacity or the lack of the right to represent the respective owner.

3Privacy

  • 3.1

    The customer agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card data, UID number) for the purpose of fulfilling the contract and looking after the customer and for our own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of pointing out the existing or previous business relationship with the customer (reference note) determined automatically, are stored and processed.

  • 3.2

    The client agrees that electronic mail will be sent to him for advertising purposes until further notice.

  • 3.3

    This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details given at the top of the General Terms and Conditions.

4Applicable law

  • 4.1

    The contract and all mutual rights and obligations derived from it as well as claims between the photographer and the customer are subject to Austrian substantive law to the exclusion of its reference standards and to the exclusion of the UN Sales Convention.

5Fulfillment and jurisdiction

  • 5.1

    Place of fulfillment is the seat of the photographer. In the case of shipping, the risk passes to the customer as soon as the agency has handed over the goods to the transport company it has chosen.

  • 5.2

    The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is the competent court for the agency's registered office. Irrespective of this, the agency is entitled to sue the customer at his general place of jurisdiction.

  • 5.3

    Insofar as designations relating to natural persons are only given in the masculine form in this contract, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form is to be used.

6Final Provisions

  • 6.1

    Deviating agreements can only be made legally effective in writing.

  • 6.2

    The place of performance and jurisdiction is the current place of business of the photographer.

  • 6.3

    The Product Liability Act (PHG) is not applicable; In any case, liability for damage other than personal injury is excluded if the contractual partner is an entrepreneur. For the rest, Austrian law is applicable, which also takes precedence over international sales law.

  • 6.4

    Indemnifications and indemnities also include the costs of out-of-court legal defence.

  • 6.5

    These general terms and conditions apply to film works or moving images produced by photographers according to the order, regardless of the process and technology used (narrow film, video, DAT, etc.).

  • 6.6

    In the event that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective provision that comes closest in meaning and economic purpose.