General Terms and Conditions

1General

• 1.1

  These General Terms and Conditions (GTC) apply to all legal transactions and services provided by the photographer to his contracting parties (customers). By placing an order or making use of a service, the customer acknowledges the applicability of these GTC in the version valid at the time the contract is concluded.

• 1.2

  The version valid at the time the contract is concluded shall be decisive. Amendments shall be communicated to the customer before the next contract is concluded.

• 1.3

  These GTC shall also apply to all future contractual relationships between the parties without the need for a renewed reference, provided the customer does not object within 14 days of being notified of amended GTC.

• 1.4

  Any conflicting or deviating General Terms and Conditions of the customer shall not form part of the contract unless the photographer expressly agrees to their validity in writing.

• 1.5

  These GTC are available on the photographer’s website at /agb and may be viewed and printed there at any time. Upon request, the photographer shall send the GTC free of charge in text form (§ 1(1)(3) FAGG).

2Subject Matter and Scope of Services

• 2.1

  The photographer provides photographic services (photographic works, photographs within the meaning of §§ 73, 74 UrhG) on the basis of a contract for work and services (§ 1151 et seq. ABGB). The exact scope of services shall be determined by the individual agreement (order confirmation, quotation, shooting contract).

• 2.2

  The photographer shall be free to determine the artistic and technical execution of the order (image composition, perspective, lighting, framing, camera technology, stylistic devices). Deviations from previous collaborations shall not constitute a defect.

• 2.3

  The photographer shall be entitled to have the order carried out in whole or in part by qualified third parties (e.g. laboratory, image processing, assistants, second photographers), provided this does not affect the quality of the results.

• 2.4

  The customer shall be obliged to actively participate in the execution of the shooting. This includes in particular punctual appearance at the agreed appointment, necessary preparation (e.g. styling, wardrobe in accordance with the agreement) and the provision of agreed props, locations or models.

• 2.5

  In addition to these GTC, a separate model release contract (shooting contract) may be concluded, which shall govern in particular the copyright usage consent and the rights of the person depicted. In case of doubt, the provisions of the individual shooting contract shall take precedence over these GTC.

3Selection, Editing and Delivery

• 3.1

  The selection of the images to be edited and delivered shall be at the photographer’s discretion, unless a joint selection has been agreed in writing. The photographer shall select the technically and artistically suitable images in accordance with their professional judgement. There shall be no obligation to deliver a specific number of images unless expressly agreed in writing.

• 3.2

  Included in the agreed fee is the basic digital development and editing of the selected images (exposure correction, white balance, basic sharpening, colour correction). Any additional editing services (in particular elaborate skin retouching, body correction, composites, object removal, AI-assisted image optimisation) shall be separately agreed and remunerated.

• 3.3

  The fully edited images shall be made available to the customer digitally. Delivery shall be via an online platform (download area) determined by the photographer within a reasonable period, generally within 4 to 6 weeks after the shooting date. A shorter delivery period requires an express written agreement.

• 3.4

  The customer shall be obliged to download the images made available within 3 months of provision. After expiry of this period, the photographer may charge a storage fee of € 5,– per month or delete the images. The photographer shall notify the customer separately 30 days before the expiry of the deadline.

• 3.5

  The photographer shall archive the images for a period of 3 years from the date of provision. Beyond this period, there shall be no archiving obligation. The photographer shall not be liable for the loss of images resulting from force majeure, technical defects or data loss, unless the photographer is guilty of gross negligence.

4Copyright and Usage Rights

• 4.1

  All copyright and neighbouring rights in the works created by the photographer (photographic works, photographs) shall remain with the photographer (§§ 73, 74 UrhG). The customer shall not acquire any rights therein, unless otherwise expressly stipulated in these GTC or in a separate agreement.

• 4.2

  Usage consents (licences) shall be granted to the customer only by express written agreement and only within the scope defined therein. In the absence of a deviating agreement, the following shall apply:

• 4.3

  a) The customer shall acquire a simple, non-exclusive, non-transferable usage consent for private use of the images and for publication in social networks for non-commercial purposes.

• 4.4

  b) Any commercial use (e.g. advertising, resale, publication on product packaging) requires a separate written agreement and a separate licence fee.

• 4.5

  c) The usage consent shall only be deemed granted upon full payment of the agreed total fee.

• 4.6

  The customer shall be obliged to affix the photographer’s designation (copyright notice) clearly and legibly as follows on every use of the images: „Photo: [Name/Company Name of the Photographer]“ together with the year of first publication. This shall also apply if the image already bears a signature or watermark.

• 4.7

  The customer shall not be entitled to modify, crop, filter or overlay the images with other elements without the prior written consent of the photographer. Minor adjustments to the image framing as well as colour and brightness corrections shall be permissible, provided the overall impression of the image is not materially altered.

• 4.8

  The customer shall indemnify and hold the photographer harmless against all claims by third parties arising from unauthorised use of the images or from the infringement of third-party rights (in particular trademark rights, design rights, personality rights, right to one’s own image under § 78 UrhG). The customer shall be responsible for obtaining the necessary consents of the persons depicted (model releases) as well as of the owners of the objects depicted.

• 4.9

  The photographer shall be entitled to use the images created in the course of the order without restriction for their own self-promotion, in particular on their website, on social networks, in print media, at exhibitions, competitions and in publications (portfolio use). The customer may object to such use only in the presence of special circumstances (e.g. confidentiality agreement, ongoing court proceedings). Where third parties are recognisably depicted in the images, the customer shall ensure that the necessary consents are in place.

5Fees, Payment Terms, Default

• 5.1

  The fee shall be determined by the written agreement made, or alternatively by the photographer’s price list valid at the time the contract is concluded, or in the absence thereof by an appropriate fee (§ 1152 ABGB).

• 5.2

  Unless otherwise agreed, a deposit of 30 % of the estimated total fee shall be payable upon placement of the order. The remaining fee shall be due for payment without deduction within 14 days of invoicing. The deposit shall serve to reserve the appointment and shall be credited towards the total fee.

• 5.3

  All material, travel, accommodation and other incidental costs (in particular models, make-up artists, locations, props, laboratory work) are not included in the fee unless expressly otherwise agreed, and shall be invoiced separately.

• 5.4

  Changes to the scope of services requested by the customer after conclusion of the contract (e.g. additional images, special editing requirements, extension of the shooting time) shall be at the customer’s expense if they result in additional work. The photographer shall inform the customer of the estimated additional costs before implementing the changes.

• 5.5

  Conceptual services (consulting, moodboard creation, location scouting, storyboard) are not included in the shooting fee and shall be separately agreed and remunerated, provided they go beyond an initial non-binding consultation.

6Cancellation, Withdrawal, Termination

• 6.1

  The customer may cancel the contract at any time by written declaration (e-mail shall suffice). In such case, the photographer shall be entitled to the following:

• 6.2

  a) Cancellation up to 14 days before the agreed shooting date: a processing fee of € 30,– plus any costs already incurred and non-refundable.

• 6.3

  b) Cancellation between 7 and 14 days before the date: 30 % of the agreed fee plus any costs already incurred.

• 6.4

  c) Cancellation within 7 days before the date: 50 % of the agreed fee plus any costs already incurred.

• 6.5

  d) Non-appearance at the date or cancellation on the day of the shooting: 100 % of the agreed fee plus all costs incurred.

• 6.6

  The graduated cancellation terms take into account the fact that the photographer declines other orders as the appointment approaches and that a last-minute replacement booking becomes increasingly unlikely. Any deposit already paid shall be credited towards the cancellation fee; any excess amount shall be refunded.

• 6.7

  A fixed transaction (§ 919 ABGB) requires an express written agreement.

• 6.8

  The photographer shall be entitled to withdraw from the contract if the customer fails to fulfil their cooperation obligations (§ 2.4) despite written notice, or if circumstances arise that make performance of the shooting in accordance with the contract impossible (e.g. force majeure, official prohibitions, serious illness). Any deposits already paid shall be refunded in such case. The customer shall have no further claims.

• 6.9

  In the event of force majeure or unforeseeable events (e.g. severe weather, natural disasters, pandemics, official orders), both parties shall endeavour to agree on an alternative date. If no alternative date can be found, any deposit already paid shall be refunded; further claims shall not exist.

• 6.10

  The photographer may withdraw from the contract for good reason if the customer insults the photographer or damages their honour or artistic reputation, subjects the photographer to unfair criticism, or behaves disrespectfully. In such case, the right to the fee earned to date as well as to compensation for costs already incurred shall remain unaffected.

7TFP Agreements (Time for Prints / Time for Images)

• 7.1

  Where a shooting has been agreed on a TFP basis (gratuitous exchange of services), the following provisions shall apply in addition to the other provisions of these GTC.

• 7.2

  The photographer shall create images of the person depicted without charging a fee. In return, the photographer shall receive the unrestricted right in terms of time, territory and content to use the images for all purposes, in particular for portfolio, self-promotion, social media, exhibitions, competitions, publications and for commercial purposes (in particular sale, licensing to third parties, advertising campaigns).

• 7.3

  The person depicted shall receive an agreed number of digital images (generally 10–20 images) in print-ready resolution for exclusive self-promotional use (portfolio, sedcard, social media). Any commercial use of the images by the person depicted or any transfer to third parties shall not be permitted.

• 7.4

  No mutual remuneration shall take place. Each party shall bear its own expenses (travel, styling, catering), unless otherwise agreed in writing.

• 7.5

  The provisions of these GTC concerning copyright, attribution, prohibition of modification, liability and warranty shall apply mutatis mutandis.

8Warranty

• 8.1

  The customer shall be entitled to the statutory warranty rights under §§ 922 et seq. ABGB. For consumers (§ 1 KSchG), the limitation period for defect claims in respect of newly produced goods shall be two years from delivery of the service (§ 933 ABGB). For entrepreneurs, the limitation period shall be one year from delivery. The period shall begin to run upon provision of the images for download.

• 8.2

  Obvious defects shall be notified to the photographer in writing within 14 days of the provision of the images. In the case of hidden defects, this period shall begin at the time of discovery, but no later than the expiry of the statutory limitation period. Late notification of obvious defects shall not result in loss of rights for consumers (§ 6(1)(11) KSchG). For entrepreneurs, the warranty right shall lapse in the event of late notification.

• 8.3

  In the event of a defect, the customer shall be entitled to rectification (re-editing or re-shooting) at the photographer’s discretion. If rectification is impossible or involves disproportionate effort for the photographer, the customer may demand a reduction in price or withdraw from the contract. No liability shall be assumed for minor defects.

• 8.4

  Colour differences between different output media (in particular screen display vs. print) shall not constitute a defect, provided they are technically based and not significant.

• 8.5

  The artistic design (image framing, colour scheme, image style, perspective, depth of field) shall be at the photographer’s sole discretion and shall not constitute a defect, provided no deviating written agreement has been made.

9Liability

• 9.1

  The photographer shall be liable without limitation in all cases:

• 9.2

  a) for damages arising from injury to life, body or health;

• 9.3

  b) for damages attributable to intent or gross negligence;

• 9.4

  c) under the Product Liability Act (PHG).

• 9.5

  In cases of slight negligence, the photographer shall be liable only:

• 9.6

  a) for the breach of a material contractual obligation (cardinal obligation) whose fulfilment is essential to the proper performance of the contract and on whose observance the customer may rely – in such case, liability shall be limited in amount to the foreseeable, contract-typical damages existing at the time the contract was concluded;

• 9.7

  b) in all other cases (minor negligence without breach of a cardinal obligation), liability shall be excluded.

• 9.8

  In the event of loss of or damage to images (digital files, original negatives), the photographer shall be liable only for intent and gross negligence. Liability shall be limited to the costs of a free re-take, provided and to the extent that this is possible. Any further claims (in particular travel, accommodation and third-party costs as well as lost profits) shall be excluded. This limitation shall not apply to consumers insofar as it violates § 6 KSchG.

• 9.9

  Shipments (transmission of data carriers, prints, templates) shall be at the customer’s cost and risk. The photographer shall not be liable for transport damage or loss, unless the photographer is guilty of gross negligence.

• 9.10

  The customer shall indemnify and hold the photographer harmless against all claims by third parties arising from non-contractual use of the images, from infringement of third-party rights (in particular personality rights, copyright, trademark rights) or from unauthorised transfer to third parties. The indemnification shall also include the costs of reasonable legal defence.

10Payment Default

• 10.1

  In the event of payment default by the customer, the statutory default interest rates shall apply (§ 456 ABGB). For consumers, the default interest rate shall be 5 percentage points above the base rate; for entrepreneurs, 9.2 percentage points above the base rate. The base rate shall be the rate published by the Austrian National Bank (OeNB) for the respective period.

• 10.2

  The photographer shall be entitled to charge reasonable reminder fees of up to € 5,– per reminder upon the occurrence of default. The right to claim any additionally and demonstrably incurred costs (in particular costs of legal collection services) shall remain reserved.

• 10.3

  The photographer shall retain title to the delivered images (retention of title) until all fee and cost claims arising from the business relationship have been paid in full. In the event of payment default, the photographer shall be entitled to revoke the usage consent and prohibit further use of the images.

11Vouchers

• 11.1

  Vouchers can only be redeemed before completion of the ordering process. Subsequent offsetting is not possible. Only one voucher can be redeemed per order/shooting.

• 11.2

  Any remaining balance shall be paid out upon the customer’s request or may be redeemed in a subsequent order. Voucher balances shall neither be paid out in cash (unless requested by the customer) nor shall they accrue interest.

• 11.3

  Vouchers are transferable. The photographer may perform with discharging effect in favour of the respective holder. This shall not apply if the photographer has positive knowledge or is grossly negligent in lacking knowledge of the holder’s lack of authorisation.

12Data Protection

• 12.1

  The processing of personal data shall be carried out in accordance with the photographer’s privacy policy, available at /privacy.

• 12.2

  Insofar as required for the performance of the contract, the photographer shall process the customer’s personal data on the basis of Art 6(1)(b) GDPR (performance of contract) as well as for the fulfilment of statutory retention obligations under Art 6(1)(c) GDPR in conjunction with § 132 BAO.

• 12.3

  Processing for advertising purposes (in particular the sending of offers and newsletters) shall take place only on the basis of a separate, voluntary consent pursuant to Art 6(1)(a) GDPR and may be withdrawn at any time. The conclusion of the contract shall not be dependent on the granting of this consent.

13Applicable Law

• 13.1

  Austrian substantive law shall apply, excluding its conflict-of-laws provisions (IPR) and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

• 13.2

  For consumers whose habitual residence is in another EU Member State, the protection afforded by the mandatory consumer protection provisions of that State shall not be affected by the choice of law (Art 6(2) Rome I Regulation).

14Place of Performance and Jurisdiction

• 14.1

  The place of performance shall be the photographer’s place of business.

• 14.2

  For legal disputes with customers who are entrepreneurs (§ 1 KSchG) or public-law legal entities, the court having territorial jurisdiction over the photographer’s place of business shall be agreed as the place of jurisdiction. The photographer shall also be entitled to sue the customer at the customer’s general place of jurisdiction.

• 14.3

  For consumers (§ 1 KSchG), the statutory place of jurisdiction shall apply. A deviating jurisdictional agreement shall only be permissible after the dispute has arisen (§ 14 KSchG).

15Final Provisions

• 15.1

  Deviating agreements shall require written form to be legally effective. The written-form requirement shall also apply to any waiver of this written-form requirement.

• 15.2

  Should any provision of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the statutory provision that most closely reflects the economic purpose intended by the parties shall apply. A validity-preserving reduction of invalid clauses is excluded.

• 15.3

  In the event that the customer is a consumer, the provisions of the Consumer Protection Act (KSchG) shall apply mandatorily. Insofar as provisions of these GTC deviate from the statutory provisions applicable to consumers, the statutory provisions more favourable to the consumer shall take precedence.