General terms and conditions

Albrecht Voß I General Terms and Conditions for image productions, the delivery of images and the granting of licenses

1. Validity of the terms and conditions

1.1. The production of images, the delivery and electronic transmission of images, as well as the granting of image licenses by Albrecht Voß (“Photographer”) are carried out exclusively on the basis of these terms and conditions (GTC).

1.2. Terms and conditions of the contractual partner that deviate from the following conditions will not be recognized and will also not become part of the contract if the photographer does not expressly object to them.

1.3. The contractual partner (“Client”) is the party that commissions the photographer to produce images, requests images from the archive, or obtains rights of use (licenses).

2. Commissioned Productions

2.1. Order processing

2.1.1. The client is obliged to provide the photographer with free access to the locations and objects to be photographed. He must also ensure that the locations and objects are in a photographable condition and that the photographic work is not hindered by construction work or other disruptive circumstances.

2.1.2. The client is also obliged, in the case of photographs of people and photographs of locations and objects in which third-party copyrights, property rights, or other rights of third parties exist, to obtain the necessary consent or release declarations from the persons depicted and the rights holders for the creation and use of the images. The consent or release declarations must also extend to the exploitation of the images by the photographer (section 4.1.6.) and/or by third parties to whom the photographer grants rights of use or to whom he transfers such rights.

2.1.3. If photography is to take place on a construction site or in a location where there is an increased risk of accidents or where increased health risks cannot be ruled out, the client must ensure that the photographer and their staff can work safely by taking appropriate protective measures. The client is liable for all damages incurred by the photographer as a result of the failure to take necessary protective measures or to observe official or legal safety regulations.

2.1.4. If a shooting appointment cannot be carried out or completed due to weather conditions, the current situation on site, or for other reasons, the photographer must be informed in good time, and the photographer must be given the opportunity to make up for the shooting at a later date. The photographer is also entitled to a cancellation fee in accordance with section 2.2.8.

2.1.5. The photographer selects the images that they submit to the client for approval upon completion of the shooting. Rights of use are only granted for the images that the client approves as contractually compliant. No rights of use are transferred with the provision of images for viewing.

2.1.6. The client is obliged to examine the images submitted to them after completion of the shooting within a reasonable period and to notify the photographer of any defects. Notice of obvious defects must be given in writing within two weeks of delivery of the images, and notice of non-obvious defects within two weeks of discovery of the defect. To comply with the notification period, it is sufficient to send the notification in good time. In the event of a breach of the duty to inspect and give notice of defects, the images shall be deemed to have been approved with regard to the defect in question.

2.2. Fees and Additional Costs

2.2.1. Cost estimates provided by the photographer are non-binding. The photographer is only required to indicate cost increases if an overrun of more than 15% of the originally estimated total costs is to be expected.

2.2.2. If the time scheduled for the shooting is significantly exceeded for reasons for which the photographer is not responsible, an agreed fixed fee shall be increased accordingly. If a time-based fee has been agreed, the photographer shall also receive the agreed hourly or daily rate for the time by which the shooting is extended.

2.2.3. Additional services, in particular the production of images beyond the scope specified at the start of the contract, shall be remunerated separately according to time spent.

2.2.4. In addition to the fee owed, the client shall reimburse the additional costs incurred by the photographer in connection with the execution of the order (e.g. digital image processing, travel, overnight stays, model booking). The costs incurred by the photographer for particularly complex images (e.g. aerial photographs) or through the use of special technology (e.g. lifting platform, complex lighting systems) shall also be reimbursed separately.

2.2.5. The fee is due upon delivery of the images. If an image production is delivered in parts, the corresponding partial fee is due upon delivery of each part. If the execution of an order extends over a longer period, the photographer may demand payments on account in accordance with the work performed.

2.2.6. The additional costs shall be reimbursed as soon as they have been incurred by the photographer.

2.2.7. The fees and costs to be paid by the client are subject to value added tax at the respective statutory rate.

2.2.8. If a shooting appointment is cancelled, the photographer is entitled to claim a cancellation fee, unless the cancellation is solely the responsibility of the photographer. If a fixed fee has been agreed, the photographer shall receive a cancellation fee of 100% of the agreed fixed fee if the cancellation is made within 24 hours before the start of the shooting appointment, and a cancellation fee of 50% if the cancellation is made within 25 to 72 hours before the start of the shooting appointment. If a time-based fee has been agreed, the photographer shall receive a cancellation fee of 100% of the agreed hourly or daily rate if a cancellation is made within 24 hours before the start of the shooting appointment, and a cancellation fee of 50% if a cancellation is made within 25 to 72 hours before the start of the shooting appointment. In addition, the client shall reimburse the photographer for the additional costs incurred in connection with the cancelled shooting appointment.

3. Requesting Archive Images

3.1. Images that the client requests from the photographer's archive will be made available for viewing and selection for a period of one month from the date of the delivery note or loan receipt. If no license agreement is concluded within the selection period, all image data that the client has stored on their own data carriers must be deleted by the end of the period. The permanent archiving of images is not permitted without the prior written consent of the photographer.

3.2. No rights of use are transferred with the provision of images for viewing and selection. Any use requires the prior written consent of the photographer.

3.3. The use of the images as working templates for sketches or for layout purposes, as well as the presentation to clients, already constitutes a use subject to a fee.

3.4. The photographer may charge a processing fee for compiling the image selection, which is based on the nature and scope of the work involved and amounts to at least €30. Shipping costs (packaging, postage), including the costs for special shipping methods (taxi, air freight, express delivery), will be invoiced to the client separately.

3.5. Analogue images and image data carriers that are made available by the photographer to the client in accordance with section 3.1. for viewing and selection must be returned by the end of the selection period if no license agreement is concluded. If slide frames or films are opened, the photographer is entitled to calculate a layout fee – subject to further claims for payment – even if the images have not been used. If the return period for analogue images regulated in section 3.1. or agreed in the license agreement is exceeded, a blocking fee shall be paid in addition to the other costs and fees until the images are received by the photographer. The blocking fee is €1.50 per day and image, whereby the amount demanded for the individual image, irrespective of the respective blocking period, may not exceed the lump-sum compensation for the loss of the image provided for in section 5.5, sentence 2 of the terms and conditions. The client reserves the right to prove that the photographer has not suffered any damage as a result of the delayed return of the images or that the damage incurred is significantly lower than the blocking fee.

4. Acquisition and Scope of Rights of Use (Licenses), Use of Images

4.1. Rights of Use (Licenses)

4.1.1. The client only acquires simple, non-transferable and non-sublicensable rights of use to the photographic copyright in the contractually defined scope. In principle, only copyright rights of use to the images are granted. Ownership rights are not transferred. Delivered or electronically transmitted images always remain the property of the photographer.

4.1.2. Rights of use must be obtained for each use. Any use of the images is subject to a fee. The fee for the granting of the rights of use is based on the image fee list of the Mittelstandsgemeinschaft Foto-Marketing (mfm).

4.1.3. The rights of use to be granted according to the contract are only acquired by the client upon full payment of the fee and reimbursement of all additional costs. The online rights of use to be granted according to the contract are only acquired by the client upon establishment of technical protection measures in accordance with section 4.3.4.

4.1.5. The transfer of images to third parties and the transfer/sublicensing of the rights of use acquired by the client to/to third parties requires the prior written consent of the photographer. This also applies to the transfer of images to book, newspaper and magazine publishers and to the submission of images as part of participation in competitions. The photographer is entitled to make the granting of consent to the planned third-party use dependent on the payment of a reasonable fee.

4.1.6. In the case of commissioned productions, the photographer remains entitled to use the images for their own purposes without any restrictions regarding content, time, or location, irrespective of the scope of the rights of use acquired by the client.

4.2. Copyright notice

4.2.1. The photographer must be named as the author each time the image is used. The naming must be adjacent to the image. The correct form of attribution is: Albrecht Voss

4.3. Digital image processing

4.3.1. Digitization of analog images and the distribution of digital images via data transmission or on data carriers is only permitted to the extent that the exercise of the granted rights of use requires this form of duplication and distribution.

4.3.2. Image data may only be digitally archived for the client's own purposes and only for the duration of the right of use. The storage of image data in online databases or other digital archives that are accessible to third parties requires a separate agreement between the photographer and the client.

4.3.3. The digital images provided to the client contain metadata, so-called IPTC data, with information about the photographer as the author and the modalities and conditions of use. Removing or altering the metadata is not permitted without the prior explicit written consent of the photographer.

4.3.4. The client must implement technical protection measures that restrict access to the images provided to them and prevent the images reproduced on the internet with the photographer's consent from being embedded by third parties into their websites as embedded content, particularly by means of inline links and frames.

4.4. Third-party rights

4.4.1. The photographer grants the client only rights of use to the photographic copyright. The client is responsible for observing the personality, data protection, copyright, trademark, property, domestic, and other protective rights of depicted persons or of the owners of the rights to depicted locations and objects, such as buildings, items, artistic designs, decorations, names, and brands. The client is responsible for obtaining the necessary consents and release declarations from third parties. This does not apply if the photographer has expressly guaranteed the existence of the necessary consents, release declarations, or rights in written form.

4.4.2. In the case of commissioned productions, the client is obligated to obtain the necessary consents or release declarations from the depicted persons and rights holders for portrait shots and for shots of locations and objects on which third-party copyrights, property rights, domestic rights or other rights exist, which are required for the creation and use of the images. The consents or release declarations must also extend to the exploitation of the images by the photographer (section 4.1.6.) and/or by third parties to whom the photographer grants rights of use or to whom he transfers such rights.

4.4.3. The client shall indemnify the photographer against all claims, including the costs of legal defense and/or prosecution, arising from a breach of the obligation under section 4.4.2. The indemnification obligation does not apply if the client proves that they are not at fault.

4.4.4. The provisions according to sections 4.4.1. and 4.4.2. also apply if the photographer selects the persons or objects to be photographed, provided that he informs the client of the selection in good time so that the client can obtain the necessary consent and release declarations or select and provide other suitable persons or objects for the photographic work.

4.4.5. If the client of a commissioned production is himself the author or owner of the objects to be photographed, he is obligated to consent to the exploitation of the images by the photographer (section 4.1.6.), as well as to the use by third parties to whom the photographer grants rights of use or to whom he transfers such rights. The same applies in the event that the client has other property rights to the photographed objects and locations, or if he himself is depicted in portrait shots.

5. Liability and compensation for damages

5.1. The photographer is only liable for damages caused intentionally or through gross negligence by himself or his vicarious agents. Excluded from this are damages resulting from the breach of a contractual obligation that is of essential importance for achieving the purpose of the contract (cardinal obligation), as well as damages resulting from injury to life, limb, or health, for which the photographer is also liable in the event of slight negligence.

5.2. The photographer is not liable for the type of use of his images. In particular, he is not liable for the permissibility of the use under competition and trademark law.

5.3. Claims of the client resulting from a breach of duty by the photographer or his vicarious agents shall become statute-barred one year after the start of the statutory limitation period. Excluded from this are claims for damages based on an intentional or grossly negligent breach of duty by the photographer or his vicarious agents, and claims for damages due to injury to life, limb, or health, even if they are based on a slightly negligent breach of duty by the photographer or his vicarious agents; the statutory limitation periods apply to these claims for damages. 5.4. The sending and return of images are at the risk and expense of the client.

5.5. If analog images are lost within the client's area of risk or if such images are returned in a condition that precludes further use in accordance with customary practice, the client shall pay damages. In this case, the photographer is entitled to demand at least damages of €1,000 for each original and €200 for each duplicate, unless the client proves that no damage was incurred at all or that it was significantly lower than the required lump-sum compensation. The photographer reserves the right to assert a higher claim for damages.

6. Contractual penalty

6.1. In the event of culpable unauthorized use by the client, i.e. use of an image without obtaining the rights of use from the photographer or use of an image without the photographer's consent in the form of archiving (section 3.1.), modification and/or processing (section 4.1.4.), disclosure to third parties or transfer/sublicensing of rights of use to/to third parties (section 4.1.5.) or removal or alteration of the metadata (section 4.3.3.), the photographer is entitled to demand a contractual penalty of 500% of the total agreed fee for each case, i.e. for each realized unauthorized use, whereby the use of only one image and the realization of only one act of use is sufficient. Cumulation does not take place. If there is no agreement on the fee, a contractual penalty of 500% of the fee that would result per image for each use if the image fee list of the Mittelstandsgemeinschaft Foto-Marketing (mfm) valid at the time of the unauthorized use is applied shall be paid. Alternatively, the photographer may demand 500% of his usual fee as a contractual penalty if he proves that he usually charges a higher fee per image for the use in question than the fee shown in the mfm image fee list. Regardless of how the fee is determined in the specific case, the contractual penalty is at least €500.00 per image. The assertion of a claim for damages remains unaffected.

6.2. If the photographer is culpably not named in an image publication (section 4.2.1.) or if the naming does not take place with the image or as a watermark in the image when used on social media platforms or on media distribution platforms (section 4.2.2.), section 6.1. shall apply analogously with the proviso that the contractual penalty is not 500%, but 100% of the fee, but at least €200.00 per image. The photographer also reserves the right to assert a claim for damages in this respect.

7. Statute and jurisdiction

7.1. The law of the Federal Republic of Germany applies.

7.2. In the event that the client does not have a general place of jurisdiction in the Federal Republic of Germany or moves his registered office or habitual residence abroad after conclusion of the contract, the photographer's place of residence is agreed as the place of jurisdiction.