EN

2.2 In the case of portraits and photographs of objects in which third-party copyrights, property rights or other rights of third parties exist, the client is obliged to obtain the consent of the persons depicted and the rights holders required for the taking and use of the images. The client shall indemnify the photographer against any claims for compensation by third parties resulting from a breach of this obligation. The indemnification obligation shall lapse if the client proves that he is not at fault.

The above provision shall also apply if the photographer himself selects the persons or objects to be photographed, provided that he informs the client of the selection made in good time so that the client can obtain the necessary declarations of consent or select and provide other suitable persons or objects for the photographic work.

2.3 If, in the execution of the order, the services of a third party must be used or any other contract with third parties must be concluded, the photographer is authorized to enter into the corresponding obligations in the name of and for the account of the client.

2.4 The photographer shall select the images that he submits to the client for acceptance upon completion of the production. Usage rights shall be granted only to those images that the client accepts as being in conformity with the contract, provided full payment has been made (3.4).

2.5 The client is obliged to inspect the images submitted to him after completion of the photographic work within a reasonable period of time 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; notice of non-obvious defects must be given within two weeks of discovery of the defect. The notification period shall only be met if the notice is received within the two-week period. If the duty to inspect and notify is breached, the images shall be deemed approved with regard to the relevant defect.

3 Production Fee and Incidental Costs

3.1 If the time allotted for the photographic work is substantially exceeded for reasons for which the photographer is not responsible, any agreed flat fee shall be increased accordingly. If an hourly fee has been agreed, the photographer shall also receive the agreed hourly or daily rate for the period by which the photographic work is extended.

3.2 In addition to the fee owed, the client shall reimburse the incidental costs incurred by the photographer in connection with the execution of the order (e.g. for film material, digital image editing, photo models, travel).

3.3 The production fee is due upon delivery of the images. If an image production is delivered in parts, the corresponding partial fee shall be due upon delivery of each part. If the execution of an order extends over a longer period, the photographer may demand installment payments corresponding to the work performed.

3.4 The copyright usage rights shall not be acquired by the client until the fee has been paid in full and all incidental costs have been reimbursed.

4 Requesting Archive Images

4.1 Images requested by the client from the photographer's archive shall be made available for inspection and selection for a period of one month from the date of the delivery note. If no license agreement is concluded within the selection period, analog images and image media provided by the photographer must be returned by the expiry of the period, and all image data stored by the client on their own media must be deleted.

4.2 No usage rights are transferred when the images are made available for inspection and selection. Any use requires the photographer's prior written declaration of approval.

4.3 The use of the images as working templates for sketches or for layout purposes, as well as presentation to customers, already constitutes a chargeable use. If slide frames or transparencies are opened, the photographer is entitled - subject to any further claim for payment - to charge a layout fee, even if the images have not been used.

4.4 For compiling the selection of images, the photographer may charge a processing fee, which is based on the type and scope of the work involved and amounts to at least €30. The client shall additionally reimburse shipping costs (packaging, postage), including the costs of special shipping methods (taxi, air freight, express courier).

4.5 If the return period for analog image material regulated in 4.1 or agreed in the license agreement is exceeded, a blocking fee shall be payable until the images are received by the photographer, in addition to the other costs and fees. The blocking fee amounts to €1.50 per day and image, whereby for each individual image, regardless of the respective blocking period, no more than the amount provided for in 7.5 (sentence 2) of the terms and conditions as lump-sum compensation for loss of the image may be claimed. The client retains the right to prove that the photographer has suffered no damage from the late return of the images or that the damage incurred is substantially lower than the blocking fee.

5 Usage Rights

5.1 The client acquires only those usage rights in the images that are contractually specified. Ownership rights are not transferred. Regardless of the scope of the usage rights granted in each individual case, the photographer remains entitled to use the images for self-promotion.

5.2 The granting and transfer of the usage rights acquired by the client to third parties, including other editorial departments of a publisher, requires the photographer's written consent.

5.3 As a rule, the images may only be used in their original version. Any alteration or modification (e.g. montage, technical photographic manipulation, coloring) and any change in image reproduction (e.g. publication in excerpts) requires the photographer's prior consent. Excluded from this is only the removal of unintentional blurring or color weaknesses by means of electronic retouching.

5.4 The photographer must be credited as the author in any publication of the image. The credit must appear with the image.

6 Digital Image Processing

6.1 The digitization of analog images and the transmission of digital images by data transmission or on data carriers is permitted only to the extent that the exercise of the usage rights granted requires this form of reproduction and distribution.

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

6.3 When the images are digitally recorded, the photographer's name must be electronically linked to the image data. The client must also ensure by appropriate technical measures that this link is maintained in every data transmission, in the transfer of the image data to other data carriers, in display on a screen, and in every public reproduction, and that the photographer can be identified at any time as the author of the images.

7 Liability and Damages

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

7.2 The photographer assumes no liability for the manner in which his images are used. In particular, he is not liable for the legality of the use under competition or trademark law.

7.3 Claims of the client arising from a breach of duty by the photographer or his vicarious agents shall become time-barred one year after the statutory commencement of the 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, body or health, including insofar as they are based on a slightly negligent breach of duty by the photographer or his vicarious agents; the statutory limitation periods shall apply to these claims for damages.

7.4 The dispatch and return of images shall be at the client's risk and expense.

7.5 If analog images are lost within the client's sphere of risk or if such images are returned in a condition that precludes further use according to customary practice, the client shall be liable for damages. In this case, the photographer is entitled to claim damages of at least €1,000 for each original and €200 for each duplicate, unless the client proves that no damage
has occurred at all or that the damage is substantially lower than the lump-sum compensation claimed. The photographer reserves the right to claim higher damages.

7.6 In the event of unauthorized use, alteration, modification or transfer of an image, the photographer is entitled to demand a contractual penalty in the amount of five times the agreed usage fee or, in the absence of an agreement, five times the customary usage fee, but at least €500 per image and individual case. The right to assert further claims for damages remains unaffected.

7.7 If the photographer is not credited in an image publication (5.4) or if the photographer's name is not permanently linked to the digital image (6.3), the client shall pay a contractual penalty in the amount of 100 percent of the agreed usage fee or, in the absence of an agreement, the customary usage fee, but at least €200 per image and individual case. The photographer also reserves the right in this respect to assert further claims for damages.

8 Value Added Tax, Artists' Social Security Levy

The value added tax and the artists' social security levy, which may be incurred by the photographer for third-party services, shall be added to the fees, charges and costs to be paid by the client at the respective statutory rate.

9 Governing Law and Jurisdiction

9.1 The law of the Federal Republic of Germany shall apply.

9.2 The place of jurisdiction is Düsseldorf.

FOR SWITZERLAND

1 Validity of the Terms and Conditions

1.1 The production of images and the granting of image licenses shall be carried out exclusively on the basis of the following terms and conditions. These terms and conditions shall also apply to all future production and license agreements unless expressly agreed otherwise.

1.2 Terms and conditions of the client that deviate from the following terms and conditions shall not be recognized. Such deviating terms and conditions shall also not become part of the contract even if the photographer does not expressly object to them.

2 Production Orders

2.1 Cost estimates by the photographer are non-binding. The photographer need only notify cost increases if an overrun of the originally estimated total costs of more than 10 percent is to be expected.

2.2 In the case of portraits of persons and images of objects in which third-party copyrights, property rights, or other rights of third parties exist, the client is obliged to obtain the consent required for the creation and use of the images from the persons depicted and the rights holders. The client shall indemnify the photographer against claims for damages by third parties resulting from a breach of this obligation. The indemnification obligation does not apply if the client proves that he is not at fault. The above provision shall also apply if the photographer selects the persons or objects to be photographed himself, provided that he informs the client of the selection in good time so that the client can obtain the necessary declarations of consent or select and provide other suitable persons or objects for the photographic work.

2.3 If, in the execution of the order, the services of a third party must be used or another contract with third parties must be concluded, the photographer is authorized to enter into the corresponding obligations in the name and for the account of the client.

2.4 The photographer shall select the images that he presents to the client for acceptance upon completion of the production. Usage rights shall be granted only to the images that the client accepts as being in conformity with the contract, subject to full payment (3.4).

2.5 The client is obliged to inspect the images presented to him after completion of the photographic work within a reasonable period and to notify the photographer of any defects. Objections to obvious defects must be made in writing within two weeks after delivery of the images; objections to non-obvious defects must be made within two weeks after discovery of the defect. Timely dispatch of the objection shall suffice to meet the deadline for objections. If the duty to inspect and notify defects is breached, the images shall be deemed approved with regard to the relevant defect.

3 Production Fee and Incidental Costs

3.1 If the time allocated for the photographic work is significantly exceeded for reasons for which the photographer is not responsible, any agreed flat 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 any extension of the photographic work.

3.2 In addition to the agreed fee, the client shall reimburse the incidental costs incurred by the photographer in connection with the execution of the order (e.g. for film material, digital image editing, photo models, travel).

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

3.4 The client acquires the copyright-related usage rights only upon full payment of the fee and reimbursement of all incidental costs.

4 Request for Archive Images

4.1 Images requested by the client from the photographer’s archive are made available for viewing and selection for a period of one month from the date of the delivery note. If no license agreement is concluded within the selection period, analog images and image data carriers provided by the photographer must be returned by the end of the period, and all image data stored by the client on its own data carriers must be deleted.

4.2 No usage rights are transferred by making the images available for viewing and selection. Any use requires prior written release by the photographer.

4.3 For compiling the image selection, the photographer may charge a processing fee, which is based on the type and extent of the work involved and amounts to at least €30. Shipping costs (packaging, postage), including the costs of special shipping methods (taxi, air freight, courier), shall also be reimbursed by the client.

5 Usage Rights

5.1 The client acquires only such usage rights to the images as are contractually agreed. No ownership rights are transferred. Regardless of the scope of the usage rights granted in the individual case, the photographer remains entitled to use the images for his own promotional purposes.

5.2 The granting and transfer of the usage rights acquired by the client to third parties, including other editorial departments of a publishing house, requires the written consent of the photographer.

5.3 Use of the images is generally permitted only in their original form. Any alteration or modification (e.g. montage, technical distortion of the photograph, coloring) and any change in the presentation of the image (e.g. publication in excerpts) requires the prior consent of the photographer. The only exception is the removal of unintended blurring or color deficiencies by means of electronic retouching. In any publication of an image, the photographer must be credited as the author.

6 Digital Image Editing

6.1 The digitization of analog images and the transmission of digital images by remote data transmission or on data carriers is permitted only insofar as the exercise of the granted usage rights requires this form of reproduction and distribution.

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

6.3 When images are captured digitally, the photographer’s name must be electronically linked to the image data. The client must also ensure by suitable technical measures that this link is preserved in every data transfer, in the transfer of image data to other data carriers, in display on a screen, and in any public presentation, and that the photographer can be identified at any time as the author of the images.

7 Liability and Damages

7.1 The photographer is liable only for damages caused by himself or his vicarious agents intentionally or through gross negligence. This does not include damages resulting from the breach of a contractual obligation that is essential for achieving the purpose of the contract (cardinal obligation), as well as damages resulting from injury to life, body, or health, for which the photographer is also liable in cases of slight negligence.

7.2 The photographer assumes no liability for the manner in which his images are used. In particular, he is not liable for whether the use complies with competition law and trademark law.

7.3 Claims of the client arising from a breach of duty by the photographer or his vicarious agents shall become time-barred one year after the statutory commencement of the limitation period. This excludes 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, body, or health, even insofar as they are based on a slightly negligent breach of duty by the photographer or his vicarious agents; the statutory limitation periods shall apply to these claims for damages.

7.4 Sending and returning images shall be at the client’s risk and expense.

7.5 In the event of unauthorized use, alteration, modification, or transfer of an image, the photographer is entitled to demand a contractual penalty in the amount of five times the agreed usage fee or, if no fee has been agreed, five times the customary usage fee, but at least CHF 500 per image and individual case. The assertion of further claims for damages shall remain unaffected.

8 Value Added Tax

8.1 The value added tax applicable at the statutory rate shall be added to the fees, charges, and costs payable by the client.

9 Governing Law and Jurisdiction

9.1 The exclusive place of jurisdiction and place of performance is the photographer’s place of residence or business, including for deliveries abroad. Substantive Swiss law shall apply to this contractual relationship. Mandatory places of jurisdiction remain reserved.