Caio Kauffmann

I. Applicability and Scope of the General Terms and Conditions

1.1 The following terms and conditions apply when the photographer's contracting party is an entrepreneur within the meaning of § 1 KSchG (Austrian Consumer Protection Act).

1.2 The photographer provides services exclusively on the basis of the following general terms and conditions. By placing an order, the client acknowledges their applicability. These terms also apply to all future business relationships, even if not expressly referred to, unless the photographer announces changes. Any general terms and conditions of the contracting party do not become part of the contract.

1.3 Should individual provisions of these General Terms and Conditions be invalid, this does not affect the validity of the remaining provisions of the contracts concluded under them. An invalid provision shall be replaced by a valid one that comes closest to its meaning and purpose.

1.4 The photographer's offers are non-binding and without obligation.

II. Copyright Provisions

2.1 All copyright and ancillary copyright protection rights of the photograph producer (§§1, 2 para. 2, 73ff UrhG - Austrian Copyright Act) belong to the photographer. Usage permissions (publication rights, etc.) are only granted upon express agreement. In this case, the contracting party acquires a simple (non-exclusive and non-excluding), non-transferable usage permission for the expressly agreed purpose of use and within the agreed limits (edition number, time and geographical restrictions, etc.); in case of doubt, the scope of use stated in the invoice or delivery note is decisive. In any case, the contracting party only acquires as many rights as correspond to the disclosed purpose of the contract (order placed). Unless otherwise agreed, the usage permission is only granted for a single publication (in one edition), only for the expressly designated medium of the client, and not for advertising purposes.

2.2 With every use (reproduction, distribution, broadcast, etc.), the contracting party is obligated to clearly and legibly display the producer designation (name credit) or copyright notice in the sense of the UCC (Universal Copyright Convention), particularly not rotated and in normal letters, directly next to the photograph or at another location in the publication/website clearly assignable to it. Example:

Photo: Caio Kauffmann

In any case, this provision constitutes the attachment of the producer designation within the meaning of § 74 para. 3 UrhG. If the photograph is signed on the front (in the image), publishing this signature does not replace the producer notice described above.

2.3 Any alteration of the photograph requires the written consent of the photographer. This only does not apply if the change is necessary according to the contractual purpose known to the photographer.

2.4 The usage permission is only considered granted upon complete payment of the agreed recording and usage fee and only if a proper producer designation/name credit (point 2.2 above) is made.

2.5 In case of publication, two free specimen copies must be sent. For expensive products (art books, video cassettes), the number of specimen copies is reduced to one. For online publication, the web address must be communicated to the photographer.

III. Ownership of Film Material – Archiving

3.1.1 Analog Photography - The ownership rights to the exposed film material (negatives, slides, etc.) belong to the photographer. The photographer provides the contracting party with the photographs necessary for the agreed use against agreed and appropriate compensation. Until complete payment of the purchase price, the delivered photographs remain the property of the photographer. Slides and negatives are only provided to the contracting party on loan for return after use at the contracting party's risk and expense, unless otherwise agreed in writing.

3.1.2 Digital Photography - Ownership of the image files belongs to the photographer. A right to handover of digital image files only exists upon express written agreement and concerns – if no different agreement exists – only a selection and not all image files produced by the photographer. In any case, the usage permission only applies to the extent of point 2.1.

3.2 Reproduction or distribution of photographs in online databases, electronic archives, on the Internet or intranets not intended only for the client's internal use, on diskettes, CD-ROMs, or similar data carriers is only permitted based on a special agreement between the photographer and the client. The right to a backup copy remains unaffected.

3.3 The photographer will archive the recording without legal obligation for a period of 6 months. In case of loss or damage, the contracting party has no claims whatsoever.

IV. Labeling

4.1 The photographer is entitled to mark the photographs and digital image files with their producer designation in any manner deemed suitable (including on the front side). The contracting party is obligated to ensure the integrity of the producer designation, particularly when permitted transfer to third parties (printers, etc.). If necessary, the producer designation must be attached or renewed. This also applies particularly to all reproduction materials created during production or when making copies of digital image files.

4.2 The contracting party is obligated to store digital photographs in such a way that the producer designation remains electronically linked to the images, so that it is preserved during any type of data transmission and the photographer can be clearly and unambiguously identified as the author of the images.

V. Secondary Obligations

5.1 The contracting party is responsible for obtaining any required third-party usage permissions and consent for the depiction of persons. They hold the photographer harmless in this regard, particularly regarding claims arising from the right to one's own image pursuant to § 78 UrhG as well as regarding claims for use pursuant to § 1041 ABGB (Austrian Civil Code). The photographer only guarantees the consent of rights holders in case of express written assurance for the contractual purposes of use (point 2.1).

5.2 Should the photographer be commissioned by the contracting party for electronic processing of third-party photographs, the client assures that they are authorized to do so and indemnifies the photographer from all third-party claims based on a violation of this obligation.

5.3 The contracting party undertakes to collect any recording objects immediately after the shoot. If these objects are not collected within two working days after request, the photographer is entitled to charge storage costs or to store the items at the client's expense. Transport and storage costs are borne by the client.

VI. Loss and Damage

6.1 In case of loss or damage of commissioned recordings (slides, negative material, digital image files), the photographer is only liable – regardless of legal title – for intent and gross negligence. Liability is limited to own fault and that of employees; for third parties (laboratories, etc.), the photographer is only liable for intent and gross negligence in selection. Any liability is limited to material costs and free repetition of the recordings (if and to the extent possible). The client has no further claims; the photographer is particularly not liable for any travel and accommodation expenses, third-party costs (models, assistants, makeup artists and other recording personnel), or for lost profits, consequential damages, and immaterial damages. Damage claims only exist if the injured party proves gross negligence. Claims for damages expire after 3 months from knowledge of damage and damaging party, but in any case 10 years after provision of service or delivery.

6.2 Point 6.1 applies accordingly in case of loss or damage of submitted templates (films, layouts, display pieces, other templates) and submitted products and props. More valuable items must be insured by the contracting party.

VII. Early Termination

The photographer is entitled to terminate the contract with immediate effect for important reasons. An important reason exists particularly when insolvency or composition proceedings are opened against the contracting party's assets, or an application for opening such proceedings is rejected due to lack of cost-covering assets, or the customer suspends payments, or there are justified concerns regarding the contracting party's creditworthiness and they fail to make advance payments or provide suitable security after the photographer's request, or execution of services becomes impossible for reasons attributable to the contracting party or continues to be delayed despite a 14-day grace period, or the contracting party continues to violate essential contractual obligations despite written warning with a 14-day grace period, such as payment of a due installment or cooperation obligations.

VIII. Performance and Warranty

8.1 The photographer will carefully execute the order. They may also have the order executed – in whole or in part – by third parties. Unless the contracting party gives written instructions, the photographer is free regarding the manner of executing the order. This applies particularly to image composition, selection of photo models, shooting location, and photographic means used. Deviations from previous deliveries do not constitute a defect as such.

8.2 No liability is assumed for defects attributable to incorrect or imprecise instructions from the contracting party (§ 1168a ABGB). In any case, the photographer is only liable for intent and gross negligence.

8.3 The contracting party bears the risk for all circumstances not related to the photographer's person, such as weather conditions for outdoor shots, timely provision of products and props, model cancellations, travel impediments, etc.

8.4 Shipments travel at the contracting party's cost and risk.

8.5 The photographer reserves the right – apart from cases where the contracting party is legally entitled to rescission – to fulfill warranty claims at their choice through repair, replacement, or price reduction. The contracting party must always prove that the defect already existed at the time of handover. Goods must be inspected immediately after delivery. Defects discovered must be reported to the photographer in writing immediately, but no later than within 8 days after delivery, specifying the type and extent of the defect. Hidden defects must be reported immediately after discovery. If no or no timely complaint is made, the goods are deemed approved. Assertion of warranty or damage claims including consequential damages and the right to challenge for error based on defects are excluded in these cases. The warranty period is 3 months.

8.6 No liability exists for insignificant defects. Color differences in reorders do not constitute a significant defect. Point 6.1 applies accordingly.

8.7 Liability for fixed order deadlines only exists upon express written agreement. In case of any delivery delays, 6.1 applies accordingly.

8.8 Minor delivery deadline overruns must be accepted in any case without the contracting party being entitled to damages or withdrawal.

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

IX. Remuneration / Fee

9.1 Unless expressly agreed otherwise in writing, the photographer is entitled to remuneration (fee) according to their currently valid price lists, otherwise an appropriate fee.

9.2 The fee is also due for layout or presentation recordings and when utilization does not occur or depends on third-party decisions. In this case, no price reductions are granted on the recording fee.

9.3 All material and other costs (props, products, models, travel costs, accommodation expenses, makeup artists, etc.), even if procured through the photographer, must be paid separately.

9.4 Changes desired by the contracting party during the execution of work are at their expense.

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

9.6 If the contracting party withdraws from executing the order for reasons within their sphere, the photographer is entitled to the agreed remuneration unless otherwise agreed. In case of absolutely necessary schedule changes (e.g., due to weather conditions), a fee corresponding to the effort expended or reserved and all incidental costs must be paid.

9.7 The net fee is understood plus value-added tax at its respective statutory rate.

9.8 The contracting party waives the possibility of set-off.

X. License Fee

Unless expressly agreed otherwise in writing, the photographer is separately entitled to usage compensation in the agreed or appropriate amount when granting a usage permission.

XI. Payment

11.1 Unless otherwise expressly agreed in writing, an advance payment of 50% of the estimated invoice amount must be made when placing the order. Unless expressly agreed otherwise in writing, the remaining fee – if determinable by the contracting party – is due for payment (transfer) immediately after completion of the work, otherwise after invoicing. Invoices are payable without any deduction and free of charges. Payment is only considered made upon notification to the photographer of receipt of payment.

11.2 For orders comprising several units, the photographer is entitled to invoice after delivery of each individual service.

11.3 In case of payment default by the contracting party, the photographer is entitled – without prejudice to any exceeding damage claims – to charge default interest at 5 percent above the base interest rate annually.

11.4 Insofar as delivered images become the property of the contracting party, this only occurs upon complete payment of the recording fee including incidental costs. Asserting the retention of title does not constitute withdrawal from the contract unless expressly declared.

XII. Data Protection

The contracting party acknowledges the following data protection notice, unless a more comprehensive notice has been received, and confirms that the photographer has thereby fulfilled their information obligations: The photographer as controller processes the contracting party's personal data as follows:

12.1 Purpose of data processing - The photographer processes the personal data mentioned in point 12.2 for the execution of the concluded contract and/or the orders requested by the contracting party, or for the use of images for the photographer's advertising purposes, and beyond that the additionally disclosed personal data for the photographer's own advertising purposes.

12.2 Processed data categories and legal bases of processing - The photographer processes personal data, namely name, address, telephone and fax number, email addresses, bank details, and image data, to achieve the purposes mentioned in point 12.1.

12.3 Transmission of the contracting party's personal data - For the above-mentioned purposes, the contracting party's personal data will be transmitted to recipients to be named by name if this is the content of the contract, upon request by the contracting party, namely in particular to third parties close to the concluded contract, if this is the content of the contract, media, should an agreement exist with the contracting party in this regard, and possibly third parties involved in contract processing.

12.4 Storage duration - The contracting party's personal data will only be retained by the photographer as long as reasonably deemed necessary to achieve the purposes mentioned in point 12.1 and as permitted under applicable law. The contracting party's personal data will be stored as long as statutory retention obligations exist or limitation periods for potential legal claims have not yet expired.

12.5 The contracting party's rights in connection with personal data - Under applicable law, the contracting party is entitled, among other things: to check whether and which personal data the photographer has stored, to receive copies of this data, excluding the photographs themselves; to demand correction, supplementation, or deletion of their personal data that is incorrect or not processed in accordance with the law; to request the photographer to restrict the processing of personal data if the legal requirements are met; to object to the processing of their personal data under certain circumstances or to revoke consent previously given for processing; to demand data portability; to know the identity of third parties to whom personal data is transmitted; to file a complaint with the competent authority if the legal requirements are met.

12.6 Contact details of the controller - Should the contracting party have questions and concerns about the processing of their personal data, they can contact the photographer known to them by name and address.

XIII. Use of Images for the Photographer's Advertising Purposes

The photographer is entitled – unless an express written agreement to the contrary exists – to use photographs produced by them for advertising their activities. The contracting party gives their express and irrevocable consent to publication for the photographer's advertising purposes and waives the assertion of any claims, particularly arising from the right to one's own image pursuant to § 78 UrhG as well as claims for use pursuant to § 1041 ABGB. The contracting party also gives their consent, taking into account the applicable data protection regulations, that their personal data and particularly the produced photographs are processed in the sense of publication for the photographer's advertising purposes.

XIV. Final Provisions

14.1 The place of performance and jurisdiction is the photographer's place of business. In case of relocation, actions may be brought at both the old and new place of business.

14.2 Any recourse claims that contracting parties or third parties direct against the photographer under the title of product liability within the meaning of the PHG (Product Liability Act) are excluded unless the person entitled to recourse proves that the fault was caused in the photographer's sphere and was at least grossly negligent. Otherwise, Austrian substantive law applies. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. The contract language is German.

14.3 These General Terms and Conditions apply analogously to images, film works, or motion pictures produced by photographers according to order, regardless of the method and technique used (film, video, etc.).