Terms and Conditions – Bubnevich Photography

PROFESSIONAL PHOTOGRAPHER SVIATLANA BUBNEVICH TERMS AND CONDITIONS

1. Applicability and Validity of the Terms and Conditions

1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to contracts concluded between Professional Photographer Sviatlana Bubnevich (hereinafter referred to as “Photographer”) and businesses or consumers within the meaning of Section 1 of the Consumer Protection Act (KSchG).

1.2 Unless expressly agreed otherwise, the Photographer shall conclude contracts exclusively on the basis of these GTC. By placing an order, the Client acknowledges their exclusive applicability. These General Terms and Conditions shall also apply to all future business relations – unless the Photographer notifies the Client of a change – even if no separate reference is made to them when concluding future contracts. The inclusion of conflicting or supplementary contractual terms and conditions of the Client is expressly rejected. Without exception, these are only valid if and insofar as they have been agreed in writing in the individual case. In particular, the Photographer’s performance of the contract shall not be deemed to constitute consent to any contractual terms and conditions that deviate from these General Terms and Conditions

1.3 The production of photographic images (in short “images”) and of films and the granting of image licenses and film licenses (rights of use) shall take place exclusively on the basis of these GTC. These GTC shall also apply to all future production and license agreements, unless deviating provisions are expressly agreed.

1.4 Should individual provisions of these GTC be legally ineffective, invalid and/or void or become so in the course of time, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. An ineffective (invalid or void) provision shall be replaced by an effective provision that comes closest to it in terms of its meaning and purpose. The inclusion of deviating general terms and conditions of the Client is hereby expressly rejected.

2. Offer and Conclusion of Contract

2.1 The Photographer’s cost estimates and/or offers are subject to change and non-binding. This shall also apply to all information contained in price lists, brochures, etc. The Photographer shall only be required to give notice of any cost increases if the total costs originally estimated are expected to be exceeded by more than 15 percent.

2.2 An order may be placed with the Photographer in writing (by letter, e-mail, fax, etc.) or verbally (in person, by telephone). The Photographer shall send or hand over an order confirmation to the Client within a reasonable period of time after receipt of the order and shall send the current version of the GTC (acceptance of offer) or inform the Client that the order has been rejected. Acceptance of the offer shall constitute a legally binding contract between the Photographer and the Client, which shall trigger the mutual obligation to perform.

3. Performance, Selection and Acceptance, Delay of the Photographer

3.1 The Photographer may also have the order executed – in whole or in part – by third parties (laboratories, etc.). The Photographer shall be free with regard to the manner of execution of the order. This shall apply in particular to the image conception, the selection of the photographic models, the location and the optical-technical (photographic) means used. Insofar as anything to the contrary has been agreed, the Client shall give instructions in writing.

3.2 The Photographer shall send Images at the Client’s risk and expense. The return of Images to the Photographer shall be at the risk and for the account of the Client.

3.3 Delivery/performance dates and deadlines stated by the Photographer are only approximations and are not binding unless they have been expressly confirmed as binding in writing. No claims against the Photographer may be derived from non-compliance with non-binding delivery/service deadlines and dates.

3.4 If binding delivery dates or delivery periods have been agreed, the Customer may – unless it is a transaction for delivery by a fixed date within the meaning of Section 3.5 – withdraw from the contract in the event of a delay in delivery after setting a reasonable grace period of at least two weeks. The withdrawal from the contract shall be asserted by registered letter. The right of withdrawal shall only apply to the part of the delivery or service for which there is a delay. At the Photographer’s request, the Client shall be obliged to declare without delay whether the Client wishes to withdraw from the contract on account of the delay or insists on performance of the contract. The Client shall only be entitled to claim damages on account of the Photographer’s delay if the Client can prove that the Photographer caused the delay intentionally or by gross negligence and that the Client suffered material damage as a result. Minor delays in delivery shall not entitle the Client to claim damages.

3.5 If performance is stipulated at a fixed time or within a fixed period in the event of other withdrawal (expressly referred to as a “fix” as a warning) and the Photographer is in delay, the agreement shall be deemed to have been terminated without further action unless the Client immediately notifies the Photographer that the Client continues to insist on performance of the agreement. In this case, the right of use expires for images that have already been transferred.

3.6 Production orders: Upon completion of the production, the Photographer shall create a pre-selection of images to be sent to the Client for selection via a digital file transfer service to the email address provided by the Client no later than 5 days after the completion of the production. The pre-selection shall be sent in reduced resolution and, if applicable, with a watermark. The Client shall inform the Photographer of the desired images within 7 days at the latest, and the Photographer shall then transmit the desired image files electronically (“Transmission”). The images are available for download for 14 days. Subject to payment in full (4.7), rights of use shall only be granted in respect of those Photographs which the Client accepts as being in conformity with the Agreement.

3.7 According to § 377 of the Austrian Commercial Code (UGB), the Customer shall be obligated to notify us in writing of the defect immediately after receipt of the delivery or service, at the latest within 8 working days, and of hidden defects within 3 working days after discovery. The complaint must be sufficiently substantiated and supported by evidence.

4. Production Fee and Incidental Expenses

4.1 The Photographer shall be entitled to a remuneration for his services (fee) in accordance with his offer as currently valid, but if the service was not provided for in the offer, in accordance with his price lists as currently valid, otherwise an appropriate fee. In the absence of any express agreement to the contrary, the Photographer shall offer shooting work as production half-days or full production days. Unless otherwise offered, the fee for a production (half) day shall include the shooting fee, the material costs as well as the work usage fee for the granting of the right of use within the scope of Section 5.

4.2 Conceptual services (consulting, layout, other graphic services, etc.) and other expenses for props, models, travel expenses, subsistence expenses, make-up artists, etc. are not included in the production fee and shall be charged separately. The same applies to above-average organizational or meeting expenses.

4.3 Prices are quoted in euros and are understood to be “ex works” plus VAT at the respective statutory rate and plus any ancillary costs, such as postage and packaging, freight, customs duties, insurance, etc. The Photographer is not bound by previous prices in the case of follow-up orders.

4.4 If the time allotted for the shooting work is significantly exceeded for reasons for which the Photographer is not responsible, an agreed flat fee shall be increased accordingly. A substantial overrun is in any case an overrun of more than 10% or of 30 minutes or more. If a time fee has been agreed, the Photographer shall also receive the agreed hourly or daily rate for the time by which the shooting work is extended.

4.5 Any changes requested by the Client in the course of the execution of the order shall be at the Client’s expense and shall be charged separately.

4.6 The production fee shall be due concurrently with the delivery of the images in accordance with Section 3.6. If a picture 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 of time, the Photographer may demand partial payments in accordance with the amount of work performed.

4.7 The Client shall not acquire the rights of use under copyright law until the fee has been paid in full and all incidental costs have been reimbursed.

5. Rights of Use and Copyright Regulations, Self-Promotion of the Photographer

5.1 Photographs and cinematographic works (collectively referred to as “Images”) are copyrighted works within the meaning of Sections 1, 3, 4 of the Austrian Copyright Act (hereinafter referred to as “UrhG”). All copyrights and ancillary copyrights of the producer ( Sections 14ff, 73ff UrhG) shall belong to the Photographer without exception. The copyright itself is not transferable. The Photographer has (with the exception of the rights standardized in Section 42 UrhG) the exclusive right of exploitation, i.e. the exclusive right to reproduce the photograph, to distribute it, to present it to the public by means of optical devices, to broadcast it by broadcasting service or in a similar manner and to make it available to the public. Use by the Client shall only be permissible in accordance with a work use authorization granted by the Photographer to the Client (hereinafter referred to as the “Right of Use”) in accordance with Section 5.2 ff. below, unless expressly agreed otherwise in detail. Section 75 UrhG shall not apply.

5.2 Irrespective of the scope of the rights of use granted in the individual case, the Photographer shall be entitled – in the absence of an express written agreement to the contrary – to use Photographs produced by him/her to advertise his/her activities (self-promotion).The Contractual Partner shall give his/her express and irrevocable consent to the publication for the Photographer’s advertising purposes and shall waive the assertion of any claims, in particular from the right to his/her own image pursuant to Section 78 of the UrhG (Copyright Act) and from claims for use pursuant to Section 1041 of the ABGB (Austrian Civil Code).

5.3 With the purchase of a copyrighted work, regardless of whether in paper form or digitally, the Client acquires a simple (non-exclusive and non-exclusionary), non-transferable (assignable) authorization to use the work for the expressly agreed purpose and within the agreed limits (circulation number, time and place restrictions, etc.). In case of doubt, the scope of use stated in the offer or the order confirmation shall be decisive. In any case, the Client acquires only as many rights as correspond to the disclosed purpose of the contract (order placed).

5.4 The granting of rights of use by the Photographer to the Client shall generally be for one of the following purposes:

(a) for a use of the Images on the Internet, e.g. on the Client’s own website and / or for the Client’s appearance on social media (“Internet”), or

(b) for the production of printed matter using the Images, such as annual reports, brochures, flyers, business cards, etc., excluding large posters and public space (“Print”), or

5.5 The granting of rights of use for the types of use Internet or print in accordance with item 5.3 does not entitle the Client to use them also for the other type of use in each case, unless this is expressly agreed and remunerated accordingly by the Client. In particular, the types of use large poster 8/10, digital boards, rolling boards, city lights and other uses in public spaces are only permitted if expressly agreed.

5.6 Unless otherwise agreed, rights of use for the type of use “Print” and other types of use pursuant to item 5.4. (c) shall only be granted for a one-time publication (in a print run), and only for the Client’s expressly designated medium in the agreed geographical distribution area. Rights of use for the types of use “Internet” and other types of use defined in the order shall be granted for a period of two (2) years, after which the rights of use shall end automatically. The Photographer’s claim to remuneration shall also apply during any unauthorized further use, without prejudice to any further claims. In general, in the absence of any agreement to the contrary, the right of use shall be deemed granted only for the Client’s expressly designated medium and not for advertising purposes. In addition, the Client within the meaning of Section 42 UrhG is in any case entitled to make individual copies for his own and private use.

5.7 The granting and transfer as well as the pledging of the rights of use acquired by the Client to any third party, including, for example, the transfer to other editorial offices of a publishing house, shall require the Photographer’s written consent.

5.8 Use of the images is generally only permitted in the original version. Any editing, modification or alteration (e.g. montage, phototechnical alteration, coloring) and any change in the reproduction of the image (e.g. publication in excerpts) shall require the Photographer’s prior consent, unless the changes are required in accordance with the purpose of the contract as known to the Photographer.

5.9 Reproduction or dissemination of Photographs/Films in online databases, in electronic archives, on the internet or in intranets which are not intended solely for the Client’s internal use, on diskettes, CD-ROMs, USB sticks or similar data carriers shall only be permitted on the basis of a special written agreement between the Photographer and the Client. The right to make a backup copy shall remain unaffected.

5.10 (Copyright designation) The Photographer shall be entitled to provide the Photographs as well as the digital image files with his copyright designation in any manner he deems suitable (also on the front). The Client shall ensure that the Photographer is named as the copyright holder in every publication of the Photographs (including in the case of permitted disclosure to third parties), that the designation is made on the Photograph itself and that digital Photographs are stored in such a way that the copyright holder’s designation remains electronically linked to the Photographs in every type of data transmission, so that the Photographer can be clearly and unambiguously identified as the copyright holder of the Photographs. Any waiver of the author’s designation shall be remunerated separately. In the case of publication on the Internet, the Photographer shall be informed of the web address. In the case of cinematographic works, a customary attribution of the author must be made in the opening or closing credits.

5.11 In the event of an infringement of copyright and/or ancillary copyright, the Photographer shall be entitled to civil law claims for injunctive relief, removal of the infringement, reasonable compensation, damages, publication of a judgment, etc. in accordance with Sections 81 ff of the UrhG. The Photographer shall be entitled to these claims irrespective of any fault on the part of the Client, with the exception of claims for damages. In the event of a breach of the obligation to name the producer, the Photographer shall be entitled to at least an amount equivalent to the reasonable remuneration (Section 86 UrhG) as immaterial damage (Section 87 (2) UrhG), irrespective of any additional pecuniary damage (Section 87 (1) UrhG).

6. Ownership of the Footage and Image Files, Archiving

6.1 (Analog Photography) The Photographer shall be entitled to the ownership of the exposed film material (negatives, slides, etc.). The Photographer shall transfer ownership of the film material required for the agreed use to the Client in return for an agreed and reasonable fee. Unless otherwise agreed in writing, slides shall only be made available to the Client on loan against return after use at the risk and expense of the Client for use to the extent of the authorization for use pursuant to Section 5.

6.2 (Digital photography and film) The Photographer shall be entitled to ownership of the image files and film files. The right to transfer digital files and to use them to the extent of the permission to use them pursuant to Section 5 shall exist only upon express written agreement and, in the absence of any express agreement to the contrary, shall relate only to the selection of the produced image files to be mutually determined between the Photographer and the Client pursuant to Section 3.6.

6.3 The Photographer shall archive digital images without legal obligation for a period of two years. In the event of loss or damage, the Client shall not be entitled to any claims.

6.4 The digitization of analog images by the Client and the transfer of digital images by way of remote data transmission or on data carriers shall only be permitted to the extent that the exercise of the rights of use granted requires this form of reproduction and distribution.

6.5 Unless otherwise agreed, image data may only be digitally archived for the Client’s own purposes and only for the duration of the right of use. Storage of the image data in online databases or other digital archives accessible to third parties shall require a separate agreement between the Photographer and the Client.

6.6 When the images are captured digitally, the name of the Photographer must be electronically linked to the image data. The Client must also ensure by means of suitable technical precautions that this link is retained in every data transmission, in the transfer of the image data to other data carriers, in reproduction on a screen and in every public reproduction and that the Photographer can be identified as the originator of the images at all times.

6.7 No rights of use shall be transferred until the fee has been paid in full and the goods (e.g. physical workpieces) shall remain the Photographer’s property. The Client shall bear the entire risk for the reserved goods, in particular the risk of destruction, loss or deterioration.

7. Payment

7.1 Unless a payment term has been expressly agreed in writing, the fee shall be due for payment immediately upon presentation of the invoice. If a payment term has been agreed, the invoices shall be due for payment no later than 14 working days after the invoice has been issued, free of charges and deductions, and received by the Photographer.

7.2 The Photographer shall be entitled to demand payment on account from the Client prior to commencement of the execution of the order and to issue partial invoices for orders for divisible services.

7.3 The Photographer is entitled to use payments, irrespective of their dedication, to settle the oldest due debt and the delay interest and costs accrued thereon in the order: costs, interest, principal claim.

7.4 In the event of delay in payment, interest on arrears shall be charged at a rate of 9.2% above the base interest rate p.a. and compound interest at the statutory rate, irrespective of fault. In addition, the Client shall be obliged to reimburse the Photographer for all costs incurred for the purpose of collecting the debt, such as lawyers’ fees and the costs of collection agencies, and to compensate the Photographer for any further damage, including in particular any damage caused by the fact that higher interest is charged on any credit accounts as a result of non-payment. This shall in any case include a lump sum in the amount of € 40.00 as compensation for collection costs pursuant to Section 458 UGB.

7.5 If the Client is in delay with a (partial) payment or if circumstances become known which are likely to reduce the Client’s creditworthiness (e.g. opening of insolvency proceedings or rejection of an insolvency petition due to lack of assets to cover costs), the Photographer shall be entitled to declare outstanding but not yet due invoice amounts from the business relationship immediately due and payable, as well as to withhold outstanding deliveries or services until the due claims have been paid in full and to perform them only against advance payment or provision of security. If the Client fails to meet these obligations, the Photographer shall be entitled to withdraw from all contracts concluded with the Client without setting a grace period. This shall not affect the right to reclaim the products delivered under retention of title at the Client’s expense or to claim damages.

7.6 The Client shall only be entitled to set off their own claim against the Photographer if the Photographer is insolvent and the Client’s claim is legally related to the Client’s liability or the claim has been legally established by a court or recognized by the Photographer.

7.7 The Client’s right of retention against the Photographer’s claims due to defective performance or the assertion of warranty claims is expressly excluded.

8. Obligations of the Client

8.1 The Client is obligated to cooperate as necessary in the fulfillment of the order and to support the Photographer to the best of his ability.

8.2 In the case of photographs of persons and objects in which third party copyrights, proprietary rights or other rights of third parties exist, the Client shall obtain in advance any necessary work use permits from third parties for the production and use of the images, e.g. with regard to depicted objects (e.g. works of fine art, samples and models, trademarks, photographic originals, etc.) and/or any necessary consent to the depiction of persons (e.g. models) from the persons depicted and/or the holders of rights or work use permits. The Client shall indemnify and hold the Photographer harmless from and against any claims for damages by third parties resulting from a breach of these obligations. 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 made in good time so that the Client can obtain the necessary declarations of consent or select and make available other suitable persons or objects for the photographic work. The Photographer guarantees the consent of authorized persons, in particular models, only in the case of express written consent for the contractual purposes of use (Section 5).

8.3 Indemnification and hold harmless: Notwithstanding Section 8.2, the Client agrees to fully indemnify and hold the Photographer harmless from and against any and all claims of third parties in the event that the Photographer is prosecuted or sued under civil or criminal law or a claim is asserted against the Photographer in or out of court due to violations of statutory provisions or the Client’s conduct.

8.4 In the event that the Photographer is commissioned to electronically process third party Photographs, the Client warrants that the Client owns the rights required for this purpose and shall indemnify and hold harmless the Photographer from and against any and all third party claims based on a breach of this obligation.

8.5 The Client undertakes to collect any objects provided for shooting immediately after the shooting. If these objects are not collected at the latest after two working days following a request by the Photographer, the Photographer shall be entitled to store the objects at the Client’s expense.

9. Default in Acceptance, Withdrawal of the Client

9.1 If the service is not accepted by the Client at the agreed time and place or if the Photographer’s performance of the service is delayed or rendered impossible, the Client shall be in default of acceptance. In this case, the Photographer shall be entitled to withdraw from the contract after setting a reasonable grace period of at least 14 days or – without prejudice to any further claims for damages – to insist on performance of the contract. The Photographer shall also be entitled to withdraw from the contract if the Client continues to breach essential obligations under the contract (obligations to cooperate, payment of the down payment or partial payments) despite a written warning and a grace period of 14 days. If the Photographer justifiably withdraws from the contract, the Photographer shall be entitled to the agreed fee plus all ancillary costs actually incurred in the absence of any other agreement. Rights of use shall not be transferred in this case.

9.2 In the event of default in acceptance, the Client shall bear any storage costs for physical workpieces and goods as well as the costs for unsuccessful delivery and pickup. If the Client is at fault for the delay in acceptance, the Client shall also compensate the Photographer for any loss incurred as a result of the delay. The Client shall also bear the risk of storage.

9.3 In case of absolutely necessary changes of dates (e.g. due to weather conditions), a fee corresponding to the time spent in vain or reserved and all additional costs shall be paid.

10. Liability and Compensation – Limitation of Liability

10.1 The Photographer shall only be liable for damage caused intentionally or by gross negligence by himself or his vicarious agents. Excluded from this are personal injuries, which are to be compensated regardless of the degree of fault. This shall also apply in the event of loss of or damage to photographs produced on commission (slides, negatives, digital image files) or handed over artwork (films, layouts, display

10.2 In the event of gross negligence, liability for property damage shall be limited to the order value. The contractual partner shall not be entitled to any further claims; in particular, the Photographer shall not be liable for any travel and accommodation expenses and for third-party costs (models, assistants, make-up artists and other shooting personnel). pieces, other artwork, etc.), products and props. The Client undertakes to insure valuable items.

10.3 The Photographer shall only be liable for indirect damages, loss of profit, loss of interest, loss of savings and damages from third party claims in the event of intent.

10.4 Should the Contractual Partner be held liable under product liability law, they expressly waive any recourse against the Photographer, in particular within the meaning of Section 12 of the Austrian Product Liability Act or similar foreign provisions.

10.5 The contracting party shall always be responsible for proving that the Photographer is at fault for the occurrence of the damage; the reversal of the burden of proof provided for by law is expressly waived.

10.6 (Reduction of the limitation period) Claims for damages of any kind shall be asserted in court within 6 months of knowledge of the damage and the damaging party, at the latest within 10 years of the transfer of risk/acceptance of the Work, failing which they shall be precluded. 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 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.

10.7 The Photographer shall have no duty to inspect and/or warn with regard to the products and props provided by the Party. The Photographer shall not assume any liability whatsoever for direct or indirect damage caused by such items.

10.8 The Photographer shall not be liable for circumstances beyond the Photographer’s control, e.g. weather conditions for outdoor shoots, timely provision of products and props, failure of models, travel hindrances, etc. The Photographer shall not be liable for any damage caused by such circumstances.

10.9 The Photographer assumes no liability for the type of use of his images. In particular, he shall not be liable for the admissibility of the use under competition and trademark law.

10.10 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 in accordance with customary practice, the Client shall pay damages. In this case, the Photographer shall be entitled to claim at least €1,000 in damages for each original and €200 for each duplicate, unless the Client proves that no damage has been incurred at all or that the damage is significantly lower than the lump sum claimed. The Photographer reserves the right to assert a higher claim for damages.

10.11 In the event of unauthorized use, alteration, redesign or disclosure of an image, the Photographer shall be entitled to demand a contractual penalty in the amount of five times the agreed fee for use or, in the absence of an agreement, five times the customary fee for use, but at least € 500 per image and individual case. The assertion of a further claim for damages remains unaffected by this.

10.12 If the Photographer is not named in a picture publication ( Section 5.10) or if the Photographer’s name is not permanently linked to the digital picture ( Section 6.6), the Client shall pay a contractual penalty in the amount of 100 percent of the agreed fee or, in the absence of an agreement, of the customary usage fee, but at least € 200 per picture and individual case. The Photographer also reserves the right to assert a further claim for damages in this respect.

11. Assignment

The Client may only transfer its rights under this Agreement in whole or in part to third parties or pledge them to third parties with the Photographer’s prior written consent.

12. Data Protection

By placing an order, the Client expressly agrees that the Photographer may automatically determine, store and process the personal data provided by the Client (name, address, e-mail address, credit card data, data for account transfers, telephone number, etc.) as well as the data related to the business relationship (such as order date, ordered or delivered products or services, number of items, price, delivery dates, payment and reminder data, etc.) in compliance with the data protection provisions applicable in Austria for the purposes of contract performance and support as well as for the Photographer’s own advertising purposes.

13. Place of Performance and Jurisdiction, Contract Language

13.1 The place of performance for the mutual deliveries and services and the place of jurisdiction for all disputes arising from the contractual relationship, including disputes about the conclusion and/or validity of the order and/or about the effectiveness of the agreement on the place of jurisdiction, shall be the Photographer’s registered office in Vienna. In the event of relocation of the registered office, actions may be brought at the old and at the new registered office. The Photographer shall also be entitled to bring an action before the court having subject-matter jurisdiction at the Client’s registered office. The Client shall provide the Photographer with its current address without being requested to do so.

13.2 All legal relationships between the Photographer and the Client shall be governed exclusively by Austrian law, to the exclusion of the conflict-of-law rules of private international law (e.g. IPRG, Rome I Regulation, etc.) and the UN Convention on Contracts for the International Sale of Goods.

13.3 The contract language is exclusively German.