TERMS & CONDITIONS
VERSION OF MARCH 2017
I. Scope of application and range of services
1. Orders are exclusively carried out on the basis of the following conditions, which become integral part of the contract with acceptance of our offer. Diverging or changed conditions set by our clients need our written consent to be valid. Any differing general terms and conditions of our clients are not acknowledged, even if they are submitted by the client or attached to the order.
2. Subject of the orders placed with us is the production of digitized photographic pictures, also in form of data, data carriers, files and graphical services as well as the conception of such a kind of services. “Photographic pictures“ in the sense of these terms and conditions are all products made by us, without respect to the technical form or the medium which they have been produced in or have been presented on (negatives, lantern-slides, paper pictures, still videos, electronic standing pictures in digitized form, videos etc.).
3. The actual scope of services is agreed upon within each individual order.
4. We are entitled to assign the services (rights and duties) from the order to third parties, especially connected companies according to §§ 15 et seq. German Stock Corporations Act (AktG).
II. Remuneration
1. We will invoice an hourly or daily fee or even a lump sum (in EUR) for our services on the basis of our current price lists, our offers placed or according to our performance and expenditure. The client will bear all additional cost, such as travelling, models, expenses, stage properties, laboratory or material cost, studio rent etc., which will be invoiced extra. The prices mentioned above are subject to statutory taxes. The client will bear a possible withholding tax.
2. The prices stated within the offer shall apply on condition that the order data, based on the order submission, remains unchanged and are valid for no longer than a period of two months from the date of the offer. Offers and the respective prices are to be considered highly confidential and may not be divulged to third parties or to the public.
3. All our invoices have to be paid within 10 days after receipt without any kind of subtraction. In case of delayed payment we are entitled to ask for 8% default interest above the basic interest. In case of no payment within 10 days after receipt of invoice, the client is in default, even without warning. Our claim of further indemnification for damages generated by the client’s delayed payment thereby remains explicitly reserved.
4. In case of extraordinary preliminary performance we are entitled to demand an appropriate remuneration.
5. All photographic pictures and graphics produced by our company will remain in our possession until the invoiced amount has been paid in full.
6. If it becomes apparent, that the fulfilment of the payment claim is endangered by deficient capacity for performance on the part of the client, we are entitled to demand payment in advance. In case of such a deterioration of the client’s economic situation, that a fruitful cooperation cannot be expected anymore (giving the client the possibility to express his view on the economic situation) and at the latest, if there are applications for the initiation of (preliminary) insolvency proceedings over the assets of the client, we shall hold the right to cancel the contract for exceptional reasons without notice.
7. The client may only charge those claims to account or exercise a right of retention that are undisputed or legally determined and originating from the same legal relationship.
III. Approval and changes
1. After receiving a service, the client will immediately submit it to inspection and approval or request necessary corrections (e.g. disregard of client’s specifications or poor image quality). The service is regarded as accepted with approval except for deficiencies that could only be detected after approval.
2. In order to ensure efficient working, the image data produced for the client shall be approved resp. the necessary corrections shall be requested within 10 to 20 minutes after electronic delivery. Only then will it be possible to render the agreed performance under the agreed terms and conditions. In case of a significant overrun of those deadlines, we are entitled to charge any additional costs to the client that may have accrued due to the waiting time. Any agreed time limits shall be extended accordingly.
3. In case the time intended for executing the order is significantly overrun for reasons beyond our control, our remuneration increases appropriately provided a lump sum (price per page or per picture) was agreed.
4. If the client asks for changes that cannot be attributed to a deficiency caused by us, while the photography production is going on or after its completion, the client will have to bear the arising additional cost. Furthermore, additional expense caused by later changes of the briefing or the layout will be charged to the client. We will keep the claim of remuneration for already begun work as well as the claim of compensation for costs of already booked non-cancellable services of third parties (location rent, already booked models, non-cancellable travels).
5. With a cancellation of or shift in already ordered services, we are entitled to charge up to 50% of the agreed remuneration in equitable discretion. Furthermore, the client must bear any expenses arising from the cancellation or shift (e.g. cancellation fees for rented locations, already booked models, already booked and non-cancellable travels).
IV. Warranty
1. Deficiencies must be reported immediately after receipt of the service, hidden deficiencies immediately after discovery, otherwise the assertion of a warranty claim shall be excluded.
2. The artistic design is generally done according to our reasonably exercised discretion unless the client has presented a layout or a briefing and, therefore, an explicit instruction how to work out the design.
3. In the case of justified complaints we shall have the option and choice of repairs or substitute performances. If attempts of repairs or substitute performances should fail or be impossible to realise by reasonable measures, the customer may request reduction of the formerly agreed upon remuneration by an appropriate amount or, should the services and performances offered not be useable due to deficiency of the services/performances rendered, the customer may cancel the order. Any further warranty rights, especially concerning any liability for consequential damages due to a deficiency, are excluded except in cases of intent or gross negligence by us or by our vicarious agents. The limitation period is one year.
4. We hereby explicitly state that for highly elaborate photo shootings, no substitute performances (new productions) can ensue if complaints are not brought to notice during the course of the shooting itself (see III pt. 2). In case of any complaints after the shooting, repairs and modifications are only possible in the form of usual picture editing services.
5. Deficiencies concerning part of the services rendered (for example specific singular photographs) are no reason for objection of the entire service unless the partial service is of no interest to the customer.
V. Copyright, granting user’s rights
1. We hold the copyright to all services/photographic pictures produced by us in the sense of the legal prescriptions concerning copyright.
2. User’s Rights granted by us, which shall only be transferred to the client after total payment of the amount invoiced, are intended for use only by our client and solely for the purpose stated in the contract. Unless stipulated otherwise, we generally grant only the so-called “non-exclusive right of use”. The right of use can be restricted on location and time. A secondary use (whatever it may be) will only be allowed to the client after explicit consent and agreement concerning the secondary use fee.
3. The client or purchaser of a photographic picture in the sense of § 60 UrhG (Copyright Act) is not be given the right to copy and / or to distribute the photographic picture, unless respective rights have been granted. § 60 UrhG is expressly waived.
4. When using the photographs, we may claim to be mentioned as the author of the photographic picture unless stipulated otherwise. A violation of the right of mentioning entitles us to claim indemnification.
5. We are entitled to use and publish all products (such as pictures, graphics etc.) produced by us for self-promotion purposes and publication activities free of charge.
VI. Liability
1. Claims for damages or reimbursement of expenses by the client, for whatever legal reasons, are excluded. This exclusion of liability will not apply in the case of damages generated by deliberate or grossly negligent behaviour and in the case of culpable violation of the client’s life, body, or health. In the case of minor negligent violation of essential contract obligations, also by our legal representatives or vicarious agents, we are only liable for the foreseeable, direct, average damages typical for the contract but up to a maximum amount of the net value of the concerned individual order (including all cases of damage of all claimants). Liability for consequential damages (in particular lost profit) shall be excluded even if they would have been foreseeable or the possibility of such a consequential damage was pointed out to us.
2. With interruptions of operation, such as strikes and lock-outs, as well as all other events of force majeure (in particular war, events of nature, administrative orders, fires, energy shortage and technical faults (e.g. failure of image editing programs), firmly agreed upon delivery times extend by the amount of time the interruption persists. These interruptions include days of bad weather at outdoor photography dates as well as unforeseeable non-appearance of booked models or cancellation of booked travels (e.g. unforeseeable flight cancellation) for reasons beyond our responsibility. The delayed order can be cancelled if a further waiting period can no longer be expected of the client or us as a reasonable demand. Liability of both parties, in case of the above-mentioned interruptions of operation, shall be excluded.
3. We will only be liable for the resistance to light and the durability of our pictures in the limits of the warranty given by the producer of the photographic material, such as we will be liable for the durability and resistance of our data carriers exclusively within the framework of the warranty granted by the producer of the data carrier.
4. The client will have to bear all cost and risk for sending and returning data carriers, files, and data on-line and off-line as well as of films, pictures, artwork and master copies. The client is entitled to determine how and by whom the sending and returning may be executed.
5. In the case of our work infringing on protective rights of third parties, so that the result of the work can’t be used as intended, we are obligated to choose between changing or replacing the contractual services in such a way that they don’t infringe on protective rights of third parties, while still complying with the agreed upon provisions or obtain the right to use the result as intended without further costs for the client. In this case, further claims for compensation shall be precluded. Otherwise, VI.1. applies.
6. If we are made liable for infringements on protective rights of third parties, based on provisions and instructions made by the client, the client shall indemnify and keep us indemnified from and against all third party claims (including legal and defence costs). In the case that the client processes or uses the photographic pictures in such a way, that they infringe on third party rights, the client shall settle all disputes and lawsuits resulting herefrom on his own. If this is not possible for imperative reasons, the client shall indemnify and keep us indemnified from and against all third party claims (including legal and defence costs).
VII. The Client’s Obligations
1. The client affirms to have the copyright for all artwork and master copies he makes us available as well as, in the case of portraits, the agreement of the reproduced persons to publish, multiply and distribute these pictures. The client must indemnify us from all possible claims of third parties referring to the violation of this obligation. We are not obligated to check possible templates resp. deliveries of the client concerning their correctness and properness.
2. The client commits himself to provide us with the objects to be photographed by us in time, if necessary even up to seven working days before the begin of production and to pick them up again as soon as possible after photography. If the objects to be photographed are not made available to us in time, respective production deadlines shall be appropriately postponed. Incurring additional expenses shall be borne by the client.
3. If the client does not recollect the photo objects within a period of time of four (4) weeks after having been summoned to do so, we will be entitled to charge storage cost at our sole discretion (nonrecurring performance expense of € 150.00 per m3, packaging and securing not included, as well as € 50.- per m3 and month) or, in case of blocking of studio rooms, to remove and store the objects outside at the client’s cost or to discharge him after giving prior notice. In this case, we do not have any care obligations – the risk of accidental loss and perishing of the goods shall be borne by the client.
VIII. Storage of data and image processing
1. We will store original image files carefully. Data saved by us will automatically be deleted twelve (12) weeks from the end of the contract. Archiving for a desired period of time that is longer than twelve (12) weeks can be agreed on with a special contract and special calculation of an agreed once only payment per image. Special or extended archiving of images and texts for online shops is excluded.
2. The processing of our produced services, in particular of photographic pictures and the duplication and distribution requires our articulate previous agreement. If a new work is created by photo composing, montage or any other electronic manipulation, it has to be marked with (M). The originators of the new work are co-originators within the meaning of § 8 UrhG.
3. The customer is obligated to save and copy photographic pictures digitally so the name is electronically linked to the image data. The customer is, depending on his electronic possibilities, obligated to carry out this electronic link so that it is preserved and that we are clearly and unambiguously identifiable as originators of the images at any point of data transfer, replay on screens and at all moments of projection, especially public replay.
4. If the customer commissions us to process somebody else´s images electronically, he has to assure that he is allowed to do so. He exempts us from all rights that might be claimed by third parties and are based on false assurances.
IX. Compliance & confidentiality
1. We are committed to treat all information about the customer, gained within the context of the order, confidentially.
2. We are entitled to save the customer´s personal data to perform the purchase order in accordance with the conditions defined in the Federal Data Protection Act.
3. We pay careful attention to the adherence to public acts and expect the same from our business partners. Therefore, the customer assures to have adopted suitable measures to prevent possible violations of the law.
X. Final Provisions
1. The contractual relationship shall be subject exclusively to German Law. The international private law and the UN regulations for buying and selling (CISG) are excluded. Place of fulfillment regarding all obligations resulting from this contract shall be the official location of the company MBS Nürnberg GmbH, as long as the client is not the consumer.
2. Place of jurisdiction for all disputes arising out of or in connection with this contractual relationship is Nuremberg.
3. We are not taking part in a dispute resolution procedure within the meaning of the German Consumer Resolution Act (Verbraucherstreitbeilegungsgesetz).
4. Invalidity of one or more of these contractual regulations will not affect the validity of the remaining provisions according to § 306 BGB (Civil Law of the Federal Republic of Germany). Should one of the provisions of these General Terms and Conditions of Business be or become invalid, in full or in parts, the remaining provisions nevertheless shall remain effective.
