1. The purpose of the order is the creation of and permission to use photographs (hereafter „Imagery“) for the purpose contrac- tually agreed upon.
2. Orders to be carried out by the photographer (hereafter „Photographer“) will only be executed in accordance with the terms and conditions hereof; the client (hereafter „Client“) agrees to these Terms and Conditions with regard to the relevant order as well as all additional and future business transactions with the Photographer.
3. The agreement only covers what is included in the order confirmation and what was decided upon when the order was placed. Any additional costs incurred due to additions to the original scope of the order will be invoiced accordingly. Any incidental costs (including, but not limited to, materials, laboratory, props, models, travel, etc.) shall be covered by the Client. All professional fees and other charges invoiced by the Photographer are subject to value-added tax at the rate that is valid at the time of invoicing. The Client shall pay the charge levied by the Polish social security service for artists, which is not included in the professional fees.
5. All rights to be transferred to the Client in accordance with the agreement will remain with the Photographer until payment has been received in full. Only after full payment of all professional fees agreed upon will the Client be entitled to take advantage of all usage rights within the scope of the agreement and may transfer them to any third party stated in the agreement without the Photographer’s consent. Claims to which the Client is entitled due to the transfer of rights to third parties shall be assigned to the Photographer in the amount of the professional fees plus any other charges agreed upon between the Photographer and the Client. The Client is entitled to make claims transferred to the Photographer from third parties in its own name and on behalf of the Photo- grapher. The Client shall pay the Photographer amounts collected within seven (7) days after the Client has received them. The Client may not offset amounts due against counterclaims that are contested by the Photographer or that are not legally final and absolute. Moreover, the Client is not entitled to relinquish or transfer any of his or her claims or rights against the Photographer to any third party.
6. The Photographer is entitled to be mentioned as the creator when the Imagery is used. Furthermore, the Photographer is entitled to use the Imagery he or she produced to promote his or her own business.
7. Unless otherwise included in the agreement, any form of reproduction, distribution, modification, editing, publication, transformation for the purpose of reproduction for other media, etc. is subject to the Photographer’s express written consent. In par- ticular, the Client is not entitled to scan the Imagery and/or digitally store, edit, manipulate or reproduce all or parts of it, use it to create new digital images or transfer it to other devices for media or images.
8. Apart from possible claims for damages, unauthorized use, distribution or any other use not agreed upon will result in a minimum of five (5) times the amount of the usage fees agreed upon.
9. The Client assumes the risk of accidental loss or damage as soon as the materials to be delivered are handed over to the person in charge of transportation. This also applies if the Photographer handles transportation him- or herself. The Photographer will purchase transportation insurance only at the Client‘s express request and at the Client‘s expense.
10. All proprietary rights to original Imagery will remain with the Photographer. The Photographer is not required to archive Imagery he or she produced or media on which Imagery is stored.
11. The Client must return original Imagery provided to him or her immediately after use to the Photographer at the Client‘s own risk and expense. If the Client fails to return the originals even after having received a written reminder, or if the originals become lost for reasons which the Photographer cannot be held accountable, the Photographer is entitled to compensation. This compensa- tion will be no less than three thousand (3,000) euros or twice the professional fees agreed upon for each original piece of Imagery, whichever is greater.
12. The Client must file any complaints in writing and immediately upon receipt of materials. As for patent defects, the Image- ry shall be considered accepted without defects and in accordance with the agreement after a period of three (3) working days. Any damages that may be claimed by the Client from the Photographer are subject to a limitation of one (1) year except in cases of intent. The period of limitation commences upon delivery of the Imagery.
13. Damages may be claimed against the Photographer or a person whom the Photographer uses to perform his/her obligations only in cases of gross negligence and willful intent unless the Photographer or the person whom the Photographer uses to perform his/her obligations are responsible for the violation of principal contractual obligations or for damage arising from loss of life, physi-cal injury or damage to health. The Photographer is not liable for costs incurred with regard to model, travel, etc.. Enforcement of a claim for indirect damage shall be excluded. If Imagery becomes lost while with the Photographer for reasons which the Photographer cannot be held accountable, the loss will not affect his or her claim to remuneration.
14. The Photographer is entitled to receive cancellation fees equivalent to 50% of professional fees agreed upon if the order cannot be executed for reasons which the Photographer cannot be held accountable without having to provide proof that damage has occurred. If an order has been initiated but is not completed for reasons which the Photographer cannot be held accountable, the Photographer will be entitled to the full amount of professional fees. An order is considered as initiated once the Photographer begins rendering the service as set forth in the agreement. If the time required to execute the order is exceeded or if the execution of the order is delayed or repeated for reasons which the Photographer is not responsible - e. g. due to last-minute changes to the original briefing, inclement weather, late delivery of products, mistakes at the photo laboratory, non-appearance of models, loss of luggage, etc.—, the professional fee will increase in relation to the fees agreed upon for the initial scope of service. In this case, incidental expenses will increase according to the actual costs incurred.
15. Claims against the Photographer for damages are limited to the amount of professional fees agreed upon. Both parties to the agreement reserve the right to prove that the damage is higher or lower or that no damage has occurred at all. By providing payment for damages or other costs and charges incurred, the Client acquires no property or usage rights to the Imagery.
16. Any failure to mention the Photographer as the creator of the Imagery may result in a 100% surcharge on the agreed upon professional fees.
17. The right to publish Imagery featuring individuals will not be transferred to the Client until after the individuals depicted have provided their express written consent.
18. The Client or an individual authorized by the Client is required to be on site during a shoot and to provide his or her ap- proval of creative concepts expressed by the Photographer. If neither the Client nor an individual authorized by the Client is on site during a shoot, the Client will not be permitted to reject the creative execution of services at a later time. In such a case, each new variation of the Imagery produced must be paid for separately.
19. The Client is required to procure insurance against damage, loss, theft, etc. for objects provided to the Photographer in or- der to produce the imagery; the Photographer cannot assume liability for any such incidents.
20. If the Client commissions the Photographer to implement a layout with which he or she was provided and, based on the implementation of the layout, damages are claimed or any other claims are made against the Photographer, the Client shall release the Photographer from any claims made by third parties and undertake to bear all costs necessary to legally defend the Photographer in an appropriate fashion.
21. Modifications, supplements or amendments to these General Terms and Conditions must be in writing. If a provision of the agreement or these General Terms and Conditions becomes ineffective, the remaining provisions of the agreement and these General Terms and Conditions will remain in full force and effect. If any provision is deemed invalid or void, this will not mean that the entire agreement or all of these General Terms and Conditions are void. In the event that any provisions are deemed invalid or void, the parties to the agreement shall agree to replace or reinterpret such invalid or void provisions with provisions that most closely fulfill the intent and purpose as well as the desired business objective of the provisions permitted under the agreement and these General Terms and Conditions. This also applies in the event that it is necessary to close any loopholes that might arise in the agreement or these General Terms and Conditions. The place of performance and the place of jurisdiction for both parties to the agreement is the place of business of the Photographer, unless otherwise required by law. The agreement and these Terms and Conditions are governed by the Polish law. Any services rendered outside of Poland are also governed by Polish law. In the event that the Photographer has no general place of jurisdiction in Poland or relocates his or her domicile
or primary residence to a place outside of Poland after execution of the agreement or his or her domicile or primary residence is unknown at the time legal action is taken, the place of jurisdiction will be the Photographer’s place of business.
22. The Polish language version of these General Terms and Conditions shall be the version used in the event any dispute arises hereunder. The English translation of these General Terms and Conditions is for convenience only and shall not be used by the parties or any court when interpreting or construing these General Terms and Conditions.