General Business Terms of GEPA pictures GmbH
1. Scope and applicability of the General Business Terms
These general business terms (GBT) apply to all contracts with companies and individual clients, both of which will hereafter be referred to as “customers”. GEPA Pictures GmbH, Ivica-Osim-Platz 2 /Top 5, 8041 Graz, will hereafter be referred to as “GEPA“. Unless otherwise stipulated, only contracts respective current GBT will be accepted by GEPA. The present GBT, even if not specifically referenced, apply to all future contracts, unless a new GBT version is published, wherein the new version shall apply. When placing an order, the customer agrees to the exclusive applicability of the terms. Any additional terms or conditions contrary to the GBT will not apply without prior written agreement between GEPA and the customer. Any actions taken by GEPA, while fulfilling a contract, that deviate from the GBT does not signify approval for GBT deviation.
2. Offers and Contracts
2.1. Unless an offer is explicitly defined as binding, all offers placed by GEPA are non-binding and subject to change. This also applies to all information about pricelists, brochures and so forth. Placing an order with GEPA can be done in written form (e.g. by letter, e-mail or fax) or spoken form (e.g. in person or by telephone). After receiving an order, GEPA will inform the customer in due course that the order has either been accepted (order confirmation) or rejected. GEPA is free to reject any orders without stating reasons for doing so. A legally binding contract between GEPA and the customer has begun when GEPA has accepted the order. This means GEPA is now obligated to provide the required service and the customer is obligated to pay for said service.
2.2. The customer is only allowed to use purchased photos and/or videos for editorial or private use (with no publication rights), according to § 42 Copyright Law (Urheberrechtsgesetz, UrhG) (standardized user rights for image data bases and/or download sites). Any other user rights must be individually agreed upon with GEPA. Offers published by GEPA on the image data banks and download sites are legally binding. The sales contract becomes valid when the order is received by GEPA. Ordering is initiated once products are placed in the shopping basket and is concluded after clicking on the purchase button at the end of the ordering process. The purchased products are then either sent to the address the customer has provided or are made available as a downloadable file by GEPA. In addition to the GBT, the terms of use for websites or web shops applies for all purchases.
2.3. Searching for pictures on the GEPA data bank is free of charge; however, using the pictures in any form requires
payment.
3. Service provision, authorization of use
3.1. GEPA is entitled to use third parties for any part of or the entirety of the service provided. Unless the customer gives specific written orders, GEPA is free to decide how to carry out the order. This applies specifically to the image concept, choosing photo models, deciding on photo location(s) and which photographic techniques are used.
3.2. Deliveries are made at the customer’s risk and expense.
3.3. Service and delivery deadlines specified by GEPA are only approximations and are not binding, unless otherwise confirmed in written form. Therefore, no claims may be made if GEPA does not adhere to a non-binding delivery time or deadline.
3.4. If a binding service and/or delivery deadline has been agreed upon and not been kept by GEPA, the customer can withdraw from the contract any time after two weeks beyond said deadline (exceptions are drop-dead dates; see point 3.5 below). Withdrawal from the contract must be submitted by registered letter. The customer only has the right to withdraw from the parts of the contract associated with the delay. At the request of GEPA the customer is obligated to inform GEPA whether they would like to withdraw from the contract or not. The customer is only entitled to claim damages due to delay if they can prove that GEPA caused the delay intentional or grossly negligent and the delay caused material damage. Exceeding the delivery date marginally does not entitle the customer to claim damages.
3.5. If GEPA delays when a drop-dead date or time period is a condition of the contract, then the contract is automatically terminated unless the customer notifies GEPA immediately that they would like to fulfill the contract.
3.6. Damage claims due to non-performance or delayed performance are excluded in all cases, unless they occurred with willful intent or gross negligence.
3.7. When a copyright protected work is purchased, whether in paper or digital format, the customer acquires a basic (non-exclusive and non-excluding), non-transferrable license (authorization of use) to use the work for an explicitly agreed upon purpose and within agreed upon limits (e.g. number of print runs and time and place limitations). In case of doubt, information regarding the purpose and limits of the license is provided on the invoice or delivery note. In all cases, the customer only acquires the rights associated with the contract (order they have placed). Unless otherwise agreed upon, the license is only granted for one edition of one publication within the customer-specified medium and is not valid for advertising purposes.
3.8. In order to obtain a license, the customer must pay the agreed upon photography and copyright fee (see point 6.2) and have correctly shown the copyright information on the work (see point 4.3).
4. Copyright regulations
4.1. Photographs and film works are copyright protected according to §§ 1, 3, 4 copyright law (UrhG), which grants GEPA all copyright and ancillary copyrights to which producers are entitled (§§ 14ff, 73ff UrhG). GEPA has the exclusive right to reproduce and distribute their photographs (e.g. have them shown to the public or made public by any media source), except for the standard rights described in § 42 UrhG. Usage of GEPA photographs and film works by anyone other than GEPA is only permitted when GEPA has granted an authorization of use (see point 3.7). § 75 UrhG does not apply.
4.2. Any reproduction (other than a backup copy) and/or distribution of photo data in online data banks, electronic archives, or on the internet or intranets, which is not solely for internal customer use , is only allowed when a written agreement has been made between GEPA and the customer. The right to make a security copy remains unaffected.
4.3. When reproducing and distributing GEPA photos, the customer is required to show the creator’s name and copyright according to the Universal Copyright Conventions (UCC). The aforementioned information must be horizontal in standard font, and clearly visible on the picture (photo: © ... name/company/ artist name of (GEPA) photographer). If the photo has no creator name associated with it, the other parts of the copyright still need to be shown (§ 74 paragraph 3 UrhG ). A signature present on the front of a photograph in no way replaces the aforementioned copyright requirements. If the customer is using material which is copyrighted by someone other than GEPA, they will need to additionally follow the format of that copyright holder.
4.4. Any photograph alterations, except for ones GEPA is aware of and are contractually necessary, can only be done with written consent from GEPA. If altered photographs are to be published, two copies must be sent to GEPA at the customer’s expense. For expensive products (e.g. art books) only one copy is required.
4.5. If any GEPA material is to be published on the internet, the customer is required to provide GEPA with the respective web address.
4.6. The rights granted by GEPA only apply to the customer. Transferring rights to a third party and/or transferring access data for photos or photo material is prohibited unless GEPA has given consent. If photos are purchased in print medium, the customer acquires only the rights to one print, and reproduction of that print is forbidden without written consent from GEPA. Storing prints for other use is forbidden. If photos are purchased as digital medium, they must be deleted at the end of the authorized storage period. In either case, the photographs must be in a form that prevents reproduction (specifically for print media).
4.7. According to §§ 81ff UrhG, if there is a breach of copyright or ancillary copyright, GEPA is entitled to civil law claims for omission, removal, indemnity, or publication of the judgement. GEPA is entitled to these rights irrespective of who is at fault. In cases where the creator’s name was not shown on a photo, a sum corresponding to an adequate remuneration (§ 86 UrhG) is required to cover the immaterial damage (§ 87 paragraph 2 UrhG), irrespective of any additional pecuniary loss (§ 87 Abs 1 UrhG). If there is unauthorized use by a customer, the license for the respective material expires immediately, whether or not the customer is also required to pay damage claims.
5. Ownership of film material and image data, labelling and filing
5.1. GEPA is the sole owner of any image data. The rights to transfer and use any of GEPA’s digital image data is granted only with written consent from GEPA and only under the limitations set in the contract (see point 3.7).
5.2. GEPA is entitled to add copyright data in any way they see fit to any digital picture data (even on the front). If transfer to a third party has been granted (e.g. a printer), the customer is responsible for maintaining the addition and is responsible for adding or renewing this information if necessary. This applies to all means of reproduction, even to copies made of digital media.
5.3. The customer is required to store digital image data in a way that the creator’s name is linked to the pictures electronically, no matter how they are transferred, so that GEPA can always be identified clearly and explicitly as the creator of the pictures.
5.4. Although not legally required to do so, GEPA will archive customer pictures for one year. If these archived photos are lost or damaged in that year, the customer is not entitled to any kind of compensation.
6. Fee (wage, remuneration)
6.1. Unless otherwise agreed upon in written form, GEPA is entitled to the fees (remuneration) which correspond to their current pricelists.
6.2. GEPA is also entitled to a photography fee, which is also due for layout and presentation material, even if that material is not being used or the decision for use depends on a third party. In the case of non-use this fee will not be discounted. Furthermore, GEPA is entitled to both a sales fee (selling photographs/films) and a license fee (granting an authorization of use, § 42 UrhG) for the agreed upon amount.
6.3. Conceptual services (e.g. counselling, layout and other graphic services), material expenses and expenses for props, models, travel costs, subsistence costs, make-up artists and so forth are not included in the photography fee and are charged separately. The same applies to outstanding organization and meeting expenses.
6.4. All prices are in euros, ex works and are exclusive of the required VAT, and any ancillary costs, such as, charges for postage and packaging, customs and insurance.
6.6. GEPA is not required to maintain pricing across multiple contracts.
6.7. GEPA is not liable for correctness of price quotes.
7. Payment
7.1. Typically, the fee is due immediately after the invoice has been issued, it is possible, when agreed upon in written form, to pay within 8 working days from the issue date of the invoice. However, paying during this time period does not grant any reduction in invoice amount.
7.2. GEPA is entitled to ask the customer for upfront payment before executing the order, as well as to invoice for partial services.
7.3. GEPA is entitled to use payments, regardless of what the payment was made for, to pay the longest-running outstanding debts and incurred rates and costs in the following order: costs, rates, main claim.
7.4.
7.4 In the case of delayed payment, default charges of 5% above the base interest rate per year, as well as compound interest at the statutory rate, will be added to the total bill. Furthermore, the customer is required to pay any other expenses that accrue due to claim collection, for example, lawyer or debt collection agency fees or increased interest rates on credit accounts.
7.5. If a customer delays full or partial payment of an invoice, or if it becomes known that the customer is insolvent (insolvency proceedings are open or there has been denial of an application for insolvency proceedings due to lack of assets), GEPA is authorized to make any open invoice amounts due immediately. GEPA will also stop all services until all invoices have been paid by the customer or will only complete services if the customer pays in advance or can provide a security deposit. If the customer cannot provide either of the former, GEPA is entitled to terminate the contract without granting a grace period. Both the right of GEPA to demand the return of delivered products (reservation of ownership) at the customer’s expense and their right to claim compensation remains unaffected.
7.6. The customer may not make any offset against claims of GEPA.
7.7. The customer is not allowed to make warranty claims or hold back payment due to dissatisfaction with the service provided.
8. Duties of the customer
8.1. The customer is required to support GEPA in executing the order when applicable. The customer must provide any necessary copyright for any objects depicted from third parties (e.g. artwork, patterns and models, labels and images) and provide consent of any person depicted (e.g. models). GEPA only guarantees approval of entitled persons, specifically photo models, when they have given written consent for the contractually agreed purposes (point 3.7).
8.2. To indemnify and hold harmless: If the customer is involved in any civil or criminal prosecution and/or any judicial or extrajudicial claims with a third party, they are obligated to hold and indemnify GEPA completely harmless from any third-party claims.
8.3. If the customer commissions GEPA to work electronically with photographs from a third party, the customer must ensure that the required rights are obtained which indemnifies GEPA from any breach of obligation claims from said third party.
8.4. The customer is required to collect all their belongings immediately after any photo shooting. If these belongings are not picked up within two workdays, GEPA is entitled to store them at the customer’s expense.
8.5. If photographed persons demand deletion of their pictures from the GEPA data bank, customers are also responsible for deleting those same pictures from their own storage media. In conformity with the law, GEPA will inform the customer if this becomes necessary. The customer is liable for deletion on their own storage media.
9. Delay in acceptance, withdrawal of the customer
9.1 The customer is in delay of acceptance if the service is not accepted at the agreed upon time and place or if the delivery by GEPA is delayed or not possible. If this occurs, GEPA is entitled to terminate the contract after a grace period of 14 days, or insist on fulfillment of the contract, regardless of any further legal claims for damage. If GEPA decides to terminate the contract, the customer is still required to pay and is not allowed to file damage claims. GEPA is also entitled to terminate the contract, after having sent a written reminder to the customer and granting a grace period of 14 days, if the customer breaches any contract obligations (e.g. non-cooperation, lack of down payment and/or partial payment). If GEPA justifiably terminates a contract, they are entitled to receive the agreed upon fee, plus all extra costs, unless an alternative agreement has been made.
9.2 If delay in acceptance occurs, the customer is responsible for any storage expenses (and any risks associated with storage) as well as costs for the failed delivery. If the customer is to blame for the delay in acceptance, they must also compensate GEPA for any damages that occurred due to the delay.
9.3 If a change in deadline is absolutely necessary (e.g. due to weather) a remuneration based on the time spent and booked for the service, including all extra costs, must be paid by the customer.
10. Retention of title
10.1 GEPA has ownership of their products until the invoice for those products has been paid in full. If the products are stored with GEPA, because the invoice remains open, the customer is responsible for all risks associated with that storage, namely the danger of destruction, deterioration or loss.
10.2 If the customer delays complete or partial payment, GEPA is entitled to demand return of their products until they have been paid for in full. If this occurs, it does not signify a termination of the contract, unless GEPA has stated so in written form. All payments are due immediately.
10.3 If a retention of title is claimed for any reason, then this does not signify contract termination unless GEPA has stated such in written form.
11. Warranty
11.1 It is only possible for a customer to make a warranty claim if GEPA has deviated from contractual duties. Warranty claims are only admissible for technical defects on the carrier material or damages on the pictures or photo material that are present at the time the products are handed over. If this occurs, GEPA is only required to rework or replace the product(s).
11.2 No other warranties are accepted by GEPA. No warranty claims can be made in cases where the customer gave incorrect instructions or in cases where there was damage to the product caused by inappropriate handling or use by the customer.
11.3 Warranty claims are excluded for insignificant product defects, for example, reprinted photos that vary slightly in color or material from the original
11.4 The customer must prove existence of the defect. § 924 ABGB (Austrian General Civil Law) is not applicable.
11.5 According to § 377 UGB (Austrian Commercial Code), the customer is required to notify GEPA (in written form) regarding any defects within 8 working days after receiving the order. If a defect was concealed, the notification deadline is 3 working days after detection of the defect. The written notification must include sufficient evidence of the defect(s). If the customer fails to inform GEPA within the notification deadline, they lose the right to warranty, damage and error claims.
11.6 The warranty period is 6 months from acceptance of work / transfer of risk. Warranty claims must be made at court within this period, or the claim will be automatically rejected. The warranty period does not start over if a product is replaced due to a warranty claim for defects.
11.7 If the customer is default on performance, they are not entitled to any warranty claims.
11.8 For valid warranty claims, GEPA is entitled to choose how to remedy deficiencies (e.g. improvement, delivering what is missing), to replace product(s) (exchange) or to terminate the contract. The customer is not allowed to choose how the warranty claim will be remedied. GEPA is allowed to make product improvements and replacements more than one time. However, if GEPA’s second attempt at improving or replacing the product is not successful, the customer is entitled to demand a price reduction or termination of the contract. If the customer contracts a third party for the improvements, GEPA is in no way responsible for these costs.
11.9 If a replacement is delivered, the defect products must be returned to GEPA at the customer’s expense within 14 days. Return of defect products must be done according to legal regulations.
11.10 If a product is defect, the customer is not entitled to a reduced fee or to withhold or postpone payment, unless GEPA gives explicit written consent.
11.11 The right of recourse, pursuant to § 933 b ABGB, is not applicable.
11.12 The aforementioned regulations regarding liability for defects are applicable irrespective of any other warranty or damage claims that have been filed (according to § 933a ABGB). For substantial damage only the regulations under heading 12 are applicable.
11.13 The customer is not allowed to transfer any warranty claims to a third party.
12. Liability for damages
12.1 Aside from personal injury, which requires compensation no matter the degree of damage, GEPA is only liable for replacing products that have been damaged intentionally or by gross negligence, provided that the following liability violations do not violate predatory law. This same liability regulation applies to any commissioned photos/images or props that are lost or damaged. The customer is obligated to insure valuable products.
12.2 In cases of gross negligence, liability for material damage is limited to the value of the product given in the contract. GEPA is not liable for any travel, accommodation and/or third-party expenses (e.g. models, assistants, make-up artists and other personnel necessary for the shooting).
12.3 Only in case of intent, GEPA is liable for indirect damages, loss of profits, interest and/or savings and damages associated with third party claims.
12.4 All rights for recourse claims against GEPA are waived according to product liability law in accordance with § 12 of the Austrian production liability law or similar foreign laws.
12.5 The customer is required to prove that GEPA is to blame for any damage caused; reversing the statutory burden of proof does not apply.
12.6 Damage claims can only be made by the person who purchased the product from GEPA within 6 months of learning about the damage and only up to 10 years after acceptance of the work and/or transfer of risk. Otherwise the claim is precluded.
12.7 GEPA is not required to inspect props or other products provided by a customer for a shooting and is, therefore, not liable for any direct or indirect damage caused by such objects.
12.8 GEPA is not liable for conditions that are beyond their control (e.g. weather during outdoor shooting, availability of customer-supplied props, absent models and travel impediments).
12.9 GEPA is not liable for errors in photo descriptions or text, usability of picture material or for photo content that does not correspond to its description.
13. Assignment
The customer is only allowed to partially transfer or pledge their rights to a third party when GEPA has given written consent beforehand.
14. Change of address
If contractual business has not been fully concluded and a customer needs to change their address, they are required to immediately and verifiably notify GEPA (per e-mail). If this is not done, anything sent by GEPA to the last known address will be considered to have been delivered. The customer must be able to prove that GEPA has been notified of the change of address.
15. Approval, copyright violation
15.1 GEPA’s consent to use a photo does not guarantee that consent is given from the owner of the rights to that photo or from any persons depicted in the photo to publish that photo or use it for advertising purposes.
15.2 GEPA is solely responsible for dealing with copyright violations. If a customer is held liable for photographic copyright violation by a third party, then the customer must coordinate their actions with GEPA. If the customer hires a lawyer in such a case, they are responsible for those costs.
16. Location, applicable law and contract language
16.1 The location for all deliveries, services and place of jurisdiction for legal disputes stemming from a contractual relationship, (including legal disputes about realization and/or validity of the order and/or the effectiveness of the jurisdiction clause) is the GEPA company office in Graz. If the office moves, legal complaints can either be made at the old or new location. GEPA is also entitled to appeal to the court of the customer’s office.
16.2 Each contract is governed exclusively by the laws of Austria, excluding United Nations Convention on Contracts for the International Sale of Goods (CISG) and any conflict of law rules.
16.3 Alternative dispute resolution, according to article 14 paragraph 1 ODR, applies to all customers. The European Union provides a platform for online dispute regulations (ODR) which you can access at ec.europa.eu/consumers/odr. However, we are neither obligated nor willing to participate in a dispute regulation proceeding in front of a consumer arbitration board.
We kindly ask you to send any complaints to office@gepa-pictures.com.
Status: September 2019
