GENERAL TERMS AND CONDITIONS
General Terms and Conditions of RATKO MEDIENAGENTUR
(In case of sole use of photo and/or film, the AGB are valid from here)
The subject of the following General Terms and Conditions is the contract for the activity of an agency, which carries out these activities in the fields of communication and marketing consulting, advertising planning, advertising design and advertising mediation in the core area of the hotel industry or other areas for companies or other clients. In addition, the agency offers the implementation of training and further education measures.
The development of conceptual and creative proposals by the Agency with the aim of concluding a contract with the Advertiser shall be carried out against payment of the fee agreed with the Client (presentation fee), notwithstanding any provisions to the contrary in individual cases. Unless otherwise agreed, the presentation fee shall be credited against the project fee if the order is placed. Copyright and property rights to the work presented by the Agency in the context of the presentation shall remain with the Agency if the presentation is not commissioned. If the ideas and concepts submitted by RATKO MEDIENAGENTUR in the course of a presentation are not used in advertising material designed by RATKO MEDIENAGENTUR to solve communication tasks, RATKO MEDIENAGENTUR shall be entitled to exploit the presented ideas and concepts elsewhere. Any transfer of presentation documents to third parties, as well as their publication, reproduction, distribution or similar, is not permitted without the express consent of RATKO MEDIENAGENTUR. If, on the other hand, work presented as part of the presentation is commissioned, the copyright and ownership rights shall pass to the customer in accordance with these General Terms and Conditions.
- Loyalty to the client
The loyalty bond towards its client obliges the agency to provide objective advice that is sufficient for the client's objectives alone. This concerns in particular questions of the use of techniques and the selection of third companies and persons by the agency. Insofar as the client has not expressly reserved the right to have a say, the selection of third parties shall be made in accordance with the principle of a balanced relationship between economic efficiency and the best possible success in the interests of the advertiser.
- Advertising media
The agency places orders in its own name and on its own account at the most favourable tariff conditions for the advertiser. On request and by agreement, orders can be carried out in the name and on account of third parties.
- Competition exclusion
Upon request, the Agency shall grant exclusion of competition for products and services to be specified in detail only within the framework of an agency contract. With the granting of an exclusion of competition by the Agency corresponds the obligation of the Customer not to commission any other agency with the consultation, planning, design and implementation of marketing measures at the same time during the non-terminated agency contract in the area of the subject matter of the contract.
The agency is obliged to maintain secrecy with regard to all business secrets of the client that it has become aware of during the cooperation. If it uses third parties to perform its tasks, the Agency shall oblige them to exercise the same care. The obligation to maintain secrecy shall continue to exist beyond the duration of the cooperation.
- Copyright and rights of use
All copyrighted rights of use associated with the work delivered by the Agency shall be transferred by the Agency to the Client within the scope of the purpose of the contract, i.e., depending on the purpose of use, the spatial, temporal and content scope of the right of use and the type of use granted in each case shall be determined. Rights of use for work that has not yet been paid for at the time of termination of the contract or, in the case of invoicing on a commission basis, has not yet been published, shall remain with the Agency, unless otherwise agreed.
The agency is entitled to refer to the agency and the author on all advertising media and in all advertising measures, without prejudice to the written revocation of the customer, which is possible at any time, to refer to the existing business relationship with the customer on its own advertising media and in particular on its Internet presence (website) with name, company logo, image motifs and explanatory texts.
- Appointment appointment
For the execution of the project a time schedule is drawn up, which is binding for both parties. Any deviations must be notified in writing within a reasonable period of time. If deadlines are postponed by the client or by third parties, the deadlines relevant for the contractor are automatically postponed. In this case, the contractor reserves the right to set up a new schedule in order to adjust the resource planning. Costs incurred as a result will be charged separately to the Customer.
- Scope of services
The scope of the contract is summarized in a service overview and forms the basis for calculations. Services exceeding the scope of services will be charged separately. RATKO MEDIENAGENTUR is entitled to commission third parties to provide parts or the entire range of services, provided this does not result in any disadvantages for the customer.
- Additional services
Subsequent changes of a content-related or structural nature (author's corrections) will be charged separately and may influence the appointment. Additional work necessary to meet the deadline will be charged separately.
- Internet and online marketing
If RATKO MEDIENAGENTUR procures Internet domains for the customer or maintains Internet domains for the customer, RATKO MEDIENAGENTUR shall only act as an intermediary in its relationship with DENIC, NIC.at, Switch, INTERNIC or any other organization for the allocation of domains. Contracts with such organizations exclusively entitle and oblige the customer. RATKO MEDIENAGENTUR does not warrant that the domains applied for or delegated for the customer are free of third-party rights or that they will be permanently valid. The customer hereby indemnifies RATKO MEDIENAGENTUR internally against any claims for compensation by third parties that are based on the unauthorized use of an Internet domain.
- Content of websites and stored data
The customer is responsible for all content produced or published by him or by third parties on his behalf. RATKO MEDIENAGENTUR shall not monitor or review this content. RATKO MEDIENAGENTUR also does not check the customer's content to determine whether third-party claims are justified or unjustified. If a third party conclusively alleges that the customer's content violates the law, RATKO MEDIENAGENTUR is entitled to block the data until the matter has been clarified in court. The customer agrees to such a blockage. The customer assures that, to the best of his knowledge, no third-party rights are violated by the content he provides. If RATKO MEDIENAGENTUR blocks content for the reasons described above, the customer shall nevertheless be obliged to provide services to RATKO MEDIENAGENTUR. The customer shall indemnify RATKO MEDIENAGENTUR internally against any claims by third parties due to legal infringements caused by the content provided by the customer. The customer may not use its content in a form or for a purpose (e.g. Internet pages) that violates legal prohibitions, public decency or the rights of third parties (rights to names, copyrights, data protection, etc.). In particular, the customer undertakes not to offer or have offered within the scope of his presence any pornographic content or services aimed at making a profit, which are pornographic and/or erotic (e.g. nude pictures, peep shows, etc.). In the event of a breach of this obligation by the customer, RATKO MEDIENAGENTUR shall be entitled to refuse to include the customer's content (e.g. websites), to delete such sites and any references to them immediately and to terminate the contract without notice.
RATKO MEDIENAGENTUR does not guarantee the customer that its content (e.g. Internet pages) has been correctly reproduced unless RATKO MEDIENAGENTUR acts with gross negligence or intent. RATKO MEDIENAGENTUR shall not be liable for indirect and consequential damages or lost profits. This also applies in particular to liability for the functionality and freedom from viruses of content and software. RATKO MEDIENAGENTUR is also not liable for the correct functioning of infrastructures or transmissions via the Internet that are not the responsibility of RATKO MEDIENAGENTUR or its vicarious agents, unless liability is excluded under these terms and conditions. RATKO MEDIENAGENTUR shall not be liable for loss or changes to content of any kind (data, programs, texts, image data, etc.) unless such loss or change is due to intent or gross negligence. RATKO MEDIENAGENTUR is also not liable for the content of data transmitted via RATKO MEDIENAGENTUR, in particular for its content, completeness, correctness and/or up-to-dateness. RATKO MEDIENAGENTUR accepts no liability for damages incurred by the customer as a result of using the RATKO MEDIENAGENTUR system, in particular for texts or programs obtained via RATKO MEDIENAGENTUR, unless these are based on intent or gross negligence. If the participant accesses information systems via RATKO MEDIENAGENTUR, this is done at the customer's expense and sole risk. RATKO MEDIENAGENTUR accepts no responsibility for the type, scope and quality of services provided by third parties that have not been provided by RATKO MEDIENAGENTUR for the customer. RATKO MEDIENAGENTUR is not liable, either directly or indirectly, for the availability and functionality of public or private data transmission networks. The customer is advised that any unauthorized modification to software supplied by RATKO MEDIENAGENTUR may result in the entire system becoming inoperable. The customer shall bear the risk in this regard alone. The customer is advised that he/she is responsible for the customary data backup. Insofar as RATKO MEDIENAGENTUR has not assumed responsibility for data backup for the customer. This applies in particular in the event that the customer transfers data to RATKO MEDIENAGENTUR. In such a case, the customer shall create backup copies. RATKO MEDIENAGENTUR regularly and carefully backs up customer information. However, the customer is obliged to transfer the relevant data stocks to RATKO MEDIENAGENTUR again free of charge in the event of data loss that nevertheless occurs.
All services provided by RATKO MEDIENAGENTUR are to be checked by the customer and released within a maximum of 5 days, unless other periods have been agreed. If release is not given in good time, they shall be deemed to have been approved by the customer. The customer shall have RATKO MEDIENAGENTUR's liability for the permissibility of the services provided by RATKO MEDIENAGENTUR under copyright, competition and trademark law checked by the customer himself. If the customer wishes RATKO MEDIENAGENTUR to carry out the review, the customer shall bear the associated costs. If neither of the parties demands a formal acceptance or if the acceptance date requested by one party does not come about due to circumstances for which the customer is responsible, the contractual service shall be deemed to have been accepted by RATKO MEDIENAGENTUR upon commencement of use by the customer.
Unless otherwise agreed, the client accepts the following terms of payment: 50% when placing the order and 50% when completing the project. The agency grants a payment term of 7 days from the date of invoice. In the event of late payment, interest on arrears at the current rate of 10% p.a. shall be deemed agreed.
- Warranty and compensation for damages
Complaints must be made in writing within 3 days of the service being provided and justified. In case of justified and timely complaint the customer has the right to improve the service. Any further claims for damages by the customer shall only entitle the customer to assert such claims if RATKO MEDIENAGENTUR acts intentionally.
If claims are made against RATKO MEDIENAGENTUR by third parties for reasons for which the customer is responsible, the customer shall expressly indemnify and hold RATKO MEDIENAGENTUR harmless. This applies in particular with regard to any infringements of competition and copyright law for which the customer is responsible in accordance with these General Terms and Conditions.
- Duration of contract and termination
The contract is concluded for the respective agreed term. In the case of contracts with a term of at least one year, the contract period shall be extended by a further year in each case unless the contract is terminated in writing by one of the parties with a notice period of 6 months before the end of the respective contract period. The right of termination without notice for good cause remains unaffected. Good cause shall be deemed to exist in particular in the event of serious or continued breaches of contractual obligations and in the event of unfeasibility of the contract. In the event of termination for good cause, RATKO MEDIENAGENTUR is entitled to immediately block the customer's access to RATKO MEDIENAGENTUR systems.
- Other provisions
Amendments and supplements to the contract as well as collateral agreements must be in writing to be effective. If a provision of the contract or these terms and conditions should be or become invalid, this shall not affect the validity of the other provisions of the contract. In this case, the parties are obliged to agree to a contractual provision which comes as close as possible to the invalid contractual provision in economic terms. The same shall apply in the event that contractual gaps should become apparent. Place of performance and jurisdiction is Reutte, Austria. The law of the Republic of Austria shall apply to legal relationships under the law of obligations. The same applies to property law.
© Copyright of an Austrian professional photographer and member of the legal protection association of photographers of Austria! His works are protected by copyright. Therefore, use only with granted permission to use the work and manufacturer's name. Legal protection association of the photographers of Austria
- Applicability of the General Terms and Conditions
Austrian professional photographers conclude contracts only on these general terms and conditions. By placing an order, the client acknowledges their applicability. Deviating agreements can only be legally effective in writing. These General Terms and Conditions shall take precedence over any terms and conditions of the client or the agent.
- copyright regulations
2.1 The photographer is entitled to all copyrights and ancillary copyrights of the photographer (§§ 1, 2 para. 2, 73ff UrhG). Permission of use (publication rights etc.) shall only be deemed to have been granted if expressly agreed. In this case, the contractual partner shall acquire a simple (non-exclusive and non-exclusive), non-transferable (assignable) licence for use for the expressly agreed purpose and within the agreed limits (circulation figure, time and place restrictions etc.); in case of doubt, the scope of use stated in the invoice or delivery note shall be decisive. In any case, the contractual partner only acquires as many rights as correspond to the disclosed purpose of the contract (placed order). In the absence of any other agreement, the permission of use shall be deemed to have been granted only for a single publication (in one edition), only for the expressly designated medium of the Customer and not for advertising purposes.
2.2 The contractual partner is obliged for each use (reproduction, distribution, transmission, etc.) to attach the manufacturer's name (mention of name) or the copyright notice in the sense of the WURA (World Copyright Agreement) clearly and legibly (visible), in particular not toppled and in normal letters, directly next to the photograph and clearly assignable to it as follows
Photo:© Radomir Gabric, place and, if published, year of first publication.
This applies even if the photograph is not accompanied by a manufacturer's designation. In any event, this provision shall be deemed to be affixing the manufacturer's designation within the meaning of Section 74 (3) UrhG. If the photograph is signed on the front side (in the picture), the publication of this signature does not replace the manufacturer's mark described above.
2.3 Any change to the photograph requires the written consent of the photographer. This does not apply only if the changes are necessary according to the purpose of the contract known to the photographer.
2.4 The permission of use shall only be deemed to have been granted upon full payment of the agreed recording and usage fee and only if a proper manufacturer's name/name (point 2.2. above) is given.
2.5 Instead of § 75 UrhG the general provision of § 42 UrhG shall apply.
2.6 In case of publication, two free specimen copies must be sent. In the case of expensive products (art books, video cassettes), the number of specimen copies is reduced to one.
- Ownership of the film material - Archiving
3.1 The photographer has the right of ownership of the exposed film material (negatives, slides etc.). Slides (negatives only in case of written agreement) are only made available to the contractual partner on loan against return after use at the risk and expense of the contractual partner, unless otherwise agreed in writing. If this is the case, the permission of use shall likewise only be deemed to have been granted within the scope of point 2.1.
3.2 The photographer is entitled to mark the photographs with his manufacturer's name in any way he deems appropriate (including on the front). The contractual partner is obliged to ensure the integrity of the manufacturer's designation, especially in the case of permitted transfer to third parties (printers etc.). If necessary, the manufacturer's designation shall be affixed or renewed. This applies in particular to all means of reproduction created during production (lithos, plates etc.).
3.3 The photographer will archive the photograph without any legal obligation. In the event of loss or damage, the contractual partner is not entitled to any claims.
- third-party claims
The contractual partner shall be responsible for obtaining any necessary consent for depicted objects (e.g. works of fine art, samples and models, brands, photographic originals, etc.) or persons (e.g. models). He shall indemnify and hold the Photographer harmless in this respect, in particular with regard to claims under §§ 78 UhrG, 1041 ABGB. The Photographer guarantees the consent of entitled persons (authors, persons depicted etc.), in particular models, only in the case of express written consent for the contractual purposes (point 2.1.).
- loss and damage
5.1 In the event of loss or damage to photographs (slides, negatives) produced to order, the photographer shall only be liable - regardless of the legal title - for intent and gross negligence. The liability is limited to his own fault and that of his employees; for third parties (laboratories etc.) the photographer is only liable for intent and gross negligence in the selection. Any liability is limited to the cost of materials and the free repetition of the photographs (if and insofar as this is possible). The Client is not entitled to any further claims; in particular, the Photographer is not liable for any travel and accommodation expenses or third-party costs (models, assistants, make-up artists and other recording personnel) or for lost profits and consequential damages.
5.2 Point 5.1 shall apply accordingly in the event of loss or damage to handed-over templates (films, layouts, display pieces, other templates etc.) and handed-over products and props. More valuable items are to be insured by the contractual partner.
5.3 We reserve the right to valorise the above amounts.
- Performance and warranty
6.1 The photographer will execute the order carefully. He may also have the order - in whole or in part - executed by third parties (laboratories etc.). Unless the contractual partner gives written instructions, the photographer is free to decide how to execute the order. This applies in particular to the way the picture is taken, the selection of the photographic models, the place where the picture is taken and the optical-technical (photographic) means used. Deviations from earlier deliveries do not constitute a defect as such.
6.2 No liability shall be assumed for defects which are due to incorrect or inaccurate instructions of the contracting party (§ 1168a ABGB). In any case, the photographer is only liable for intent and gross negligence.
6.3 The contracting party bears the risk for all circumstances that are not in the person of the photographer, such as weather conditions for outdoor shoots, timely provision of products and props, failure of models, travel disruptions, etc.
6.4 Shipments travel at the expense and risk of the contractual partner.
6.5 All complaints must be made in writing within 8 days of delivery at the latest, and all documents must be submitted. After expiry of this period, the service is deemed to have been rendered in accordance with the order. The warranty period is three months.
6.6 In case of defectiveness, the contractual partner is only entitled to a claim for improvement by the photographer. If an improvement is impossible or is rejected by the photographer, the contract partner is entitled to a price reduction claim. For insignificant defects is not liable. Color differences in repeat orders are not considered a significant defect. Point 5.1. applies accordingly.
6.7 Transactions for delivery by a fixed date shall only exist if expressly agreed in writing. In the event of any delays in delivery, item 5.1. shall apply accordingly.
6.8 The claims for fees and royalties are due regardless of whether the material is (still) protected by copyright and/or ancillary copyright.
- Wages and salaries
7.1 In the absence of an express written agreement, the photographer is entitled to a remuneration for work (fee) according to his current price lists, otherwise an appropriate fee.
7.2 The fee shall also be due for layout or presentation recordings as well as in the event that no exploitation is made or depends on the decision of third parties. In this case, no price reductions are granted on the recording fee.
7.3 All material and other costs (props, products, models, travel expenses, accommodation expenses, make-up artists, etc.), even if they are procured by the photographer, are to be paid separately.
7.4 Any changes requested by the contracting party in the course of the execution of the work shall be at its expense.
7.5 Conceptual services (consulting, layout, other graphic services, etc.) are not included in the recording fee. The same applies to above-average organisational effort or such meeting expenses.
7.6 If the contractual partner refrains from carrying out the order for whatever reason, the photographer is entitled to half of the fee plus all additional costs actually incurred, unless otherwise agreed. In the case of absolutely necessary changes of date (e.g. due to weather conditions) a fee corresponding to the time spent in vain or reserved and all additional costs are to be paid.
7.7 The fee is understood to be exclusive of value added tax at the statutory rate.
- License fee
8.1 Unless otherwise expressly agreed in writing, the photographer is entitled to a publication fee in the agreed or appropriate amount separately in the case of the granting of a license.
8.2 The publication fee is understood to be plus value added tax at the respective statutory rate.
8.3 Notwithstanding all legal claims according to §§ 81ff and 91ff UrhG (German Copyright Act), the following shall apply in the event of infringement of copyright and/or ancillary copyrights in the contractual recordings: The claims according to § 87 UrhG shall apply irrespective of fault. In the case of infringement of the right to a manufacturer's name, the immaterial damage (Section 87 (2) UrhG) shall, subject to an additional pecuniary loss (Section 87 (1) UrhG), be at least an amount equal to the reasonable remuneration (Section 86 UrhG). The right to information under Section 87a (1) UrhG shall also apply to the right of removal.
9.1 In the absence of any other express written agreement, a payment on account in the amount of 50% of the anticipated invoice amount is to be made when the order is placed. Unless otherwise expressly agreed in writing, the remaining fee is due for payment in cash immediately after invoicing. If a term of payment has been agreed, the invoices issued are due for payment within 8 days from the date of invoice at the latest. The invoices are payable without any deduction and free of charges. In the case of delivery (postal order, bank or post office savings bank transfer, etc.), payment shall only be deemed to have been made when the photographer is notified of the receipt of payment. The risk of the postal way of judicial inputs (complaints, execution requests) are at the expense of the contracting party. If the contractual partner (client) refuses acceptance due to defective performance or asserts warranty claims, the fee is nevertheless due for payment.
9.2 For orders comprising several units, the photographer is entitled to invoice each individual service after delivery.
9.3 In the event of default, interest and compound interest in the amount of 5% above the respective bank rate from the due date shall be deemed agreed - without prejudice to any exceeding claims for damages. For the purpose of calculating interest, the bank rate fixed on 2 January of the respective year for the entire calendar year shall apply.
9.4 Reminder fees and the costs of legal intervention - including out-of-court - shall be borne by the contracting party.
9.5 Insofar as delivered images become the property of the contractual partner, this shall only take place upon full payment of the recording fee including ancillary costs.
- Final provisions
10.1 Place of performance and jurisdiction is Reutte. In the event of a transfer of the registered office, legal action may be brought at the old and new registered offices.
10.2 The Product Liability Act (PHG) is not applicable; in any case, liability for other than personal injury is excluded if the contractual partner is an entrepreneur. In all other respects, Austrian law shall apply, which shall also take precedence over international sales law.
10.3 Indemnification and indemnification also includes the costs of extrajudicial legal defence.
10.4 These General Terms and Conditions of Business shall not apply insofar as mandatory provisions of the KSchG conflict with them. Partial invalidity of individual provisions (of the contract) shall not affect the validity of the remaining provisions of the contract.
10.5 These General Terms and Conditions of Business shall apply mutatis mutandis to cinematographic works or motion pictures produced by Photographers in accordance with their orders, irrespective of the process and technology used (narrow film, video, DAT, etc.).