General terms and conditions of business and sale for photo productions by Filipe Ribeiro
All orders, quotes, goods and other services are subject to the following general terms and conditions of business and sale (hereinafter the “Conditions of Business”). These are deemed to be agreed by the placing of an order, but at the latest by the acceptance of the artwork, irrespective of its stage of completion or technical form, these also particularly apply to artwork sent electronically or digitally and apply to all future orders, quotes, goods and services from Filipe Ribeiro as part of an ongoing business relationship, even without express inclusion, unless different arrangements have been explicitly agreed in advance in writing. Any deviating terms and conditions of business of the customer are hereby rejected.
If the customer does not accept a quote from Filipe Ribeiro in writing within four weeks of receipt, Filipe Ribeiro ceases to be bound by it. An acceptance which is timely, but with modifications, is considered a rejection of the quote accompanied by a new offer by the customer. If Filipe Ribeiro prepares estimates, these are always non-binding. If the production time is exceeded for reasons which Filipe Ribeiro is not responsible for, then an additional fee is due based on the agreed time-based fee or in the form of an appropriate increase in the flat-rate fee. Unless otherwise agreed in writing, Filipe Ribeiro is unrestricted with regard to the manner in which orders are executed. Filipe Ribeiro is entitled to use the services of third parties (e.g. photo laboratory work) for the purpose of executing the order. If the customer has not given Filipe Ribeiro any explicit instructions regarding the the design of the artwork, complaints about the artistic approach or technical creation are excluded. Complaints are in each instance to be made in writing to Filipe Ribeiro within 7 days of delivery of the artwork, otherwise the artwork will be deemed to have been accepted in accordance with the contract and as free of defects.
Each use of the artwork supplied by Filipe Ribeiro is subject to a fee. The agreed fee applies. If no fee has been agreed, the fee will be set based on the current picture fee list of Mittelstandsgemeinschaft Foto-Marketing (MFM). The fee shall be subject to the applicable value added tax. The agreed fee pays for the use of the artwork for the purpose agreed in advance in writing. Any additional use, manipulation, modification, storage, utilisation, reproduction, distribution or publication is subject to a fee and requires prior consent by Filipe Ribeiro. Additional expenses incurred through the order (e.g. material and laboratory costs, model fees, travel expenses etc.) are not included in the fee and are to be borne by the customer. The fee and the additional costs are due on the delivery of the artwork at the latest. If an image production job is delivered in parts, the corresponding portion of the fee is due on each delivery of a part. Irrespective of this, invoices are always to be paid within 14 days of receipt unless another, shorter payment deadline is explicitly specified in the invoice. After the end of this period, Filipe Ribeiro is entitled to claim interest on arrears of five percentage points above the base rate pursuant to section 288 (1) of the German Civil
Code (BGB). The fee and additional costs must still be paid if the artwork commissioned and supplied is not published.
- Terms / rights of use
The customer acknowledges that the artwork is protected photographic work within the meaning of the Copyright Act. Only the right to one use of the artwork for the agreed purpose or which is afforded by the circumstances surrounding the placing of the order is conferred with the delivery of the artwork. In case of doubt, the intended use for which the delivery note states the artwork was made available is decisive. Any additional use is subject to a fee and requires prior consent by Filipe Ribeiro. Exclusive rights of use, exclusive rights or exclusion periods are to be agreed separately in advance in writing and command a surcharge of at least 100% of the respective basic fee. Any use of the artwork is only permitted on the condition that the copyright notice specified by Filipe Ribeiro is included in such a way that it can be clearly attributed to the picture in question, unless the parties agree something to the contrary in writing in the context of the order in question. The granting of rights of use is in each case subject to the condition precedent that full payment be made of all payment claims by Filipe Ribeiro arising from the contractual relationship in question.
- Contractual penalty / damages in lieu of performance
Any unauthorised use, manipulation, storage, reproduction, transfer or other use of artwork without prior consent by Filipe Ribeiro will, in each individual case, entail the payment of a contractual penalty of at least five times the fee, subject to further claims for damages in lieu of performance Payment of such a contractual penalty does not establish any rights of use over the artwork in question. If the copyright notice is missing, incomplete, in the wrong position or not capable of being attributed to the relevant artwork, a additional charge of 100% of the respective usage fee must be paid. If the time needed to execute an order is exceeded by more than 15% for reasons which Filipe Ribeiro is not responsible for, then Filipe Ribeiro fee increases accordingly if a flat-rate price has been agreed. If a time-based fee has been agreed, Filipe Ribeiro will also receive the agreed hourly or daily rate for the waiting period. In the case of intent or negligence by the customer, Filipe Ribeiro can make claims for damages. If an agreed appointment which has been confirmed by Filipe Ribeiro does not take place due to intentional or negligent fault of the customer without prior cancellation of the appointment in writing being received by Filipe Ribeiro at least three days prior to the confirmed appointment, Filipe Ribeiro has the right to make a flat-rate cancellation charge or make a claim for damages in the amount of the agreed fee. If an agreed appointment which has been confirmed by Filipe Ribeiro does not take place due to intentional or negligent fault of the customer without prior cancellation of the appointment in writing being received by Filipe Ribeiro at least four days to two weeks prior to the confirmed appointment, Filipe Ribeiro has the right to make a flat-rate cancellation charge or make a claim for damages in the amount of 75% of the agreed fee. If an agreed appointment which has been confirmed by Filipe Ribeiro does not take place due to intentional or negligent fault of the customer without prior cancellation of the appointment in writing being received by Filipe Ribeiro at least two to four weeks prior to the confirmed appointment, Filipe Ribeiro has the right to make a flat-rate cancellation charge or make a claim for damages in the amount of 50% of the agreed fee.
Filipe Ribeiro does not accept any liability for the infringement of rights of persons or objects depicted, unless a correspondingly signed release agreement is attached. Acquisition of rights of use beyond the photographic copyright, e.g. for depicted works of art etc. or obtaining licences or authorisations, e.g. from museums etc. is the customer’s responsibility. The customer affirms that for all documents given to Filipe Ribeiro, the customer holds the reproduction and distribution right and, in the case of images of people, the consent of the person depicted to publication, reproduction and distribution. Reimbursement claims by third parties based on a breach of the aforementioned duties are in every case to be borne by the customer.
- Data protection
Filipe Ribeiro only stores personal customer data to the extent this is necessary to carry out the order and for the resulting customer care. All customer data gathered will be stored and processed in accordance with the relevant provisions of the Federal Data Protection Act. The customer has a right of access to, correction and deletion of their stored data at any time. Stored data will only be transferred to third parties for the purposes of fulfilling the order. There will be no other transfer of customer data to third parties.
- Jurisdiction / miscellaneous
German law shall apply. The exclusive place of jurisdiction and performance for both parties is Mannheim if the parties are merchants who have been entered in the German commercial register (Vollkaufleute). This also applies for goods and services provided abroad. Supplementary agreements to the contract or to these Conditions of Business must be made in writing to be valid. If one or more of the terms of these Conditions of Business are invalid or ineffective, this does not affect the effectiveness/validity of the remaining terms. The parties agree to replace the invalid term with a corresponding effective term which economically and legally approximates the intended provision as far as possible.
These Conditions of Business are valid as from 1 January 2009. Earlier terms and conditions of business are no longer valid.