General Terms and Conditions
of KME GmbH,
represented by General Manager Klaus Einwanger,
Am Roßacker 9, 83022 Rosenheim, Germany
1.1 Scope of Validity of the General Terms and Conditions
The production of photos, films, videos (hereinafter referred to as “pictures”) as well as the granting of rights of use by KME GmbH (hereinafter referred to as “KME GmbH“) shall only be done on the basis of the subsequent terms and conditions. These terms and conditions shall also be valid for all future production and license contracts, even if they are not explicitly included again in the later agreement.
These terms and conditions shall apply unless explicitly different provisions have been agreed in writing.
1.2 General Terms and Conditions of the Client
Terms and Conditions of the client deviating from the subsequent terms and conditions shall not be acknowledged. Such deviating terms and conditions shall not become part of the contract, even if KME GmbH does not expressly contradict.
2. Production Orders
Production orders include the taking of pictures by order of the client.
2.1 Estimate of Costs
The cost estimates prepared by KME GmbH are always not binding KME GmbH shall only inform the client if the costs stated in the cost estimate are expected to be exceeded by more than 15 % as compared to the originally estimated overall costs.
In case the pictures presuppose the use of props from the collection of KME GmbH, an adequate fixed rate shall be included in the cost estimate.
2.2 Authorization of KME GmbH and Employment of Third Parties
In case the project execution requires the services of third parties or contract conclusions with third parties (e.g. models, make-up artists, stylists, owners of locations etc.) KME GmbH shall conclude the corresponding commitments with third parties in its own name and for the account of KME GmbH.
For taking pictures KME GmbH may use the assistance of third parties and commission external photographers/film makers etc. not employed with KME GmbH. KME GmbH shall propose suitable photographers/film makers etc. to the client. The client has the possibility to reject these photographers/film makers and choose other photographers/film makers etc. from the team available to KME GmbH. KME GmbH shall try to comply with the selection made by the client and commission the photographer/film makers etc. chosen by the client.
In case the photographer/film maker etc. chosen cannot come due to sickness or force majeure etc. For the production of the pictures KME GmbH is entitled to select at its own discretion another photographer, film maker etc. as a replacement.
The briefing of the client forms the basis for the pictures and calculations to be made by KME GmbH. The client shall provide the briefing conclusively, completely and in writing (e.g. as written minutes of a meeting via e-mail etc.) to KME GmbH.
In case the client does not provide a written briefing to KME GmbH, the Pre-Production-Meeting (PPM), the previous e-mail correspondence between the client and KME GmbH as well as memory minutes of the PPM prepared by the staff members of KME GmbH and phone memos form the basis for the taking of the pictures.
2.4 Cooperation Duties of the Client
In case the client has to provide information, goods (e.g. products, recipes etc.) approvals etc. or takes over other relevant tasks (e.g. booking of models, locations or catering etc.) the client shall make sure that the supply, provision, the access to locations, the arrival of models shall be in time such that the production of pictures can start in time on the agreed date.
As soon as the client knows that in-time delivery, provision, access to a location, arrival of the models etc. will not be possible, he shall inform KME GmbH without delay. If this results in a delay of the picture production and if the cause of this delay is within the responsibility of the client, the client has to bear the costs resulting from the delay (e.g. additional hotel costs, location days, booking of models, stylists, make-up artists, assistants, reservation changes). The costs resulting from this delay also include the fee, the provision in 4.1 shall apply.
The client shall make sure that he/she or an authorized representative will be present during the production of the pictures. In case he/she is absent during the picture production, the client shall make sure that he/she or the person authorized by him/her can be permanently reached by phone or e-mail by KME GmbH to allow short-term agreements and decision making.
2.5 Third-Party Rights
For pictures of persons and for pictures of objects where copyrights, design rights, brand rights, property rights or other rights of third parties are concerned, the following regulation shall apply:
In case the booking of models, locations, external photographers and/or the selection of other objects is done by KME GmbH, KME GmbH shall obtain the required approval of the relevant rights owner prior to the recording of pictures. KME GmbH shall indemnify the client from damage claims of third parties resulting from the violation of this obligation. The indemnity obligation does not apply if KME GmbH proves that it is not at fault. KME GmbH shall inform the client on the approvals obtained and prove the rights secured. In case KME GmbH books the models, locations and/or the selection of objects, KME GmbH shall also take over the further management of these rights.
KME GmbH shall exclusively negotiate with the relevant rights owner the extension of rights of use regarding models, locations etc. booked by KME GmbH in the name and by order of the client and it shall conclude the agreements on the extension of the rights of use with them. KME GmbH shall only negotiate the extension of the rights of use if the client ordered KME GmbH to do so.
If the booking of models, locations and/or the selection of objects is done by the client, the client shall obtain the required consent of the relevant holder or rights prior to the production of the pictures. The client has to exempt KME GmbH from claims for compensation of third parties resulting from a violation of this obligation. The indemnity obligation shall not apply if the client proves that he/she is not at fault. In case the booking of models, locations and/or the selection of objects is done by the client himself/herself, he/she has to organize the rights management himself/herself and in particular he/she has to obtain the extension of the rights of use.
2.6 Samples Supplied
KME GmbH shall be allowed to handle the samples supplied by the client for the production as follows:
If the samples supplied by the client are perishable goods (e.g. food) these shall be discarded by KME GmbH after the production is completed.
If the samples supplied by the client are not perishable (e.g. clothing, hardware etc.) the samples shall be sent back to the client at his/her expense or discarded after the production, except the client gives different instructions within a period of two weeks after the production is completed.
2.7 Picture Selection / Freedom of Design
KME GmbH shall select the pictures which will be submitted to the client for acceptance after production conclusion. Rights to use the pictures shall only be granted after complete payment and only for those pictures which the client buys on the basis of the contract.
When making the pictures the photographer of KME GmbH enjoys artistic freedom, however the binding specifications of the client in the briefing, PPM and/or oral and/or phone instructions have to be observed.
Complaints and/or notices of defects regarding the artistic freedom of design of the photographer of KME GmbH are therefore excluded. Subsequent change requests of the client presuppose a special agreement and are to be remunerated separately.
2.8 Notification of Defects
If the client himself/herself or a person authorized by him/her is present during the production, he/she has to examine the pictures on the set and make a complaint to KME GmbH without delay, if required, such that KME GmbH can remedy the defect and make replacement pictures. If the complaint is not made on the set, the pictures are deemed to be approved and accepted.
If neither the client nor an authorized agent is present during the picture production, KME GmbH shall send the pictures immediately after they are made via electronic data transfer to the client. He/she has to examine the pictures transmitted immediately upon receipt of the data and make possible complaints to KME GmbH immediately after receipt of the data, such that KME GmbH can remedy the defect and make replacement pictures. If an immediate complaint is not made, the pictures are deemed to be approved an accepted.
3. Data Provision
KME GmbH transfers the selected analogous and digital pictures as well as the relevant data, files and data carriers (recording material) to the client after the order is completed. The data format shall be defined by agreement of the parties. If nothing has been fixed, KME GmbH may fix an appropriate data format and chose an appropriate data carrier. KME GmbH shall archive the recording material prepared within the scope of this order for a maximum of three months. However, it is not obliged to archive it and does not give a warranty for saving the recording material after it has been transferred to the client.
If the client wishes a longer saving of the recording material, i.e. for more than three months, this shall be agreed separately in the contract as well as a suitable remuneration.
4. Production Fee
4.1 Remuneration for Production Orders, Cost Estimates
For pictures from production orders KME GmbH shall receive the contractually agreed fee. If a fixed fee has been agreed and if the time planned for the recording is exceeded substantially due to reasons for which KME GmbH is not responsible or due to force majeure or weather effects, the fixed fee agreed shall be increased correspondingly.
If an hourly or daily rate has been agreed, KME GmbH shall receive the hourly or daily rate even for the time by which the recording is prolonged. Additional work, in particular the recording of pictures beyond the scope fixed at contract start shall be remunerated separately according to the remuneration mode agreed.
If the fee has not been explicitly agreed by contract, the fee of KME GmbH results from its written cost estimate set out in writing at an earlier time.
4.2 Ancillary Costs Involved in Production Orders
In addition to the fee owed the client has to reimburse the ancillary costs arising for KME GmbH in connection with the performance of the order (e.g. film material, laboratory costs, costs of digital picture processing, model fees, travel expenses, props, catering, location fees, permits etc.).
4.3 Cancellation Fees for Production Orders
If the client terminates before the recording is completed, KME GmbH is entitled to the agreed fee in accordance with the statutory provisions of § 649 BGB (German Civil Code).
If the recording does not take place due to reasons for which KME GmbH is not responsible (e.g. bad weather, force majeure), then KME GmbH is entitled to a cancellation fee in the amount of 50 % of the agreed fee, unless the client proves a lower, adequate amount to KME GmbH in the individual case.
If the recording does not take place due to reasons within the responsibility of the client (e.g. delayed delivery of information, unpunctual supply of goods etc.), then KME GmbH is entitled to a cancellation fee in the amount of 100 % of the fee agreed, unless the client proves a lower, adequate amount to KME GmbH in the individual case.
All ancillary costs which accrued for the preparation of the recording up to the termination or the cancellation (e.g. location scouting, model booking etc.) shall be refunded by the client at 100 %.
4.4 Payment Date
Prior to production start KME GmbH may request an advance on costs which has to be paid into the account named by KME GmbH one week before production start at the latest.
In case of productions performed in the in-house studio of KME GmbH, an advance payment of costs in the amount of 30 % of the overall production costs may be requested by KME GmbH.
In case of productions outside and not in the in-house studio of KME GmbH, KME GmbH may request an advance payment on costs in the amount of 50 % of the overall production costs.
After completion of the recording, KME GmbH may request from the client the payment of another payment on account in the amount of 30 % of the overall production costs.
After the advance payments and the payments on account have been deducted, the remaining production costs become due upon delivery of the pictures to the client. In exceptional cases KME GmbH may request additional cost advances from the client for ancillary costs even before production start.
The copyrights on the pictures will only be acquired by the client upon the complete payment of all production costs.
4.5 Value-Added Tax and Artist’s Social Security Contribution
The value-added tax and the Artist’s Social Security Contribution at the statutory rate have to be added to the remunerations, fees and costs accruing possibly at KME GmbH for third-party services. If the client has its headquarter abroad the client is liable for tax.
5.1 Scope of Use
The client acquires rights of use in the pictures in the relevant contractually agreed scope. Any further use shall be agreed in writing with and remunerated to KME GmbH. Ownership rights will not be transferred.
5.2 Right to Use for Self-Promotion
Irrespective of the scope of the right of use granted in the individual case, KME GmbH shall remain entitled to use the pictures produced within the scope of self-promotion in all media as well as for exhibitions, competitions, art projects and/or book projects. Scrap material, parallel pictures and other pictures not used by the client may also be used by KME GmbH for self-promotion. KME GmbH has free choice as regards these pictures not used by the client and will only use them for self-promotion after they have been released by the client.
KME GmbH may also use pictures used by the client for self-promotion and will only start to do so after the client has published the pictures.
In this respect the client will provide the required rights for KME GmbH.
KME GmbH is entitled to state and mention the brands and other marks of the client for reference purposes.
5.3 Transfer and Granting of Rights of Use to Third Parties
The transfer and/or granting of rights of use acquired by the client to third parties – even if this concerns group or subsidiary companies of the client – requires the previous written consent of KME GmbH.
6. Naming of the Copyright Owner
As far as technically feasible and customary in the trade, every picture publication shall be provided with the following copyright denomination: “KME Studios / Photo: (Insert name of the photographer)“.
The denomination shall be made near the picture, if possible. If this is not possible or reasonable for technical or optical reasons, the copyright denomination shall be made as customary in the trade and in such a way that it can be clearly allocated to the picture in question.
For digital storage of the pictures the copyright denomination shall be linked electronically with the picture data. The client has to ensure by appropriate technical means that this linkage remains unchanged with each transmission of picture data, with each transfer of picture data to other data carriers, with each reproduction on a screen as well as with each public reproduction. The originator of the picture shall be identifiable as such without any doubt.
KME GmbH shall only be liable for damage caused by its staff members, if they themselves or its vicarious agents caused the damage by intent or gross negligence. Excluded is any damage resulting from the violation of a contract obligation having essential importance for the attainment of the purpose of the contract (cardinal obligation), as well as damage to life, body or health, here KME GmbH shall be liable also in case of slight negligence.
KME GmbH shall not be liable for the type of use of the pictures it provides. In particular it shall not be liable for the legitimacy of the use according to competition and trademark law.
KME GmbH shall not be liable if the rights of third parties (2.5) obtained and proven for the client are exceeded by the client in terms of location, time and/or content.
If the client insists on the depiction of persons and/or objects for which the required granting of rights with regard to the rights of third parties is missing and if KME GmbH has pointed out this fact, the client shall be liable for the use of these pictures.
8. Final Provisions
If individual provisions of these terms and conditions are invalid or ineffective, this does not impair the validity of the other provisions.
Additional or deviating conditions have to be in written form to become a component of the contract.
The law of the Federal Republic of Germany shall apply, also for deliveries abroad.
Place of performance shall be Rosenheim.
In case the client has no general place of jurisdiction in the Federal Republic of Germany or transfers his/her domicile or usual residence abroad, the headquarter of KME GmbH shall be agreed.
These General Terms and Conditions shall be effective as of 1 August 2017.
* For reasons of readability, the gender-neutral, generic masculine is used as a formulation variant on this specific page. This applies in principle to all genders in the sense of equal treatment.