GENERAL CONDITIONS
Foreword
The aim of the general conditions is to guarantee a fair relationship between the customer and the photographer.
I. Definitions
- Photography Work. “Photography Work” consists of the result of work carried out by the Photographer for the Customer following the specifications and terms agreed upon by the Parties.
- Photographer. The “Photographer” is the person in charge of carrying out the Photography Work.
- Customer. The “Customer” is the person who orders the Photography Work from the Photographer.
- Parties. The “Parties” are the Photographer and the Customer.
- Copy of the Photography Work/Copy. Any reproduction of the Photography Work on a physical medium, particularly on paper or in the form of slides, as well as any digital file containing the Photography Work (be it saved onto a hard disk, a CD- ROM, a floppy disk or any other data storage medium) is considered as a “Copy of the Photography Work”, or “Copy”.
II. Execution of the Photography Work
- Unless otherwise agreed in writing, the Photographer shall have sole discretion when creating the Photography Work, and shall take all decisions on matters including but not limited to lighting, exposure, depth of field, framing, type of film, equipment and lenses to use, along with all other photographic, technical or optical resources.
- The Photographer may enlist the assistance of auxiliary staff chosen by him when carrying out the Photography Work.
- Photography devices and materials, and any other tools needed to carry out the Photography Work, shall be supplied by the Photographer.
- Unless otherwise agreed in writing, the Customer is responsible for providing the Photographer in due time with the locations and objects to be photographed, which are necessary for the Photography Work to be carried out.
- Unless otherwise agreed, the Customer is responsible for ensuring all people being photographed are present and available for the Photography Work to be carried out.
- If, at the Customer’s request or as a result of the Customer’s failure to honour the duties incumbent upon him under II.4 or II.5 of these general conditions, the aforesaid shoot is cancelled and postponed less than two days before a shoot is due to begin, the Photographer may bill the Customer for wasted expenses incurred to the Photographer (including expenses paid to third parties) due to the cancelled shoot along with compensation equivalent to 50% of the fees that would have been payable to the Photographer, in accordance with the Rates of the Swiss Professional Photographers as they apply at the time the Photography Work is ordered, for a shoot of the same length as the cancelled one. This clause applies regardless of the price-setting method chosen by the Parties for carrying out the Photography Work (fixed price or actual work price). The sums billed for under this point shall be added to the price agreed upon between the Parties for carrying out this Photography Work.
- The rule in point II.6 applies equally if, less than two days before a shoot is to begin, the aforesaid shoot is postponed because of unfavourable weather conditions.
- Delivery of the Photography Work shall consist of it being made available to the customer at the Photographer’s business address. If the Customer asks the Photographer to send him the completed Photography Work, or Copies of it, the Customer bears the risk of loss for shipment.
- Unless otherwise agreed in writing, the price agreed upon by the Photographer and the Customer shall be payable in full within 30 days from such time as the bill is sent to the Customer by the Photographer.
III. Responsibility of the Photographer
1. The Photographer shall only be held liable in the event of an intentional fault or serious negligence on his part, including liability resulting from the defect warranty. The Photographer is not responsible for the behaviour of his aids, except in the case of an intentional fault or serious negligence on his part.
2. The Customer must put any complaints in writing, within a period of six working days from the delivery of the Photography Work. After this deadline has passed, the Photography Work shall be considered to have been executed by the Photographer to the Customer’s full and entire satisfaction.
IV. Use of the Photography Work by the Customer
a. In general
1. The Customer has the right to use the Photography Work for the purpose agreed upon with the Photographer only. Any use beyond the limits agreed upon by the Customer and the Photographer shall obligate the Customer to pay the Photographer compensation for the disputed use equivalent to 150% of the charge set out in the Rates of the ASBI (Association Suisse des Banques d’Images, the Swiss Image Bank Association) as this applies at the time the Photography Work is ordered.
2. Only the Customer has the right to use the Photography Work as agreed with the Photographer. Unless otherwise agreed in writing, the Customer may not transfer the right to use the Photography Work to any third party.
3. Unless otherwise agreed, when using the Photography Work as agreed with the Photographer, the Customer shall state the name of the Photographer in an appropriate manner, preceded by the © or accompanied by a similar designation as befits the circumstances, as agreed upon with the Photographer. Failure to do this shall obligate the Customer to pay the Photographer, in addition to the agreed price for the Photography Work, compensation for the disputed use equivalent to 50% of the charge set out in the Rates of the ASBI (Association Suisse des Banques d’Images, the Swiss Image Bank Association) as this applies at the time the Photography Work is ordered.
4. The provisions of the federal law on copyright of 9 October 1992 are reserved.
b. Third party rights
1. If the Customer has told the Photographer which people should be photographed as part of the execution of the Photography Work, the Customer is responsible for ensuring that these people have given their consent to the use of their image as intended by Customer when using the Photography Work.
2. If the customer has given the Photographer objects or told the Photographer of specific locations to be photographed as part of the execution of the Photography Work, the Customer is responsible for ensuring that no third party right shall cause any obstacle to the Customer using the image of the aforesaid objects or places as they intend when using the Photography Work.
3. Should the obligations set out in the previous two paragraphs be breached, the Customer undertakes to exempt the Photographer from all sums that the latter may be ordered to pay to the rightful owners, and shall compensate the Photographer for any expenses linked to the legal action taken against them.
V. Use of the Photography Work by the Photographer
1. The Photographer retains the right to publish the Photography Work, in any form and any media (in particular on the Internet), make it accessible to third parties, grant third parties a licence, exclusive or otherwise, for the use of the Photography Work, or to give Copies of the Photography Work to third parties. However, this Photographer’s right is subject to prior permission from the Customer. The Customer undertakes to refrain from withholding consent without any legitimate motive; if the Customer has not expressly refused or limited their agreement in writing within thirty days from the time the Photographer requests permission, they are deemed to have given consent.
2. In the event of the Photographer using the Photography Work as defined in the previous paragraph, it is the Photographer’s responsibility to ensure that the intended use does not contravene any third party right to the image of the people, property or locations.
VI. Reference to the work carried out
The Photographer has the right to mention their collaboration with the Customer and refer to the Photography Work they have carried out in publications, on their website, during exhibitions and events, in contact with potential customers or in other, similar circumstances.
VII. Applicable law and jurisdiction
1. Relations between the Photographer and the Customer are governed by Swiss law.
2. Any litigation that may divide the Parties in relation to this contract shall come under the sole jurisdiction of the ordinary courts in the location where the Photographer has their business address.