General Terms and Conditions
1. Application
1.1. The present general terms and conditions (hereinafter referred to as the ‘Terms and Conditions’) shall apply to all of proposals, bookings, deliveries and services executed by the photographer.
1.2. The Terms and Conditions shall bind both parties upon written acceptance of the photographer’s proposal by the customer. If the customer does not accept these Terms and Conditions, it shall lodge written notification to this effect within three working days as of the proposal date. Any alternative standard terms and conditions from the customer are hereby rejected and be deemed to be void unless the photographer agrees in writing to be bound by them.
1.3. In the absence of any express reference to the contrary, these Terms and Conditions shall also apply to all of the photographer’s future proposals, bookings, deliveries and services under the ongoing business relationship notwithstanding the absence of any express reference to them.
2. Work process
2.1. The customer is obliged to allow the photographer to gain free access to sites and objects to be photographed. The customer shall also ensure that the sites and objects are located in a photographable condition and photographic works are not hampered by construction or other disruptive circumstances.
2.2. If the customer wishes the photographer to shoot on a site or in a place where an increased risk of accidents or increased health risks cannot be excluded, the customer has to guarantee appropriate protective measures to ensure that the photographer can work safely. The customer is liable for all damages incurred by and to the photographer and his equipment from the omission of necessary protective measures or failure to comply with regulatory or legal protection.
2.3. If the customer or its representative cannot, or chooses not to, be present at the time of the shooting on site to give further directions, the photographer’s interpretation will be deemed as correct.
2.4. Should a shooting be postponed due to reasons beyond the control of the parties (including weather-delay), the customer shall give the photographer the opportunity to make up the shooting at a later date to be agreed with the photographer.
2.5 The parties agree that the normal period of time between the shooting date and the delivery date of the images/pictures to the customer shall be two weeks. In case the customer requests the photographer to deliver the images/pictures in a shorter time, the photographer reserves the right to charge the customer an additional cost for such express service. This service is subject to availability of the photographer and cannot be guaranteed to the customer.
3. Utilization rights
3.1. The customer shall only receive simple rights for the utilization of the images/pictures as defined in the proposal agreed by the parties.
3.2. Any use, exploitation, dissemination, copying and/or publication going beyond the scope provided by the photographer and written in the proposal shall be subject to separate remuneration and require the photographer’s prior written approval.
3.3. Any modifications to the images/pictures to produce a new copyright work shall require the photographer’s prior written approval and shall be designated as such by [© Bartosz Kolonko or © bartoszkolonko.ch]. In addition, the images/pictures may not be copied in drawing form, recreated photographically or used in any other manner as a motive.
3.4. The customer shall not transfer the rights of utilization or any part thereof granted to any third parties unless they are members of its company group. All use, reproduction and transfer of the images/pictures shall be subject to the condition that the copyright information stipulated by the photographer be included in such a way that it can be clearly allocated to the picture in question.
3.5. The grant of the rights of utilization shall be subject to the condition precedent of full settlement by the customer to the photographer of all of his claims for payment.
3.6. The photographer can use the images/pictures for his/her own advertising and, except as otherwise agreed, license them to third parties.
4. Liability
4.1. The photographer shall not be held liable for the breach of any rights held by persons and/or objects depicted in the images/pictures unless a duly signed release is enclosed. The customer shall be responsible for acquiring the rights of utilization over and above the copyright to the photograph in question and for obtaining releases from collections, museums etc., e.g. for images showing works of applied or plastic arts. The customer shall be responsible for the legend as well as the context in which the photograph is used.
4.2. The customer shall assume responsibility for the due and proper utilization of the images/pictures as of their date of delivery by the photographer.
5. Fees
5.1. The price to be paid by the customer to the photographer shall be the photography fee agreed by both parties on the written proposal accepted by the customer. The photography fee does not include any expenses arising in connection with the shooting (e.g. equipment, models, props, travel, other necessary expenses), which shall be borne by the customer.
5.2. Any cost estimates provided by the photographer shall be given without engagement. If any increase in costs occurs during the assignment, the photographer shall only report such increase when it becomes evident that the original estimate of the total costs is likely to be exceeded by more than 15%.
5.3. If the assignment period is exceeded for reasons beyond the photographer’s control, additional price shall be paid by the customer on the basis of the agreed time-based photography fee or in the form of a reasonable increase in the flat-rate fee agreed upon.
5.4. The invoice shall be payable by the customer upon delivery of the images/pictures. If the results of the shooting are supplied in parts, the corresponding part payment shall fall due upon receipt of the corresponding delivery.
5.5. The fee and expenses provided for in this clause shall be payable in full by the customer notwithstanding the fact that the images/pictures ordered and delivered are not published.
5.6. If the customer cancels the booking within two working days of the scheduled start of the shooting, or the photographer is unable to shoot through no fault of the photographer, then the customer agrees to pay the full quoted photography fee plus any reasonable expenses incurred by the photographer (including non-refundable tickets or reservations). If the customer cancels the booking within five and three working days of the scheduled start of the shooting, the customer agrees to pay 50% of the quoted photography fee plus any reasonable expenses incurred by the photographer.
5.7. It is common during architectural assignments that multiple parties may have use for images/pictures, and as such cost-sharing is encouraged by the photographer whenever possible. The customer agrees that any cost-sharing assignments shall be subject to an additional fee amounting to 50% of the agreed Photography fee and confirmed in a proposal.. Each party will need to be identified and sign an individual licensing agreement with the photographer.
6. Liquidated damages
6.1. In the event of any unauthorized utilization, use, reproduction and/or disclosure of the images/pictures (i.e. without the photographer’s prior consent), the customer shall be liable to pay to the photographer liquidated damages equaling 5,000 HKD for each individual instance, it being understood that this shall not operate to restrict any other remedies available to the photographer.
6.2. If the copyright notice is missing, incomplete, in the wrong position or not possible of being clearly allocated to the images/pictures in question, the customer shall be liable to pay to the photographer liquidated damages equaling 2,000 HKD for each individual instance if the customer does not correct the copyright immediately after notification.
7. General provisions
7.1. The contractual relationship anticipated by these Terms and Conditions between the photographer and the customer is subject to Hong Kong law including assignments that may occur outside of Hong Kong SAR.
7.2. Any additions or modifications to these Terms and Conditions shall be in writing only.
7.3. If any of the provisions contained herein are void, this shall not prejudice the validity of the remaining provisions. In such case, the parties undertake to replace the void provision with a valid one coming as commercially and economically close as possible to what they intended with the void provision.
7.4. In case of any litigation arising by or from these Terms and Conditions, the parties agree to settle by mutual agreement within 30 days as of the litigation event. If no settlement is reached by the parties, Hong Kong court shall be competent.