Terms and Conditions

1. Scope of application

These Terms and Conditions ("T&C") apply to all commissions, offers, deliveries and services provided by ESS2 Studios ("we", "us", "the Photographer") to our clients ("you", "the Client"), including the production of photo and video recordings.

These T&C shall be deemed agreed upon receipt of the Photographer's delivery, service or offer by the Client, at the latest upon acceptance of the image or video material for publication or use. If the Client intends to object to these T&C, this must be declared in text form (e.g. email) within three (3) business days. Any deviating terms of the Client are hereby rejected and shall not apply unless expressly confirmed by the Photographer in writing.

Within an ongoing business relationship, these T&C shall apply to all future commissions, offers, deliveries and services without the need for re-incorporation, unless expressly agreed otherwise.

2. Commissioned productions

Estimates issued by the Photographer are non-binding. If cost increases occur during production, the Photographer shall inform the Client once it becomes apparent that the originally estimated total costs are likely to be exceeded by more than 15%. If the scheduled production time is exceeded for reasons beyond the Photographer's control, additional remuneration shall be payable based on the agreed time fee or by an appropriate increase to the agreed flat fee.

Unless agreed otherwise, the Photographer is entitled to commission third-party services necessary for the production (including video production) in the name of, with authority from, and for the account of the Client.

Unless agreed otherwise, the selection of images and video presented to the Client for approval after completion of the production shall be made by the Photographer.

If the Photographer does not receive written notice of defects in text form (e.g. email) within ten (10) business days after delivery of the photo or video recordings, the recordings shall be deemed accepted as contractually compliant and free of defects.

3. Supplied image and video material

These T&C apply to any image and video material supplied to the Client, regardless of the stage of creation or technical form, including electronically or digitally transmitted material.

The Client acknowledges that all image and video material supplied by the Photographer constitutes copyright-protected works within the meaning of § 2 para. 1 no. 5 of the German Copyright Act (Urheberrechtsgesetz — UrhG).

Design suggestions or concepts commissioned by the Client for photo and/or video recordings constitute independent services and must be remunerated separately, unless expressly agreed otherwise.

The supplied image and video material remains the property of the Photographer, including in cases where compensation is paid. The Client shall handle all material with due care and may pass it to third parties only for internal business purposes of viewing, selection and technical processing.

Complaints regarding the content, quality or condition of the image or video material must be communicated in text form within ten (10) business days after receipt. Otherwise the material shall be deemed received properly, in conformity with the contract and as listed.

4. Usage rights and licensing

Unless expressly agreed otherwise in writing, the Client acquires a non-exclusive, non-transferable right of use for a single, one-time use. Online publication (including social media) or inclusion in digital databases is — unless agreed otherwise — limited to the agreed usage period.

Exclusive rights of use, media-specific or territorial exclusivity, embargo periods or lock-up periods must be agreed separately in writing and require an appropriate surcharge — typically at least 100% of the base fee.

Upon delivery, only the right to use the image or video material once for the purpose specified by the Client and in the publication, medium or format specified by the Client is transferred. In case of doubt, the intended purpose as evidenced by the offer, delivery note and/or shipping address shall be decisive.

Any use beyond the above, including exploitation, reproduction, distribution, or publication, is subject to additional fees and requires the Photographer's prior express written consent. This applies in particular to:

• any secondary use or republication (e.g. compilations, brochures, advertising, reprints);
• any editing, alteration or transformation beyond agreed, customary optimisation (e.g. colour correction, retouching);
• digitisation, storage or duplication on any data media;
• any reproduction or use of image/video data on digital media;
• any display of the image/video data on the internet, in online databases or other electronic archives;
• any transfer of digitised material via data transmission or on media suitable for public display or creation of hardcopies.

Alterations by compositing, montage or electronic means to create a new copyright-protected work are permitted only with the Photographer's prior written consent. The image/video material must not be traced, recreated or otherwise used as a motif without consent.

Unless agreed otherwise in writing, the Client is not entitled to transfer granted usage rights in whole or in part to third parties, including affiliated companies or subsidiaries. Any use, reproduction or transfer of the image/video material is permitted only on the condition that the Photographer's copyright credit is attached in clear association with the respective image or video, unless agreed otherwise.

The granting of usage rights is subject to the suspensive condition of full payment of all fees due to the Photographer under the respective contract.

Even where exclusive usage rights are granted, the Photographer retains the right to use the photos and videos for self-promotional purposes (portfolio, website, social media, award entries, lectures), unless confidentiality or an embargo period has been agreed in writing. If no usage period is specified, it shall be twelve (12) months, after which the Photographer may otherwise dispose of the work.

5. Liability

The Photographer assumes no liability for the infringement of rights in depicted trademarks, company signs, designs, persons or objects, unless an appropriately signed release form is provided or rights clearance has been expressly agreed in writing. The acquisition of rights beyond the Photographer's copyright (e.g. rights in depicted works of fine or applied art) and obtaining publication permits (e.g. from collections, museums, or locations) is the Client's responsibility unless expressly agreed otherwise.

The Client is responsible for captions and the meaning or context arising from the specific publication.

From the time of proper delivery of the image or video material, the Client is responsible for its proper use.

ESS2 Studios carries professional indemnity and public liability insurance. Our liability for slight negligence is excluded to the extent permitted by law. In the unlikely event of equipment failure, accident, illness, or circumstances beyond our control that prevent delivery, our liability shall be limited to a refund of fees paid. We shall not be liable for indirect, consequential or incidental losses.

6. Fees

The agreed fee applies. If no fee has been agreed, the fee shall be determined based on the then-current industry fee guidelines ("BILDHONORARE", mfm/BVPA) or customary market remuneration. All fees are quoted exclusive of VAT where applicable.

The agreed fee covers the one-time use of the image or video material for the agreed purpose. Production-related costs and expenses (e.g. materials, lab costs, model fees, props, travel, crew, location, equipment, post-production, etc.) are not included in the fee and shall be borne by the Client unless expressly agreed otherwise.

The fee is payable in full even if the commissioned and delivered material is not published. Use of recordings as working material for layout and presentation purposes is — unless agreed otherwise — subject to a minimum fee of EUR 75.00 per image.

Set-off or the exercise of a right of retention is permitted only with undisputed claims or claims that have been finally adjudicated in the Client's favour.

7. Payment terms

A booking deposit of 50% of the agreed total fee is due upon contract formation to secure the shoot date. The remaining balance is due within fourteen (14) days of delivery of the final images or video files, unless otherwise agreed in writing.

In the event of late payment, the statutory rules on default shall apply, including statutory default interest pursuant to § 288 BGB.

For larger productions, the Photographer is entitled to request advance or partial payments corresponding to the scope of services already provided.

8. Rescheduling and cancellation

Any rescheduling must be communicated in text form (e.g. email). Where possible, an alternative date will be offered. Any third-party costs already incurred or booked (e.g. location, crew, styling, models, equipment, travel) shall be borne by the Client irrespective of rescheduling, unless such costs can be cancelled free of charge.

If the Client cancels a commissioned production for reasons for which the Client is responsible, a cancellation fee shall become due. The cancellation fee is calculated based on the agreed Photographer/production fee (excluding third-party costs) as follows:

• 50% if cancelled more than 30 days before the shoot date;
• 75% if cancelled 8–30 days before the shoot date;
• 100% if cancelled 7 days or fewer before the shoot date or in case of no-show.

Work already performed and non-cancellable third-party costs shall additionally be charged at 100%.

If the production cannot take place due to force majeure or unforeseeable circumstances beyond the parties' control (e.g. official orders, serious illness, severe weather for outdoor production), the parties will seek to reschedule. In this case, work already performed and non-cancellable third-party costs shall be borne by the Client; no additional cancellation fee shall be due provided no services were blocked that could not otherwise be reallocated.

If a replacement date is agreed within thirty (30) days, the cancellation fee already paid may, at the Photographer's reasonable discretion, be credited in whole or in part against the new fee (third-party costs excluded).

9. Delivery

Edited images and video files are delivered digitally via a download link within the agreed timeframe. Standard delivery for event photography is edited selects within 48 hours and the full edited gallery within 5–10 business days unless otherwise agreed. Portrait and branding shoots are delivered within 10 business days unless otherwise agreed.

The Client is responsible for downloading and backing up all delivered files within 30 days of delivery. The Photographer is not obliged to store files beyond this period and assumes no liability for the continued existence of the data or the possibility of re-delivery.

10. Return and deletion of material

Digital data must be deleted after completion of the agreed use, unless expressly agreed otherwise or statutory retention obligations apply. The Photographer assumes no liability for the continued existence or re-deliverability of the data.

If the Photographer provides image material to the Client solely for review purposes (to decide whether use or publication will be made), the Client must delete digital data promptly after the review period, unless agreed otherwise.

11. Contractual penalty for unauthorised use

In the event of any unauthorised use, reproduction, display, distribution or transfer of the image or video material (i.e. without the Photographer's consent), a contractual penalty in the amount of five times (5x) the applicable licence fee shall be payable for each individual case, without prejudice to further claims for damages. The Client may prove that a lower loss occurred; the Photographer may prove that a higher loss occurred.

If the required copyright credit is omitted, incomplete, incorrectly placed or not clearly attributable to the respective image or video, a surcharge of 100% of the agreed or customary licence fee shall be payable, provided that a credit is agreed or customary.

12. Data protection

We process personal data in accordance with our Privacy Policy and the General Data Protection Regulation (GDPR). Where photographs include identifiable individuals, the Client is responsible for ensuring appropriate consents or legal bases are in place under applicable data protection law.

13. Governing law, jurisdiction and miscellaneous

These T&C and all contracts concluded under them are governed by the laws of the Federal Republic of Germany. The place of jurisdiction for all disputes arising from the contractual relationship is Munich (München), provided the Client is a merchant (Kaufmann), a legal entity under public law, or a special fund under public law.

Side agreements to the contract or to these T&C require text form (e.g. email) to be valid, unless mandatory law requires stricter form.

Should any provision of these T&C be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that most closely reflects the economic and legal purpose of the invalid provision.

The EU Online Dispute Resolution platform is available at https://ec.europa.eu/consumers/odr/. We are not obligated to participate in dispute resolution proceedings before a consumer arbitration board.