Please note: As I live in a German-speaking country, legal information is only valid in German (see original German version of this website). The following text has been translated automatically and has no legal validity.

 

General Terms and Conditions for Consumer Transactions

 

1 Applicability and scope of the General Terms and Conditions

1.1 These General Terms and Conditions apply exclusively to the conclusion of contracts with consumers. A consumer within the meaning of Section 1 KSchG is any natural person who concludes a legal transaction for a purpose that cannot be attributed to their commercial or independent professional activity. For contracts concluded with entrepreneurs, the General Terms and Conditions for Business Transactions shall apply.

1.2 Unless expressly agreed otherwise, the photographer shall conclude contracts exclusively on the basis of these General Terms and Conditions.

1.3 The inclusion of conflicting or supplementary contractual terms and conditions of the contractual partner is expressly rejected. Without exception, these are only valid if and insofar as they have been agreed in writing in individual cases. In particular, contractual performance by the photographer shall not be deemed to constitute consent to contractual conditions that deviate from these General Terms and Conditions.

1.4 Should individual provisions of the contract, including these provisions, be invalid in whole or in part or become invalid in the course of their term or should the contract contain a loophole, the validity of the remaining provisions or parts of such provisions shall remain unaffected. This shall not apply if the invalid provision regulates one of the main performance obligations. The invalid or missing provisions shall be replaced by the relevant statutory provisions. The fact that the photographer does not exercise some or all of the rights to which she is entitled shall not constitute a waiver of these rights.



2 Offer, conclusion of contract

2.1 The photographer's offers are - unless they are expressly designated as binding - subject to change and non-binding. This also applies to all information in price lists, brochures, etc.

2.2 An order may be placed with the photographer in writing (by letter, e-mail, fax, etc.), verbally (in person, by telephone) or causally, e.g. by participating in an offered shoot. The photographer shall send the client an order confirmation (acceptance of offer) within a reasonable period of time after receipt of the order or inform the client of the rejection of the order. Participation in an offered shoot is considered as acceptance of the offer. Acceptance constitutes a legally binding contract between the photographer and the client, which triggers the mutual obligation to perform.



3. provision of services, authorization of use

3.1 The photographer may also have the order carried out - in whole or in part - by third parties (laboratories, etc.). If the contractual partner does not give any written instructions, the photographer is free with regard to the type of execution of the order. This applies in particular to the image conception, the selection of the photo models, the location and the optical-technical (photographic) means used as well as generally to the form and scope of the electronic image processing.

3.2 The shipment of the goods shall be at the risk of the photographer, i.e. the risk of loss or damage to the goods shall not pass to the contractual partner until the goods have been delivered to him or to a third party designated by him, other than the carrier.

3.3 Delivery/performance dates and deadlines stated by the photographer are only approximate and non-binding, unless they have been expressly confirmed as binding in writing. No claims against the photographer can be derived from non-compliance with non-binding delivery/performance deadlines and dates. However, the photographer must provide the service within 30 working days from the date of the shoot.

3.4 If binding delivery dates or delivery periods have been agreed, the contractual partner may withdraw from the contract in the event of a delay in delivery after setting a reasonable grace period, unless it is a fixed-date transaction within the meaning of point 3.5. Withdrawal from the contract shall not affect the right to compensation for damages caused by culpable non-fulfillment.

3.5 If performance is required at a fixed time or within a fixed period in the event of other rescission and the photographer is in default, the contract shall be deemed terminated without further action unless the contracting party immediately informs the photographer that it still insists on performance of the contract. Any claims for damages shall remain unaffected by this.

3.6 With the purchase of a copyrighted work, regardless of whether in paper or digital form, the contractual partner acquires a simple (non-exclusive and non-exclusive), non-transferable (assignable) license for the expressly agreed purpose of use and within the agreed limits (number of copies, temporal and local restrictions, etc.); in case of doubt, the scope of use stated in the invoice or delivery bill shall be decisive. In any case, the contractual partner shall only acquire as many rights as correspond to the disclosed purpose of the contract (order placed). In the absence of any other agreement, the authorization of use shall be deemed granted only for a one-time publication (in one edition), only for the expressly designated medium of the contractual partner and not for advertising purposes. In addition, the contractual partner shall in any case be entitled to make individual copies for his own private use within the meaning of Section 42 UrhG.

3.7 The authorization of use shall only be deemed granted upon full payment of the agreed recording and work use fee (see point 6.2.) and on condition that the manufacturer is properly credited/named in accordance with point 4.3.

3.8 Photographs that are made available to the contractual partner exclusively for viewing for the final selection (e.g. as an online gallery) are the property of the photographer and may not be used by the contractual partner in any form, except for the purpose of selection. In particular, downloading and removing the copyright notices is prohibited (see also point 4.1 and following).

3.9 As a matter of principle, the photographer shall only supply images that have been electronically processed. The provision of unprocessed images (i.e. images as they are created by the digital camera without further action) is excluded, regardless of the format. Unless otherwise agreed, the edited digital images shall be supplied in JPG or PNG format at the photographer's discretion.



4 Copyright provisions

4.1 Photographs and film works are copyrighted works within the meaning of §§ 1, 3, 4 UrhG. All copyrights and ancillary copyrights of the manufacturer (§§ 14ff, 73ff UrhG) belong to the photographer without exception. With the exception of the rights standardized in § 42 UrhG, the photographer has the exclusive right of exploitation, i.e. the exclusive right to reproduce, distribute, publicly perform by optical means, broadcast by radio and make available to the public the photograph. In this case, use is only permitted in accordance with a license granted by the photographer (see point 3.6.). § Section 75 UrhG shall not apply.

4.2 Reproduction or distribution of photographs/films in online databases, in electronic archives, on the Internet or in intranets, which are not only intended for the internal use of the contractual partner, on USB sticks or similar data carriers, is only permitted on the basis of a special written agreement between the photographer and the contractual partner. The right to make a backup copy remains unaffected by this. Publication of the photographs on the contractual partner's personal social media pages (e.g. personal Facebook page) is expressly permitted, subject to point 4.3. Publications on business-oriented Internet platforms (e.g. Xing, LinkedIn and similar) require separate written permission from the photographer.

4.3 For any use (reproduction, distribution, broadcast, etc.), the contractual partner is obliged to clearly and legibly (visibly) affix the producer's name (attribution) or the copyright notice within the meaning of the WURA (World Copyright Convention), in particular not in a dashed font and in standard letters, directly next to the photograph and clearly attributable to it as follows:


   
   Photo: © Nora May Photography, Vienna and the year the photo was taken.
   


This also applies if the photograph is not labeled with a manufacturer's name. In any case, this provision shall be deemed to be the affixing of the producer's designation within the meaning of Section 74 (3) UrhG. If the photograph is signed on the front (in the picture), the publication of this signature does not replace the manufacturer's note described above.

 

4.4 Any alteration of the photograph requires the written consent of the photographer. This shall only not apply if the changes are necessary in accordance with the purpose of the contract as known to the photographer.

4.5 In the event of publication, two free specimen copies must be sent. In the case of expensive products (art books, video cassettes), the number of specimen copies shall be reduced to one. In the case of publication on the Internet, the photographer must be informed of the web address.

4.6 In the event of infringement of copyrights and/or ancillary copyrights, the photographer has civil law claims for injunctive relief, removal, damages, publication of a judgment, etc. in accordance with §§ 81ff UrhG. The photographer is entitled to these claims irrespective of fault. In the event of a breach of the obligation to name the producer, the photographer is entitled to at least an amount equivalent to the reasonable remuneration (§ 86 UrhG) as non-material damage (§ 87 para. 2 UrhG) irrespective of any additional financial loss (§ 87 para. 1 UrhG).



5 Ownership of the film material and the image files, labeling and archiving

5.1 Analog photography: The photographer shall be entitled to ownership of the exposed film material (negatives, slides, etc.). The photographer shall transfer ownership of the photographs required for the agreed use to the contractual partner in return for an agreed and appropriate fee. Unless otherwise agreed in writing, slides shall only be made available to the contractual partner on loan against return after use at the risk and expense of the contractual partner for use within the scope of the authorization of use in accordance with point 3.6.

5.2 Digital photography: The photographer shall be entitled to ownership of the image files. A right to the transfer of digital image files and use within the scope of the authorization of use in accordance with point 3.6. shall only exist after express written agreement and, in the absence of any other express agreement, shall only apply to a selection of the image files produced to be mutually agreed between the photographer and the contractual partner.

5.3 The photographer is entitled to label the photographs and the digital image files with her manufacturer's name in any way she deems appropriate (including on the front). The contractual partner shall be obliged to ensure the integrity of the manufacturer's designation, in particular in the case of authorized forwarding to third parties (printers, etc.). If necessary, the manufacturer's designation must be affixed or renewed. This also applies in particular to all means of reproduction created during production (lithographs, plates, etc.) or when making copies of digital image files.

5.4 The contractual partner is obliged to store digital photographs in such a way that the photographer's name remains electronically linked to the photographs during any type of data transfer, so that the photographer can be clearly and unambiguously identified as the author of the photographs.

5.5 The photographer shall archive the photograph without legal obligation for a period of one year. In the event of loss or damage, the contractual partner shall not be entitled to any claims.



6 Remuneration (remuneration for work, fee)

6.1 In the absence of a written agreement to the contrary, the photographer shall be entitled to a fee for her services in accordance with her current price lists.

6.2 On the one hand, the photographer is entitled to a shooting fee, which is also due for layout or presentation shots as well as if utilization is omitted or depends on the decision of third parties. In this case, no price reductions shall be granted on the photography fee. In addition, the photographer is entitled to a sales fee for the sale of photographs/films and a separate work usage fee (license fee) in the agreed amount for the granting of a usage permit exceeding § 42 UrhG.

6.3 Conceptual services (consulting, layout, other graphic services, etc.) as well as material costs and other expenses for props, models, travel expenses, accommodation expenses, make-up artists, etc. are not included in the recording fee and will be charged separately. The same applies to above-average organizational or meeting expenses.

6.4 The prices are quoted in euros and are "ex works" without VAT (small business regulation) and, in the case of dispatch of the goods, plus a flat-rate shipping and packaging fee of at least €12.

6.5 Any changes to the order requested by the contractual partner in the course of order execution shall be at the contractual partner's expense and shall be invoiced separately.

6.6 The photographer is not bound to adhere to previous prices for follow-up orders.

6.7 No guarantee is given for the accuracy of cost estimates.



7 Payment

7.1 Unless a term of payment has been expressly agreed in writing, the fee shall be due for payment immediately after invoicing. If a term of payment has been agreed, the invoices submitted shall be due for payment within 8 working days of the invoice date at the latest, free of charges and deductions and received by the photographer.

7.2 In the absence of any other express written agreement, a payment on account amounting to 50% of the expected invoice amount shall be made when the order is placed. The photographer is entitled to issue partial invoices for orders for divisible services.

7.3 For photos ordered by the client in addition to or subsequently to an order, 75 percent of the expected order amount shall be paid when the order is placed.

7.4 The photographer is entitled to use payments, irrespective of their dedication, to settle the oldest debt due and the default interest and costs accrued thereon, in the following order: costs, interest, principal claim.

7.5 In the event of default in payment, default interest of 4% p.a. and compound interest at the statutory rate shall be charged, irrespective of fault. In addition, the contractual partner is obliged to reimburse the photographer for all costs incurred for the appropriate collection of the claim, such as attorney's fees and costs of collection agencies, and to compensate for any further damage, in particular also the damage caused by the fact that correspondingly higher interest on any credit accounts is incurred as a result of non-payment.

7.6 The contractual partner is only entitled to set off his own claim against the photographer if he is insolvent and the claim of the contractual partner is legally related to his liability or the claim has been legally established by the court or recognized by the photographer.

7.7 The contractual partner may only exercise a right of retention insofar as it concerns claims arising from the same contractual relationship.



8. statutory right of withdrawal

8.1 Pursuant to § 11 FAGG, the consumer may withdraw from a distance contract or a contract concluded outside of business premises within 14 days without giving reasons.

8.2 The right of withdrawal is excluded in the following cases:


   
   in the case of contracts for services, if the photographer - on the basis of an express request by the contracting party and a confirmation by the contracting party of the latter's knowledge of the loss of the right of withdrawal in the event of complete performance of the contract - had begun to perform the service before the expiry of the fourteen-day withdrawal period and the service was then provided in full;
   
   
   in the case of contracts for goods that are manufactured according to customer specifications or are clearly tailored to personal needs;
   
   
   in the case of contracts for goods which, due to their nature, were inseparably mixed with other goods after delivery;
   
   
   in the case of contracts for the delivery of digital content not stored on a physical data carrier, if the photographer - with the express consent of the contracting party, together with the contracting party's knowledge of the loss of the right of withdrawal in the event of premature commencement of performance of the contract, and after provision of a copy or confirmation in accordance with § 5 (2) or § 7 (3) - has commenced delivery before the expiry of the withdrawal/cancellation period.
   
   


 

9 Obligations of the contractual partner

9.1 The contractual partner is obliged to cooperate in the fulfillment of the order if necessary and to support the photographer to the best of his ability. The contractual partner shall be responsible for obtaining any necessary third party authorizations for the use of works with regard to the objects depicted (e.g. works of fine art, samples and models, trademarks, photo templates, etc.) and for obtaining consent for the depiction of persons (e.g. models). The photographer guarantees the consent of authorized persons, in particular models, only in the case of express written consent for the contractual purposes of use (point 3.6.). If the contractual partner places the order for photographs of minors, he shall bear the obligation to obtain permission for the minor(s) to be photographed.

9.2 Indemnification and hold harmless: The contractual partner undertakes to fully indemnify and hold the photographer harmless against claims by third parties if the photographer is prosecuted or sued under civil or criminal law or if claims are asserted in or out of court due to violations of legal provisions or the conduct of the contractual partner.

9.3 In the event that the photographer is commissioned with the electronic processing of third-party photographs, the contracting party warrants that it holds the necessary rights to do so and shall indemnify the photographer against all third-party claims based on a breach of this obligation.

9.4 The contracting party undertakes to collect the photographic objects provided immediately after the photograph has been taken. If these objects are not collected within two working days of the photographer's request, the photographer shall be entitled to store the objects at the expense of the contracting party.

 

10. default of acceptance, withdrawal of the contractual partner

10.1 If the contractual partner does not accept the service at the agreed time and place or if the photographer's performance is delayed or rendered impossible, the contractual partner shall be in default of acceptance. In this case, the photographer is entitled to withdraw from the contract after setting a reasonable grace period of 14 days or to insist on fulfillment of the contract. The photographer is also entitled to withdraw from the contract if the contracting party continues to breach material obligations under the contract (obligations to cooperate, payment of the deposit or partial payments) despite a written warning and a grace period of 14 days. The contractual partner shall in any case compensate the photographer for any damage culpably caused by him.

10.2 In the event of default of acceptance, the contractual partner shall bear any storage costs as well as the costs of unsuccessful delivery and removal. If the contractual partner is at fault for the delay in acceptance, he shall also compensate the photographer for the damage caused by the delay. The contractual partner shall also bear the risk of storage.

10.3 In the event of absolutely necessary changes to the deadline (e.g. due to weather conditions), a fee corresponding to the time spent or reserved in vain and all ancillary costs shall be paid.

10.4 If an agreed and confirmed shoot is canceled by the contractual partner, the following cancellation fees apply: Cancellation up to 48 hours before the shoot: 15 percent of the agreed shoot fee, up to 24 hours before the shoot: 30 percent of the agreed shoot fee. Thereafter, or in the event of a no-show for the shoot, 100 percent of the agreed shoot fee shall be refunded.

10.5 Any appointment reservation fee paid in advance will be deducted from the fees listed under point 10.4. If this fee is less than the appointment reservation fee, the entire appointment reservation fee must still be paid.



11 Retention of title

11.1 The photographer shall retain title to the goods until the fee has been paid in full. The contractual partner shall bear the entire risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

11.2 The contractual partner is prohibited from pledging or assigning the reserved goods as security.

11.3 The contractual partner undertakes to inform the photographer before filing for insolvency proceedings so that the photographer can take over goods delivered under retention of title and owned by him.

11.4 It is agreed that the assertion of the retention of title does not constitute a withdrawal from the contract, unless the photographer declares the withdrawal from the contract in writing.



12 Warranty

12.1 A defect giving rise to warranty claims by the contractual partner shall only exist if the photographer deviates from what is contractually owed. The assertion of warranty claims is only permissible for defects that already existed at the time of handover. The photographer does not assume any further warranty promises. In any case, there are no warranty claims for acts of fulfillment by the photographer that are based on incorrect or inaccurate instructions from the contractual partner or for damage caused by unsuitable or improper use or handling.

12.2 The statutory warranty provisions shall apply. The limitation period for warranty claims shall be two years from the handover of the goods to the contractual partner. If the photographer is responsible for the defect, the contractual partner may claim damages in accordance with § 933a ABGB within three years of becoming aware of the damage and the damaging party instead of asserting warranty claims.

12.3 If the supplementary performance is carried out by means of a replacement delivery, the contractual partner is obliged to return the goods first delivered to the photographer within 14 days at the photographer's expense. The defective goods must be returned in accordance with the statutory provisions.

12.4 The assignment of the contractual partner's claims for defects is excluded.



13. liability for damages

The photographer shall be liable for damages culpably caused by her in accordance with the statutory provisions. Claims for damages for material damage are excluded in the case of merely slightly negligent causation. This shall not apply to damage to items accepted by the contractual partner for processing or to damage caused by a breach of the main contractual obligations.



14. data protection

The photographer shall collect, store and process the personal data provided by the contractual partner (name, address, e-mail address, credit card data, data for account transfers, telephone number, etc.) as well as the data associated with the business relationship (such as order date, products or services ordered or delivered, number of units, price, delivery dates, payment and dunning data, etc.) in compliance with the provisions of the Data Protection Act as amended for the purpose of fulfilling the contract. The photographer shall use the personal data provided by the contractual partner without the latter's separate express consent solely for the purpose of processing the contract, responding to inquiries and general communication and providing information about current offers with the contractual partner.



15. use of images for advertising purposes of the photographer

Unless expressly agreed otherwise in writing, the photographer is entitled to use photographs taken by her to advertise her work. The contractual partner gives his express and irrevocable consent to the publication for advertising purposes of the photographer and waives the assertion of any claims, in particular from the right to his own image in accordance with § 78 UrhG as well as claims for use in accordance with § 1041 ABGB.



16 Applicable law, place of jurisdiction, contractual language

16.1 All disputes between the photographer and the contractual partner arising from the contractual relationship, including disputes regarding the conclusion and/or validity of the contract, shall be governed by Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law. However, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the country in which the contractual partner has its habitual residence.

16.2 For all actions brought against a contractual partner of the photographer who has his domicile, habitual residence or place of employment in Austria, one of the courts in whose district the consumer has his domicile, habitual residence or place of employment shall have jurisdiction.

16.3 The language of the contract is exclusively German.

 

 



General Terms and Conditions for Consumer Transactions, drawn up on the basis of the WKO template. These terms and conditions replace all previous versions with the date of publication.



Nora May Photography is primarily engaged in baby bump photography, newborn photography, baby photography, children photography and family photography.