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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 Business 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 entrepreneurs. An entrepreneur within the meaning of Section 1 KSchG is any natural or legal person or a partnership with legal capacity that acts in the exercise of its independent professional or commercial activity when concluding a legal transaction. The General Terms and Conditions for Consumer Transactions shall apply to contracts concluded with consumers.

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

1.3 These General Terms and Conditions shall apply to all contracts - including future contracts - until a new version is announced, even if no separate reference is made to them in future contracts. By placing an order, the contractual partner acknowledges their exclusive applicability.

1.4 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 terms and conditions that deviate from these General Terms and Conditions.

1.5 Should individual provisions of these Terms and Conditions of Use be legally ineffective, invalid and/or void or become so in the course of their term, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, the legally ineffective, invalid and/or void provision (which has become legally ineffective, invalid and/or void) shall be replaced by a provision which is legally effective and valid and which corresponds in its economic effect to the replaced provision - as far as possible and legally permissible. 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 either in writing (by letter, e-mail, fax, etc.) or verbally (in person, by telephone). 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 him/her of the rejection of the order. By accepting the order, a legally binding contract is concluded between the photographer and the client, which triggers the mutual obligation to perform. (Optional when ordering photographs online).

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.

3.2 Deliveries by the photographer shall be made at the risk and expense of the contractual partner.

3.3 Delivery 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 may be derived from non-compliance with non-binding delivery/service deadlines and dates.

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 of at least two weeks, unless it is a fixed-date transaction within the meaning of point 3.5. Withdrawal from the contract must be asserted by registered letter. The right of withdrawal shall only apply to the part of the delivery or service for which there is a delay. At the photographer's request, the contracting party is obliged to declare immediately whether it is withdrawing from the contract due to the delay or insisting on fulfillment of the contract. Claims for damages due to delay on the part of the photographer shall only exist if the contracting party proves that the photographer has caused the delay intentionally or through gross negligence and that he has suffered material damage as a result. Minor delays in delivery shall not entitle the contractual partner to claim damages.

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.

3.6 Claims for damages due to non-performance or delayed performance are excluded in any case, unless they are based on intent or gross negligence.

3.7 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.

3.8 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 producer is properly identified / named in accordance with point 4.3.

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 3.7.). § 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 diskette, CD-ROM 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.

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

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

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, ...) 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 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 shall be 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 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 3.7.

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 3.7. exists only after express written agreement and, in the absence of an express agreement to the contrary, only concerns 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 in any way he deems appropriate (including on the front) with his manufacturer's name. 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 any 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 shall be entitled to a photography fee, which shall also be due for layout or presentation photographs and if utilization is not made 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 Prices are quoted in euros and are "ex works" plus VAT at the applicable statutory rate and plus any ancillary costs such as postage and packaging, freight, customs duties, insurance, etc. 6.5.

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

6.6 The photographer shall not be 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 at the latest from the date of invoicing, free of charges and deductions and received by the photographer.

7.2 The photographer is entitled to demand payment on account from the client before commencement of the execution of the order and to submit partial invoices for orders for divisible services.

7.3 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.

7.4 In the event of default in payment, default interest in the amount of 5% above the base interest rate p.a. and compound interest in the statutory amount 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 lawyer's fees and costs of collection agencies, and to compensate for any further damage, in particular also the damage caused by the fact that higher interest rates are incurred on any credit accounts as a result of non-payment. This shall in any case include a lump sum of € 40.00 as compensation for collection costs pursuant to § 458 UGB.

7.5 If the contractual partner is in default with a (partial) payment or if circumstances become known which are likely to reduce the creditworthiness of the contractual partner (e.g. opening of insolvency proceedings or rejection of an insolvency application due to lack of assets to cover costs), the photographer is entitled to make outstanding but not yet due invoice amounts from the business relationship due immediately, as well as to withhold outstanding deliveries or services until full payment of the due claims and to execute them only against advance payment or provision of security. If the contractual partner does not fulfill these obligations, the photographer is entitled to withdraw from all contracts concluded with the contractual partner without setting a grace period. This shall not affect the right to reclaim the products delivered under retention of title at the expense of the contractual partner and to claim damages.

7.6 The contractual partner shall only be entitled to offset his own claim against the photographer if the latter is insolvent and the contractual partner's claim is legally related to his liability or the claim has been legally established by a court or recognized by the photographer.

7.7 A right of retention of the contractual partner against the claims of the photographer due to defective performance or the assertion of warranty claims is expressly excluded.

8 Obligations of the contractual partner

8.1 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 3.7.).

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

8.3 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.

8.4 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.

9. default of acceptance, withdrawal of the contractual partner

9.1 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 - without prejudice to further claims for damages - to insist on fulfillment of the contract. The photographer is also entitled to withdraw from the contract if the contractual partner continues to breach essential obligations arising from the contract (obligations to cooperate, payment of the deposit or partial payments) despite a written warning and the setting of a grace period of 14 days. If the photographer justifiably withdraws from the contract, the photographer shall be entitled to the agreed remuneration plus all ancillary costs actually incurred, unless otherwise agreed.

9.2 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 must also compensate the photographer for the damage caused by the delay. The contractual partner shall also bear the risk of storage.

9.3 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.

9.4 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.

9.5 Any appointment reservation fee paid in advance will be deducted from the fees listed under point 9.4. If this fee is less than the appointment reservation fee, the entire appointment reservation fee must still be paid.
10 Retention of title

10.1 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.

10.2 The contractual partner is authorized to dispose of the purchased goods in the ordinary course of business.

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

10.4 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.

10.5 If the contractual partner is in default of payment in whole or in part, the photographer shall be entitled to demand the return of the goods until full satisfaction. Time-limited claims shall become due immediately.

10.6 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.

11 Warranty

11.1 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.

11.2 Warranty claims for insignificant defects, such as color differences when reordering or minor material deviations, are excluded.

11.3 The existence of a defect must be proven exclusively by the contractual partner. § Section 924 ABGB shall not apply.

11.4 In accordance with § 377 of the Austrian Commercial Code (UGB), the contractual partner is obliged to give written notice of the defect immediately after receipt of the delivery or service, at the latest within 8 working days, hidden defects within 3 working days of discovery, otherwise his warranty, compensation and error avoidance claims due to a defect shall be forfeited. The complaint must be sufficiently substantiated and supported by evidence.

11.5 The warranty period shall be 6 months from the transfer of risk/acceptance of the work. Warranty claims must be asserted in court within this period, otherwise they shall be precluded. The period shall not begin again if a replacement delivery is made within the scope of liability for defects.

11.6 The contractual partner shall not be entitled to any warranty claims as long as it is in default with its own performance obligations.

11.7 In the event of justified defects, the photographer shall be entitled, at her discretion, to remedy the defect (improvement, addition of what is missing), to make a replacement delivery (replacement) or to cancel the contract. The contractual partner has no right to choose between the aforementioned warranty remedies. Multiple improvements and replacement deliveries are permitted. After the second unsuccessful attempt at improvement, the contractual partner is entitled, at its discretion, to demand a reduction in payment or to declare its withdrawal from the contract. Under no circumstances shall the photographer be obliged to bear the costs of any rectification of defects by third parties undertaken by the contracting party.

11.8 If the supplementary performance is effected by way 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.

11.9 The due date of the photographer's claims shall not be postponed by any defects for which the photographer is responsible. The contractual partner has no right of retention, reduction or set-off, unless such a right has been expressly recognized in writing by the photographer.

11.10. The right of recourse pursuant to § 933b ABGB is expressly waived.

11.11. The above provisions on liability for defects shall apply equally, irrespective of whether claims for defects are asserted under the title of warranty or damages pursuant to § 933a ABGB. The following provisions under point 12 apply exclusively to consequential damages.

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

12 Liability for damages

12.1 Insofar as the following limitations of liability do not violate mandatory law, the photographer shall only be liable - with the exception of personal injury, which shall be compensated regardless of the degree of fault - for compensation for damages caused by gross negligence or willful misconduct. This shall also apply in the event of loss of or damage to photographs (slides, negatives, digital image files) or templates (films, layouts, display pieces, other templates, etc.), products and props. The contractual partner undertakes to insure valuable items.

12.2 In the event of gross negligence, liability for material damage shall be limited to the value of the order. The contractual partner shall not be entitled to any further claims; in particular, the photographer shall not be liable for any travel and accommodation expenses or for third-party costs (models, assistants, make-up artists and other shooting personnel).

12.3 The photographer shall only be liable for indirect damages, loss of profit, loss of interest, failure to make savings and damages arising from third-party claims in the event of intent.

12.4 Should the contractual partner be held liable under product liability law, he expressly waives any recourse against the photographer, in particular within the meaning of § 12 of the Austrian Product Liability Act or similar foreign provisions.

12.5 The contractual partner must always prove that the photographer is at fault for the occurrence of damage; the statutory reversal of the burden of proof is expressly waived.

12.6 Claims for damages of any kind must be asserted in court within 6 months of knowledge of the damage and the damaging party, at the latest within 10 years of the transfer of risk/acceptance of the work, otherwise they shall be precluded.

12.7 The photographer has no duty to inspect and/or warn with regard to the products and props provided by the contractual partner. The photographer accepts no liability whatsoever for direct or indirect damage caused by such items.

12.8 The photographer shall not be liable for circumstances that cannot be attributed to her sphere, e.g. weather conditions during outdoor shoots, timely provision of products and props, failure of models, travel hindrances, etc.

13 Assignment

13.1 The contractual partner may only transfer his rights under this contract in whole or in part to third parties or pledge them to third parties with the prior written consent of the photographer.

14 Data protection, change of address

14.1 By placing the order, the contractual partner expressly agrees that the photographer may process the personal data provided by him (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 (e.g. order date, ordered or changed orders). B. order date, ordered or delivered products or services, 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 purposes of contract fulfillment and support as well as for its own advertising purposes. Furthermore, the contractual partner declares its consent, which may be revoked at any time, to be sent electronic mail for advertising purposes until such consent is revoked.

14.2 The contractual partner is obliged to notify the photographer of any changes to his business address in a verifiable, unsolicited and immediate manner, as long as the contractual legal transaction has not been completely fulfilled by both parties, otherwise declarations to the contractual partner shall be deemed to have been received even if they were sent to the address last notified to the photographer. The contractual partner shall be responsible for providing proof of receipt of his notification of change.

15. use of portraits for advertising purposes of the photographer

15.1 Unless expressly agreed otherwise in writing, the photographer shall be 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 Place of performance, place of jurisdiction, applicable law, contract language

16.1 The place of performance for the reciprocal deliveries and services and the place of jurisdiction for all disputes arising from the contractual relationship, including disputes regarding the conclusion and/or validity of the order and/or the effectiveness of the agreement on the place of jurisdiction, shall be the photographer's principal place of business. In the event of relocation of the registered office, legal action may be brought at the old and the new registered office. The photographer shall also be entitled to bring an action before the competent court at the registered office of the contracting party.

16.2 All legal relationships between the photographer and her contractual partner shall be governed exclusively by Austrian law, excluding the conflict of law rules of private international law (e.g. IPRG, Rome I Regulation, etc.) and the UN Convention on Contracts for the International Sale of Goods.

16.3 The contract language is exclusively German.

General Terms and Conditions for Business 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.

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