General terms and conditions

GENERAL TERMS AND CONDITIONS (GTC) MARTIN JORDAN PHOTOGRAPHY

1. Applicability and Scope of the General Terms and Conditions (GTC)
   1.1. These General Terms and Conditions apply exclusively to contracts concluded with consumers. A consumer within the meaning of § 1 KSchG is any natural person who concludes a legal transaction for purposes that are neither attributable to their commercial nor 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 concludes contracts solely based on these General Terms and Conditions.
   1.3. The inclusion of conflicting or supplementary terms and conditions of the contractual partner is expressly rejected. These shall only be valid if and to the extent that they have been agreed upon in writing on a case-by-case basis. In particular, any actions by the photographer to fulfill the contract do not imply consent to contractual conditions that deviate from these General Terms and Conditions.
   1.4. Should individual provisions of the contract, including these regulations, be or become wholly or partially invalid during their duration, or should the contract contain a gap, the validity of the remaining provisions or parts of such provisions shall remain unaffected. This does not apply if the invalid provision regulates one of the main obligations. In place of the invalid or missing provisions, the respective statutory regulations shall apply. The fact that the photographer does not exercise individual or all of their rights cannot be interpreted as a waiver of these rights.
   
2. Offer and Conclusion of Contract
   2.1. The photographer’s offers are non-binding and subject to change, unless they are expressly designated as binding. This also applies to all information in price lists, brochures, etc.
   2.2. Orders can be placed with the photographer in writing (by letter, email, fax, etc.) or verbally (in person, by phone). The photographer will send the client an order confirmation (acceptance of the offer) or inform them of the rejection of the order within a reasonable period after receipt of the order. Upon acceptance, a legally binding contract between the photographer and the client is established, triggering mutual obligations.
   2.3. The client has the opportunity to purchase photographs and/or film works, including usage rights as stipulated in § 42 UrhG, through the online shop. Additional usage rights must be separately agreed upon with the photographer. The photographer’s online shop offer is legally binding. The purchase contract is concluded upon receipt of the order by the photographer. The order process is initiated by selecting the desired products in the shopping cart and is completed by clicking the purchase button at the end of the order process. The photographer will provide the contracted products either by sending them to the address provided by the contractual partner or as a downloadable file after payment is received.
   
3. Performance and Granting of Usage Rights
   3.1. The photographer may execute the order in whole or in part through third parties (laboratories, etc.). Unless the contractual partner gives written instructions, the photographer is free to determine the method of executing the order. This applies particularly to the choice of subject matter, selection of models, location, and photographic techniques used.
   3.2. The delivery of goods is at the photographer’s risk, meaning that the risk of loss or damage to the goods only passes to the contractual partner once the goods have been delivered to them or to a third party designated by them, other than the carrier.
   3.3. Delivery and performance dates and deadlines specified by the photographer are approximate and non-binding unless expressly confirmed in writing as binding. No claims can be made against the photographer for failure to meet non-binding delivery/performance deadlines. However, the photographer must perform within 30 days of concluding the contract.
   3.4. If binding delivery dates or deadlines have been agreed upon, the contractual partner may withdraw from the contract in the event of a delay in delivery after setting a reasonable grace period, provided that it is not a fixed transaction within the meaning of Section 3.5. Withdrawal from the contract does not affect claims for damages caused by culpable non-performance.
   3.5. If fulfillment at a specific time or within a specific period is stipulated under penalty of withdrawal, and the photographer is in delay, the contract is considered dissolved without further action unless the contractual partner immediately informs the photographer that they still require performance of the contract. Any claims for damages remain unaffected.
   3.6. Upon acquiring a copyright-protected work, whether in physical or digital form, the contractual partner acquires a simple (non-exclusive and non-transferable) usage right for the explicitly agreed purpose and within the agreed limits (number of copies, time, and geographic restrictions, etc.); in case of doubt, the usage extent specified on the invoice or delivery note is decisive. The contractual partner acquires only as many rights as are necessary for the disclosed purpose of the contract (order). Unless otherwise agreed, the usage right is granted only for a single publication (in one edition), only for the explicitly designated medium of the contractual partner, and not for advertising purposes. Additionally, the contractual partner is entitled to make individual copies for personal and private use according to § 42 UrhG.
   3.7. The usage right is granted only upon full payment of the agreed fee for the creation and use of the work (see Section 6.2.) and under the condition of proper crediting/naming of the author according to Section 4.3.
   
4. Copyright Provisions
   4.1. Photographs and film works are copyright-protected works within the meaning of §§ 1, 3, 4 UrhG. All copyright and neighboring rights of the producer (§§ 14ff, 73ff UrhG) are exclusively held by the photographer. The photographer has the exclusive right to exploit the photograph, i.e., the exclusive right to reproduce, distribute, publicly display using optical devices, broadcast, and make the photograph available to the public. Usage is only permitted in accordance with a usage authorization granted by the photographer (see Section 3.6.). § 75 UrhG does not apply.
   4.2. The reproduction or distribution of photographs/films in online databases, electronic archives, on the internet, or intranets, which are not intended solely for the internal use of the contractual partner, on diskette, CD-ROM, or similar media, is permitted only based on a special written agreement between the photographer and the contractual partner. The right to make a backup copy remains unaffected.
   4.3. The contractual partner is obliged to clearly and legibly (visible), particularly not upside down and in normal letters, place the producer’s name or copyright notice as required by the WUA (World Intellectual Property Organization) directly with the photograph and in a way that it is clearly attributable to the photograph as follows: Photo: © … Name/Company/Artist’s name of the photographer, location, and – if published – year of the first publication. This applies even if the photograph does not bear a producer’s name. This provision shall in any case be deemed to constitute the producer’s name within the meaning of § 74 Abs 3 UrhG. If the photograph is signed on the front (in the image), the publication of this signature does not replace the above-described producer’s notice.
   4.4. Any alteration of the photograph requires the photographer’s written consent. This does not apply if the changes are necessary for the contract’s purpose, known to the photographer.
   4.5. In the event of publication, two free copies must be sent. For costly products (art books, video cassettes), the number of complimentary copies is reduced to one. In the case of internet publication, the photographer must be informed of the web address.
   4.6. In case of infringement of copyright and/or neighboring rights, the photographer has civil claims for injunction, removal, damages, publication of judgment, etc., according to §§ 81ff UrhG. These claims are available to the photographer irrespective of fault. In case of violation of the duty to credit the producer, a sum equivalent to the appropriate fee (§ 86 UrhG) is due as compensation for non-material damage (§ 87 Abs 2 UrhG), irrespective of any additional financial loss (§ 87 Abs 1 UrhG).
   
5. Ownership of Film Material and Image Files, Labeling, Archiving
   5.1. Analog Photography: The photographer retains ownership of the exposed film material (negatives, slides, etc.). The photographer transfers ownership of the photographs necessary for the agreed use to the contractual partner against agreed and appropriate remuneration. Unless otherwise agreed in writing, slides are provided to the contractual partner on a loan basis and must be returned after use at the contractual partner’s risk and expense for use within the scope of the usage rights under Section 3.6.
   5.2. Digital Photography: The photographer retains ownership of the image files. A right to the transfer of digital image files and use within the scope of the usage rights under Section 3.6. exists only after express written agreement and, unless otherwise expressly agreed, pertains only to a selection of the image files created, as mutually agreed upon between the photographer and the contractual partner.
   5.3. The photographer is entitled to mark the photographs and digital image files in any appropriate manner (including on the front) with their producer’s name. The contractual partner is obliged to ensure the integrity of the producer’s name, especially when passing it on to third parties (printers, etc.). If necessary, the producer’s name must be affixed or renewed. This also applies to all reproduction tools created during production (lithographs, plates, etc.) and when making copies of digital image files.
   5.4. The contractual partner is obliged to store digital photographs in such a way that the producer’s name remains electronically linked to the images during any form of data transmission, so the photographer as the author of the images is clearly identifiable.
   5.5. The photographer will archive the image files without obligation for at least three years from the completion date of the order. In case of loss or damage, the contractual partner is not entitled to any claims. If the contractual partner has received digital image files, they are responsible for securing them. The photographer is not liable for the loss or destruction of the data files.
   5.6. After expiry of the archiving period, the photographer is entitled but not obliged to destroy the negatives, slides, and other image files. The contractual partner is not entitled to any claims against the photographer arising from this.
   5.7. The contractual partner is responsible for keeping the digital image files received in such a way that they can only be accessed by them and their assigned persons (employees, commissioned third parties, etc.). The contractual partner is liable for ensuring that third parties do not have access to the image files.
   
6. Remuneration, VAT
   6.1. In the absence of an express written agreement, the photographer is entitled to a reasonable remuneration, in any case not less than the amount specified in the current price list. All rights of use beyond those set out in Section 3.6. are subject to a separate fee.
   6.2. All prices quoted are exclusive of VAT, which is to be added. The photographer will itemize the VAT separately in the invoice if the delivery/service is subject to VAT. If the reverse charge applies, the customer must inform the photographer of their VAT number and provide all necessary information for correct invoicing. The customer is responsible for any VAT-related obligations arising from incorrect or incomplete information.
   6.3. All payments are due immediately upon receipt of the invoice without any deductions unless otherwise agreed in writing.
   6.4. In case of late payment, the photographer is entitled to charge statutory interest on arrears and a flat-rate reminder fee. The photographer reserves the right to claim higher damages caused by delay.
   6.5. The contractual partner is only entitled to offset or withhold payments if their counterclaims are legally established, undisputed, or acknowledged by the photographer.
   
7. Liability
   7.1. The photographer is liable for damages – regardless of the legal reason – only if they were caused by intentional or grossly negligent conduct on the part of the photographer or their agents.
   7.2. In case of a delay or impossibility of performance for which the photographer is responsible, the contractual partner is entitled to demand compensation for damages caused by delay and/or damages for non-performance. However, the photographer is not liable for slight negligence.
   7.3. The contractual partner is obliged to check the goods or services provided by the photographer immediately upon receipt. Claims based on obvious defects must be reported in writing to the photographer within two weeks. The photographer is only liable for hidden defects if they are reported in writing within six months. The contractual partner bears the burden of proving the existence of a defect. If the goods are defective, the photographer is initially entitled to rectification or delivery of a replacement.
   7.4. Any further liability for damages – irrespective of the legal reason – is excluded, except in cases of intentional or gross negligence, injury to life, body, or health, or where liability is mandatory under the law.
   7.5. Liability for indirect damages, consequential damages, and lost profits is excluded unless the damage was caused intentionally or through gross negligence. The photographer’s total liability is limited to the amount of remuneration received for the order in question.
   
8. Place of Fulfillment and Jurisdiction
   8.1. The place of fulfillment is the registered office of the photographer.
   8.2. Austrian law applies exclusively to the exclusion of the conflict of laws rules. The UN Convention on Contracts for the International Sale of Goods does not apply.
   8.3. The place of jurisdiction for all disputes arising from or in connection with the contract is the competent court at the registered office of the photographer.
   8.4. If any provision of these GTC is or becomes invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.
   8.5. Changes or additions to these GTC must be made in writing to be effective. This also applies to the waiver of this written form requirement.
   
9. Withdrawal Right for Consumers
   9.1. The consumer has the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods.
   9.2. To exercise the right of withdrawal, the consumer must inform the photographer of their decision to withdraw from this contract by an unequivocal statement (e.g., a letter sent by post, fax, or email). The consumer may use the model withdrawal form, but it is not obligatory.
   9.3. If the consumer withdraws from this contract, the photographer shall reimburse all payments received from the consumer, including the costs of delivery (with the exception of the supplementary costs resulting from the consumer’s choice of a type of delivery other than the least expensive type of standard delivery offered by the photographer), without undue delay and in any event not later than fourteen days from the day on which the photographer is informed about the consumer’s decision to withdraw from this contract. The photographer will carry out such reimbursement using the same means of payment as the consumer used for the initial transaction unless the consumer has expressly agreed otherwise; in any event, the consumer will not incur any fees as a result of such reimbursement.