1 Application of the Terms and Conditions
1.1 Images are produced and image licenses conferred solely on the basis of the Terms and Conditions set forth hereinbelow. These Terms and Conditions shall also apply to all future production and license agreements unless or to the extent that regulations deviating herefrom are explicitly agreed.
1.2 Terms and conditions of the customer deviating from the Terms and Conditions set forth hereinbelow are not accepted. Such deviating terms and conditions shall not become part of the agreement even if not explicitly repudiated by the photographer.
2 Production Orders
2.1 Cost estimates by the photographer are not binding. The photographer has to indicate increased costs only if the difference to be anticipated compared with the overall costs originally estimated exceeds 15 percent.
2.2 In the case of photographs of people and of objects enjoying third party copyright, ownership or other third party rights, the customer is obliged to obtain the consent required for the production and use of the images from the person depicted and from the holders of the rights. The customer must indemnify the photographer against compensation claims asserted by third parties resulting from a breach of this duty. The indemnification obligation shall lapse insofar as the customer evidences that he is not at fault.
The aforementioned provision shall also apply if the photographer himself selects the persons or objects to be depicted, provided that the photographer informs the customer of his selection in such good time as to enable the customer to obtain the necessary declarations of consent or to select other suitable persons or objects for the photographic work and make them available.
2.3 If, during the processing of the assignment, the services of a third party have to be used or if any other contract has to be concluded with third parties, the photographer is authorized to enter into the respective obligations in the name and for the account of the customer.
2.4 The photographer selects the images he presents to the customer for acceptance upon conclusion of the production. Subject to the condition that full payment is made (Section 3.4), rights of use are conferred only with respect to those photographs accepted by the customer as being compliant with the agreement.
2.5 The customer is obliged to examine the photographs presented to him upon completion of the production work within a reasonable period of time and to make any complaints as to defects to the photographer. A complaint regarding obvious defects must be asserted in writing within two weeks of delivery of the images, a complaint relating to defects which are not obvious must be raised within a deadline of two weeks after the defect is detected. The deadline for raising complaints is met if the complaint is dispatched in good time. In the event of a violation of the duty to examine the photographs and to assert complaints, the photographs shall be deemed approved with regard to the respective defect.
2.6 If the contract is cancelled due to reasons not attributable to the photographer before the beginning of the Production, the photographer is free to charge up to 50% of the original fee. If the contract is cancelled during the production the full price is to be charged.
3 Production Fee and Incidental Costs
3.1 If the time period set for the photographic work is considerably exceeded for reasons for which the photographer is not accountable, any flat rate fee agreed upon shall be increased accordingly. If an hourly or daily fee has been agreed upon, the photographer shall also be paid the hourly or daily rate agreed upon for that period of time by which the photographic work is extended.
3.2 In addition to the fee owed, the customer shall also reimburse the photographer for the incidental costs he incurs in connection with conducting the assignment (e.g. on film material, digital image processing, models, travel).
3.3 The production fee is due upon delivery of the images. If an image production is delivered in parts, that respective part of the fee shall fall due when a part is delivered. If the assignment is for a lengthy period of time, the photographer may demand advance payments in accordance with the time expended.
3.4 The customer does not acquire the rights of use under copyright law until the fee has been paid in full and all incidental costs have been reimbursed.
4 Request for Archived Images
4.1 Images which the customer requests from the photographer’s archives shall be made available for viewing and selection for a period of one month from the date of the delivery note. If no license agreement is entered into within the selection period, analogue images and image data media provided by the photographer must be returned to the photographer before expiry of this period and all and any image data stored by the customer on his own data media must be deleted.
4.2 No rights of use are transferred upon provision of images for viewing and selection. Each and any use requires the prior written declaration of approval by the photographer.
4.3 The use of the images as work copy for sketches or layout purposes and a presentation to customers already constitutes use subject to payment of a fee. If slide frames or foil are/is opened, the photographer is entitled to charge a layout fee – without prejudice to any entitlement to further payment – even if there has been no use of the images.
4.4 The photographer may charge a processing fee for the composition of the image selection; this fee is calculated on the basis of the type and scope of the work entailed and amounts to no less than € 30. Carriage costs (packaging, postage), including the costs of special types of transport (taxi, air freight, express courier), must be reimbursed separately by the customer.
4.5 If the period for returning the analogue image material set forth in Section 4.1 or agreed in the license agreement is not met, a blocking fee shall also be payable – in addition to the other costs and fees – pending receipt of the images by the photographer. The blocking fee amounts to € 1.50 per picture and day, whereby the maximum amount which may be demanded for each individual image shall not exceed the amount provided for in Section 7.5 (sentence 2) of the General Terms and Conditions as flat rate compensation for the loss of the image, irrespective of the duration of the blocked period.
The customer remains entitled to evidence that the photographer did not incur any damage due to the belated return of the images or that the damage incurred is considerably lower than the blocking fee.
5 Rights of Use
5.1 The customer only acquires the rights to use the images for the scope defined in the agreement. No ownership rights are transferred. Irrespective of the scope of the rights of use conferred in individual cases, the photographer remains entitled to use the images within the framework of his own advertising.
5.2 The written consent of the photographer is required prior to conferring and transferring to third parties, including the editors of a publishing house, the rights of use acquired by the customer.
5.3 In principle, only the original version of the image may be used. The consent of the photographer is required prior to any re-working (e.g. montage, alienation using photographic techniques, colouring) and each and any change in the reproduction of the image (e.g. publication of excerpts). The only exception to this is eliminating any undesired lack of focus or colour weaknesses by electronic retouching.
5.4 The photographer must be named as the creator of the image in every publication thereof. The name must be indicated with the image.
6 Digital Image Processing
6.1 Digitalizing analogue images and transmitting digital images by remote data transmission or on data media is only admissible if and insofar as exercising the rights of use conferred requires this form of reproduction and dissemination.
6.2 Image data may only be digitally archived for the customer’s own purposes and only for the duration of the right of use. A separate agreement between the photographer and the customer is required for storing the image data in online databases or in other digital archives accessible to third parties.
6.3 During the digital recording of the images, the name of the photographer must be electronically linked to the image data. Furthermore, the customer is obliged to ensure, by taking suitable technical precautions, that this linking is preserved during every transmission of the data, when the image data are transferred onto other data media, when the data are reproduced on a screen and during any publication, and that the photographer can always be identified as the creator of the image.
7 Liability and Compensation
7.1 The photographer is only liable for damage which he or his agents cause by deliberate acts or gross negligence. This does not apply to damage resulting from the breach of a contractual duty which is of material significance for achieving the object of the agreement (cardinal duty) or to damage resulting from fatal injury, physical injury or damage to health for which the photographer is also liable in case of slight negligence.
7.2 The photographer assumes no liability for the type of use of his images. In particular the photographer is not liable for the admissibility of the use under competition or trademark law.
7.3 Claims by the customer arising from a breach of duty by the photographer or the photographer’s agents shall become time-barred one year after commencement of the statutory period of limitations. This does not include claims for damages based on a deliberate or grossly negligent breach of duty by the photographer or the photogra-pher’s agents or to claims for damages on account of fatal or physical injury or damage to health, even insofar as these are based on a slightly negligent breach of duty by the photographer or the photographer’s agents; the statutory period of limitation applies to claims for damages of this kind.
7.4 Images are sent and returned at the risk and expense of the customer.
7.5 If analogue pictures are lost in the area of risk of the customer, or if such pictures are returned in a condition precluding any further use in accordance with customary practice, then the customer shall pay compensation. In such a case the photographer shall be entitled to demand compensation in an amount of € 1,000 for each original and of € 200 for each duplicate, unless or to the extent that the customer can evidence that no damage arose at all or that it is considerably less than the flat rate demanded as compensation. The photographer reserves the right to assert a claim for a higher amount of compensation.
7.6 In case of the unjustified use, change, reworking or passing on of an image, the photographer has the right to demand a contractual penalty in the amount of five times the agreed fee for use, or, in the absence of such agreement, five times the customary fee for use, but not less than € 500 per picture and individual case. Asserting a claim for any further damages shall remain unaffected hereby.
7.7 If, when an image is published, there is no indication of the name of the photographer (Section 5.4) or if the photographer’s name is not permanently linked with a digital image (Section 6.3), the customer shall pay a contractual penalty in the amount of 100 percent of the agreed fee for use, or, in the absence of such agreement, five times the customary fee for use, but not less than € 200 per picture and individual case. The photographer also reserves the right to assert a claim for a higher amount of damages in this respect.
8 Value Added Tax, social security for self-employed artists
The fees, charges and costs to be paid for by the customer also include Value Added Tax and social security for self-employed artists at the respective statutory rate, which the photographer may incur on third party services.
9 Governing Law and Jurisdiction
9.1 The law of the Federal Republic of Germany shall apply hereto.
9.2 In the event that the customer has no general place of jurisdiction in the Federal Republic of Germany or if he relocates his registered office or normal place of residence abroad after entering into the contract, the place of residence of the photographer is agreed as being the place of jurisdiction.
GENERAL TERMS AND CONDITIONS (ONLINE-SHOP)
§ 1 Scope and provider
(1) These general terms and conditions apply to all orders that you place with the online shop of
Managing Director: Jana Erb
to do so.
(2) The goods offered in our online shop are exclusively aimed at buyers who have reached the age of 18 years.
(3) Our deliveries, services and offers are made exclusively on the Internet.
Basis of these General Terms and Conditions. The General Terms and Conditions therefore also apply to all future business relations with companies, even if they are not expressly agreed again. The inclusion of general terms and conditions of a customer that contradict our general terms and conditions is already now contradicted.
(4) The contract language is exclusively German.
(5) You can call up and print out the currently valid General Terms and Conditions on the website (www.kontrapixel.de).
§ 2 Conclusion of contract
(1) The presentation of goods in the online shop does not constitute a binding application for the conclusion of a sales contract. Rather, it is a non-binding request to order goods in the online shop.
(2) By clicking the button [“Order now subject to payment” / “Buy”] you submit a binding purchase offer (§ 145 BGB). Immediately before placing this order, you can check the order again and correct it if necessary.
(3) After receipt of the purchase offer, you will receive an automatically generated e-mail confirming that we have received your order (confirmation of receipt). This confirmation of receipt does not constitute an acceptance of your purchase offer. A contract does not come off by the confirmation of receipt yet.
(4) A purchase contract for the goods shall only be concluded if we expressly declare acceptance of the purchase offer (order confirmation) or if we send the goods to you – without prior express declaration of acceptance. Exception: in the case of payment in advance and PayPal the acceptance of the order takes place immediately with your order.
§ 3 Prices
The prices stated on the product pages include the statutory value added tax and other price components and do not include the respective shipping costs. Further information on shipping costs can be found on our website under [“Shipping Information” / “Terms of Delivery”].
§ 4 Terms of Payment; Default
(1) Payment shall be made optionally by: Invoice by prepayment, cash on delivery, credit card, Paypal or direct debit.
(2) The choice of the available payment methods is incumbent on us. In particular, we reserve the right to offer you only selected payment methods for payment, e.g. advance payment only to secure our credit risk.
(3) When selecting the payment method prepayment, we will give you our bank details in the order confirmation. The invoice amount must be transferred to our account within 10 days of receipt of the order confirmation.
(4) If payment is made by cash on delivery, an additional fee of 8.00 EUR will be due, which the deliverer will charge on site. Further costs and taxes do not result.
(5) When paying by credit card, the purchase price will be reserved on your credit card at the time of ordering (authorization). The actual debit of your credit card account takes place at the time when we ship the goods to you.
(6) If you pay with PayPal, you will be redirected to the website of the online provider PayPal during the ordering process. To be able to pay the invoice amount via PayPal, you must be registered there or register first, legitimize with your access data and confirm the payment order to us. After placing the order in the shop, we ask PayPal to initiate the payment transaction. You will receive further information during the ordering process. The payment transaction is carried out automatically by PayPal immediately afterwards.
(7) If you pay by direct debit, you may have to bear the costs incurred as a result of a reverse posting of a payment transaction due to lack of bank account coverage or due to incorrect bank account data transmitted by you.
(8) If you fall into arrears with a payment, you shall be obliged to pay the statutory default interest in the amount of 5 percentage points above the base rate. You will be charged a reminder fee of EUR 2.50 for each reminder letter sent to you after the default has occurred, unless a lower or higher damage is proven in the individual case.
§ 5 Set-off/Retention Right
(1) You shall only be entitled to a right of set-off if your counterclaim has been legally established, is not disputed or acknowledged by us or has a close synallagmatic relationship to our claim.
(2) You may only exercise a right of retention if your counterclaim is based on the same contractual relationship.
§ 6 Delivery; retention of title
(1) Unless otherwise agreed, the goods shall be delivered from our warehouse to the address indicated by you.
(2) The goods remain our property until the purchase price has been paid in full.
(3) As an exception, we shall not be obliged to deliver the ordered goods if we have duly ordered the goods on our part but have not received them correctly or on time (congruent covering transaction). The prerequisite is that we are not responsible for the unavailability of the goods and have informed you of this circumstance without delay. In addition, we must not have assumed the risk of procuring the ordered goods. If the goods are unavailable, we will reimburse you immediately for any payments already made. We do not assume the risk of having to procure the ordered goods (procurement risk). This also applies to orders for goods which are only described according to their type and characteristics (generic goods). We are only obliged to deliver from our stock of goods and the goods ordered by us from our suppliers.
(4) If you are an entrepreneur within the meaning of § 14 BGB (German Civil Code), the following shall apply in addition:
– We retain title to the goods until all claims arising from the current business relationship have been settled in full. Before transfer of ownership of the reserved goods, pledging or transfer of ownership by way of security is not permitted.
– You may resell the goods in the ordinary course of business. In this case, you hereby assign to us all claims in the amount of the invoice amount accruing to you from the resale. We accept the assignment, but you are authorised to collect the claims. If you do not meet your payment obligations properly, we reserve the right to collect claims ourselves.
– If the reserved goods are combined and mixed, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing.
– We undertake to release the securities to which we are entitled upon request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%. The choice of the securities to be released shall be incumbent upon us.
§ 7 Cancellation Policy
In the event that you are a consumer within the meaning of § 13 BGB (German Civil Code), i.e. you make the purchase for purposes which are predominantly neither your commercial nor your
If you can be attributed to self-employed professional activity, you have a right of revocation in accordance with the following provisions.
Right of revocation
You have the right to revoke this contract within fourteen days without giving reasons. The withdrawal period shall be fourteen days from the date on which you or a third party other than the carrier designated by you took possession of the goods.
In order to exercise your right of revocation, you must
Address: Applications 2a, D-82067 Zell
phone: 0049 160 5804952
inform you by means of a clear statement (e.g. a letter, fax or e-mail sent by post) of your decision to revoke this Agreement. You can use the attached sample revocation form, which is not mandatory. In order to comply with the revocation period, it is sufficient for you to send the notification of exercising the right of revocation before the expiry of the revocation period.
Consequences of revocation
If you revoke this Agreement, we shall reimburse you immediately and no later than fourteen days from the date on which we received notice of your revocation of this Agreement for all payments we have received from you, including delivery charges (other than additional charges arising from your choice of a method of delivery other than the cheapest standard delivery offered by us). We will use the same means of payment used by you in the original transaction for such refund, unless expressly agreed otherwise with you and in no event will you be charged for such refund. We may refuse to refund until we have received the Goods back or until you have provided evidence that you have returned the Goods, whichever is earlier. You shall return or deliver the Goods to us or to [the name and address of any person authorised by you to receive the Goods] immediately and in any event no later than fourteen days from the date on which you notify us of the revocation of this Agreement. This period shall be deemed to have been observed if you dispatch the goods before expiry of the period of fourteen days.
You shall bear the direct costs of returning the goods. You shall only be liable for any loss in value of the goods if such loss in value is due to handling of the goods which is not necessary for testing their condition, properties and functionality.
Sample withdrawal form
If you want to cancel the contract, please fill out this form and send it back.
Address: Applications 2a, D-82067 Zell
phone: 0049 160 5804952
I/we (*) hereby cancel the contract concluded by me/us (*) concerning
the purchase of the following goods (*):
Ordered on (*)/received on (*)
Name of the consumer(s):
Address of the consumer(s):
Signature of consumer(s) (only for paper notifications)
(*) Delete as appropriate.
End of the revocation instruction
(1) The right of revocation does not exist in the case of the delivery of
– goods which are not prefabricated and the manufacture of which is determined by an individual choice or intended use by the consumer or which are clearly tailored to the personal needs of the consumer (e.g. T-shirts with your photograph and your name),
– Sealed goods which, for health or hygiene reasons, are not suitable for return if their seal has been removed after delivery,
– of goods, if these have been mixed with other goods inseparably after delivery due to their nature,
– of sound or video recordings or computer software in a sealed package if the seal has been removed after delivery,
– of newspapers, periodicals or magazines, with the exception of
(2) Please avoid damage and contamination. If possible, please return the goods to us in their original packaging with all accessories and packaging components. If necessary, use a protective outer packaging. If you no longer have the original packaging, please use suitable packaging to provide sufficient protection against transport damage in order to avoid claims for damages due to damage caused by defective packaging.
(3) Please call us at 00491605804952 to announce the return before returning the goods. In this way you enable us to assign the products as quickly as possible.
(4) Please note that the modalities mentioned in the above paragraphs 2 and 3 are not a prerequisite for the effective exercise of the right of withdrawal.
§ 8 Transport damage
(1) If goods with obvious transport damage are delivered, please complain such errors immediately to the deliverer and contact us as soon as possible.
(2) The omission of a complaint or establishment of contact has no consequences for your legal warranty rights. However, you help us to be able to assert our own claims against the carrier or the transport insurance.
§ 9 Warranty
(1) Unless expressly agreed otherwise, your warranty claims shall be governed by the statutory provisions of the German Sales Act (§§ 433 et seq. BGB).
(2) If you are a consumer within the meaning of § 13 BGB, the liability period for warranty claims for used items – deviating from the statutory provisions – is one year. This limitation does not apply to claims based on damages resulting from injury to life, limb or health or from the breach of an essential contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligation) as well as to claims based on other damages resulting from an intentional or grossly negligent breach of duty by the user or his vicarious agents.
(3) Otherwise, the statutory provisions shall apply to the warranty, in particular the two-year limitation period pursuant to § 438 para. 1 no. 3 BGB.
(4) If you are an entrepreneur within the meaning of § 14 BGB, the statutory provisions shall apply with the following modifications:
– Only our own information and the manufacturer’s product description are binding for the quality of the goods, but not public praise and statements or other advertising by the manufacturer.
– You are obliged to inspect the goods immediately and with due care for deviations in quality and quantity and to notify us of obvious defects within 7 days of receipt of the goods. Timely dispatch is sufficient to meet the deadline. This shall also apply to hidden defects discovered later from the time of discovery. The assertion of warranty claims is excluded in the event of violation of the obligation to inspect and give notice of defects.
– In the event of defects, we shall, at our discretion, provide a warranty by repair or replacement (subsequent performance). In the event of rectification, we do not have to bear the increased costs arising from the transport of the goods to a location other than the place of performance, provided that the transport does not correspond to the intended use of the goods.
– If the subsequent performance fails twice, you can demand a reduction of the purchase price or withdraw from the contract at your discretion.
– The warranty period is one year from delivery of the goods.
§ 10 Liability
(1) Unlimited liability: We are liable without limitation for intent and gross negligence as well as in accordance with the Product Liability Act. In the event of slight negligence, we shall be liable for damages resulting from injury to life, limb and health of persons.
(2) Otherwise, the following limited liability shall apply: In the event of slight negligence, we shall only be liable in the event of breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which you may regularly rely (cardinal obligation). Liability for slight negligence is limited to the amount of damages foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected. This limitation of liability shall also apply in favour of our vicarious agents.
§ 11 Alternative Dispute Resolution
The EU Commission has provided a platform for out-of-court dispute resolution. This gives consumers the opportunity to initially resolve disputes in connection with their online order without the intervention of a court. The dispute resolution platform can be accessed via the external link http://ec.europa.eu/consumers/odr/ . We endeavour to settle any differences of opinion arising from our contract by mutual agreement. In addition, we are not obliged to participate in any arbitration proceedings and may refuse to allow you to participate in any such proceedings.
such procedures unfortunately also not offer.
§ 12 Final provisions
(1) Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
(2) Contracts between us and you shall be governed exclusively by German law to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG, “UN Sales Convention”). Mandatory provisions of the country in which you usually reside shall remain unaffected by the choice of law. (3) If you are a merchant, a legal entity under public law or a special fund under public law, our place of business shall be the place of jurisdiction for all disputes arising from or in connection with contracts between us and you.
Copyright: HÄRTING Attorneys at Law, www.haerting.de, email@example.com
Chausseestraße 13,10115 Berlin, Phone (030) 28 30 57 40, Fax (030) 28 30 57 4